R v K - [2003] NSWCCA 406

No judgment structure available for this case.

Reported Decision:
59 NSWLR 431
144 A Crim R 468

New South Wales

Court of Criminal Appeal

CITATION: R v K [2003] NSWCCA 406 revised - 29/01/2004

HEARING DATE(S): 5 December 2003

JUDGMENT DATE:
23 December 2003

JUDGMENT OF: Wood CJ at CL at 1; Grove J at 95; Dunford J at 96

DECISION: 1. Appeal allowed; 2. Conviction and sentence quashed; 3. Direct a new trial.

CATCHWORDS: CRIMINAL LAW - Appeal against conviction - whether murder trial miscarried if jury sought and found irrelevant, inadmissible and highly prejudicial material concerning the appellant.

LEGISLATION CITED: Contempt of Court Act 1981 (UK)
Juries Act 1974 (UK)
Jury Act 1977 (NSW)
Jury Act 1995 (Qld)

CASES CITED: Attorney General (NSW) v Mayas Pty Limited (1988) 14 NSWLR 342
Attorney General for New South Wales v Murphy [1869] 21 LT 598
Clamp v Lyne [1895] 11 WN (NSW) 108
John Fairfax and Sons Limited v Police Tribunal of
NSW (1986) 5 NSWLR 465
Lalchan Nassan v The State [1986] AC 860
Nesbitt v Parrett [1902] 18 TLR 510
Ras Behari Lal v The King-Emporor [1933] 1 All ER 723
R v Allan [2002] 133 A Crim R 444
R v Bell [1998] NSWCCA 131
R v Booth (1982) 8 A Crim R 4
R v Brown (1907) 7 SR (NSW) 290
R v Cant [2002] NTCCA 8
R v Chapman (1976) 63 Cr App R 75
R v Cogley [2000] VSCA 231
R v Dudko [2002] NSWCCA 336
R v Emmett, R v Masland (1988) 14 NSWLR 327
Regina v Fairclough Court of Criminal Appeal Supreme Court of Western Australia 14 February 1995
R v HJS [2000] NSWCCA 205
R v Landsdell NSWCCA 22 May 1995
R v Laws [No 2] (2000) 116 A Crim R 70
R v Marsland NSWCCA 17 July 1991
R v McLaclan [2000] VSC 215
R v Minarowska and Kozial (1995) 83 A Crim R 78
R v Papadopoulos [1979] 1 NZLR 621
Regina v Rinaldi & Kessey (1993) 30 NSWLR 605
R v Roads [1967] 2 QB 108
R v Rudkowsky NSWCCA 15 December 1992
R v Sumner (1985) 19 A Crim R 210
R v Thompson [1962] 1 All ER 65
R v Woolcott Forbes (1944) 44 SR (NSW) 333
R v Wooler [1817] 2 Stark 111
R v Young [1995] 2 QB 324
Re Mathews & Ford [1973] VR 199
Vaise v Delaval [1785] 1 TR 11
Webb v The Queen (1994) 181 CLR 41

PARTIES :
Regina
K

FILE NUMBER(S): CCA 60076/03

COUNSEL: M G Sexton SC with J A Quilter (Crown)
M Thangaraj and J McLachlan

SOLICITORS: C K Smith (Crown)
S E O'Connor

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70012/02

LOWER COURT
JUDICIAL OFFICER : Kirby J

60076/03

WOOD CJ AT CL
GROVE J
DUNFORD J

Tuesday 22 December 2003

R v K

On 14 August 2002, the appellant was indicted for the murder of his first wife, J. K., A verdict of guilty was returned on 17 October 2002. He now appeals against that conviction.

The appellant had previously been placed on trial in relation to the murder of his second wife but had been acquitted of that offence. Following the verdict in the current trial virtually all of the members of the jury adjourned to a nearby hotel, which was also visited by the defence counsel. It was disclosed during conversations between counsel and the juror, that a number of the jurors had acquired knowledge consequent upon internet searches about the history of the matter, though to varying degrees, including that the appellant had been accused of murdering his second wife, and that the current trial was a retrial, in relation to the alleged murder of his first wife. Affidavits were obtained by the Sheriff from nine of the twelve jurors.

