Attorney General for Western Australia v Marijanich - [2024] WASC 312

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   ATTORNEY GENERAL FOR WESTERN AUSTRALIA v MARIJANICH [2024] WASC 312
CORAM:   MCGRATH J
HEARD:   20 AUGUST 2024
DELIVERED          :   30 AUGUST 2024
FILE NO/S:   CIV 1680 of 2023
MATTER:   THE STATE OF WESTERN AUSTRALIA
AGAINST
DARREN PETER MARIJANICH
Contemnor

EX PARTE

ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Applicant

Catchwords:

Criminal law - Criminal Contempt - Juror communicating with third parties during trial - Juror disclosing deliberations of jury to third parties - Guilty plea - Fine imposed

Legislation:

Criminal Code (WA), s 4, s 7
Rules of the Supreme Court 1971 (WA), O 55 r 9
Sentencing Act 1995 (WA), s 3(3)(a), s 6, s 8(2)
Supreme Court Act 1913

Result:

Contemnor fined $8,000
Contemnor pay costs of $6,921.40

Category: B

Representation:

Counsel:

Applicant	:	Mr J Misso
Contemnor	:	Mr F Faris

Solicitors:

Applicant	:	State Solicitor's Office
Contemnor	:	Rebus Legal

Case(s) referred to in decision(s):

Attorney General (Vic) v Rich [1998] VSC
Attorney General v Dallas [2012] 1 WLR 991
Attorney General v Davey [2013] EWHC 2317; [2014] 1 CrAppR 1
Attorney General v Fraill [2011] EWCA Crim 1570
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21
Hearne v Street (2008) 235 CLR 125; [2008] HCA 6
Kazal v Thunder Studios Inc (California) [2017] FCAFC 111
Kennedy v Lovell [2002] WASCA 226
Lewis v Ogden (1984) 153 CLR 682
Matthews v ASIC [2009] NSWCA 155
Papzoglou v The Queen (2014) 45 VR 457
R v Karakaya [2005] EWCA Crim 346
R v Pan [2001] 2 SCR 344
R v Pearce (1992) 7 WAR 395
Registrar of Supreme Court of South Australia v S (2016) 125 SASR 207
Witham v Holloway (1995) 183 CLR 525

MCGRATH J:

Introduction

Mr Marijanich (the contemnor) has been convicted on his own plea of the common law offence of contempt of court. The contempt comprises two separate charges in the following terms:[1]
1.On 30 May 2022 and 31 May 2022, being a juror in the trial of an accused, in contravention of directions given by the learned trial judge, the contemnor communicated with one or more persons who were not jurors in the trial, in relation to the evidence given or issues in the trial.
2.On 31 May 2022, being a juror in the trial of an accused, in contravention of instructions given by the learned trial judge, the contemnor disclosed discussions in the jury room to one or more persons who were not jurors in the trial.
[1] Originating Motion to Punish for Contempt of Court dated 27 June 2024.
On 20 August 2024, the contemnor pleaded guilty to the charges and I received oral submissions from counsel for the applicant and the contemnor regarding the sentence to be imposed. I now impose sentence on the contemnor.

