R v JH (No 3)
[2014] NSWSC 1966
•28 August 2014
Supreme Court
New South Wales
Medium Neutral Citation: R v JH (No 3) [2014] NSWSC 1966 Hearing dates: 25-28 August 2014 Date of orders: 28 August 2014 Decision date: 28 August 2014 Jurisdiction: Common Law - Criminal Before: Hall J Decision: (1) The juror be discharged from the jury pursuant to s 53B of the Jury Act 1977.
(2) The juror be issued a certificate pursuant to s 55DA of the Jury Act 1977.Catchwords: CRIMINAL LAW – juries – juror misconduct – internet research by juror as to identity of the deceased – examination by judge of juror in question and foreperson – discharge of juror Legislation Cited: Evidence Act 1995
Jury Act 1977Cases Cited: Attorney General v Dallas [2012] EWHC 156
Folbigg v R [2007] NSWCCA 371
R v Bilal Skaf, R v Mohammed Skaf [2004] NSWCCA 37
R v Hawkins [2005] EWCA Crim 2842
R v JP (No 1) [2013] NSWSC 1678
R v JP (No 2) [2013] NSWSC 1679
R v K [2003] NSWCCA 406
R v Karakaya [2005] EWCA Crim 346
R v Marshall [2007] EWCA Crim 35
R v Sio (No 3) [2013] NSWSC 1414Category: Procedural and other rulings Parties: Regina (Crown)
JH (Accused)Representation: Counsel:
Solicitors:
P Leask (Crown)
J Hickleton (Accused)
Solicitor for Public :Prosecutions (Crown)
Uther Webster & Evens (Accused)
File Number(s): 2011/190145 Publication restriction: Non-publication order made in respect of the name of the Accused and all witnesses who were underage at the time of the offence
Judgment
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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
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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.
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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.
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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”.
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Section 68C is in the following terms:
“(1) A juror for the trial of any criminal proceedings must not 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.
Maximum penalty: 50 penalty units or imprisonment for 2 years, or both.
(2) This section applies in respect of a juror from the time the juror is sworn in as a juror and until the juror, or the jury of which the juror is a member, is discharged by the court having conduct of the proceedings.
(3) This section does not prohibit a juror:
(a) from making an inquiry of the court, or of another member of the jury, in the proper exercise of his or her functions as a juror, or
(b) from making an inquiry authorised by the court.
(4) Anything done by a juror in contravention of a direction given to the jury by the judge in the criminal proceedings is not a proper exercise by the juror of his or her functions as a juror.
(5) For the purpose of this section, making an inquiry includes the following:
(a) asking a question of any person,
(b) conducting any research, for example, by searching an electronic database for information (such as by using the Internet),
(c) viewing or inspecting any place or object,
(d) conducting an experiment,
(e) causing someone else to make an inquiry.”
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Accordingly, the foreperson was affirmed and gave answers to questions put during the course of the examination as follows:
“HIS HONOUR
…
Q. You are acting as foreperson for the jury in this trial, is that so?
A. Yes.
Q. And you made a note which you have sent to me in relation to a matter concerning one of the jurors, is that so?
A. Yes.
Q. I am required under the Jury Act to conduct an inquiry where matters of this kind arise?
A. Yes.
Q. Thank you for the note that you've provided. I understand from your note that you spoke to the juror in question and asked her how she had obtained the information to which you refer in the note?
A. Yes.
Q. Did she provide any information to you as to how she conducted that search?
A. Yes.
Q. What information did she furnish you?
A. I'm not sure what I can and can't say because you're not saying what it was that I said.
Q. Just a minute, what I need to know is whether in addition to the information that you have supplied in the jury note, anything further was said between you and the juror or whether the jury note exhausts the conversation on the topic?
A. I said something like "but you can't do that" and she said something like "oh, well, I did". That's pretty much all that was said because we were just coming into court, so.
Q. Yes, I see. I understand from your note, is this still the position, that you did not repeat any of the conversation that took place with this juror with any other of the jurors?
A. No, it was said as we were coming in and I wrote the note after we'd come out and I hadn't mentioned the note and I don't think anyone noticed; they thought I was writing a note about something else.