Whether the affidavits were admissible

The material which was gathered in the affidavits related to the internet searches which had been made by individual jurors, the terms of which had been conveyed to other jurors, and to the use which was made of that information by the jurors in coming to their verdict.

Held

1) The evidence concerning the results of the Internet searches concerning the alleged murder of the second wife should be received, by analogy with the cases where evidence had been received showing that documents, which were not in evidence in the trial, had found their way to the jury room. The information was potentially prejudicial as there was a real risk of the jury applying tendency and/or coincidence reasoning, or of them regarding the evidence as having raised bad character, and as a result there should be a new trial.

2) The material concerning the discussions between jurors, and any evidence concerning the effect which the information may or may not have had on their deliberations should not be received. This is consistent not only with important public policy considerations, but also with the long established rule that the court will not hear evidence of the deliberations of the jury.

3) The evidence showing that some jurors learned from internet searches that the case was a retrial did not warrant a new trial. This circumstance was before the jury, and the trial judge gave clear and unambiguous directions to ignore any information relating to the previous trial and to concentrate on the evidence presented.

The problem of Internet Information

The extent of information regarding criminal investigations and trials online through media reports, legal databases and judgment systems of the court and its use are of ongoing importance. There may be need to review and to amend the Jury Act in order to protect the jury system by making it an offence for jurors to conduct external inquiries about an accused or the case as well as the need to discourage any such practice by appropriate directions. The direction which is now routinely given at the start of a trial, to the effect that the jury should not take into account any publicity of which they may be aware, should be extended to include an instruction that they should not undertake any independent research, by internet or otherwise and a suitable explanation given as to why they should not do so.

Orders:

1. Appeal allowed.

2. Conviction and sentence quashed.

3. Direct a new trial.

- 30 -

60076/03

WOOD CJ at CL
GROVE J
DUNFORD J
Tuesday 22 December 2003

REGINA v K

Judgment

1 WOOD CJ at CL: On 14 August 2002, the applicant was indicted, before Kirby J, on a charge of murder, the victim having been his first wife J.K.. To that charge he pleaded not guilty. After a trial, before his Honour and a jury, a verdict of guilty was returned, on 17 October 2002. He now appeals against that conviction.

2 There is a single ground of appeal, related to an alleged irregularity in the proceedings, concerning the information which came to the knowledge of the jury. Another ground, relating to the admissibility of the DNA evidence, has been abandoned.

Facts

3 It is unnecessary to venture into the facts giving rise to the charge. However, of relevance for the appeal are the following circumstances:

(a) the death of J.K., the first wife of the appellant, which gave rise to the charge of murder, occurred on 9 February 1988;

(b) In 1991, the appellant was charged with the murder of his second wife R.K., who had died in a house fire;

(c) The appellant was placed on trial in relation to that offence, but was acquitted of it;

(d) While on remand awaiting trial, police received information from two prison informants, as a result of which he was charged with, and placed on trial for, the murder of his first wife;

(e) He was convicted of that charge in 1999, but that conviction was later overturned, by reason of the misdirections which had been given, in relation to the DNA evidence, and a new trial was ordered;

4 There is no doubt that the jury were aware that the trial with which they were concerned was a re-trial. That emerged from two circumstances. First, in his Honour’s opening remarks, the jury were informed that there had been a previous trial, in the course of which there had been an error. Secondly, as was inevitably the case, witnesses were cross-examined about evidence which they had given at the previous trial.

5 No evidence was placed before them to suggest that the appellant had been previously charged, tried and acquitted of the murder of his second wife. In this respect there was no attempt to raise tendency and/or coincidence reasoning. A considered decision was made, at the request of trial counsel, not to give the jury any directions to the effect that they should not make any internet or other searches of their own. This approach was taken because it was feared that any mention, of that kind, might only place the idea in the minds of an inquisitive juror, and result in the very kind of research which, as events turned out, occurred.