Facts of offending

At the sentencing hearing, counsel for the applicant presented an outline of facts as particularised in Attachment A to the Originating Motion. The facts upon which I sentence are set out in the Originating Motion, a Statement of Agreed Facts and an Agreed Bundle of Documents that were received as exhibits at the sentencing hearing. I also received as an exhibit the Affidavit of Detective Sergeant Laird which outlines the factual background, including the manner in which the offending became known and the scope of the investigation undertaken by the WA Police. The annexures to Ms Baird's affidavit include the entire communications made by the contemnor and third parties during the trial.
The facts upon which I sentence are in the following terms.
On 30 May 2022, the contemnor was selected as a juror for a trial of an accused indicted on one count of unlawful sexual penetration contrary to s 325 of the Criminal Code (WA) and one count of unlawful and indecent assault contrary to s 323 of the Criminal Code before a judge and jury in the District Court of Western Australia (the trial).
The trial concluded on 1 June 2022, at which time the jury were discharged due to being unable to reach a verdict. For completeness, I note that on a retrial before a different jury the accused was acquitted of both counts.
At all material times the contemnor and five other male persons were members of a Facebook Messenger group. The other five male persons who were members of the Facebook Messenger group were not members of the jury.
On the morning of 30 May 2022, the trial Judge, in the course of directing the jury at the commencement of the trial, directed the jurors not to discuss the evidence or the issues with anyone outside the members of the jury until the end of the case. The learned trial Judge stated:
Now, tonight, ladies and gentlemen, no doubt when you go home you'll be asked by your family and friends how your day went, were you selected on a jury? Yes. How long is it going to go for? Three days, possibly four.
And then the next natural question obviously would be, well, what's the case all about. And you might think that if you were to answer that question, even in very general terms by saying, it's a allegation of a sexual offence or it's an allegation of sexual penetration and said absolutely no more about it than that, that would be fine.
But experience tells us that even if you were to talk in very general terms about the type of case that you are now the jury in, your family, friends, housemates or whatever, are almost certainly going to express a view about that type of case in general. And that applies to all criminal cases. It applies to allegations of drug offences or violence or sexual offences or burglaries.
And a person who expresses a view about this type of case, generally, would be doing so when they haven't seen or heard a word of the evidence. So any comments they make are likely to lead you astray, because you, of course, will have seen and heard all of the evidence.
And it's for that reason we ask jurors not to discuss the evidence or the issues with anyone outside your number, until the end of the case when you'll be free to discuss the trial.
On 30 May 2022 and 31 May 2022, during the trial but prior to the commencement of deliberations, the contemnor, in contravention of instructions given by the trial Judge, communicated with one or more persons who were not jurors in the trial in relation to the evidence given or issues in the trial.
The messages sent by the contemnor were received by all members of the Facebook Messenger group. The messages sent by the contemnor and by members of the Facebook Messenger group are reproduced as Document 2 in the Agreed Bundle of Documents. The messages outlined in Document 2 of the Agreed Bundle of Documents accurately records the times at which the respective messages were sent to the Messenger group and the name of the person who sent the message. Further, a number of the messages are reproduced at paragraphs 16 to 19 of the Statement of Agreed Facts and in Attachment A to the Originating Summons.
I will provide a summary of the messages exchanged between the contemnor and the members of the Facebook Messenger group, but I will not reproduce the messages verbatim for reasons of confidentiality concerning the jury deliberations and because of the nature of the opinions expressed by the contemnor in respect to the complainant, witnesses and other jurors.
While the trial was adjourned for a lunch break on 30 May 2022, the contemnor discussed the evidence given and the issues in the trial with persons who were not jurors in the trial, by communicating with those persons through the Facebook Messenger application. Those messages are outlined at paragraph 16 of the Statement of Agreed Facts and at page 3 of Attachment A to the Originating Motion. The messages included statements by the contemnor regarding the nature of the allegations against the accused, the matters raised by the defence and prosecution during the opening addresses and the testimony of the complainant. A member of the Facebook Messenger group, Mr Turner, inquired about whether the trial concerned a 'he said she said situation', to which the contemnor answered, 'at this stage it is'. Further, Mr Turner indicated that he would search for information about the accused.
A 3.47 pm on 30 May 2022, shortly before the jury retired for the day, the learned trial Judge directed the jury as follows:
Reminder not to discuss the evidence or the issues with anyone outside your number, particularly this evening, and reminded [sic] to keep an open mind, obviously, there's still quite some evidence or some evidence that is still to come, thank you for attention throughout today and I look forward to seeing you at 9.30 tomorrow morning.
