R v JH (No 3)

1. [1]

   On 28 August 2014 I made a finding that a juror had engaged in misconduct within the meaning of the Jury Act 1977 (“the Act”) and ordered that that juror be discharged. The trial proceeded with the eleven remaining jurors. I gave a brief statement of the reasons for that finding and indicated that more detailed reasons would be given on a later date.

Factual Background

1. [2]

   At about 12.20pm on 28 August 2014 I received a note from the jury, which was marked as MFI 14. The note, written by the foreperson of the jury, advised that a juror had told the foreperson that they had searched for a photo of the deceased on the internet. The jury note stated that the foreperson had not repeated that information to any other juror.

2. [3]

   After consultation with counsel, I directed the Sheriff’s Officer to request the individual juror leave the jury room and wait in a separate room. I then directed the Sheriff’s Officer to request the foreperson accompany him into the courtroom.

3. [4]

   I proceeded to conduct an examination of the foreperson pursuant to s 55DA of the Act. That section relevantly provides that “a judge may examine a juror on oath to determine whether a juror has engaged in any conduct that may constitute a contravention of s 68C”.

4. [5]

   Section 68C is in the following terms:

5. [6]

   Accordingly, the foreperson was affirmed and gave answers to questions put during the course of the examination as follows:

6. [7]

   Following the examination of the foreperson, the Sheriff’s Officer was directed to bring the juror in question brought into the courtroom.

7. [8]

   At about 12.30pm the juror in question was sworn and gave the following answers during the course of the examination as follows:

8. [9]

   Ms Hickleton, counsel for the accused, then indicated that she wished to raise a matter. I asked the juror to leave the courtroom so that matter could be addressed. After I had heard from Ms Hickleton I asked the Sheriff’s Officer to bring the juror back into the courtroom for the purposes of seeking clarification on a number of matters:

Submissions on the Application that the Relevant Juror be Discharged

1. [10]

   Ms Hickleton, counsel for the accused, made an application that the juror in question be discharged.

2. [11]

   I subsequently heard submissions from counsel for the Crown and the accused on the question of whether the juror should be discharged. This included submissions on the question of whether the juror’s internet searches for photographs of the deceased constituted misconduct on the basis that it was “an inquiry for the purpose of obtaining information about the accused, or any matters relevant to the trial”, within the meaning of s 68C of the Act.

3. [12]

   Ms Hickleton submitted that the provisions of the Act mandated that the juror in question be discharged as a consequence of what she submitted was “misconduct” by the juror in question.

4. [13]

   Ms Hickleton observed that evidence to be tendered or led at trial by the Crown had to be “appropriate material”. Had the Crown sought to tender the photograph the juror located, Ms Hickleton indicated she would have objected to it “strongly” on the bases of relevance and that “it was a photograph of the nature that was liable to inspire emotion in one or more members of the jury”.

5. [14]

   It was further argued that even though the juror’s aims may have been innocent, the Act regards individual juror inquiries so seriously that it requires the juror to be discharged. It is not a matter of discretion.

6. [15]

   The Crown opposed the application to discharge the juror on the basis that the photograph did not constitute “anything relevant for the purposes of the trial” within the meaning of the Act. This was on the basis that the identity of the deceased was not an issue in the trial and that it was not a matter of research into the evidence or the law that governs the trial or the admission of evidence. Accordingly, it was argued, the conduct was not such that it could be characterised as “misconduct” and was not capable of giving rise to the risk of a substantial miscarriage of justice. The meaning, it was observed, of “misconduct” is to be given a wide operation.

7. [16]

   The Crown acknowledged that the photograph amounted to “extraneous material that is capable of exciting the emotion or prejudice”.

8. [17]

   The Crown further submitted that the photograph located by the juror was “more akin to media reporting than it is to the vice of research on the Internet”, given that the relevant photograph was one published by the news media. The Crown additionally argued:

9. [18]

   In the circumstances, the Crown submitted, the jury should instead receive a further direction with respect to research, investigations, and media reports.

10. [19]

    On the first day of this trial I directed the jury panel as to the need to disregard any publicity or media reports regarding this trial. I further directed the jury in respect of conducting their own research:

11. [20]

    Accordingly, were a juror to conduct research on the internet and make his or her own inquiries, he/she would do so in breach of the trial directions I gave as well as the provisions of s 68C of the Act. Additionally, of course, it would not be a proper exercise by the juror of his or her functions as a juror: s 68C(4).