6 The jury were given a direction, at the commencement of the trial, in the following terms:

“I should also mention that there may have been publicity associated with the previous trial. You may even recognise that publicity or recognise the trial from that publicity when you hear various things in the course of this trial. What I should say is: Put that publicity out of your mind. It is utterly irrelevant, just as any publicity which this trial may attract in the course of its presentation is likewise irrelevant. The only thing which is relevant is what happens in this courtroom, the evidence which is called before you and the exhibits that are presented to you. That is the material upon the basis of which you must determine your verdict. So you should not speculate about any previous trial.”

7 Following the verdict, it appears that virtually all of the members of the jury adjourned to a nearby hotel, which was also visited by defence counsel. While there is some difference as to whether counsel approached the members of the jury, or whether they approached him, it is the fact that they engaged in conversation.

8 The terms of that conversation were recorded in affidavits, which were obtained by the Office of the Sheriff from nine of the twelve jurors. An affidavit was also obtained from defence counsel, by the appellant’s solicitor. These affidavits were tendered, without objection, save for some portions which were not pressed.

9 An initial question arises as to whether the affidavits were properly admissible, having regard to the general rule concerning the impugning, by jurors of verdicts post conviction, and the provisions of s 68A of the Jury Act 1977 which provides:

68A Soliciting information from or harassing jurors or former jurors

10 This provision expressly applies to “jurors” and to “former jurors”. It can be compared with s 68B, the application of which is confined, upon its face, to serving jurors, during the trial:

68B Disclosure of information by jurors etc

during the trial

11 Similarly, it appears, that the power conferred by s 55D of the Act, which permits a judge to examine a juror, in relation to the possible reception and use of prejudicial material, is confined so as to be exercisable only during the trial. It is in the following terms:

55D Examination of jurors—publication of prejudicial material during trial or inquest

12 The questioning of the jurors, for the purpose of procuring the affidavits which were tendered, did not fall within any of the exceptions, for which provision is made in s 68A(3) and (4). A question accordingly arises as to whether the discussions with the jurors at the hotel, the subsequent interviews with them, and their affidavits, constituted breaches of the Jury Act, and if so, whether the Court should, for that reason, or by reference to the general rule, decline to receive the evidence, either in whole or in part.

13 In this regard, it would seem that the material, which was gathered in the affidavits, can be divided into two categories: that which relates to the internet searches, which had been made by individual jurors concerning the appellant, and then communicated to the remaining jurors; and that which relates to the use which was made of that information by the jurors, either individually, or collectively, in coming to their verdict.

14 In Regina v Rinaldi & Kessey (1993) 30 NSWLR 605, the Court received evidence concerning the fact that certain documents, which had been produced in response to subpoenas, but not tendered as exhibits, inadvertently found their way into the jury room. That fact came to light when the forelady of the jury happened to meet defence counsel some days later, and reported her concerns to him.

15 The Court (Carruthers, Sully and Abadee JJ) recognised that a question arose as to whether it should receive the affidavits, which had been prepared by the solicitor for the appellants, and sworn by the forelady following a conference with her, and which had referred not only to the fact that the subpoenaed documents had been in the jury room, but had gone on to disclose the material which some jurors had taken into account, in their deliberations. It said (at 610-611):

‘the Court does not admit evidence of a juryman as to what took place in the jury room, either by way of explanation of the grounds upon which the verdict was given, or by way of statement as to what he believed its effect to be.’