Q. That remains the position, there has been no discussion in the jury room?
A. I don't know whether she had told anyone else. I have heard the same matter being discussed and I didn't hear her volunteer the information that she gave me.
Q. Say that again?
A. I heard the same matter being discussed in the group since then and she didn't volunteer the same information that she gave me.
Q. Are you referring now to a discussion about this matter in the jury room‑‑
A. A discussion.
Q. ‑‑or not?
A. Not about what she said.
Q. Sorry, so that we observe the necessary procedures to ensure the integrity of the jury room, I'm not asking you to, in answer to any question, to divulge anything said in the jury room. My question is wholly to ascertaining whether the matter the subject of your jury note has been discussed in the jury room itself?
A. Not as far as I'm aware. I don't think it has.
Q. Thank you, ma'am, what I will ask you to do is to go with the court officer so that you can return to the jury room. I would ask at this stage not to disclose to the jury what has transpired at this point, simply that you have been requested by the Court officer to attend to court so that court processes can be followed, or something of that neutral form; do you understand what I mean?
A. Yep.
…”
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Following the examination of the foreperson, the Sheriff’s Officer was directed to bring the juror in question brought into the courtroom.
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At about 12.30pm the juror in question was sworn and gave the following answers during the course of the examination as follows:
“HIS HONOUR: Just take a seat there?
A. (Witness complied.)
Q. Do you know your juror number?
A. Yes.
Q. Put on the record your number?
A. [XXXXX ].
Q. Madam, the reason I asked you to come into court is this: That under the Jury Act I'm required to conduct an inquiry into any matter concerning the trial in order to determine whether or not there's any problem arising that could affect the progress of the trial. So from this point forward I don't want you to be over‑awed about this, it is simply a standard procedure that has to be followed. I have had you to give an oath so that I can obtain information from you on oath to determine what I have to do in discharge of my duty.
It relates to the question of information obtained via the Internet. Could you just tell me so that I understand whether this is a matter that is relevant or not relevant to what I have to determine, as to any inquiry or research that you've undertaken so far as the Internet is concerned that bears upon in any way, shape or form this trial; not other matters in other words?
A. Yes.
Q. Can you just tell me in detail what inquiry you have made. Perhaps if you could start by telling me the methodology if you like, in other words, what search terms you employed just so I can follow and understand properly your position so far as the information is concerned?
A. Yes, I typed in the name of the victim because I just wanted to see his face.
Q. And that took you where?
A. At home.
Q. Once having typed in the name of the victim, that is "Eden Delir"?
A. Yes.
Q. What did that search result in, in terms of‑‑
A. It's on Google and it's like images comes up.
Q. Well, then, what image or what page, as it were, electronic page, came up and which you examined?
A. The name.
Q. What else?
A. The other pictures had absolutely nothing to do with that but I just opened up because I wanted to see his face but every time when they are talking about the victim, I see strange images about that poor boy and I just wanted to see his face without any injuries, anything, just see him.
Q. Additionally was there a reason that you undertook that search, apart from wanting to see his face and, if so, what was that other reason?
A. Yeah, no, it wasn't, I just typed in his name. It came up, the picture, and I was more relaxed that I could put a face to the name.
Q. Has there been any discussion between you and anyone else associated with the case for the reason that you undertook the search also was to identify whether the victim's parents are in Court?
A. No, I didn't talk about these things to anyone. And on this page, when different pictures comes up, there was another picture just next to it with the parents holding his picture which is like, it comes up. If you want to have a look at that and investigate, you have to click on those pictures and then information comes up but I didn't do that. I just wanted to see him.
Q. So that you understand the proposition I am putting to you‑‑
A. Yes.
Q. ‑‑is that there is information which I have which suggests that you undertook the search to ascertain whether two of the people sitting at the back of the Court were the parents of the victim, I just need to ascertain whether that is in fact also the case?
