R v JH (No 4)

[2014] NSWSC 1967

Supreme Court

New South Wales

Medium Neutral Citation:	R v JH (No 4) [2014] NSWSC 1967
Hearing dates:	25-28 August 2014
Decision date:	28 August 2014
Jurisdiction:	Common Law - Criminal
Before:	Hall J
Decision:	Pursuant to s 53C of the Jury Act 1977, order made that the trial continue with eleven jurors
Catchwords:	CRIMINAL LAW – juries - application that the whole jury be discharged following the discharge of a juror in accordance with s 53A of the Jury Act 1977 – no risk of a substantial miscarriage of justice – trial to continue with remaining eleven jurors
Legislation Cited:	Jury Act 1977
Cases Cited:	Crofts v The Queen (1996) 186 CLR 427 R v JH (No 3) [2014] NSWSC 1966 R v K [2003] NSWCCA 406; 59 NSWLR 431 R v Rinaldi & Kessey (1993) 30 NSWLR 605 Wu v The Queen (1999) 199 CLR 99
Category:	Procedural and other rulings
Parties:	Regina (Crown) JH (Accused)
Representation:	Counsel: P Leask (Crown) J Hickleton (Accused)   Solicitors: Solicitor for Public Prosecutions (Crown) Uther Webster & Evans (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

1. On 28 August 2014 I made an order pursuant to s 53A(1)(c) of the Jury Act 1977 (“the Act”) discharging a juror on the basis of “misconduct” within the meaning of s 53A(2) of the Act.

2. Following the making of that order an application was made by Ms Hickleton, counsel for the accused, for an order discharging the whole jury pursuant to s 53C(1)(a) of the Act.

3. After hearing submissions on behalf of the accused and the Crown, I determined that there did not exist a risk of a substantial miscarriage of justice were the trial to continue with a jury of eleven. I accordingly formed the view that the trial should continue before the jury of eleven. I indicated that I would publish my reasons at a later date.

Factual background

4. On 28 August 2014 (the fourth day of the trial) I received a note from the jury which was marked as MFI 14. That note advised that a juror told the foreperson that they had searched for a photo of the deceased on the internet. The jury note further advised that the foreperson did not repeat that information to any other juror.

5. I subsequently conducted an examination of the foreperson and the relevant juror pursuant to s 55DA of the Act. The questions and answers in relation to both of those examinations have been set out in R v JH (No 3) [2014] NSWSC 1966.

6. The relevant information elicited from the foreperson was that the juror in question had advised the foreperson alone that she had conducted the internet research. The foreperson was not aware of that matter being discussed on any other occasion or in the presence of any other jurors.

7. I did not, however, explore that matter further, as doing so would risk undermining the sanctity of the jury room and infringe the well-established principle that the court does not admit evidence of a juror as to what took place in the jury room: R v K [2003] NSWCCA 406; 59 NSWLR 431; and R v Rinaldi & Kessey (1993) 30 NSWLR 605.

8. During the course of the examination of the relevant juror, that juror stated that she had conducted a “Google” search for images of the deceased, Eden Delir. That search generated a photograph of the deceased’s parents holding a photograph of the deceased. The juror stated that no text appeared under any of those images and that she did not click on any of the images. The juror replicated the searches she had undertaken on an iPad in the witness box to confirm this.

Submissions

9. Ms Hickleton’s application that the whole jury be discharged was made pursuant to 53C(1)(a) of the Act. That section relevantly provides:

“(1)   If a juror dies, or the court or coroner discharges a juror in the course of a trial or coronial inquest, the court or coroner must:

(a)   discharge the jury if the court or coroner is of the opinion that to continue the trial or coronial inquest with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, or

(b) if of the opinion that there is no such risk and subject to section 22, order that the trial or coronial inquest continue with a reduced number of jurors.”

10. Section 22 of the Act is in the following terms:

“Where in the course of any trial or coronial inquest any member of the jury dies or is discharged by the court or coroner under Part 7A, the jury shall be considered as remaining for all the purposes of that trial or inquest properly constituted if:

(a)   in the case of criminal proceedings, the number of its members:

(i)   is not reduced below 10,

…

and if the court or the coroner, as the case may be, orders that the trial or coronial inquest continue with a reduced number of jurors under Part 7A.”

11. Ms Hickleton’s submission was based upon the principle that a person standing trial stands to be judged by a jury of twelve. It was submitted that the consequences of being judged by a jury consisting of fewer jurors were even graver when a person stood to be tried on the charge of murder.

12. Ms Hickleton further stated that she was concerned about the dynamic of the jury if it were to continue with eleven jurors and that the foreperson would subsequently be in an “untenable” position and unable to carry out the functions of a person as a consequence of jury’s speculation as to what has transpired today.

13. It was submitted that the influence upon the jury as a consequence of the juror’s discharge may be adverse to the accused or to them conducting themselves as a jury as would have been the case had the events of today not transpired.

14. Ms Hickleton noted that even though the trial was in its fourth day, evidence had only been heard over one and a half days. It was further noted that at this early stage in the trial, there remained the risk of another juror being lost, for example, to ill health. Accordingly, it was submitted that this jury should be discharged so that the accused has the benefit of being judged by a jury of twelve and having “the trial that it was intended he should have according to law”.

15. The Crown opposed the application and submitted that the evidence did not disclose that the remaining jurors had been contaminated. Accordingly, the jury was well-composed of eleven jurors.

16. The Crown submitted that a factor to be taken into account is that, if the jury were to be discharged, witnesses would be inconvenienced. It was noted that the witnesses, most of whom are young people, have already given evidence in a previous trial and were additionally required to again give evidence in future related trials. To recall those witnesses in a further trial of the accused would amount to an “injustice”. The Crown argued that it was deleterious to the interests of justice that witnesses should be put in a position where their evidence might be eroded by the passage of time and repeated evidence.

17. In respect of this trial being in its early stages, the Crown submitted that “it is not so early that it has not involved a great deal of expense and evidence that has gone deep in the well” of the facts in issue. Further, that “this is a case where most of the facts are not, or should not, be in dispute and witnesses should not have to return to give them”.

Conclusion

18. Section 53C(1)(a) confers a discretion on the court to discharge a whole jury if continuing with the trial would give rise to the risk of a substantial miscarriage of justice. Section 53C(1)(b) provides that if the court is of the opinion that there is no such risk, the court must order that the trial continue with the reduced number of jurors. The discretion conferred on the court is therefore an important one.

19. The question of the discharge of a single juror, and whether the whole jury ought be discharged, involves separate questions and issues and must be addressed distinctly: Wu v The Queen (1999) 199 CLR 99 at [6] per Gleeson CJ and Hayne J, [28]-[30] per McHugh J and [67] per Kirby J; and R v Sio (No 4) [2013] NSWSC 1415 at [1].

20. Having heard the submissions made by counsel and taken the time to reflect upon the appropriate decision, I determined that there did not exist a risk of a substantial miscarriage of justice were the trial to continue with a jury of eleven, and that as a result, the trial should continue with eleven jurors.

21. In reaching this conclusion, I had regard to a number of matters, including:

1. The evidence given in the examinations of the foreperson and the relevant juror;

2. The gravity of the offence charged, and the requirement that an accused received a fair trial;

3. Any risk that the conduct of the relevant juror could impact the impartiality of the remaining jurors;

4. Whether the remaining eleven jurors would be able to conduct themselves in accordance with their obligations; and

5. The stage at which the trial had reached.

22. I further had regard to the principles enunciated by the High Court in Crofts v The Queen (1996) 186 CLR 427, in particular, at 432:

“Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is a matter within the trial judge's discretion. But it is a discretion which is to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice. It is in that sense that it has been said that the underlying principle is that of necessity and that "a high degree of need for such discharge" must appear before a discharge will be ordered. When a trial judge's refusal to discharge a jury is called in question, it must be borne in mind that he or she is ordinarily in a better position than an appeal court to assess whether, having regard to the course which the trial has taken and the atmosphere in which it has been conducted, any prejudice may be dispelled by a clear warning to the jury.” (footnotes omitted)

23. I was satisfied, having considered the evidence given during the course of the examinations of the foreperson and the juror in question, that no other member of the jury had been advised of the results of the internet searches carried out by that juror. On the basis of the evidence given, I was satisfied that the juror in question had not advised the foreperson of the nature of the photographs she had seen, save for the fact that her internet searches had allowed her to visually identify the deceased’s parents who were in the courtroom.

24. I therefore formed the opinion that the foreperson’s knowledge of the inquiries made did not give rise to the risk of a substantial miscarriage of justice. I additionally formed the opinion that the jury had not been subject to any contamination, in part, due to the foreperson’s timeliness in providing jury note MFI 14 and the subsequent quarantining of the juror in question from her fellow jurors.

25. Accordingly, I determined that the trial should continue before the jury of eleven.

26. The jury, consisting of eleven jurors, were then brought back into the court and I informed them that the relevant juror has been discharged and made a brief statement as to the circumstances in which that juror was discharged. I reiterated my earlier directions given to the jury in respect of making their own inquiries and reminded them of the relevant provisions of the Act which make it a criminal offence to do so.

Orders

27. On 28 August 2014, I made an order in the following terms:

1. Pursuant to s 53C of the Jury Act 1977 I order that the trial continue with the remaining eleven jurors.

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Decision last updated: 06 August 2018