Ellis v Deheer

Lalchlan Nanan v The State

R v Wooler

R v Emmett, R v Masland

16 Reference was made to the fact that, when introducing the amendment which became s 68A, in the Legislative Assembly, the then Attorney-General, the Honourable Terry Sheahan MLA made the following remarks, (Hansard at 16527):

"…The common law gives inadequate guidance as to the circumstances in which disclosure or publication of jury room deliberations is permissible. In fact, the duty to keep jury deliberations secret is a convention or rule of conduct rather than a rule of law. However, the courts have consistently and strongly encouraged and guarded the secrecy of jury room deliberations by making it extremely difficult for evidence of those deliberations to be used as a basis for appeal. They have done so to protect jurors from harassment and pressure to explain reasons for their verdict, or to alter their view. If those principles are not protected, then jury deliberations would become the constant subject of public investigation, to the detriment of freedom of debate and discussion in the jury room, and thus to the jury system itself.

Without the protection of secrecy, people would be discouraged from serving on juries or, if empanelled, from reaching a proper verdict. Secrecy enables juries to deliver unpopular verdicts uninhibited by fear of community reaction. Exposure of jurors' deliberations inevitably undermines public confidence in trial by jury and could eventually lead to the destruction of the jury system. Recognizing this possibility, however, is not to deny that the public has an interest in and, indeed, a right to discover and discuss how honestly and effectively its public institutions operate. For this reason, great care has been taken in formulating the provisions in the bill to avoid making serious inroads into the freedom of speech of jurors. The restrictions on jurors' disclosures are thus not as broad as perhaps they might be, having regard to judicial pronouncements and case law in this area."

17 It is clear, from what followed, that the Court accepted, wholeheartedly, the importance of preserving the sanctity of the jury room, as well as the necessity for not only ensuring the finality of jury verdicts, but also of ensuring that jurors, and former jurors, are not subject to pressure, harassment or otherwise, in relation to their deliberations in reaching a verdict, or in relation to the verdict itself (at 612-613).

18 It is also clear that the Court considered it to have been imprudent for counsel to have referred the forelady to his instructing solicitor; and similarly imprudent for the solicitor to have interviewed the forelady, and to have arranged for her to swear an affidavit consequential upon the interview.

19 The proper course, it observed, was for the counsel to have referred the forelady to the Sheriff, “so that official inquiries could be made to investigate the matter which was causing her concern.” In that context it said (at 612):

“The Sheriff is the officer of the Supreme Court and District Court who is responsible in law for the welfare, care, control, supervision and protection of jurors, both during and after the trial in which they serve. If a juror brings to the attention of the Sheriff a matter which is of concern to him or her insofar as the trial is concerned the Sheriff would, in the discharge of his responsibilities, make confidential enquiries to ascertain the factual circumstances which gave rise to the juror's concern. In the event that the Sheriff's enquiries revealed that an irregularity had occurred, we have no doubt that the Sheriff would ensure that the relevant facts were made known, through the appropriate channels, to those representing the accused.”

20 The Court continued (at 613):

Jury Act

Regina v Rudkowsky

21 Rinaldi, it would seem, was decided not by reference to the forelady’s affidavit, but by reference to the information which was obtained from an extraneous source. As a result, the precise question, which arises here, was not determined. The penultimate passage, which I have cited, would however, tend to suggest that had the forelady’s affidavit been obtained following confidential inquiry by the Sheriff, as occurred in the present case, rather than by the solicitor, then it would have been received.

22 Of some importance for the present decision, is the fact that Court did, in Rinaldi, express the view that the expression “information on the deliberations of a jury” in s 68A, should be given “the widest possible meaning”; although without deciding whether there should be a distinction drawn between information concerning whether extraneous documents or materials had found their way into the jury room or had come to the knowledge of jurors, and information concerning whether such material or information had affected, or had not affected, their deliberations, and how or why it did or did not do so.

23 In my view, this is an important distinction, for the purposes of the present appeal, and it is one that is relevant for a determination as to the proper test which should be applied.

24 There is precedent, both before and after Rinaldi, for information, which has been received directly from jurors to be placed before a Court. S 68A(4) itself recognises that there are circumstances where one or the other of the agencies, there specified, can lawfully do so, for the purpose of investigating or prosecuting a “contempt of court, or an offence relating to a jury or juror”.

25 R v Laws [No 2] (2000) 116 A Crim R 70 provides an example where, it would have been entirely appropriate for evidence to have been received from the juror to whom the offender had spoken.

26 The circumstances in which such inquiries have otherwise occurred have been rare.

27 R v Emmett, R v Masland (1988) 14 NSWLR 327, does provide an example where affidavits were tendered from two jurors describing acts of misconduct by certain of the Sheriff’s Officers who had been in charge of the jury.

28 The decision is important for its analysis of the circumstances where evidence might be received, and then relied upon as justifying appellate intervention. Lee J (as he then was) observed, initially, at 329:

“The Court heard argument as to whether those affidavits should be received. It was, and remains, the Crown contention that the case law establishes that jurors cannot be heard to impugn a verdict to which they have been a party and it is submitted that that rule applies here. In order to determine whether the rule applied it was necessary, of course, for the Court to examine the material in the affidavits and this we did. We then concluded that the nature of the material was such that the rule did not apply and we allowed the affidavits to be read in open court and the Crown to cross-examine the deponents.”

29 His Honour explained, at pages 331 to 335, why it was that the evidence concerning the misconduct of the Sheriffs’ officers had been received. In the course thereof, he noted the antiquity of the rule that jurors are incompetent to impugn a verdict to which they had been a party, and undertook an extensive review of instances where it had been applied, including Vaise v Delaval [1785] 1 TR 11; 99 ER 944; R v Wooler [1817] 2 Stark 111; 171 ER 589; Nesbitt v Parrett [1902] 18 TLR 510; R v Thompson [1962] 1 All ER 65; R v Roads [1967] 2 QB 108; Lalchan Nassan v The State [1986] AC 860; Attorney General for New South Wales v Murphy [1869] 21 LT 598; Clamp v Lyne [1895] 11 WN (NSW) 108; R v Brown (1907) 7 SR (NSW) 290; and Re Mathews & Ford [1973] VR 199.

30 In some of these cases, (for example Nesbitt and Roads) the Court had refused to receive evidence from individual jurors to the effect that they had not agreed with, or had not been party to, the verdict which had been returned. In some of the other cases, however, evidence from sources other than the jurors was received, or was at least acknowledged as having been receivable, where it was capable of showing that not all of the jurors had participated in the verdict, or that it had been arrived at irregularly, for example, where some jurors had been absent at the relevant time (Webster and Ellis), or where the verdict had been reached as the result of a toss of a coin (Vaise).

31 In certain of the cases cited, the Court had declined to receive evidence from members of the jury to the effect that another member had misbehaved, for example, by stating, at the outset, that his mind was made up (Clamp, Brown). Yet others involved circumstances, where the Court had declined to act on information that suggested that extraneous material had come to the attention of the jury (Thompson, and Murphy).

32 Lee J drew a distinction, similar to that discussed by Gleeson CJ in R v Minarowska and Kozial (infra)), between cases where the rule had been applied by reference to considerations going to the jury deliberations and the finality of their verdict, and cases where it had been applied because the matter in question had been extrinsic to their deliberations, observing (at 334):

“I have taken some time to go through the authorities to make clear that the present proceedings are in no way a departure from accepted law as to non-disclosure of a jury's deliberations and the finality of a jury's verdict. The rule as to non-disclosure by a juror of what goes on in the jury room serves a valuable public purpose as has been explained. But the rule is not one, which prevents a court from considering evidence of jurors on matters, which are extrinsic to the matter of deliberations of the jury. What happened in the present case happened, in significant respects, in the jury room and it is for that reason that I am at pains to point out that none the less the course taken in this case is in no sense a departure from established law but, indeed, an application of established law. For there are a number of cases which make clear that when matters extrinsic to the jury's actual deliberations are brought to the notice of the court by members of the jury the court will in a proper case intervene and set aside a verdict.”