After the trial was adjourned for the day on 30 May 2022, the contemnor discussed the evidence given and issues in the trial with persons who were not jurors in the trial by communicating with those persons through the Facebook Messenger application. The messages are outlined in Document 2 of the Agreed Bundle of Documents, at paragraph 16 of the Statement of Agreed Facts and at pages 4 to 5 of Attachment A to the Originating Motion. The contemnor's messages included observations regarding the complainant's evidence, the strength of the State case at trial and expressed an opinion regarding whether the accused was innocent. In turn, a member of the Facebook Messenger group, Mr Turner, engaged by asking questions concerning the accused and the complainant. The contemnor informed Mr Turner of the name of the complainant. Mr Turner identified photographs of the complainant using an internet search.
Before the jury retired to commence deliberations at 2.45 pm on 31 May 2022, the contemnor discussed the evidence given and the issues in the trial with persons who were not jurors in the trial by communicating with those persons through the Facebook Messenger application. The messages are outlined at paragraph 17 of the Statement of Agreed Facts and at page 6 of Attachment A to the Originating Motion.
At 1.13 pm on 31 May 2022, the contemnor sent a message to the message group stating that he was 'about to head into deliberations'. The contemnor expressed his opinion concerning the lack of expert evidence, strength of the prosecution case and his view as to whether the accused was guilty.
At approximately 2.42 pm, on 31 May 2022, the learned trial Judge, whilst delivering his summation, directed the jury as follows:
What you discuss in the jury room ladies and gentlemen, shouldn't be repeated outside the 12 of you.
At 2.45 pm on 31 May 2022, the jury retired to consider its verdict.
Later during the afternoon of 31 May 2022, the learned trial Judge decided to excuse the jury for the day to return the next morning to continue deliberating. At 4.24 pm on 31 May 2022, the learned trial judge directed the jury that it was critically important at that stage that they completely insulate themselves from any external influence and instructed the jury that they cannot consult with anyone outside their number, or discuss the evidence or the issues with anyone outside their number. The learned trial Judge stated:
We will reconvene at 9.30 tomorrow in the sense I'll explain to you in just a moment.
So it's very important - critically important, in fact, at this stage that you completely insulate yourself from any external influence. So you can simply indicate to family and friends that you have been considering your verdict, you're still at the point of considering it, and you will resume your deliberations at 9.30 tomorrow.
And you cannot consult with anyone, of course, outside your number, or discuss the evidence or the issues with anyone outside your number. And it's really important that that occurs at this stage given that you'll be separating until 9.30 tomorrow.
After the jury was excused for the day on 31 May 2022, the contemnor disclosed jury deliberations to persons who were not jurors in the trial by sending messages to those persons using the Facebook Messenger application. The messages are reproduced at paragraph 19 of the Agreed Statement of Material Facts and at page 7 of Attachment A to the Originating Motion. The messages sent by the contemnor to the Messenger group referred to the numerical split in the jury regarding the verdict and the reason why some jurors held an opinion as to why the accused was guilty or not guilty. The contemnor expressed his opinions regarding personal characteristics of other jurors, his assessment of the credibility of the complainant and disclosed his view stated in the jury room as to whether the accused was guilty.
On 3 and 4 June 2022, after the trial had completed, the complainant contacted WA Police reporting that she had received messages on her business Instagram account from an identified Instagram account and text messages from a mobile number unknown to her, concerning the evidence that the complainant gave during the District Court trial.
The police identified that the person who sent the messages on 3 and 4 June 2022 to the complainant, namely Mr Turner, was a person who was a member of the Facebook Messenger group. Mr Turner had been communicating with the contemnor throughout the trial. Mr Turner conducted his own inquiries to identify the contact details of the complainant.[2] However, it was the contemnor who, in the course of sending messages to the Facebook Messenger group during the trial, confirmed the name of the complainant.
[2] ts 2, Sentencing hearing of Mr Turner (31/08/2022).
Mr Turner used his own Instagram account and mobile phone and did not send the messages to the contemnor nor other members of the Facebook Messenger group.
The contemnor did not know that Mr Turner proposed to contact the complainant and did not know he had done so. The contemnor did not request or suggest to Mr Turner, or any member of the Facebook Messenger group, that they should contact the complainant.
The messages received by the complainant included messages stating that the State evidence at trial was weak, there was no forensic evidence, the complainant had falsely made the allegation, taxpayers' money had been wasted by the trial and that the 'result didn't go [the complainant's] way'.[3] In one message, Mr Turner stated that he spoke 'on behalf of the jury in thinking when on earth is this evidence coming'.
[3] ts 2 - 4, Sentencing hearing of Mr Turner (31/08/2022).
Mr Turner was charged with one offence of stalking the complainant contrary to s 338E(1)(b) of the Criminal Code. On 31 August 2022, Mr Turner pleaded guilty to that charge in the Perth Magistrates Court. The learned Magistrate imposed a fine in the amount of $8,000 and ordered that he pay costs of $134.50.