12. [21]

    Section 53A of the Act provides that the court must discharge a juror if, in the course of the trial, the juror has engaged in misconduct in relation to the trial. The term “misconduct” is defined in that section as “conduct that constitutes an offence against this Act” or “any other conduct that, in the opinion of the court or coroner, gives rise to the risk of a substantial miscarriage of justice in the trial or inquest”. The provisions of s 68C make it an offence for a juror to make certain inquiries except in the proper exercise of his or her functions as a juror.

13. [22]

    The provisions of s 53B of the Act, I note, confers on the court the discretion to discharge a juror if “it appears to the court or coroner that, for any other reason affecting the juror’s ability to perform the functions of a juror, the juror should not continue to act as a juror”.

14. [23]

    Both sections of the Act operate to ensure that an accused has a fair trial on the evidence by an impartial jury.

15. [24]

    In R v Sio (No 3) [2013] NSWSC 1414, Adamson J observed at [5]:

16. [25]

    In determining whether the conduct of the juror in question constitutes an offence under s 68C, it is necessary to determine whether the research went towards “any matters relevant to the trial”.

17. [26]

    The meaning of the word “relevant” in that section is one that should be construed, in my opinion, in accordance with its ordinary meaning and not, for example, by reference to the meaning of that term as employed in s 55 of the Evidence Act 1995. For a matter to be “relevant” to the trial it would therefore be one that “touches or concerns” or “bears upon” the trial.

18. [27]

    I am satisfied on the evidence before me that the inquiries made by the juror could amount to an inquiry for the purpose of obtaining information about a matter relevant to the trial. That inquiry was not a proper exercise of her functions as a juror.

19. [28]

    I am further satisfied that the juror’s conduct in undertaking the inquiry and obtaining a photograph of the deceased was conduct that could affect her ability to perform her functions objectively and impartially as a juror. In the circumstances to which I have referred, the court in my opinion was required to exercise its discretion to discharge the juror in accordance with s 53B of the Act.

20. [29]

    As stated above, on 28 August 2014 I made a finding that the juror be discharged from the jury pursuant to s 53B of the Act. I ordered that that juror be issued a certificate pursuant to s 55DA of the Act.

21. [30]

    The jury, consisting of eleven jurors, were then brought back into the court and informed that the relevant juror has been discharged.

Discussion

1. [31]

   The rules of evidence exist to ensure that only relevant and admissible material, within the meaning of the Evidence Act 1995, are presented before a jury in a criminal trial. Justice Holmes of the United States Supreme Court in 1907 (significantly before the advent of the internet) stated:

2. [32]

   It is well-established that independent research carried out by a juror during a trial constitutes juror misconduct, whether it be in the form of conducting internet research as to matters of fact or law, or, for example, by making a private visit to the alleged scene of the offence to ascertain matters such as available lighting in the vicinity: see, for example, R v Bilal Skaf, R v Mohammed Skaf [2004] NSWCCA 37.

3. [33]

   Today, media reports, “blogs”, social networking websites and general research websites such as Wikipedia and Google are readily available to all. This has unfortunately contributed to instances of jurors conducting both legal and factual research online, in breach of trial directions. Such research may in some circumstances result in the discharge of the whole jury, resulting in a re-trial, or the setting aside of a conviction on appeal.

4. [34]

   The increasing prevalence of technology has presented difficulties for the criminal justice system, in particular, in quarantining jurors from inadmissible evidence and irrelevant material. Despite the provisions of s 68C of the Act which specifically proscribe internet research for the purpose of jurors making their own inquires, and making it an offence to undertake such research, recent cases, both in Australia and in overseas jurisdictions, illustrate that some jurors, by reason of simple curiosity or otherwise, have failed to comply with directions given to them in this respect.

Relevant Case Law

1. [35]

   I have set out below a number of cases from Australia and the United Kingdom in an effort to identify the approaches taken to external juror research and also the prevalence of same.

2. [36]

   There are few cases within New South Wales that address juror misconduct in the context of independent internet research.

3. [37]

   One of the earlier cases concerning such misconduct is R v K [2003] NSWCCA 406. That case pre-dates the amendments to the Act making it an offence for a juror to make an inquiry for the purpose of obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions as a juror.

4. [38]

   In R v K the evidence on appeal established the following:

5. [39]

   After having regard to the nature of the inquiries made, Wood CJ at CL (with whom Grove and Dunford JJ agreed) reached the following conclusion:

6. [40]

   The Court in R v K quashed the conviction and sentence and directed that there be a new trial.

7. [41]

   In Folbigg v R [2007] NSWCCA 371, the Court of Criminal Appeal dismissed an appeal brought in respect of juror research conducted during the course of the trial, but was not discovered until after the trial had concluded.