33 Reference was made, in this regard, to decisions where evidence had been received as being capable of providing a basis for upsetting a verdict, for example, where it showed that a juror lacked the competence, for physical or other reasons, to act in that capacity (Ras Behari Lal v The King-Emperor [1933] All ER 723), or where it alleged that a juror had been offered a bribe (R v Woolcott Forbes (1944) 44 SR (NSW) 333, and R v Sumner (1985) 19 A Crim R 210. Relevantly in Ras Behari Lal, Atkin LJ who delivered the speech of the Privy Council, observed, in relation to the rule, that “Finality is a good theory, but justice is better” (at 726).

34 In R v Chapman (1976) 63 Cr App R 75 the Court did, in fact, refuse to receive evidence from jurors to the effect that one of their members was deaf, but in that instance, as Lee J pointed out, the Juries Act 1974 (UK) expressly prevented a verdict being disturbed, after it had been given, on the grounds of the unfitness of a juror. No such provision exists in this country.

35 His Honour then returned to the case in hand, and said (at 335):

“I return to the evidence in the present case. The affidavits of the two jurors do not present evidence going to the deliberations of the jury in the jury room in retirement, but present evidence establishing that a sheriff's officer wrongly intruded into the jury's deliberations, took part therein and put pressure upon the jury to come to a verdict and even expressed an opinion that the accused were guilty. None of the policies which support the rule that a juryman cannot impugn a verdict in which he has participated can possibly be urged to support a proposition that the verdict be allowed to stand if those allegations are true. For the court not to inquire into the matter would be for the court to condone the exposure of the jury to influence in arriving at its verdict by the very persons entrusted to ensure that the jury shall conduct its deliberations only with all jurors present, in secrecy, in private and free from opinions or pressure from anyone whether connected with the trial or not. To say that jurors could not reveal misconduct by sheriff's officers in the jury room would for all practical purposes be to say that no one can reveal misconduct of sheriff's officers in the jury room.”

36 Grove J, who agreed with Lee J (as did Enderby J), said:

The community's intent in protecting jurors from harassment after their service has been made explicit in the Jury Act 1977, s 68 and s 68A. The result of this appeal should not be seen as derogatory of that intent and cannot be taken to condone or in some way license the pursuit and interview of jurors after a verdict has been returned simply as an investigating process undertaken by a disappointed litigant.”

37 In some of the cases to which Lee J referred in Emmett & Masland, the Court had indicated a reluctance or an unwillingness to receive hearsay information concerning possible jury misconduct, or irregularity (for example Attorney General of NSW v Murphy, and Clamp).

38 In R v Minarowska and Kozial (1995) 83 A Crim R 78, the question arose for consideration, relevantly, in relation to some communications which had occurred, following the conclusion of the trial, when three of the jurors had spoken to members of the prosecution team. The terms of their conversation were placed before the Court by way of statements from the Crown Prosecutor, the instructing solicitor, and a police officer, which were attached to an affidavit sworn by the appellant’s solicitor. The conversation, which they described, related to the fact that the jury, having been puzzled why the accused in the trial before them had not been cross-examined, after having made unsworn statements, had either accessed or been informed of the contents of an article, in a magazine, which one of their number had purchased.

39 It contained a discussion in relation to the announced intention of the government of the day to introduce legislation abolishing unsworn statements, together with an account of the manner in which their use by accused had permitted them to make unchallenged allegations and attacks on witnesses and victims.

40 The Crown objected to the admission of the relevant information. It expressly disclaimed reliance upon the hearsay rule, and confined the objection to one that depended upon an application of the general principle.

41 It was submitted by the appellant that an irregularity had occurred, so far as the jurors had failed to resolve their confusion about the dock statements, by asking a question of the judge, but had, instead, resorted to information which had been obtained by one of their number.

42 Gleeson CJ (with whom James and Ireland JJ agreed) reaffirmed the principle that, once a jury’s verdict has been formally delivered, a juror may not seek to impugn it, referring inter alia to Nassan v The State (supra) at 871, Ellis v Deheer (supra), R v Papadopoulos [1979] 1 NZLR 621, AG (NSW) v Murphy (supra), and Vaise v Delaval (supra), observing (at p 84-85):

“The principle, based upon considerations of public policy, that a court will not receive from a juror evidence of what was discussed between jurors in the course of their deliberations, cannot be circumvented by tendering evidence of a hearsay measure, being evidence of what a juror has said about a juror’s deliberations to a third party.”