Legal principles - contempt of court

Contempt of court is the only common law offence preserved under the laws of Western Australia. Section 4 of the Criminal Code Compilation Act 1913 (WA) provides that no person can be tried or punished in Western Australia for a criminal offence unless the offence is contrary to an applicable statute. However, s 7 of the Criminal Code Compilation Act provides that nothing in the Act, or the Criminal Code created pursuant to the Act, affects the authority of courts to punish persons summarily for the offence of contempt of court but that a person cannot be so punished and also punished under the provisions of the Criminal Code for the same act or omission.
The Supreme Court has inherent power to deal with contempt pursuant to s 16 of the Supreme Court Act1935 (WA).
Given that the offence of contempt of court is not created but merely preserved by statute, there is no maximum penalty for the offence.[4] The punishment to be applied following a conviction for contempt is entirely a matter within the discretion of the court.[5]
[4] Kennedy v Lovell [2002] WASCA 226 [5].
[5] R v Pearce (1992) 7 WAR 395, 431.
In general terms, a civil contempt involves disobedience of a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is interference with the course of justice.[6]
[6] Witham v Holloway (1995) 183 CLR 525 (Brennan, Deane, Toohey and Gaudron JJ).
The present contempt proceedings, which are effectively punitive and are commenced in the public interest to vindicate judicial authority and maintain the integrity of the judicial process, are properly characterised as being criminal in nature.[7] However, the contempt proceedings remain civil proceedings.[8]
[7] Hearne v Street (2008) 235 CLR 125; [2008] HCA 6 [132] - [133] (Hayne, Heydon and Crennan JJ).
[8] Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21 [40] -[45].
The contempt conduct must involve an interference with the due administration of justice, either in a particular case or more generally as a continuing process.[9]
[9] Lewis v Ogden (1984) 153 CLR 682.
It is not necessary to establish that the contemnor intended to interfere with the administration of justice, so long as the words or acts themselves tend to interfere with the course of justice, it is sufficient for the court to be satisfied that they were performed consciously and voluntarily.[10]
[10] Attorney General (Vic) v Rich [1998] VSC [16].

Sentencing options

Order 55 r 7 and r 8 of the Rules of the Supreme Court 1971 (WA) provide:
7.Punishing contemnors
(1)The Court may punish contempt of court by committal of the contemnor to prison, or by imposing a fine on him, or by both committal and fine.
(2)When the Court imposes a fine, it may order that the contemnor be imprisoned, or further imprisoned, until the fine is paid.
(3)Where the contemnor is a corporation the Court may punish contempt of court by sequestration, or fine or both.
(4)An order of committal may be in Form No. 66.
8.Execution of committal order may be suspended
The Court making an order of committal may by order direct that the execution of the order of committal shall be suspended for such period or on such terms or conditions as the Court thinks fit.

Principles of sentencing

The Sentencing Act 1995 (WA) does not apply to or in respect of a person being punished for, or as for, contempt of court.[11] It follows that there is no power to make an order for eligibility for parole and consequently, the Prisoners Review Board has no power to grant parole to a prisoner sentenced to imprisonment for contempt of court under the provisions of the Sentence Administration Act 2003 (WA).
[11] Sentencing Act 1995 (WA), s 3(3)(a).
Although the Sentencing Act does not apply as a matter of law to the sentence to which I will impose, it is nevertheless appropriate to have regard to the principles of sentencing outlined in s 6 of the Sentencing Act.[12] The relevant principles include that the sentence must be commensurate with the seriousness of the offence and imposed after taking into account circumstances in which the offence is committed, including any aggravating and mitigating factors. Further, a sentence of imprisonment should not be imposed unless the seriousness of the offence is such that only imprisonment can be justified, or required for the protection of the community.
[12] Kennedy v Lovell [2002] WASCA 226 [6].
The Full Court of the Federal Court in Kazal v Thunder Studios Inc (California) outlined the following non‑exhaustive list of factors that may be relevant in any given case:[13]
[13] Kazal v Thunder Studios Inc (California) [2017] FCAFC 111 [101] - [102]; Matthews v ASIC [2009] NSWCA 155 [129].
1.the seriousness of the contempt proved;
2.the contemnor's culpability;
3.the reason or motive for the contempt;
4.whether the contemnor received, or tried to receive, a benefit from the contempt;
5.whether there has been any expression of genuine contrition by the contemnor;
6.the character and antecedents of the contemnor;
7.the contemnor's personal circumstances;
8.personal and general deterrence; and
9.the need for denunciation of contemptuous conduct.