8. [42]

   On the hearing of the appeal the following agreed facts were tendered:

9. [43]

   Accordingly, it was submitted on behalf of the appellant that “the material procured by the jurors was prejudicial to the appellant and contrary to the requirement that the jury should be confined to evidence properly before them”: at [44].

10. [44]

    In that case McClellan CJ at CL delivered the leading judgment (with whom Simpson and Bell JJ agreed). His Honour stated at [51] that:

11. [45]

    His Honour proceeded to find that the jury verdicts, including a verdict of not guilty to murder on Count 1 but guilty to manslaughter, as well as their numerous jury notes, “indicate that they carefully considered the evidence and in particular the question of the appellant’s intention”: at [61]. Accordingly, his Honour concluded that “although the irregularities should not have occurred, for the reasons I have given I am satisfied that they were not material and did not give rise to a miscarriage of justice”: at [62].

12. [46]

    Both of the above authorities concern instances of individual juror research discovered after the jury returned their verdicts and which were then challenged on appeal.

13. [47]

    More recently there have been two examples in this Court of internet research conduct by a juror and discovered during the course of the trial, both as to matters of law: R v Sio (No 3) [2013] NSWSC 1414; R v JP (No 1) [2013] NSWSC 1678.

14. [48]

    In the first of those cases, R v Sio (No 3), Adamson J ordered the discharge of a juror pursuant to s 53A after a jury note advised a juror had conducted research at home relating to “obligations of law”. That juror had also taken home a copy of the indictment and written directions as to law. Her Honour noted that having determined that the juror engaged in misconduct, the Act mandated that the juror be discharged.

15. [49]

    In the other case, R v JP (No 1), I ordered the discharge of a juror who had conducted research as to the legal definitions of murder and manslaughter. That juror had also discussed the results of the research with other jurors. It was not disputed that that research amounted to “any matters relevant to the trial”. Accordingly, having regard to the juror’s conduct, I determined that such research constituted “misconduct” within the meaning of the Act and discharged the juror pursuant to s 53A. There was not sufficient basis for the discharge of the jury as a whole: R v JP (No 2) [2013] NSWSC 1679.

16. [50]

    The issue of juror misconduct by way of internet research was considered Attorney General v Dallas [2012] EWHC 156, although it is noted that the judgment was given in respect of contempt proceedings brought against the relevant juror. It had been discovered during the course of a trial that the juror had made her own inquiries in relation to the accused’s previous convictions.

17. [51]

    The Lord Chief Justice (delivering the judgment on behalf of the court) noted that such misuse of the internet by a juror constituted a “most serious irregularity”, and stated:

18. [52]

    One of the most prominent UK cases concerning individual juror research is R v Karakaya [2005] EWCA Crim 346. In that case, two documents were discovered by the jury bailiff in the jury room following the appellant’s conviction of indecent assault and rape of his 17 year-old daughter. The documents were entitled “The Feminist Position on Rape” and “Rape and the Criminal Justice System” and additionally contained handwritten notes. Both documents were described by counsel for the appellant as “tendentious and inaccurate, which, on proper analysis, should be treated as arguing that the credibility of complainants in rape cases ought in general to be supported”: at [10]. The Court of Appeal (Lord Justice Judge, Mr Justice Creswell and Mr Justice Fulford) considered this description “not unfair” and noted that in one of the documents it was stated, inaccurately, that before the case reached the Crown Court it would have been examined by three magistrates who would have considered whether there was enough evidence “for a jury to convict on”. It was submitted that the material may also have served to undermine the confidence of the jury in the fairness of the summing up and the accuracy of the judge’s directions of law: at [11].

19. [53]

    Lord Justice Judge delivered the reasons for judgment, and observed that the documents included a number of points which the prosecution could not and would not have made, either in evidence or in an address to the jury. In its judgment the court stated that it did not accept “that the documents should be approached as if they were no more, or not much more, than an exhortation for an unbiased assessment of the credibility of rape victims”.

20. [54]

    The court determined that the downloading of the material and its use by not less than one member of the jury after the jury had retired to consider its verdict contravened “very well-established principles” essential to the concept of a fair trial. In this respect, it was observed:

21. [55]

    Accordingly, the appeal was allowed.

22. [56]

    R v Hawkins [2005] EWCA Crim 2842 concerned a jury note that was sent during the course of deliberations. In that case, the accused had been charged with two counts of drug possession. The jury note was to the effect that a juror had “used the internet to research some generalities on drug addiction and usage, and visited the arrest site”. The jury sought guidance as to whether this was “okay”, having regard to earlier directions given. However, after taking instructions, defence counsel advised that he did not wish to seek a discharge of the juror or the jury, noting that his client was principally concerned with the case concluding.