43 His Honour noted (at 85) that:

R v Rinaldi (1993) 30 NSWLR 605

R v Emmett (1988) 14 NSWLR 327

Reg v Brandon (1969) 53 Cr App R 466

Tuia v The Queen [1994] 3 NZLR 553

44 His Honour made some reference to the statutory restrictions concerning the soliciting or obtaining of evidence from jurors, as seen in s 68A of the New South Wales legislation, as well as the more detailed provision in the Contempt of Court Act 1981 (UK), in which s 8 makes it a contempt of court to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments expressed or votes cast by members of a jury in the course of their deliberations in any legal proceedings.

45 That Act, his Honour noted, has been held, in R v Young [1995] QB 324, not to have rendered inadmissible evidence that the jurors, in the course of the trial, had used an ouija board to consult with the deceased, and to ask him who had been his killer. Having believed that contact had been made, it was reported that the deceased had named the accused as the murderer. This was held to have been a material irregularity, of which evidence could be received, although it appears, as Gleeson CJ noted (at 86) that the decision turned upon the circumstance that the exercise had occurred in the course of an overnight stay at the hotel to which the jury had been sent, rather than in the jury room.

46 S 68A of the Jury Act was held by his Honour to have had no direct bearing on the case, being in somewhat narrower terms that the provision in the Contempt of Court Act:

47 His Honour then observed (at 86 to 87):

Tuia v The Queen

48 In relation to the distinction which had earlier been identified, between what can and cannot be proved, and taken into account, after a verdict has been returned, his Honour additionally observed (at 88):

49 R v Thompson (supra) has some resemblance to the present case, in so far as the rule was applied to a case in which a juror had given information to a stranger, who then disclosed it to the court, to the effect that, in the course of the jury’s deliberations, the foreman had produced the criminal record of the accused. The court declined to grant a new trial, referring to the statement of Hewart LCJ in R v Armstrong [1922] 2 KB 555:

“…If one juryman might communicate with the public upon the evidence and the verdict so might his colleagues also, and if they all took this dangerous course differences of individual opinion might be made manifest which at least could not fail to diminish the confidence that the public rightly has in the general propriety of criminal verdicts.”

50 The question of juror bias, which the courts have from time to time investigated, also arose for consideration in R v Booth (1982) 8 A Crim R 4, where Lush J (with whom Young CJ and Gray J agreed), observed (at 9):

Thompson

Box

Hood

Ellis v. Deheer; Thompson; Box

Zampaglione

Box

Hood

51 The initial question which arises, in this appeal, is upon which side of the dividing line referred to by Lee J (as he then was) in Emmett v Masland and by Gleeson CJ in Minarowska and Kozial does the evidence, which is sought here to be led, either in whole or in part, fall, by reference to these principles. To decide that question it became necessary for us to receive the affidavits, upon a preliminary basis, and to read them.

52 They showed, in summary, 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;

53 The case is one which, in my view, falls very much in the area of uncertainty which Gleeson CJ identified. In favour of reception of the evidence is the circumstance that the information appears to have been volunteered by the jurors, was offered to the Court in a non hearsay form, and resulted from inquiries made of the jurors by the Office of the Sheriff, in the way which had been encouraged by this Court in Rinaldi, rather than by the appellant’s solicitors.

54 Upon balance, I have reached the conclusion that evidence concerning the fact of the internet searches and the nature of the information which had been gathered by the three jurors who had made the search, should be received, by analogy with the cases where evidence has been received to the effect that documents, which were not in evidence in the trial, had found their way to the jury room. In this regard, the information was potentially prejudicial, in so far as it risked inviting an application of tendency and/or coincidence reasoning, or risked raising bad character in circumstances in which that kind of evidence would not have been admissible, and in which no occasion had arisen for the kind of jury instructions which would have been required.

