R v Wrigley (No 6)

1. [1]

   HIS HONOUR: The accused, Clinton Wrigley, is on trial on four counts. The first is a count of murder, namely, that on or about 23 January 2023, near Nyngan, he murdered Joel Carter (the deceased). The other three counts on the indictment, involve the theft and/or disposal of property that was allegedly taken from the deceased’s residence, at about the time of his death.

2. [2]

   The jury retired to deliberate on its verdicts on Thursday 15 May 2025. On Friday 16 May, I discharged a juror for misconduct and on Monday 19 May, I determined that the trial would continue with a jury of 11. These are my reasons for those determinations.

3. [3]

   Relevant background for the purposes of this judgment is that a key Crown witness who is subject to a non-publication order, and who I will refer to for that reason as witness A, gave evidence of some of the accused’s movements in the hours immediately prior to and after the time frame within which the four offences were likely committed. Evidence before the jury included information that, at the time, witness A had two brothers who had served or were still serving lengthy prison sentences for offences involving the supply of prohibited drugs. The jury were not informed that witness A had another sibling who at the time of the murder had a senior oversight role with regards to the New South Wales Police Force.

4. [4]

   A central plank of the case for the defence involved an attack on witness A’s credibility and the contention that he had a motive to have committed or organised the murder himself. The defence relied upon the forensic identification of witness A’s DNA that was located on a curtain that was in close proximity to the deceased’s body, following its discovery; in other words, what was submitted to be an alternative reasonable hypothesis for at least the murder count. The presence of witness A’s DNA in that location had an innocent explanation in the Crown case.

5. [5]

   The jury was empanelled on 3 April 2025. The trial before the jury commenced on Tuesday 8 April, following, in all, six days of the hearing of pre-trial issues. The jury retired to consider their verdict at 9.30am on Thursday 15 May. The following day at about 11am, by which time they had been deliberating for 6 hours and 51 minutes over the two days, the jury forwarded two notes simultaneously, which I marked for identification as MFI 102 and MFI 103.

6. [6]

   MFI 102 was as follows:

7. [7]

   The note marked MFI 103 was expressed to be by Juror N, who stated that he “did some research” on a particular person with the same family name as witness A as to his precise status concerning NSW police. The Court was convened and the parties were informed of the contents of both notes.

8. [8]

   The note from Juror N was, prima facie, an admission by him that he had breached the terms of s 68C of the Jury Act 1977 (NSW) (the Act), which relevantly states as follows:

9. [9]

   Following the empanelment of the jury on 3 April 2025, I had directed them to not engage in research, in particular on the internet, as follows:

10. [10]

    Juror N was affirmed and examined, pursuant to s 55DA of the Act, which states:

11. [11]

    Juror N said that he did his research overnight, that is, on the evening of Thursday 15 May, and that it was the only research he had done during the trial. Consistently with the content of his note, the effect of his answer was that the purpose of his research was to discover the nature of the relationship between the particular sibling of witness A and NSW police. When asked what the relevance of that inquiry was to the jury deliberations, he said: “I had two concerns. Why [witness A] wasn’t arrested and the quality of police evidence at the murder scene”. He was of the view that the police did not investigate witness A as rigorously as they should have, because of the occupation of that sibling.

12. [12]

    Juror N’s evidence included the following:

13. [13]

    I granted Juror N a certificate in accordance with s 55DA(3) of the Act and isolated him from the balance of the jury. Later that day, I discharged him pursuant to s 53A(1)(c) of the Act.

14. [14]

    The next issue was whether the jury should be discharged pursuant to s 53C(1) of the Act, which provides:

15. [15]

    Although the heading to the section refers to the power to discharge as being discretionary, the terms of the section make plain that a discharge is mandatory if that test is satisfied: Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71 per Bellew J (Bell CJ and Ierace J agreeing) at [199]. In Haile, Bellew J continued, as to the nature of a substantial miscarriage of justice:

16. [16]

    As to the contamination issue in the instant case, the foreperson was examined to determine what Juror N had told the jury and whether it had been discussed. The foreperson’s account was:

17. [17]

    When asked if any discussion followed, the foreperson said:

18. [18]

    The foreperson said:

19. [19]

    The foreperson was asked:

20. [20]

    The foreperson said that it was agreed amongst the jury that the Court needed to be told of Juror N’s actions. Juror N said he would write a note. The foreperson said: “I would’ve written it had he not have”.

21. [21]

    Initially, I determined to examine the balance of the jury separately as to what Juror N had said he learned from his internet inquiries and whether there was any discussion of that material. Juror D, who was next examined, gave a version in which Juror N used the information he gleaned to advance the theory he gave in Court:

22. [22]

    Juror A was examined. I note that the only matter that Juror A related that was said by Juror N that was not the subject of evidence in the trial was “about his other [sibling], how he’s something to do with the police”.

23. [23]

    It became apparent that conducting examinations of individual jurors in this fashion risked them inadvertently disclosing the substance of their deliberations, so I discontinued that process. Instead, the jury was brought into Court and were informed that if any juror was of the view that they could not put out of their minds what Juror N had told them he had learned through his out of Court inquiries, or if they had a concern that they could not do so, they should forward me a note. No note was received.

24. [24]

    It was apparent that Juror N was likely the juror who, according to the jury note, was unwilling to change his verdict on the murder count “regardless of any further discussion or weighing of evidence and testimony”. That observation, coming immediately after the words “We have reached a unanimous verdict on indictments counts 2, 3, 4”, suggested that it was the view of the jury that they had reached a deadlock.

25. [25]

    Two issues arose from the discharge of Juror N and the two jury notes being forwarded together, namely, whether the trial should continue with a jury of 11 in view of the loss of possibly the sole voice standing against a conviction on the first count, and whether the jury’s consideration of the counts exclusively on the evidence in the trial had been compromised by the introduction of information from outside the jury room (the contamination issue).

26. [26]

    The accused submitted that the jury should be discharged. The Crown sought an adjournment until the following Monday, 19 May, to further consider the application, which I granted. The parties provided written submissions over the weekend, supplemented by further oral submissions by Mr Broadbent SC on Monday morning.

27. [27]

    The accused submitted that from the combined content of MFIs 102 and 103, “there is a strong inference that Juror N may have been that person” who, according to MFI 102, was at that stage implacably at odds with the rest of the jury in respect of the verdict for count 1, and that the discharge of Juror N therefore may have removed the only juror who at that time was of a strong view that the appropriate verdict for the murder count was an acquittal.

28. [28]

    The accused referred to a categorisation of scenarios described in BG v R (2012) 221 A Crim R 215; [2012] NSWCCA 139 by Adamson J (as her Honour then was), McClellan CJ at CL and McDougall J agreeing), at [103] and following, in which the issue of whether the trial should continue with a jury fewer than twelve may arise. That passage was affirmed in Haile as follows:

29. [29]

    The accused submitted that this was a case that fell into Adamson J’s second category. Had Juror N not been discharged, the jury predictably would have received a Black direction [6] in response to MFI 102, which would have obliged them to listen carefully and objectively to the views of every one of their fellow jurors. The accused submitted, “the possibility cannot (and should not) be discounted that a ‘holdout’ or dissenting position may become the position of the majority, or even a position of unanimity”. In this case, that may have been Juror N’s lone voice for an acquittal for the murder count.

30. [30]

    The accused submitted that the voice of Juror N could not have been overcome by a majority verdict for at least another one hour and nine minutes of deliberations, pursuant to s 55F of the Act. By juror N’s necessary discharge, that voice and the opportunity for it to persuade the other jurors in that intervening period was lost, thus exposing the accused to the risk of a substantial miscarriage of justice.

Consideration

1. [31]

   The present situation is similar in some respects to that which the Court of Criminal Appeal considered in Addo v R (2022) 108 NSWLR 522; [2022] NSWCCA 141 in a judgment of the Court (Beech-Jones CJ at CL, Adamson and Bellew JJ). In that case, the appellant was charged with 14 sexual offences. Five days after the jury retired to consider its verdict, it informed the Court in a note that they were “no longer moving forward”. They received a Black direction. The following day, although the trial judge had given a direction pursuant to s 55F of the Act permitting a majority verdict, the jury forwarded a note stating that on 10 counts they were agreed 11-1 on a verdict and on the other four counts, as the trial judge explained it, “the jury has reached a majority verdict, but not 11 – 1”. The jury were then given a majority verdict direction and told to formally retire to consider:

2. [32]

   The jury responded in a note that they wished to return the following day “to try to reach a majority verdict on the remaining indictments”. Shortly afterwards, the trial judge received a note from an individual juror, stating, “I doubt I will be able to continue with this as my blood pressure has been continually increasing to dangerous levels. I need to visit a doctor”. That juror, who was referred to as Juror G, did not return to court the next day and was discharged pursuant to s 53B of the Act. The trial judge made an order for the trial to continue with a jury of 11 pursuant to s 53C(1) of the Act. The accused then sought a discharge of the jury on the basis that there was no explanation as to why Juror G had not wished to continue on the jury. The Court extracted part of the defence counsel’s submissions to the trial judge, at [124]:

3. [33]

   The trial judge refused the application and gave the jury a majority verdict direction, that is, that if they were unable to achieve unanimity, they could deliver a verdict on which 10 were agreed; that is, 10:1. The jury retired and returned approximately one hour and 18 minutes later with verdicts for all counts, which were twelve convictions and two acquittals.

4. [34]

   On appeal, the appellant submitted that it was reasonable to infer from the rapidity of the final stage of the jury’s deliberations that Juror G was a “dissident juror” and that his discharge deprived the accused of “a sympathetic vote on the jury” which gave rise to a substantial miscarriage of justice according to the third category identified by Adamson J in BG. The Crown submitted that even if it was accepted that Juror G had expressed views contrary to those of the majority, his absence was immaterial because a majority verdict was permitted.

