Watson v R

1. [1]

   THE COURT: On 21 September 2022, the Court heard (and allowed) an urgent appeal pursuant to s 5G of the Criminal Appeal Act 1912 (NSW) from the decision of Walton J (the trial judge) to discharge the whole jury in the applicant accused’s trial for the murder of William Chaplin between 31 March 2010 and 30 May 2010 at Gerogery in the State of New South Wales: R v Watson [2022] NSWSC 1243 (the Discharge Judgment or DJ).

2. [2]

   Consistent with authorities such as Barber v R; Zraika v R [2016] NSWCCA 125 and R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135 (Lamb), the trial judge stayed his decision to discharge the jury pending an urgent appeal by the accused who we shall refer to as the applicant.

3. [3]

   These are our reasons for granting leave to appeal, allowing the appeal, setting aside the trial judge’s orders discharging the jury and ordering a new trial and, in lieu thereof, dismissing the Crown’s application for the discharge of the whole of the jury pursuant to s 53C(1)(a) of the Jury Act 1977 (NSW).

Background

1. [4]

   The trial commenced on 5 September 2022, originally having been set down for three weeks.

2. [5]

   The Crown closed its case on the fifth day of the trial, Friday 9 September 2022.

3. [6]

   No evidence was called for the accused.

4. [7]

   The Court did not sit on 12 September 2022 with 13 September 2022 being reserved to hear argument as to directions, and with 14 and 15 September reserved for closing submissions and summing up respectively.

5. [8]

   To pick up the narrative from the Discharge Judgment at [8]-[10]:

6. [9]

   The trial judge received a note (Jury Note 3) from the juror who had spoken to the court officer (the witness juror) dated 14 September 2022. Jury Note 3 was in the following terms:

7. [10]

   The witness juror was asked questions by the trial judge in relation to Jury Note 3 on the morning of 14 September 2022.

8. [11]

   In relation to the witness juror’s recollections as to the matters referred to in paragraphs 5, 6 and 7 of Jury Note 3, the witness juror said that none of these matters were the subject of any discussion in the jury room.

9. [12]

   The witness juror clarified that what was referred to in paragraph 5 of Jury Note 3 occurred on the first day of the trial “immediately when we exited the courtroom for the first time”, that the matter referred to in paragraph 6 of Jury Note 3 occurred on the second day of the trial, and that he did not recall when the matter referred to in paragraph 7 occurred.

10. [13]

    The juror also clarified that the matters referred to in paragraphs 3(a), (b) and (d) of Jury Note 3 were not discussed with other members of the jury but that it was “possible” that the matter referred to in paragraph 3(c) was.

11. [14]

    At noon on 14 September 2022, the foreperson of the jury was called and examined.

12. [15]

    The trial judge drew the foreperson’s attention to paragraph 5 of Jury Note 3. The foreperson said that she was not aware of the circumstance there described as having occurred.

13. [16]

    The foreperson’s attention was then drawn to paragraph 6 of Jury Note 3. The foreperson said that she was “aware that that occurred” and said:

14. [17]

    The foreperson said that she was “unsure” if everyone was assembled in the jury room at the time of the occurrence of the matter referred to in paragraph 6 of Jury Note 3. The foreperson said that there was no conversation about the subject matter referred to in paragraph 6 of Jury Note 3 other than that “a comment was made that we didn’t think we should know that information”.

15. [18]

    The foreperson said that she did not know of nor had she observed “any other occurrences of that kind or other irregularities in the jury room since the beginning of the trial”.

16. [19]

    After the foreperson gave her evidence, she was inadvertently returned to the jury room rather than kept separated from the balance of the jury as the trial judge had evidently intended pending the resolution of the discharge applications. After the luncheon adjournment, the trial judge reported this to counsel. At 3.12 pm in the presence of the foreperson, the trial judge said to her:

17. [20]

    At 3.20 pm, according to the note of the applicant’s solicitor, the jury returned and were addressed by the trial judge as follows, before retiring at 3.22pm:

18. [21]

    At 3.29 pm on 14 September 2022, after the jury had retired but whilst the trial judge was still discussing the matter with counsel, the trial judge said “[s]peaking of the devil, I have a jury note. Well, this will be jury note 4.” His Honour had evidently been handed the note by the Court Officer or his Associate. Jury Note 4, which his Honour read to counsel, was in these terms:

19. [22]

    After receipt of this note, according to the narrative of events provided by the trial judge at DJ [30]–[31]:

20. [23]

    On 15 September 2022, prior to giving his reasons, the witness juror provided a further note to the trial judge (Jury Note 5) in which he revealed that he had disclosed certain matters about which he was concerned to persons outside the jury and may have disclosed other matters in relation to the trial to a number of outsiders.

The Discharge Judgment

1. [24]

   The trial judge noted at the outset of his reasons in summary form the following standard directions which he had given to the jury on the first day of the trial in written and oral form: DJ [5]. These gave context to his subsequent reasons, and were as follows:

2. [25]

   The trial judge then recited the parties’ respective submissions and various authorities in relation to the discharge of juries, including the important proposition associated with the High Court’s decision in Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 (Crofts), namely that trial judges are required to be satisfied to a "‘high degree of necessity’ before discharging the jury”. That proposition dates back to the observations of Erle CJ in Winsor v R (1866) LR 1 QB 390 at 394.

3. [26]

   The trial judge then proceeded to express his conclusions as follows:

4. [27]

   Consistent with Lamb, the trial judge stayed his order discharging the whole of the jury pending the hearing and determination of the appeal pursuant to s 5G of the Criminal Appeal Act.

Grounds of appeal

1. [28]

   The applicant sought leave to appeal on the following grounds:

2. [29]

   Written submissions were received from both the applicant, for whom Mr Agius SC appeared, and the Crown, for whom Mr Newton appeared. Oral argument was also entertained. The Court had before it relevant portions of the transcript of the proceedings before the trial judge, the trial judge’s written directions to the jury, the written submissions at first instance in relation to the discharge application, as well as the various jury notes.

Relevant legislation and authorities

1. [30]

   Section 5G of the Criminal Appeal Act provides that:

2. [31]

   In the present case, the jury was discharged pursuant to s 53C(1)(a) of the Jury Act, which is in these terms:

3. [32]

   Section 53C(1)(a) was engaged because of the Court’s decision to discharge the witness juror for the reasons provided by the trial judge at DJ [57]-[77], reproduced at [26] above.

4. [33]

   It is also relevant to note the terms of s 68C of the Jury Act which provides:

5. [34]

   In Crofts at 440-441, albeit in the context of a non-statutory test for the discharge of the jury, Toohey, Gaudron, Gummow and Kirby JJ emphasised the discretionary nature of a decision whether or not to discharge a jury and said:

6. [35]

   In support of the deference that should be given to the trial judge’s assessment, see also Trieu v R [2012] NSWCCA 169 at [28] (Trieu); Zheng v R; Li v R; Pan v R (2021) 104 NSWLR 668; [2021] NSWCCA 78 at [97] (Zheng).

7. [36]

   The observations in Crofts as to the “high degree of necessity” required before a jury will be discharged have already been noted at [25] above. They appear in both the dissenting judgment of Dawson J (“high degree of need” at 432) as well as in the majority’s decision (at 440), approving the employment of that phrase by the New South Wales Court of Criminal Appeal. Justice Dawson also emphasised (at 432) that the discretion was “to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice.” As will be pointed out, it is highly significant that the applicant pointed to no such apprehension of a risk of miscarriage of justice or a substantial miscarriage of justice, to use the language of s 53C(1)(a) of the Jury Act in the event that the jury was not discharged. Indeed, he opposed the discharge of the whole of the jury (but not the discharge of the witness juror), and continues that opposition by pursuing this s 5G appeal.

8. [37]

   Crofts’ reference to the requirement of a high degree of need or necessity to be established before a jury should be discharged has been either quoted with approval or referred to in a large number of decisions of the New South Wales Court of Criminal Appeal, including Clark v R [2010] NSWCCA 94 at [68]; GAR v R (No 2) [2010] NSWCCA 164 at [59]; Trieu at [28]; Mikael v R [2015] NSWCCA 294 at [43]; Hamide v R [2019] 101 NSWLR 455; [2019] NSWCCA 219 at [7] (Hamide); Medich v R [2021] NSWCCA 36; (2021) 390 ALR 398 at [84]; and Pratten v R [2021] NSWCCA 251 at [158].

9. [38]

   There are sound and obvious reasons for a high degree of necessity to be established before a jury should be discharged, especially in circumstances where the hearing of the trial is well advanced, where an accused has been in custody awaiting trial for a number of years and does not seek a discharge, and where any irregularity may be able to be cured by directions to the jury. That having been said, s 53C(1)(a) of the Jury Act requires a trial judge to discharge the whole of the jury, following the discharge of one juror, where he or she forms the opinion that there is a risk of a substantial miscarriage of justice if that course is not taken.

10. [39]

    In Haile v R [2022] NSWCCA 71 (Haile), Bellew J (with whom Bell CJ and Ierace J agreed) observed at [199]-[201] that (omitting footnotes):

11. [40]

    Considerations relevant upon an application to discharge the whole of the jury include but are not limited to the extent of the prejudice to the accused; the ability to ameliorate that prejudice to any degree by direction, comment or other step; and the stage that the proceedings have reached: R v Ahola (No 6) [2013] NSWSC 703 at [18] (Ahola). This decision was referred to with approval by the Court of Criminal Appeal in Younan v R [2016] NSWCCA 248; (2016) 316 FLR 122, where Beazley P observed, with reference to Ahola, that “the authorities did not require or encourage trial judges to take an overly sensitive approach to the accidental receipt of prejudicial material”: at [39].

12. [41]

    Justice Bellew’s judgment in Haile also provides a useful summary of the important observations by Spigelman CJ in R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377 in relation to irregularities, including irregularities involving a jury, and the requirement of materiality. His Honour said at [243], omitting footnotes and with our emphasis added:

13. [42]

    The reference to “materiality” in subparagraph (iv) in the above passage was expressed in the context of the jury having given their verdicts but is readily transposed to a case such as the present where the inquiry is as to whether an irregularity may have an effect on any ultimate verdict. The obverse of the requirement for materiality is that not every irregularity will be prejudicial: Hamide at [101].

14. [43]

    The standard of appellate review to a decision to discharge a jury is that associated with House v The King (1936) 55 CLR 499; [1936] HCA 40: see, for example, Lamb at [39]-[40]; Curran v R [2017] NSWCCA 123; Barber at [24]; Zheng at [98]. Consistent with the House v The King standard of review and the “leeway” to be afforded to a trial judge (see Crofts at 440), it was observed in Libdy v R [2021] NSWCCA 34 at [19] that “[g]enerally, an intermediate appellate Court is cautious in interfering with the decision of a trial Judge to discharge a jury”.

15. [44]

    An appellate court must be conscious of the fact that merely because it may have come to a different view in all of the circumstances to the trial judge does not mean that the test in House v The King for appellate review of the exercise of judicial discretion (or the making of an evaluative judgment) will be made out: see Lamb at [39].

16. [45]

    Reference should also be made to the decision of the High Court in Hoang v The Queen [2022] HCA 14; (2022) 96 ALJR 453 (Hoang) as reliance was placed upon it by the Crown and it was referred to by the trial judge in his reasons. That decision was concerned with individual juror misconduct within the meaning of s 53A of the Jury Act. In that context, reference was also made to Part 9 of the Jury Act and s 68C(1), which prohibits a juror in any criminal proceedings making an inquiry for the purpose of obtaining information about any matters relevant to the trial except in the proper exercise of their functions as a juror. As the Court in Hoang observed at [14], “[s]ection 53A(1)(c) imposes a mandatory duty upon a court to discharge a juror if, in relation to a trial, they have engaged in misconduct, being, relevantly, conduct that constitutes an offence against the Jury Act – including an offence against s 68C.”

17. [46]

    Hoang was not concerned with the discharge of the whole of a jury following the discharge of a single juror pursuant to s 53C of the Jury Act on the basis that the failure to do so would give rise to the risk of a substantial miscarriage of justice. Rather, the case was concerned with the question of whether this Court had erred in its conclusion on the particular facts of that case that a particular juror had not engaged in juror misconduct. In the context of its consideration of s 68C(1) and the question of whether an inquiry made by a juror was a “matter relevant to the trial”, the Court in Hoang said at [32] that:

18. [47]

    To this observation we would add that the concept of relevance in this context should also be understood by reference to the definition of “relevance” in s 55 of the Evidence Act 1995 (NSW), namely “evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”.

Consideration

1. [48]

   It is important to identify what emerged from the evidence before the trial judge about the conduct of members of the jury (other than the witness juror who was discharged prior to the discharge of the balance of the jury).

2. [49]

   First, according to Jury Note 3 but unbeknown to the foreperson of the jury, an unspecified juror “searched the name ‘Gerogerie’ on their phone, then immediately switched their phone off saying that a media report had shown up.” This was said to have happened, and the Crown accepted that it had happened, on day one of the trial before the jury was given instructions as to the need not to make any inquiries in relation to matters associated with the trial. The witness juror confirmed under cross examination that this matter was not the subject of any discussion in the jury room by the jury.

3. [50]

   Second, according to Jury Note 3, another juror reported to the jury the current population of Gerogery. The witness juror did not identify that other juror’s source of that information, and the foreperson indicated in her evidence to the trial judge that the juror in question was aware of that information. That is to say, there was no evidence that the information was ascertained from an external source. According to the foreperson, there was no discussion about that information other than a comment that “we didn’t think we should know that information”. The witness juror also confirmed under cross examination that this matter was not the subject of any discussion in the jury room by the jury.

4. [51]

   Third, according to Jury Note 3, “another juror shared with a non-juror that this was a murder trial”. The witness juror also confirmed under cross examination that this matter was not the subject of any discussion in the jury room by the jury.

5. [52]

   Fourth, whilst the witness juror was separated from the balance of the jury pending the judge’s determination as to the witness juror’s discharge, the balance of the jury submitted the three questions to the Court that formed the basis of Jury Note 4 referred to at [21] above.

6. [53]

   Fifthly, according to Jury Note 3, on one occasion after returning to the jury room, “many jurors laughed in response to [an unidentified] witness’ testimony”.

7. [54]

   It is convenient to deal with appeal ground (d) first because, in our opinion, the observations made in DJ [62], [66] and [71] are not supported by the evidence before the trial judge on the discharge application. In particular, there was in our view no proper foundation for the observations made by the trial judge at DJ [62] that:

8. [55]

   The trial judge’s remarks at DJ [62] and [71] must be considered in a context where the trial judge had already discharged (or determined to discharge) the witness juror who, it may be accepted, had himself disregarded the primary judge’s directions not to discuss the case with anyone other than fellow jurors. But, by the time the trial judge came to consider the discharge of the whole of the jury, the jury must not have included the witness juror as the s 53C(1)(a) power is necessarily predicated upon the prior discharge of a juror.

9. [56]

   Who, then, constituted the “number of members of the jury who have disregarded … the directions given by the Court” and what were the “numerous occasions” when this was said to have occurred? Which jurors engaged in the conduct referred to in paragraphs 3(c) and (d) and 5 and 6 of Jury Note 3? Neither the jurors nor the numerous occasions were identified in terms by the trial judge.

10. [57]

    First, the juror who was said by the witness juror to have searched “Gerogery” on his phone did not violate any directions given by the Court as it was accepted by the Crown that that conduct occurred prior to the giving of directions. It might be observed, moreover, that, according to the witness juror’s evidence, the juror who commenced the search of Gerogery “immediately” shut it down when he or she discovered that it identified a media report. Such conduct demonstrated an understanding of the juror’s appreciation that he or she should not expose him or herself to such external information.

11. [58]

    Second, the weight of the evidence and, in particular, that of the foreperson, suggested that the statement by a second juror as to the population of Gerogery derived from the juror’s own knowledge of that fact. On this footing, it was not the result of some external inquiry and thus not a breach of any direction of the trial judge.

12. [59]

    Third, the fact that a further juror “shared with a non-juror that this was a murder trial” is arguably a breach of the trial judge’s first direction not to discuss the case with anyone other than fellow jurors, although this statement alone (which was as high as the vague evidence arose) might be doubted to amount to a “discussion” or at least a discussion of the kind the trial judge’s direction was intended to warn against.

13. [60]

    Fourth, the jury’s formulation of three further questions for the trial judge in Jury Note 4 may have amounted to a breach of the trial judge’s direction not to “discuss the case with anyone apart from your fellow jurors in the privacy of the jury room when every other member of the jury is present”(see at [24] above), but even this conclusion was far from self-evident: the questions may have been formulated following a discussion in the absence of the witness juror or they may have been formulated at an earlier point in time when the jury was all together and they were sent to the judge on the afternoon of 14 September 2022 immediately after the jury had retired for the day. In any event, for reasons explained below, if breach there was, it was wholly immaterial as the only juror suggested to have been absent from the assumed discussion was the witness juror who was subsequently discharged.

14. [61]

    The foregoing analysis exposes an important factual error in the trial judge’s reasoning such that, in our view, appeal ground (d) is sustained. In terms of DJ [62], the conduct referred to in paragraphs 3(c) and 3 (d) of Jury Note 3 was engaged in by the witness juror and not any other member of the jury, and the conduct referred to in paragraphs 5 and 6 of Jury Note 3 did not involve breaches of any relevant directions, for reasons explained above. DJ [71] effectively picks up the erroneous legal and factual conclusions contained in DJ [62].

15. [62]

    House v The King opens up the review of a discretionary decision to which appellate deference would otherwise be due where it is tainted by an error of fact such as that we have identified above.

16. [63]

    Turning to the other appeal grounds, at DJ [77], the trial judge expressed the opinion that the “continuation of the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice”. Apart from his Honour’s conclusions expressed in DJ [62], [71] and [72], which were the subject of appeal ground (d) and which we consider were without proper basis, it was not explained by the trial judge in what respect the four matters referred to at [49]–[52] above were material, especially in circumstances where any concern on the part of the trial judge as to the jury’s adherence to his directions could have been accommodated by “a firm direction against distraction or prejudice”: Lamb at [38].

17. [64]

    The first matter referred to at [49] did not result in the discovery of any information. As to the second matter referred to at [50], the relevance or otherwise of the population of Gerogery in 2022 was not explained either generally or in the context of a murder alleged to have taken place in 2010. Moreover, Gerogery was described by the Crown in opening as a “small country town”. The third matter referred to at [51] related to an unidentified juror’s alleged statement to a third party that the case was a murder trial. That was an obvious, publicly known matter. Its disclosure to a person outside the jury could not conceivably be material. As to the fourth matter referred to at [52], there was also no materiality as the questions were formulated by the whole of the jury other than the discharged witness juror.

18. [65]

    The only other strand of his Honour’s reasoning which could conceivably support the conclusion that there was a risk of a substantial miscarriage of justice was the discussion of the fact recorded in Jury Note 3 at 3(c) that “many jurors laughed in response to a witness testimony”. As to this, the trial judge said at DJ [58] that he accepted the Crown’s submissions that:

19. [66]

    One difficulty with this observation is that paragraph 3(d) of Jury Note 3 was not apparently directed to any discussion by the witness juror with other jurors. That subparagraph stated that the witness juror “told a person I was having trouble comprehending how a witness could lie so boldly”. That “person” was not said to be a fellow juror, but the trial judge appears to have proceeded on the unwarranted assumption that he or she was.

20. [67]

    The trial judge was concerned that there was a risk that the Crown or senior counsel for the accused may tailor their submissions to the jury in a manner responsive to what they had learnt from Jury Note 3, and referred (at DJ [61]) to the “incursion into the sanctity of the jury room” as something that was “significantly corrosive of the administration of justice”, going on to state (at DJ [61]-[62]) that “[i]t is an essential part of the administration of the criminal justice system that jury deliberations are confined to the jury room when all members of the jury are together in that place.”

21. [68]

    This last statement might be readily accepted, but decisions such as those cited by his Honour requiring irregularities to be “material” and that there should be a “high degree of necessity” before a jury will be discharged demonstrate that not every irregularity or departure from the ideal will result in discharge. As has been said, “[t]he criminal justice system in its practical operation is not perfect, and it must be remembered and appreciated that a fair trial is not synonymous with a perfect trial: Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [89]; R v Edwards [2009] HCA 20; (2009) 255 ALR 399 at 405 [31]”: Hamide at [87].