A. No.
Q. Did you at any time tell anybody that that's the reason that you undertook that search?
A. Just today, to the other juror, when she was investigating about other people in the room.
Q. Sorry, which juror?
A. She was asking me who is this person, that person and that's how it came out.
Q. Is this the position: That, having loaded up the image you've referred to, you came to see the image of his parents?
A. Yes.
Q. And in the image or images was there anyone or more than one image?
A. This is one whole page and on the page there are real small pictures of, about, like‑‑
Q. When you clicked on this search, are you saying that there's only the one screen of that that you looked at?
A. You have to click on. I didn't click on because I already saw him.
Q. How many images did you examine, just the one?
A. To look at, just one.
Q. That was an image of the deceased?
A. Yes.
Q. And an image of his parents was also on that?
A. Holding his picture. That's how I thought they must be the parents.
Q. How did you conclude that they were his parents if there was no text on the screen saying who they were?
A. Well, why would they hold the picture, his picture?
Q. Sorry?
A. Why would they hold his picture?
Q. Is this the position, so, again, I'm clear about it: You saw the image of Eden, that image contained a picture of his parents holding a photograph of Eden?
A. That was next to it.
Q. Next to it?
A. (Witness nodded).
Q. And you say there is some other photographs on that image?
A. Yeah.
Q. There were others, what, smaller photographs?
A. The same size images but sometimes it comes up something like completely different, it is not necessarily about the topic.
Q. What sort of images were those?
A. I didn't look.
Q. You did not look at them?
A. No.
Q. Was there any written text on the image?
A. No, only the picture, it comes up under "images".
Q. There is no, therefore, text you say that you saw on the Internet about this matter?
A. No, not besides his name but I typed that.
Q. His name?
A. Yep.
Q. Any other words written on the image that you can recall?
A. No.
Q. Only his name?
A. Not on the image but when I typed in his name.
HIS HONOUR: Mr Crown, any matter that you wanted to raise?
CROWN PROSECUTOR: Yes.
Q. I take it the juror says it was a Google search?
A. Yes.
CROWN PROSECUTOR: Google nowadays brings up simply images under a heading "Images" and no text but it also brings up headings with text. If it's the case that it is images, that would not be text, although it is a matter of evidence from the juror, but Google arranges things separately.
HIS HONOUR:
Q. Before you say anything else, would you mind writing on this piece of paper, which I will have handed to you, exactly what you typed in as the search terms (handed to juror)
A. (Witness complied).
HIS HONOUR: Hand that to the officer, yes, thank you.
I will have the document upon which the juror has written search terms marked for identification 15.
MFI #15 DOCUMENT MARKED BY JUROR/WITNESS
HIS HONOUR: Mr Crown, nothing else you want to raise at this stage?
CROWN PROSECUTOR: I understood she says she didn't read any articles of text.
HIS HONOUR:
Q. Is that the position?
A. For that you have to click on the picture.
Q. Is the answer that you did not read any articles or text?
A. Yeah, no.”
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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:
“HIS HONOUR: You understand you are still on the oath you took a moment ago?
A. Yes.
Q. I want to clarify a couple of matters so we fully understand. I asked you these questions and I will read them out aloud so you can hear it and your answer:
“Q. Did you at any time tell anybody that that's the reason that you undertook that search?
A. Just today, to the other juror when she was investigating about other people in the room.
Q. Which juror?
A. She was asking me 'who is this person, that person' and that's how it came out.”
Q. I need to clarify your answers. When you answered the first question, "Did you at any time tell anybody that that's the reason that you undertook that search" and you answered "just today to the other juror when she was investigating about other people in the room", what were you referring to when you said "When she was investigating about other people in the room"?
A. She was asking me, first she was telling me that there are extra, two people this day, there are three people in the corner. The day before it was only two and she was asking me "do you know" or "what do you think who they are?"
Q. "The room" refers to which room?
A. Okay.
Q. Which room?
A. This one.
Q. This room, you're referring to the courtroom?
A. Yep.
Q. When you had this discussion with the juror you've just referred to, where and in what circumstances did this discussion between you and her take place? Where, firstly?
A. We were sitting at the place where we have
Q. You have to keep your voice up?
A. Sorry, we were sitting down here (indicated).
Q. What do you mean by "sitting here"? You've gestured towards the jury box?
A. Yeah, the jury box.
Q. At what point was it, that you were sitting down or after you become seated in the jury box?
A. After we became seated.
Q. You were sitting next to this?
A. Yes.
Q. And was this a conversation that took place immediately after you came into Court and sat down?
A. Not immediately. As I can recall, when we were waiting for a witness, I think.
Q. Waiting for?
A. For a witness.
Q. I see. What did this other juror say to you when you were seated in the jury box waiting for the witness?
A. She was just wondering who those people are.
Q. Doing the best you can, what did she say?
A. "There are three people in the corner. Who do you think who they are?" Something like that.
Q. Did you respond; if so, what did you say?
A. I said, "Yeah, really, no, I don't know who they are".
Q. Was there any other conversation at that time?
A. I even mentioned to her "we might just can ask whose these people are".
Q. I can't hear you.
A. I just mentioned to her, "We might can ask who they are, who done that". That's what I meant, put on that piece of paper and ask who those people in the corner.
Q. Was there anything else said between the two of you?
A. No, after that, I mentioned, and those people are the parents.
Q. What did you say to her about that and about how you obtained the information that they were the parents?
A. I just said that those people are the parents and she asked me how do I know it.
Q. What did you reply?
A. Well, I said I looked it up.
Q. What did you actually say to her, "I looked it up"?
A. I think I said, "I looked up the victim's picture and they came up".
Q. Did she say anything further, or did you say anything further then?
A. No. She was bit surprised, yep.
Q. Anything else said?
A. No.
Q. Were you speaking in an audible voice or were you, what, how loud were you speaking and she speaking?
A. Whispering.
Q. Whispering, both of you?
A. Yes.
Q. Just to be clear about it, ma'am, so far as the question as to the identity of the persons said to be the parents of the deceased, that topic; has there been any discussion of that in the jury room while you have been there at all today?
A. About this?
Q. About this issue?
A. No, no.
HIS HONOUR: What I'd like you to do, if you wouldn't mind, is re produce the search you did this morning by putting in the search terms that you have already advised us about. Is there a computer, laptop available?
CROWN PROSECUTOR: I can do it with this one, your Honour.
HIS HONOUR: Ma'am, just to explain so we fully understand exactly what you've done and seen.
Mr Crown, bring up the Google search.
(IPad handed to witness)
CROWN PROSECUTOR: It is a browser, we will ask her to do it.
HIS HONOUR
Q. Ma'am?
A. I have a completely different one.
Q. Different one?
A. Yeah. My doesn't look like this. It comes up differently. I mean, I can type in what I typed in.
CROWN PROSECUTOR: It won't matter. She can do a Google search of the name she did, if something comes up she recognises?
HIS HONOUR: Go ahead and do the Google searches. If there's any differences, we will establish that later.
WITNESS: Yes. (Witness complied.) Should I just press? Mine is not like that.
HIS HONOUR:
Q. Have you completed that search?
A. Yeah, but it's not the same. Mine doesn't come with text underneath. They are just pictures.
HIS HONOUR: Perhaps hand it to the officer so he can show counsel.
CROWN PROSECUTOR: I think it she unfamiliar with that tablet.
HIS HONOUR: What do you suggest, Mr Crown?
CROWN PROSECUTOR: We just can keep trying, just one more try.
HIS HONOUR: Is there a different computer that can be used?
CROWN PROSECUTOR: We really need a PC that is Internet. A laptop that has Wi Fi.
HIS HONOUR: Do you have a PC?
CROWN PROSECUTOR: I have a PC but we need to enable it to contact the Internet.
HIS HONOUR: Can't it connect to the Internet here?
CROWN PROSECUTOR: We can. We just need a dongle.
HIS HONOUR: How long will it take? Sorry to keep you waiting.
WITNESS: I'm sorry. I am really sorry about this but unusual, it got to me.
HIS HONOUR: No need to apologise. We just want to make sure we know where we're going. It is better to be thorough about it.
CROWN PROSECUTOR
Q. It is a PC you have at home?
A. Mackintosh.
HICKLETON
Q. Apple?
A. Apple.
CROWN PROSECUTOR: Doesn't matter.
HICKLETON: It does, it's different.
Your Honour, may I ask through you whether this lady is using search engine safari or internet explorer or fire fox?
HIS HONOUR:
Q. Are you able to answer that inquiry?
A. Not really.
Q. You know the safari search mechanism?
A. I think safari, it must be safari.
Q. Safari?
A. I think so.
CROWN PROSECUTOR: That is an Apple and it has the Google browser on it, so she should be familiar with that.
HIS HONOUR: Okay, use the Google browser search engine.
(Witness complied.)
WITNESS: Here we are.
HIS HONOUR
Q. Did you bring up the screen that you saw?
A. Yeah.
Q. Can I just confirm, firstly, perhaps if you hand that to the officer (Witness complied.) Officer, could you show counsel?
CROWN PROSECUTOR: That's right. I noticed that on the first try, the spelling of the name was wrong but I think that is because of the small screen.
HIS HONOUR: I was about to raise that. MFI 15 indicates a different spelling.
CROWN PROSECUTOR: E I D E N D E N I R. It looks typical of hitting the wrong key.
HIS HONOUR: We will have this handed back to the juror.
Q. I am handing back to you the laptop with the screen that you've brought up. I think on the top right hand corner there is a screen that if you tap into, it brings up another screen; did you activate that?
A. No.
Q. You did not?
A. I didn't activate any of this.
Q. Are you saying on your oath now that the only images or only screen that you saw as a result of the search is the one that you're holding in front of you now and no other?
A. Yes.
Q. Is that right?
A. Yes.
HIS HONOUR: Perhaps counsel can at some stage download that in printed form.
CROWN PROSECUTOR: I will.
HIS HONOUR: Thank you, madam. I will you if you wouldn't mind going with the Court officer. We are going into lunch now, it will be a little while. Thank you for your cooperation. Just wait in the waiting room for a moment. Thank you, officer.”
Submissions on the Application that the Relevant Juror be Discharged
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Ms Hickleton, counsel for the accused, made an application that the juror in question be discharged.
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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.
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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.
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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”.
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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.
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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.
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The Crown acknowledged that the photograph amounted to “extraneous material that is capable of exciting the emotion or prejudice”.
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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:
“It is as if she has seen a picture in the newspaper of the deceased or somewhere and has looked at it. She has not given any evidence or there is no reason on the basis of what she has done to find she's going to be unable to apply her mind consistent with her oath. It must have been an emotional response to go and look.” (T 276:12-16, 28 August 2014)
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In the circumstances, the Crown submitted, the jury should instead receive a further direction with respect to research, investigations, and media reports.
Consideration
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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:
“The other matter that is of fundamental importance is a question of what I might call research. It is not permissible to use any material or research tools, such as the Internet, to access, for example, legal databases, earlier decisions or any factual material of any kind relating to matters that this trial is concerned with. One of the reasons for giving you that warning is that there is a risk that if you were to do so, to access such material, statements as to legal principles, for example, may not apply in this State or they may have been changed since they were publically placed on a website. It's possible that you may obtain commentary or a statement of fact which is incomplete or it's inaccurate at the time that it was made.
…
“So far as investigations, I referred to research earlier, it's important that you do not make any attempt to make any private examination concerning any aspect of the case because, if you do, you would change your role from that of being impartial jurors to becoming investigators. That could lead you to taking into account some material that wasn't properly before you in evidence.”
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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).
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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.
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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”.
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Both sections of the Act operate to ensure that an accused has a fair trial on the evidence by an impartial jury.
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In R v Sio (No 3) [2013] NSWSC 1414, Adamson J observed at [5]:
“In an investigation of alleged misconduct by a juror in the course of a trial, it is not necessary that the trial judge be satisfied that a juror has engaged in misconduct beyond reasonable doubt: Smith v The Queen [2010] NSWCCA 325; 79 NSWLR 675 at [28] per RA Hulme J, McClellan CJ at CL and McCallum J agreeing.”
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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”.
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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.
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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.
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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.
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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.
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The jury, consisting of eleven jurors, were then brought back into the court and informed that the relevant juror has been discharged.
Discussion
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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:
“The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” (Patterson v Colorado, 205 U.S. 454, 462 (1907))
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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.
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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.
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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
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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.
(a) Australian case law
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There are few cases within New South Wales that address juror misconduct in the context of independent internet research.
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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.