5. [35]

   The Court referred to what was said in Haile at [200]-[201], to the three categories identified by Adamson J in BG and made similar observations to those made by Bellew J in the passage from Haile at [209]-[211], extracted above at [28]. For the purposes of considering the appellant’s contention that the continuation of the trial with a jury of 11 in the absence of Juror G had given rise to a risk of a substantial miscarriage of justice, the Court accepted that “the overwhelming inference” was that Juror G was a dissident juror. Since the point in the trial had been reached where a majority verdict could be taken, if Juror G had been the only dissenting voice – in other words, that the verdicts delivered by the jury of 11 were unanimous – then it could be safely concluded that Juror G’s dissenting voice was of no consequence.

6. [36]

   The Court concluded that the evidence of the taking of the verdicts did not allow for a finding that the verdicts were unanimous, which meant that the Court could not be confident that Juror G’s absence was inconsequential. It concluded, at [154]:

7. [37]

   I infer from this passage that the reason that Juror G’s absence was significant is that a majority (rather than unanimous) guilty verdict on any count would have meant that, if Juror G had remained on the jury, two dissenting votes would have resulted in the jury being hung on that count. Accordingly, the Court upheld the ground and quashed the convictions.

8. [38]

   The situation in the instant case differed from that in Addo in two key aspects. At the time that Juror N had engaged in misconduct (and subsequently discharged), the jury had arrived at unanimous verdicts for three of the counts and were at 11:1 in respect of the remaining (murder) count, whereas in Addo the jury were at 11:1 for some counts and less than 11:1 for others.

9. [39]

   The other difference is that in the instant case, the jury had not been deliberating for the minimum period of time that permitted the Court to direct the jury that they may return a majority verdict, namely, not less than eight hours (s 55F(2)(a) of the Act). Even so, I concluded there was not a risk of a substantial miscarriage of justice if the jury of 11 was not discharged.

10. [40]

    Had Juror N not been discharged, I would have given the jury a Black direction. When I directed the jury of 11 to continue their deliberations, I reminded them of the content of MFI 102 as to their request for “some direction” in view of being 11:1 on the murder count, and said, “When you retire to continue your deliberations shortly, if you still need that direction, let me know straight away in a note”. No such note was received.

11. [41]

    In relation to the issue of potential contamination of the jury, I had regard to Rassi v R [2023] NSWCCA 119, in which the Court found that the trial judge erred in not discharging the jury following a juror having inadvertently received a copy of an interlocutory judgment concerning the admissibility of expert evidence by the Crown.

12. [42]

    In the instant case, the Crown submitted that the Court should not discharge the jury unless there was “a high degree of necessity” to do so, relying upon Haines v R; Brown v R [2023] NSWCCA 108 at [40]-[43]. That phrase may be traced back to Crofts v The Queen (1969) 186 CLR 427; [1996] HCA 22, in which Toohey, Gaudron, Gummow and Kirby JJ, at 440-441, approved the test of necessity on an application for a discharge as stated below by the New South Wales Court of Criminal Appeal. However, Crofts predates the introduction of s 53C of the Act. Although it might be thought that the test in s 53C(1) overrides the common law test, that is not entirely clear: see Watson v R [2022] NSWCCA 208 (Bell CJ, Price and Yehia JJ) at [37]-[38] and also R v Azari (No 9) [2018] NSWSC 1678 per N Adams J at [20]-[21].

13. [43]

    The principles I applied in respect of this aspect of the application were those identified in Watson as follows:

14. [44]

    However, as noted by Hamill J in Rassi at [68], considerations such as the trial nearing its end will rarely prevail where the jury was exposed to material to which it should not have been exposed.

15. [45]

    Ultimately, I determined that to continue with the trial would not carry a risk of a substantial miscarriage of justice, in particular to the accused, in view of the following: the timing and content of note MFI 102 from the foreperson that the jury had reached unanimous verdicts on three counts and that on the fourth count they were 11-1; that the offending material favoured the defence, so that any prejudice flowing from it would not disadvantage the defence; the jury’s view that they did not have a concern that they could not disregard what Juror N had told them of his research; and the provision of a direction to the effect that the discharge of Juror N was exclusively for his misconduct and not because of any view he may have communicated on the evidence in the trial.

16. [46]

    On 16 May 2025, I made the following order:

    1. (1)

       Pursuant to s 53A(1)(c) of the Jury Act 1977 (NSW), Juror N is discharged.

17. [47]

    On 19 May 2025, I made the following orders:

    1. (1)

       The application to discharge the jury is refused.

    2. (2)

       Pursuant to s 53C(1)(c) of the Jury Act 1977 (NSW) the trial shall continue with a jury of eleven.