22. [69]

    More significantly, an inquiry into a substantial miscarriage of justice focuses principally upon the impact of the irregularity on an accused person’s ability to obtain a fair trial: see [36] and [41] above. This, with respect, appears to have been somewhat lost sight of in the decision of the trial judge. The accused evidently perceived no unfairness or risk of unfairness to him in the jury continuing, notwithstanding what had been disclosed.

23. [70]

    Furthermore, it was not clear how any unfairness to the Crown arose in circumstances where it was and had been made obvious from Mr Agius’ opening to the jury that the credit of Crown witnesses would squarely be in issue. Thus, in his opening submissions to the jury, he had said:

24. [71]

    There was no suggestion that there had been any failure by Mr Agius to discharge his Browne v Dunn obligations in putting to witnesses whose credit he proposed to impugn in final address that their evidence was not accurate or honest.

25. [72]

    In addition to the applicant’s success on ground (d), he should also succeed in respect of his challenge to the trial judge’s conclusion that to continue with the balance of the jury would give rise to a risk of a substantial miscarriage of justice and that there was a high degree of necessity that the jury be discharged.

26. [73]

    It was for these reasons that the appeal was upheld and the decision of the trial judge to discharge the whole of the jury following the discharge of the witness juror and to order a new trial was set aside.

27. [74]

    As this was an appeal by way of rehearing, and s 75A(10) of the Supreme Court Act 1970 (NSW) authorises the Court to “make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires”, it was also appropriate for the Court to consider by way of rehearing the Crown’s application for discharge of the whole of the jury.

28. [75]

    In doing so, we had regard to the evidence that was before the trial judge on the discharge application, namely the jury notes and the examination of the witness juror and the foreperson of the jury. We also had regard to the arguments that had been advanced before the trial judge together with the additional submissions advanced on appeal.

29. [76]

    We did not reach the opinion that there was a risk of a substantial miscarriage of justice if the jury was not discharged, and thus the predicate to a decision to discharge pursuant to s 53C(1)(a) of the Jury Act was not satisfied. In addition, but noting the importance not to gloss the statute, we did not consider there to be any necessity or need, let alone a high degree of necessity, for the jury to be discharged in the present case.

30. [77]

    The matters relied upon by the Crown in aid of its application were either not breaches of any directions by the trial judge or, to the extent that there were any such breaches, they were not of any materiality, for the detailed reasons explained above.

31. [78]

    That the witness juror’s perception that some unidentified number of jurors laughed at an unidentified witness’ evidence (a perception that was evidently not shared by the foreperson of the jury cf Vella v R [2022] NSWCCA 204 at [136]), and this fact became known to counsel on both sides of the record as the result of the disclosure to them of Jury Note 3, did not generate a risk of a substantial miscarriage of justice. This was a case where the credit of Crown witnesses was always going to be in play, and vigorously so, as the opening by Mr Agius, extracts of which are set out at [70] above, made plain. It would be inevitable that the credibility of at least some of the Crown’s witnesses would be attacked and held up to ridicule, and it would be equally inevitable that the Crown would, to the extent ethically available, seek to uphold the credibility of witnesses whose evidence was the subject of attack by the accused.

32. [79]

    However unfortunate the disclosure of the witness juror’s perceptions of other unidentified jurors’ reaction to certain evidence of an unidentified Crown witness may have been, it did not imperil the fairness of the trial nor generate the risk of a substantial miscarriage of justice.

33. [80]

    Although the decision is ultimately for the judge asked to exercise the power conferred by s 53C(1)(a) of the Jury Act, and although a prosecutor, in the discharge of his or her special responsibilities, should be astute to any risk that a substantial miscarriage of justice may occur, the accused and his or her counsel also have an obvious, close and vital interest in ensuring that any risk of a substantial miscarriage of justice be avoided.

34. [81]

    It will be a rare case that a jury will be discharged on the basis of a risk of a substantial miscarriage of justice where, in circumstances such as the present case, the accused, represented by senior counsel of vast experience, strongly opposes the discharge.