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In R v K the evidence on appeal established the following:
“(a) Jurors 1,4,5 and 6 and 10 said that they had knowledge that the appellant had been accused of murdering his second wife, and that:
(i) jurors 1,4 and 6 had obtained that information by internet searches which they had each independently made; while
(ii) jurors 5 and 10 seemed to have obtained it from other jurors;
(b) Jurors 2 and 6 reported that they had knowledge from their internet searches that the trial was a retrial; and (per defence counsel) either they, or some other juror, had disclosed a knowledge of the sentence that had been passed;
(c) Jurors 3,7 and 8 and, it would seem, juror 2, said that they had no knowledge that the appellant had been charged with the murder of his second wife;
(d) Either expressly or implicitly, all jurors suggested that they had not used any evidence in coming to their verdict except that given in the trial;
(e) There was a considerable degree of inconsistency, in their recollections, as to whether the information concerning the charge relating to the second wife had been discussed generally in the jury room, or had been confined to particular groups, or had been discussed between two of them on the way home, in each case prior to verdict, or only after the verdict had been returned;
(f) Defence counsel (per his affidavit) had been informed by one juror that a friend had shown him the house where the two murders had allegedly occurred, and had said to him “that’s the house where K. killed two of his wives”.” (at [52])
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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:
“[75] Applying the test in Marsland to the present case, I am unpersuaded that any independent search conducted, or information acquired, by any jury member relating to the fact that this was a retrial gives rise to the need for intervention by this Court. That circumstance was before the jury, and although, quite properly, they had not been expressly informed of the result of the trial, it must have been apparent to them that there was at least a very high probability of there having been a conviction, which had been subsequently set aside for error. Whatever be the case in that regard, his Honour’s directions were clear and unambiguous in relation to the need to ignore the circumstances of the prior trial, and to concentrate on the evidence presented.
[76] The remaining matter relating to the internet search, and the information that resulted from it, concerning the charge which had been brought in respect of the murder of the second wife, falls, in my view, on the other side of the line. Even though the appellant had been acquitted of that charge, it is not known whether the information which was recovered from the internet search revealed that circumstance, or was confined to a discussion of the fire and the death, and of the fact that the appellant had been charged. As I have earlier indicated, there was a risk of coincidence or tendency reasoning being employed, in those circumstances, by the relevant members of the jury, which had been totally uninstructed concerning these principles. There was also a risk of the matter having been viewed by those jury members as raising bad character, again without the benefit of any appropriate instructions.
[77] Moreover, there is the circumstance that the jurors, who had undertaken the search, had not obeyed the preliminary direction by his Honour not to go beyond the evidence, which was presented in the trial. That they considered it appropriate to make the searches was clearly wrongful, as was the conduct of the juror who had taken himself on a “private view” of the place where the alleged murders had taken place. I would not, however, have regarded that circumstance as sufficient for the Court to intervene, particularly in circumstances where it was not known whether he had done any more than to pass by the house.
[78] In those circumstances I do not believe that the court could be satisfied that the irregularity arising from the internet search had not affected the verdict…”
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The Court in R v K quashed the conviction and sentence and directed that there be a new trial.
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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.
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On the hearing of the appeal the following agreed facts were tendered:
“Agreed Fact 1
5. During the course of the trial several of the jurors became aware of the fact that the appellant’s father had murdered her mother when the appellant was a young child. One particular juror did a general search of the internet under Ms Folbigg’s name and found several related sites. It was as a result of this search the juror obtained the information. This juror then told other jurors.
Agreed Fact 2
17. Inquiries were made by a juror or jurors concerning the length of time a body remains warm after death. There was discussion between jurors regarding information from a friend of one of the jurors who was a nurse. The effect of the information, which gained some currency amongst jurors, was that a body would go cold after an appreciable period of time.” (at [8])
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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].
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In that case McClellan CJ at CL delivered the leading judgment (with whom Simpson and Bell JJ agreed). His Honour stated at [51] that:
“It is more common that if an irregularity in the conduct of the juror occurs it is identified in the course of the trial. When this happens the trial judge can take steps to deal with the situation by giving directions which remind the jurors of their obligation to decide the case in accordance with the evidence given in court and not on any other material. If it is believed that irreparable problems exist the jury can be discharged before a verdict is taken. However, it is necessary to consider the evidence of the jurors’ conduct in the present case having regard to the fact that the jury returned verdicts of guilty. The primary question for this Court is whether it can be satisfied that the irregularities have not affected the verdicts.”