The Full Court in Kazal v Thunder Studios Inc (California) further stated:[14]
The focus remains on the core themes of the objective seriousness of the conduct and, in particular, its effect on the administration of justice, subjective factors such as the contemnor's culpability, antecedents and attitude, including in particular any apology or other palpable sign of contrition, the capacity to pay a fine, and imprisonment being a last resort. Deterrence remains a dominant theme, both specific and general. Even denunciation and punishment can be seen as bolstering deterrence. That is especially so when the conduct entails contemplation and the opportunity to reflect and desist.
[14] Kazal vThunder Studios Inc (California) [2017] FCAFC 111 [103].
The list of factors outlined by the Full Federal Court must be understood as a useful list of considerations that may properly be seen to have a part to play in a given case, although not exhaustive.[15] In imposing a criminal sanction on a person for criminal contempt, it must be borne in mind that the judicial officer is exercising the sentencing discretion and thereby, must consider all possible sentencing considerations in determining the appropriate sentencing disposition.
[15] Kazal vThunder Studios Inc (California) [2017] FCAFC 111 [102].

Seriousness of the offending

I now turn to an assessment of the seriousness of the offending. In so doing, I will consider the circumstances in which the offending was committed, identifying and assessing any aggravating factors.

Communicating with third parties regarding evidence and issues in trial

The contemnor's conduct in discussing the issues and evidence in the trial had a tendency to interfere with the due administration of justice.
A jury must determine the verdict based solely upon the evidence received at trial and not take into account any extraneous matters. This principle not only applies in respect to the introduction of extraneous information derived from a juror's independent research but relevantly, in respect to discussing the evidence and issues in the trial to third parties who are not members of the jury. Such conduct amounts to an irregularity in the trial process and thereby, undermines the integrity of the trial by jury and the administration of justice generally.
The contemnor's conduct in engaging in communications with third parties gave rise to a risk that other person's views in relation to the evidence and issues in the trial might have influenced his assessment of the evidence and thereby his deliberations and the deliberations of other jurors.
Irrespective of whether the contemnor was, in fact, influenced by the communications with third parties, the conduct of the contemnor amounts to a significant irregularity in the trial process. The communications between the contemnor and the third parties interfered with the administration of justice because the communications occurred in the absence of counsel, the trial judge, the members of the jury, the accused and members of the public. It is necessary that there be transparency in the trial process so that it is known publicly what evidence has been received during trial and the nature of submissions made by counsel and directions given by the trial judge.
Further, both the prosecution and the defence are entitled to consider the admissibility of all material received by a jury and to then address that material to be considered by the jury when reaching its verdict. Otherwise, as Judge LJ stated in R v Karakaya:[16]
That will not be a true verdict according to the evidence. It will be a verdict according to the evidence, as supplemented by the views and comments of outsiders without responsibility for the verdict.
[16] R v Karakaya [2005] EWCA Crim 346 [25].
The communications between the contemnor and the third parties would not have been known but for the act of Mr Turner communicating improperly and unlawfully with the complainant. If the accused had been convicted then the irregularity in the trial process would, in all likelihood, amounted to a miscarriage of justice.

Breaching confidentiality of the jury room

The contemnor intentionally breached the confidentiality of the jury room and in so doing, that conduct had a tendency to interfere with the due administration of justice. The conduct of discussing the deliberations of the jury had the capacity to contaminate the attitude of the jurors and the quality of their deliberations.
Confidentiality of jury deliberations is essential to promote candour and full and frank discussion, which is essential to the task of collective decision-making by a jury. It is necessary that jurors should be 'free to explore out loud all avenues of reasoning without fear of exposure to ridicule, contempt or hatred'.[17]
[17] R v Pan [2001] 2 SCR 344 (Arbour J), cited in Papzoglou v The Queen (2014) 45 VR 457.
The process by which jurors may express their respective views whilst deliberating with utmost frankness and clarity is essential to the way in which juries work towards, and then determine, their verdicts. Therefore, 'because they remain confidential to the jury, and are known to be so, the exchange of frank views and opinions is encouraged. No one is inhibited by the thought that the expression of unpopular view, and its source, may become public knowledge'.[18]
[18] Attorney General v Fraill [2011] EWCA Crim 1570 [32].
In this case, the contemnor disclosed to third parties the discussions and deliberations of the jury as to whether particular jurors believed the complainant. Further, the contemnor disclosed the views of one particular juror and made observations about that juror's personal characteristics that allowed her to be identified. The contemnor did not disclose the names or contact details of any of the jurors.
The contemnor's actions in discussing the evidence during the trial, including stating the complainant's name, enabled Mr Turner to identify the complainant. By discussing with Mr Turner the strengths and weaknesses of the State case, including the complainant's evidence, the contemnor undertook a protracted conversation concerning the merits of the prosecution. As a consequence, Mr Turner decided to make his own inquiries concerning the prosecution by directly communicating with the complainant. In so doing, Mr Turner inferred to the complainant that the jury did not believe her and told her that she had wasted taxpayers' money.
Mr Turner was understandably convicted of stalking for his conduct, which amounted to the harassment of a female complainant in a sexual offence trial. Whilst the contemnor did not intend nor request that Mr Turner communicate directly with the complainant, his disclosure ensured that Mr Turner had the necessary information to do so. The conduct of Mr Turner, therefore, shows the potential adverse impact of the contemnor's jury misconduct on the justice system and in particular, for complainants in criminal trials.
Therefore, a paramount consideration in this case is the need for general deterrence and for denunciation of the contemptuous conduct.[19] The contemnor did not inform the other jurors regarding the extended conversation that he engaged in with the five members of the Facebook Messenger group. Therefore, this is not a case where the accused brought extrinsic material into the jury room and thereby corrupted the jury deliberations in that manner. However, the contemnor, by engaging in the extended conversations with the third parties, was discussing the evidence and issues at trial, including the testimony of the complainant. In so doing, the contemnor received communications in reply concerning the issues at trial. Thereby, the contemnor caused a serious irregularity in the trial process.
[19] Registrar of Supreme Court of South Australia v S (2016) 125 SASR 207 [23].
If the communications had become known to the learned trial Judge before the trial was completed, then undoubtedly the learned trial Judge would have discharged the jury due to the irregularity.
The contemnor did not benefit in any tangible way from his offending. This is not a case in which the contemnor obtained a financial or personal benefit.

Personal circumstances

I now turn to the contemnor's personal circumstances.
The contemnor is 35 years of age, having been born on 14 August 1989. The contemnor is married with two young children with whom he has a very close relationship. The contemnor has a sound employment record, having been employed with the same business for 15 years and has produced documents from his current employer confirming his employment history with that employer. The contemnor is the primary income provider for his family.
Turning to the contemnor's financial circumstances, which is relevant to the imposition of a financial penalty, the contemnor owns his house but the property is heavily mortgaged. The contemnor produced mortgage statements which support that finding.
I have received references from members of the community who speak of the positive qualities of the contemnor. I have also received a reference from the contemnor's partner who outlines his qualities and provides an outline of his background.
The contemnor has no criminal record other than one conviction in October 2012 for driving a motor vehicle whilst under the influence of alcohol. The applicant accepted that the contemnor should be considered a person of good character notwithstanding that one conviction. I agree with that submission. Accordingly, the contemnor is sentenced on the basis that he is a person of good character.
The contemnor is of sound physical health.
In respect to the contemnor's mental health, I have received a report from a psychologist dated 12 February 2024. The psychologist stated that the contemnor had presented for treatment on two occasions prior to his offending. The psychologist stated that at the first consultation the contemnor 'was diagnosed with depression in the context of severe back pain'. The assessment undertaken determined that the contemnor scored moderate for depression, severe for anxiety and severe for stress.
At the second consultation the contemnor was diagnosed with PTSD arising from being sexually assaulted. The psychologist stated that she is currently treating the contemnor for a relapse of PTSD, anxiety, stress and depressive symptoms due to the contemnor serving on the jury considering an allegation of sexual assault. The psychologist stated that the contemnor's current symptoms are further compounded by his guilt and remorse from his contempt offending. The psychologist continues to provide treatment.
The contemnor's counsel submitted that there was a nexus between the contemnor's mental health issues and his offending. The psychologist stated that it is likely that the contemnor's PTSD symptoms from his assault contributed significantly to his poor decision making and further, that the diagnosis of PTSD would have affected the contemnor's impulse control to restrain himself from oversharing. The contemnor told the psychologist that upon realising that the trial involved an allegation of sexual assault, he 'became increasingly aware of the tension building to the point where he felt frozen and frightened. He felt trapped'. The psychologist stated that the contemnor reported that he 'became disorientated in himself and disconnected from himself as the trial progressed which led him to share his extreme distress with his friends'.
Counsel for the applicant submitted that such a finding is not open given the nature of the communications between the contemnor and the members of the Facebook Messenger group. There is merit in that submission. There is only one reference in the communications to the contemnor's sexual assault, being an observation that 'anyone else think its strange that I'm on a jury on a case I basically had happen to me', to which Mr Turner replied 'yeah fkn weird'.
The communications otherwise make no reference to the contemnor's own personal experience. On a fair reading of the communications it is not possible to find that the contemnor was a person sharing his distress with his friends. Rather, the contemnor was positively critical in respect to the complainant, showing no sympathy or empathy but willing to express criticism concerning the credibility of the complainant and the strength of the State case. The communications do not support a finding that the contemnor was distressed and wanting to share his distress with his friends. Significantly, the psychologist has not had access to the communications from the Facebook Messenger group. Rather, the psychologist has relied upon the contemnor's self-reporting.
I accept that the contemnor was sexually assaulted and that as a consequence, he suffers from PTSD with moderate depression and severe anxiety and stress. However, I do not accept that there is a clear nexus between the contemnor's offending and his mental health issues. Whilst serving on the jury may have presented as a challenge given the subject matter of the alleged offending, I do not accept that there is a nexus between the contemnor engaging in the protracted communications and his mental health. However, I will take the contemnor's mental health issues into account as forming part of the contemnor's personal circumstances.

Mitigating factors

I now turn to mitigating factors.

Plea of guilty

I find that the contemnor's plea is indicative of his contrition, remorse, acceptance of responsibility and willingness to facilitate the course of justice. Counsel for the contemnor submitted that on 27 November 2023 a Minute of Consent Order was signed that confirmed the contemnor had agreed the prosecution should be programmed for a sentencing hearing. Therefore, the contemnor had indicated an early plea of guilty to the charge.
I accept the submission of the contemnor's counsel that the contemnor indicated a plea of guilty by 27 November 2023. The applicant accepted that the contemnor's plea of guilty may be considered as a plea of guilty at the first reasonable opportunity given that it was appropriate for the contemnor to obtain legal advice. I find that the contemnor entered his plea of guilty at the first reasonable opportunity.

Remorse, contrition and acceptance of responsibility

I now turn to whether the contemnor has remorse and contrition for his offending. As I have observed, the contemnor pleaded guilty at the first reasonable opportunity. Further, the psychologist reported that the contemnor 'spoke of his remorse that he faces daily from his actions that have damaged the victim'.
I am satisfied that the contemnor has a genuine awareness of the effects that his actions had on the complainant.
I find that the contemnor is genuinely remorseful for his offending and that he has taken full responsibility for his actions.
I accept that the contemnor is of good character and that there is no real risk of the contemnor offending in a similar way or committing any other criminal offence.

