Hoang v The Queen

Case [2022] HCA 14

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, KEANE, GORDON AND EDELMAN JJ

QUY HUY HOANG  APPELLANT

AND

THE QUEEN  RESPONDENT

Hoang v The Queen

[2022] HCA 14

Date of Hearing: 16 March 2022
Date of Judgment: 13 April 2022

S146/2021, S147/2021, S148/2021 & S149/2021

ORDER

1. The appeal in each matter be allowed in part.

2.Set aside the order of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 3 August 2018 and, in its place, order that:

(a)the appeal be allowed in part;

(b)the appellant's convictions on Counts 4 and 6 to 12 be set aside; and

(c)a new trial be had on Counts 4 and 6 to 12.

3.In relation to Counts 1 and 5, remit the matter to the Court of Criminal Appeal of the Supreme Court of New South Wales to consider whether:

(a)to affirm or vary the appellant's sentence under s 7(1) of the Criminal Appeal Act 1912 (NSW);

(b)to remit the matter to the District Court of New South Wales under s 12(2) of the Criminal Appeal Act 1912 (NSW); or

(c)to await the outcome of any new trial on Counts 4 and 6 to 12.

On appeal from the Supreme Court of New South Wales

Representation

G A Bashir SC with D L Carroll and G E L Huxley for the appellant (instructed by AA Criminal Lawyer)

D T Kell SC with E S Jones for the respondent (instructed by Office of the Director of Public Prosecutions (NSW))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Hoang v The Queen

Criminal practice – Jury trial – Where s 53A(1)(c) of Jury Act 1977 (NSW) provided for mandatory discharge of juror where juror engaged in misconduct in relation to trial – Where misconduct included conduct constituting offence against Jury Act – Where offence against s 68C(1) of Jury Act for juror to make inquiry for purpose of obtaining information about any matters relevant to trial – Where evidence led as to Working with Children Check – Where evidence subject of submissions and referred to in summing up – Where jury note disclosed juror had searched internet for requirements of Working with Children Check – Where trial judge took verdicts which jury indicated they had reached unanimous verdict on before discharging juror – Whether information subject of inquiry about matter relevant to trial – Whether inquiry made for purpose of obtaining information about that matter – Whether mandatory discharge of juror required.

Words and phrases – "constitution and authority of the jury", "discharge of jurors", "jury deliberations", "making an inquiry", "mandatory discharge", "matters relevant to the trial", "misconduct in relation to the trial", "purpose of obtaining information", "true verdict according to the evidence".

Jury Act 1977 (NSW), ss 53A, 53B, 55DA, 68C.

  1. KIEFEL CJ, GAGELER, KEANE, GORDON AND EDELMAN JJ.   In New South Wales, a juror…

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Hoang v The Queen [2022] HCA 14
Case
[2022] HCA 14
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CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Hoang against his convictions, following a jury trial in the District Court of New South Wales. The central issue on appeal concerned the alleged misconduct of a juror, specifically whether the juror's internet search regarding the requirements of a Working with Children Check constituted an offence under the *Jury Act 1977* (NSW) and, if so, whether this mandated the discharge of the juror.

The legal questions before the High Court were whether the juror's internet inquiry constituted "misconduct in relation to the trial" as defined by s 53A(1)(c) of the *Jury Act 1977* (NSW), which includes conduct constituting an offence against the Act. Specifically, the Court had to determine if the juror's search for information about Working with Children Check requirements was an "inquiry" made for the "purpose of obtaining information about any matters relevant to the trial," as proscribed by s 68C(1) of the Act.

The High Court found that the juror's internet search did constitute misconduct within the meaning of s 53A(1)(c) of the *Jury Act 1977* (NSW). The Court reasoned that the Working with Children Check was a matter relevant to the trial, and the juror's inquiry was made for the purpose of obtaining information about that matter. Consequently, the mandatory discharge provisions of s 53A(1)(c) were engaged. The Court allowed the appeal in part, setting aside the convictions on Counts 4 and 6 to 12 and ordering a new trial on those counts. The convictions on Counts 1 and 5 were affirmed, with the matter remitted to the Court of Criminal Appeal of New South Wales to consider consequential sentencing orders.

Orders

Orders of the court

1. The appeal in each matter be allowed in part.

2. Set aside the order of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 3 August 2018 and, in its place, order that:

(a) the appeal be allowed in part;

(b) the appellant's convictions on Counts 4 and 6 to 12 be set aside; and

(c) a new trial be had on Counts 4 and 6 to 12.

3. In relation to Counts 1 and 5, remit the matter to the Court of Criminal Appeal of the Supreme Court of New South Wales to consider whether:

(a) to affirm or vary the appellant's sentence under s 7(1) of the Criminal Appeal Act 1912 (NSW);

(b) to remit the matter to the District Court of New South Wales under s 12(2) of the Criminal Appeal Act 1912 (NSW); or

(c) to await the outcome of any new trial on Counts 4 and 6 to 12.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ, GAGELER, KEANE, GORDON AND EDELMAN JJ (dissent)
In this Court, the Crown submitted that if the trial judge technically erred by failing to discharge the juror consequent upon any (erroneous) finding of misconduct, that was an error to which the proviso could, and should, apply. The premise for the submission – that the trial judge's finding that there was misconduct within the meaning of s 53A(1)(c) was erroneous – is incorrect. The point does not arise. If, however, the juror did engage in misconduct within the meaning of s 53A(1)(c), then the Crown accepted that the verdicts of guilty entered before the juror was discharged should be set aside. The appeals should be allowed in relation to those counts, namely counts 4 and 6 to 12.Conclusions and orders The parties did not agree what consequential orders should be made if the appeals were allowed. The appellant submitted that all convictions on all counts should be quashed and a new trial be had. Alternatively, the appellant submitted that the convictions on counts 4 and 6 to 12 should be quashed and a new trial had on those counts. The Crown contended that the alternative orders proposed by the appellant should be made. The appellant's submission that all convictions should be quashed was said to arise because there was a real possibility that the verdicts on counts 4 and 6 to 12, as to which the evidence was relied on for tendency and coincidence reasoning, were taken into consideration in determining the verdicts for counts 1 and 5. That submission is rejected. The risk that the verdicts on counts 4 and 6 to 12 were relied on for tendency or coincidence reasoning was addressed by the trial judge instructing the jury that, to rely on such reasoning, the jury had to be satisfied that the acts from which a tendency could be inferred in fact occurred or that similarities in the complainants' accounts in fact existed. The jury was not told that they could reason from "verdicts of guilt". The verdicts on counts 1 and 5 should not be set aside. The sentence imposed on the appellant was structured as it was by reference to his conviction on counts 1 and 4 to 12. In relation to the sentence imposed on counts 1 and 5, it is for the Court of Criminal Appeal to determine whether to affirm or vary the appellant's sentence under s 7(1) of the Criminal Appeal Act 1912 (NSW), remit the matter to the District Court under s 12(2) of that Act or await the outcome of any new trial on counts 4 and 6 to 12. For those reasons, the orders of the Court are:1. The appeal in each matter be allowed in part.2.Set aside the order of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 3 August 2018 and, in its place, order that:(a)the appeal be allowed in part;(b)the appellant's convictions on Counts 4 and 6 to 12 be set aside; and(c)a new trial be had on Counts 4 and 6 to 12.3.In relation to Counts 1 and 5, remit the matter to the Court of Criminal Appeal of the Supreme Court of New South Wales to consider whether:(a)to affirm or vary the appellant's sentence under s 7(1) of the Criminal Appeal Act 1912 (NSW);(b)to remit the matter to the District Court of New South Wales under s 12(2) of the Criminal Appeal Act 1912 (NSW); or(c)to await the outcome of any new trial on Counts 4 and 6 to 12.

Ratio Decidendi

Legal Principle Established

Established by:

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