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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].
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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.
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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.
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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.
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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.
(b) United Kingdom case law
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The issue of juror misconduct by way of internet research was considered AttorneyGeneral 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.
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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:
“We have no doubt that the defendant knew perfectly well, first, that the judge had directed her, and the other members of the jury, in unequivocal terms, that they should not seek information about the case from the internet; second, that the defendant appreciated that this was an order; and, third, that the defendant deliberately disobeyed the order. By doing so, before she made any disclosure to her fellow jurors, she did not merely risk prejudice to the due administration of justice, but she caused prejudice to it. This was because she had sought to arm and had armed herself with information of possible relevance to the trial which, although not adduced in evidence, might have played its part in her verdict. The moment when she disclosed any of that information to her fellow jurors she further prejudiced the administration of justice. In the result, the jury was rightly discharged from returning a verdict and a new trial was ordered. The unfortunate complainant had to give evidence of his ordeal on a second occasion. The time of the other members of the jury was wasted, and the public was put to additional unnecessary expense. The damage to the administration of justice is obvious.” (at [38])
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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].
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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”.
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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:
“If material is obtained or used by the jury privately, whether before or after retirement, two linked principles, bedrocks of the administration of criminal justice, and indeed the rule of law, are contravened. The first is open justice, that the defendant in particular, but the public too, is entitled to know of the evidential material considered by the decision-making body; so indeed should everyone with a responsibility for the outcome of the trial, including counsel and the judge and, in an appropriate case, the Court of Appeal, Criminal Division. This leads to the second principle, the entitlement of both the prosecution and the defence to a fair opportunity to address all the material considered by the jury when reaching its verdict. Such an opportunity is essential to our concept of a fair trial. These principles are too basic to require elaboration. Occasionally, however, we need to remind ourselves of them.” (at [24])
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Accordingly, the appeal was allowed.
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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.
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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.
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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].
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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].
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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.
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In considering the similarities between the present appeal and Karakaya, the court observed:
“Like this court in Karakaya we cannot know how many of the jurors were shown it. It is necessary to proceed upon the basis that although it may only have been one, it could have been any number of them, but plainly it was at least one. Like this court in Karakaya, we are clear that reference to this material contravened an important principle of jury trial, namely that no further material ought to be considered by the jury once it had retired. This was material that the defendants and their legal advisers did not know about and about which they could not address any arguments to the jury. Nor had the material been made public and a criminal trial takes place in public. When this kind of thing happens it is a matter of considerable concern. On the face of it, it is an irregularity which is very likely to lead to a conviction being held to be unsafe. That was the conclusion of this court in Karakaya.” (at [9])
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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.
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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”.
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In finding that the convictions were, in fact, safe, the court had regard to the following factors:
The jury made several enquiries of the trial judge about the law. That indicated that the jury were turning to the judge, as they should have done, for authoritative rulings about the law.
Although it is possible to envisage a situation in which a jury could be led towards convicting of a more serious offence because it feared an otherwise low sentence, in this case, the jury acquitted both defendants on the counts of murder.
The jury returned discriminating verdicts for which there was a very clear basis.
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Notwithstanding that determination, the court concluded:
“We observe, without attempting to prescribe any kind of formula, that the case underlines the importance of the direction which is conventionally given to jurors at the outset of the trial (and was given to this jury) to the general effect that the golden rule which they must apply is to try the case on the evidence alone which is what they hear in court and nothing else. That can, without drawing attention to any particular risks, conveniently be given in a form which reminds them first of the general rule, secondly of its application in a prohibition on discussion of the case with family, friends or anybody else, and quite often conveniently also with a reminder that private research, whether in the library or on the internet, should be abjured.” (at [15])
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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”.
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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.
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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
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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”:
“The case is to be decided on the evidence produced before the jury in court after they have heard counsel’s arguments and the judge’s directions.” (at [25])
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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.
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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.
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Those examples I have just given are, of course, related to words and text, rather than images.
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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.
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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
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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:
(1) The juror be discharged from the jury pursuant to s 53B of the Jury Act 1977.
(2) The juror be issued a certificate pursuant to s 55DA of the Jury Act 1977.
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Decision last updated: 06 August 2018
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