Range of sentences imposed

I now turn to previous sentences imposed for similar offending.
There is no sentencing tariff or a particular range for this type of offending. A criminal contempt may be committed in a myriad of circumstances. The applicant relied upon four cases which illustrate the range of sentences that have been imposed for similar offending, namely Attorney General v Fraill;[20] Attorney General vDallas;[21] Attorney General v Davey;[22] Registrar of Supreme Court of South Australia v S.[23]
[20] Attorney General v Fraill [2011] EWCA Crim 1570.
[21] Attorney General v Dallas [2012] 1 WLR 991.
[22] Attorney General v Davey [2013] EWHC 2317; [2014] 1 CrAppR 1.
[23] Registrar of Supreme Court of South Australia v S (2016) 125 SASR 207.
In Fraill,[24] the offender contravened a statutory provision which provided that it was a 'contempt of court to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations'.[25]. The maximum penalty for the offence under the relevant statute was two years imprisonment. The offending involved the juror using the internet to conduct research in respect to the accused and accessing Facebook to contact the partner of one of the accused and to answer a question that the accused's partner had about the criminal charges. The juror pleaded guilty and was sentenced to eight months' immediate imprisonment.
[24] Attorney General v Fraill [2011] EWCA Crim 1570.
[25] Contempt of Court Act 1981 (UK), s 8(1).
The case of Dallas involved an application alleging contempt at common law.[26] The contemnor conducted an internet search in respect to the accused who was standing trial for assault charges and consequently became aware that the accused had previously been accused of rape. The contemnor told her fellow jurors this information, despite being given directions by the trial judge not to undertake research. The contemnor was convicted after trial and was sentenced to six months' immediate imprisonment.
[26] Attorney General v Dallas [2012] 1 WLR 991.
In Attorney-General v Davey,[27] one juror published his views about the case on Facebook, whilst another juror conducted internet research to obtain additional information about the victims, which he admitted to having shared with other jurors. Whilst the penalty ultimately imposed is not stated in the reported judgment, a media statement published by the Attorney General for England and Wales stated that both jurors were sentenced to two months' imprisonment.[28]
[27] Attorney-General v Davey [2013] EWHC 2317; [2014] 1 CrAppR 1.
[28] Attorney-General's Office, 'Two jurors convicted for internet use', 29 July 2013.
In Registrar of Supreme Court of South Australia v S, two jurors were charged with contempt at common law after conducting research using the internet to seek confirmation of their recollection of what they had previously heard in media reports about the accused. Doyle CJ referred to Fraill and Dallas, observing that in those cases, the respective courts had referred to the seriousness of the contempt given the threat to the integrity of the trial by jury, and the consequential virtual inevitability of custodial sentences.[29]
[29] Registrar of Supreme Court of South Australia v S [25].
However, Doyle CJ determined that the offending, although serious, was not as egregious as the conduct of the jurors in Fraill and Dallas. The jurors were not undertaking a general investigation or otherwise seeking to ascertain information that they were not generally aware of. Neither intended to use their knowledge to sway or influence other jurors. The contemnors both promptly acknowledged their wrongdoing, expressed genuine contrition and were unlikely to reoffend. A fine of $3,000 was imposed on each contemnor.

Parity consideration - Mr Turner's offending

As I have observed, Mr Turner, a member of the Facebook Messenger group, communicated with the complainant concerning the trial in the District Court and subsequently pleaded guilty to one charge of stalking the complainant. I must consider the parity principle and assess the respective criminality of Mr Turner and the contemnor.
Mr Turner was not convicted of contempt but a different offence, being one offence of stalking contrary to s 338E(1)(b) of the Criminal Code, which has a maximum penalty of 3 years' imprisonment, or 18 months' imprisonment and a fine of $18,000 when dealt with in the Magistrates Court. Mr Turner's antecedents are similar to the contemnor, being his previous good character, having a sound employment record, entering an early plea of guilty, being remorseful and having some mental health issues. In comparison to the contemnor, Mr Turner was not a member of the jury and thereby, was not directed by the learned trial Judge. However, his conduct amounted to harassing the complainant in an alleged sexual assault trial.

The contemnor was convicted of contempt, not stalking. The contemnor, whilst not contacting the complainant, disclosed information about the trial to Mr Turner, including giving information that identified the complainant. Further, the contemnor disregarded the repeated directions by the trial judge not to undertake independent research. This was a serious breach of his duty as a juror. Both the contemnor and Mr Turner committed serious offences.

Sentence imposed

Counsel for the applicant submitted that an appropriate disposition was a non-custodial penalty given that imprisonment is a punishment of last resort. In all the circumstances, I am satisfied that a fine should be imposed. In imposing a fine rather than a custodial disposition, I am mindful that the contemnor is of good character who is gainfully employed with some mental health challenges, pleaded guilty at the first reasonable opportunity, is remorseful and has accepted responsibility for the consequences of his actions. The offending of the contemnor, whilst serious, was not undertaken to illicit information to use in the deliberation process. The contemnor did not undertake the offending to gain any benefit or with the intention to share the information with the members of the jury. The contemnor did not, at any time, inform the jurors that he was communicating with a third party. However, the offending remains serious given that he deliberately and persistently ignored the learned trial Judge's directions and that the contemnor's conduct had the consequence of Mr Turner having sufficient knowledge to stalk the complainant.
In all the circumstances, for the offence of contempt of court, I impose a fine in the amount of $8,000. The quantum of the fine must serve as a deterrence and denunciation of the contemnor's conduct. However, in setting the quantum of the fine, I must be mindful of the contemnor's ability to pay a fine. I am also mindful that I order that the contemnor pay costs of $6,921.40.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NA
Associate to the Honourable Justice McGrath
30 AUGUST 2024