23. [57]

    The trial judge subsequently directed the jury that they were only to decide the case according to the evidence that had been presented to them in court. Shortly after those directions (23 minutes later), the jury returned unanimous guilty verdicts on both counts.

24. [58]

    On appeal, the Court stated that it was satisfied that the course taken by the trial judge was the appropriate course and was not such that it gave the court any concern as to the safety of the convictions: at [19]. The court, in its “unhesitating judgment”, distinguished Karakaya on the basis that in Karakaya the relevant research had not been drawn to the trial judge’s attention prior to the verdicts, and therefore the material could only be a matter of “serious speculation”. Further, the subsequent directions given by the trial judge were in “unmistakeable terms”. The jury’s note clearly indicated that it was conscious that what had been done by one member of the jury was in apparent contravention of the judge’s instructions: at [17].

25. [59]

    Interestingly, the court further considered that the research materials in Karakaya “arguably went to the root of the case”, and that the materials in the present appeal were “peripheral to the central issues”: at [18].

26. [60]

    In the subsequent case of R v Marshall [2007] EWCA Crim 35, materials were discovered in the jury room following the conviction of the two accused of manslaughter and possession of a firearm with intent to danger life. The materials related to charging and sentencing for firearms cases and sentencing for robbery, homicide and manslaughter. The printed dated on the materials indicated the materials had been sourced on the first day of deliberations.

27. [61]

    In considering the similarities between the present appeal and Karakaya, the court observed:

28. [62]

    It was considered, however, that the case could still be distinguished from Karakaya, because in that case, “the material which had been referred to was of a campaigning nature” and its import was to assert the strong position that people were too frequently acquitted of sexual assault offences: at [11]. Further, it was accepted that the research in Karakaya had been factually inaccurate.

29. [63]

    The court noted that the primary question before it was the safeness of the convictions, and that “if there is any real possibility that the jurors or any of them may have been influenced improperly by this material to convict either defendant…then their convictions would be unsafe”.

30. [64]

    In finding that the convictions were, in fact, safe, the court had regard to the following factors:

31. [65]

    Notwithstanding that determination, the court concluded:

32. [66]

    The English appellate authorities therefore appear to draw a distinction between extraneous material that goes to the “root” of the case and material that is “peripheral to central issues” or of a “campaigning nature”. Therefore, the latter category of material is likely to result in a finding that a substantial miscarriage of justice has occurred “if there is any real possibility that the jurors or any of them may have been influenced improperly by this material to convict either defendant”.

33. [67]

    Whilst this may be an important distinction to be drawn at an appellate level, it cannot be said that this distinction can be equally drawn in respect of materials discovered during the course of a trial and, like in the present case, discovered by only one juror.

34. [68]

    Therefore, in my opinion, the English appellate authorities in this respect should not be considered as limiting a trial judge in New South Wales from exercising the discretion to discharge a juror where any category of extraneous material is discovered, so as to prevent the contamination of a jury and any substantial miscarriage of justice that may result.

Conclusions

1. [69]

   The reasons for prohibiting jurors from making their own inquiries as to matters concerning the trial are, as the court considered in R v Karakaya, “simple”:

2. [70]

   Accordingly, the making of external inquiries gives rise to the risk that the jury’s verdict will not be a true verdict according to the evidence.

3. [71]

   The advent of the internet has facilitated knowledge-sharing on a scale not before seen. We now have at our fingertips information on almost any topic our minds desire. This is not to say, however, that all of this information is accurate or free from bias. Many “blogs”, for example, are designed as a platform to share the author’s personal views on any number of matters. Nor can it be said that “wikis” or any other website that permits editing by its users is independently monitored and fact-checked. Similarly, it cannot be said that any material located relating to the law is current or applicable to the relevant jurisdiction.

4. [72]

   Those examples I have just given are, of course, related to words and text, rather than images.

5. [73]

   In the present case, the image seen by the juror in question (one of the deceased’s parents holding a framed photograph of the deceased) was one that formed part of a media report. That image, whether intentionally or not, is one clearly capable of eliciting strong emotion from the viewer.

6. [74]

   Although the image did not specifically go towards a fact in issue in the trial (unlike in cases, for example, where the size or build of the deceased may be relevant to an accused’s defence of self-defence), it nonetheless had the potential to operate as an extraneous consideration in the relevant juror’s mind during the course of jury deliberations. Had the relevant juror not been promptly quarantined from her fellow jury members, or had other members of the jury viewed the same image, I could not say that I would be satisfied that there existed no risk of a substantial miscarriage of justice.

Orders

1. [75]

   Upon finding that the juror in question engaged in misconduct in breach of s 68C of the Act, I made the following orders on 28 August 2014: