R v Clark [No 2]

[2008] NSWSC 821

CITATION:	R v Clark [No 2] [2008] NSWSC 821
HEARING DATE(S):	10/03/08 - 14/03/08 17/03/08 - 20/03/08 27/03/08
JURISDICTION:	Common Law Division Criminal List
JUDGMENT OF:	Kirby J
EX TEMPORE JUDGMENT DATE:	27 March 2008
DECISION:	Application for discharge refused.
CATCHWORDS:	Criminal Practice & Procedure - application to discharge juror and jury - previous trial - hung jury - juror conversation at church with wife of juror in previous trial - whether juror or panel should be discharged.
CATEGORY:	Procedural and other rulings
PARTIES:	Regina Michael Rex Clark
FILE NUMBER(S):	SC 2006/3605
COUNSEL:	M Hobart SC (Crown) M Thangaraj (Acc)
SOLICITORS:	A Walkowiak - DPP (Crown) Matouk Joyner Lawyers (Acc)

IN THE SUPREME COURT Extempore - Checked
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

JUSTICE DAVID KIRBY

27 MARCH 2008

2006/3065 Regina v Michael Rex CLARK

JUDGMENT [No 2] – on application to discharge jury; see p466 of transcript

1 HIS HONOUR: Michael Rex Clark has been charged with the murder of Ernest Richard Clark. The murder is said to have been carried out as a result of an agreement between Michael Rex Clark and his son Ben whereby Ben shot the deceased on 29 April 2005 causing injuries which led to his death the following day.

2 The matter has a long history. Michael Clark, the present accused, and his son, Ben, were jointly indicted before Patten AJ in 2007, at which time Ben Clark pleaded guilty to murder. He was later sentenced to 20 years imprisonment with a non-parole period of 14 years.

3 The trial then proceeded before Patten AJ and a jury in respect of the indictment concerning Michael Clark, he being charged with murder. Ultimately, the jury was discharged when it was unable to agree.

4 The matter was listed before me on 11 February 2008 for a retrial. It proceeded for 17 days before it became necessary to discharge the jury. A further jury panel was summoned on 10 March 2008 and the present trial began.

5 That trial is now in its tenth day and most of the oral evidence has been called. There remains a significant number of listening device taped material and telephone intercept material before the completion of the Crown case, together with a handful of witnesses. That being the context, the trial was adjourned on Thursday 20 March 2008 for the Easter break. Because of the commitments of counsel, the trial was to resume on Thursday 27 March 2008.

6 Yesterday, that is 26 March 2008, I received a memorandum from the Senior Deputy Registrar of the Supreme Court setting out a conversation which she had had the previous Saturday evening with a person who identified himself as a juror in this trial. That memorandum has been marked for identification 16 and is in these terms:

“Memorandum

I refer to the trial that is currently before His Honour Justice Kirby.

At a private function on Saturday evening, a person known to me indicated that he is a juror in the above trial. I write to inform you that he disclosed to me that he has been given information that the defendant has been tried on a previous occasion.

As best as I recall, a conversation took place with words to the following effect:

He said: Where are you working now?

I said: I'm working at the Supreme Court.

He said: Is that at Darlinghurst?

I said: No, it's at Queens Square, near St James.

He said: Oh - I'm on the jury in a trial up at Darlinghurst. Before Justice Kirby.

I said: So that would be a trial for murder?

He said: Yes it's a murder trial.

I said: That would be interesting.

He said: Yes it is.
(Some discussion ensued about him never having been on a jury before, and how long the trial is meant to be going for)
He's actually been tried before.

I said: What, they told the jury that?

He said: No, some people from church accidentally told me.

I said: Did you tell anyone that you had found that out? (I meant - had he informed the Court)

He said: No.

I said: Well don't tell me any more.

If you have any questions, please do not hesitate to contact me.

Joanne Gray
Senior Deputy Registrar."

7 Upon the trial resuming this morning that memorandum was provided to counsel and the opportunity given to obtain instructions. Instructions having been obtained, the juror with whom the Senior Deputy Registrar had the conversation was then called to give evidence. I should add that I spoke briefly with the Senior Deputy Registrar simply to identify the juror so that he could be segregated from the other jurors and, ultimately, examined if that was appropriate. The instruction to segregate that juror was given to the Sheriff's officer and that was done. He was ultimately called to give evidence and that evidence appears at page 468 and 469 of the transcript.

8 Counsel was again given the opportunity of obtaining instructions and then made submissions.

9 It is Mr Thangaraj's application that the jury should be discharged. He says in the alternative that the particular juror should be discharged and further submits that the separate discretion which would then arise, as to whether the trial should proceed, should be exercised by then discharging the reduced panel of only ten jurors.

10 The basis upon which Mr Thangaraj makes his application for the discharge of the panel or, alternatively, the discharge of the juror and the consequential discharge of the panel, is that the juror was not forthcoming when giving evidence. He, therefore, has no confidence that the juror has been frank as to what he knows. He surmises that he may well know prejudicial material which he is not disclosing and nothing by way of further questioning is likely to elicit such material.

11 The Crown says, on the other hand, that there is no basis for discharging the juror. He acknowledges that to some degree, perhaps to a large degree, he was not forthcoming when originally examined, such that specific questions had to be asked of him before the material that appears in the transcript became available. Nonetheless, he points out that the juror had the stress and the embarrassment of having been segregated from his fellow jurors, together with the knowledge that he had, to some degree, departed from the warnings that had been repeatedly given to him and other jurors that they were not to discuss the trial or the evidence.

12 Dealing with these submissions, when I first read the memorandum my concern was the same concern that had led me to discharge the previous jury, namely, the possibility that highly prejudicial material relating to the accused's criminal record may have come to the notice of the juror. However, it is clear that the accused's past was not an aspect of the conversation between the juror and the officer from the Supreme Court. Nonetheless, there was allusion to a further conversation at Church where something had been said.

13 I am quite satisfied, however, that my early misgivings in this respect were unfounded and that the entire conversation related to the history of this trial.

14 Two issues arise: The first is whether the hunch of counsel for the accused that this witness is concealing prejudicial material from the Court is well founded. The second is, I suppose, the alternative possibility whether one can be reasonably confident that, at the end of the day, this juror has disclosed what he knew, that is, that he is not holding something back.

15 Now, it has to be said that the juror was not forthcoming when initially asked about his discussions with others concerning this trial. I accept, however, that he was embarrassed because he plainly had departed from the warnings that he had repeatedly been given. Although it did require direct questioning, I nonetheless believe that ultimately he provided the Court with such knowledge as he had.

16 It is perhaps instructive to ask: What could he possibly have known that he may have withheld? The answer is, of course, pure speculation. It is possible, I suppose, that it came to his notice from these discussions that the previous jury in the trial before Patten AJ was a hung jury. If that were so, then that would be a matter favourable to the accused, which Mr Thangaraj for the accused, acknowledged.

17 One must, indeed, speculate much further before prejudice could arise that the conversation included jury numbers and the possible view of the particular person who was said to have been on the previous jury.

18 A number things will be noticed about the conversation at Church as related by the juror. First, nothing in the conversation with the Supreme Court officer was prejudicial to the accused. There was a reference to the fact that he knew that there had been a previous trial but that was a matter disclosed to this jury at the very outset of the trial. The only source of possible prejudice must concern the conversation at Church. It appears that one of the Church members was a previous jury member. However, the conversation as related by the witness was a conversation not with that person but his wife, and the juror's wife. I accept the juror's account as ultimately given that when he recognised, having come to the conversation late, that it concerned the same trial, he put an end to the conversation.

19 The juror was asked whether he had spoken to other jury members about his Church conversation. His answer was in these terms:

“No, nobody knows about that, no. Hang on; hang on. I'm sorry, I can't remember that. I don't think so but I could have said something; just that I was, that I stopped."

20 The impression I got from that evidence was that he may well have mentioned the coincidence, which is remarkable, that someone from his Church group had been on a previous jury, and that he had put an end to the conversation once that came to his notice.

21 It seems to me, taking all these matters into account, that there is no basis upon which the jury should be discharged; that I should decline to discharge the particular juror and that the third question (as to the discharge of the reduced panel), therefore, does not arise.

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