55 I do not, however, consider, consistently with the authorities mentioned, that the Court should have regard to any discussion between jurors concerning that material, or to any evidence concerning the effect which it may or may not have had on their deliberations. To extend the inquiry that far would appear to me to offend against the long established rule, which has the support of the very important public policy considerations mentioned. Moreover, any inquiry into that aspect of the case would be to intrude into an area to which s 68A was expressly directed. Additionally, it would invite a consideration of subjective matters relevant to each juror, an inquiry which would be made all the more difficult by the uncertainty attaching to the subtle and possibly unappreciated effect of prejudicial information, such that it would be virtually impossible to expect any uniformity or consensus of outcome. That this is so, is also indicated by the inconsistency in the recollection of the jurors as to the manner in which, and the extent to which, it was discussed.

56 The next question is whether, in the light of the information which I consider can be received, the Court should intervene by quashing the conviction and ordering a new trial.

57 The Crown submits that it should not do so, upon the basis, assuming that there had been an irregularity, then nevertheless, the Court could be satisfied that it had not affected the verdict of the jury.

58 It submitted, correctly in my view, that the relevant test was not that formulated by the High Court in Webb v The Queen (1994) 181 CLR 41 at 47 concerning juror bias, namely whether the circumstances of the relevant incident would give “a fair minded and informed observer a reasonable apprehension of a lack of impartiality on” the part of the juror. A test to that effect has been applied, post verdict, in Queensland, for example, in R v Martin [1999] QCA 366, although in the context of s 70(7) of the Jury Act 1995 (Qld) (in that case concerning the fact that some jurors had learned that the accused had been refused bail); and is, otherwise, appropriate when the question arises during the trial before verdict, upon a jury discharge application (see for example Regina v Fairclough Court of Criminal Appeal, Supreme Court of Western Australia 14 February 1995 (which concerned some information which had been unwittingly conveyed to two jurors, while waiting in line at a hotel cafeteria, during an adjournment, by an employee of the defence solicitor, who had not appreciated that they were jurors).

59 R v Cogley [2000] VSCA 231 was similarly a case involving an application to discharge a jury, which was brought when concerns arose as to whether one or more members of the jury may have seen an entry on the Crime Net internet site, which contained information about the applicant, including the fact of his previous conviction for the murder of the victim who was the subject of the charge before the Court, a retrial having earlier been ordered.

60 The trial judge refused to discharge the jury, and the relevant ground of appeal related to the exercise of that discretion, in circumstances where there was no evidence whether any member of the jury had in fact seen the site. The appeal was dismissed, primarily upon the basis that nearly all of the relevant information on the internet site was known to the jury from the evidence led in the trial, but also by reference to the directions which had been given to the jury to decide the case upon the evidence before them. In that regard Chernov JA with whom Winneke P and Smith AJA agreed, referred to the authorities in Victoria, which similarly to those in this State (eg R v Dudko (2002) 132 A Crim R 371 and R v Bell [1998] NSWCCA 131, accept that it is reasonable to assume that jurors will act in accordance with directions of that kind.

61 The case is not authority for a proposition that goes so far as to suggest that knowledge by a juror of a prior conviction will not justify a conviction being quashed, or require a jury discharge. It is a decision on its own facts.

62 The question of internet access again arose in R v McLachlan [2000] VSC 215 where Hampel J did discharge a jury, before verdict, in a case where there had been a prior trial of the accused, and where it was discovered that there were entries concerning the case on the Crime Net site. The problem was compounded by an item which had been broadcast on Radio National, during the trial, in relation to Crime Net, and the difficulties which it might cause for jury trials. Although there was again no evidence as to whether any juror had in fact accessed the internet site, Hampel J determined, in the special circumstances of the case, that a direction given, at that stage, to the jury that they were not to access or search the internet site, and were to confine themselves to the evidence, would be insufficient.

63 In R v Cant [2002] NTCCA 8, it became known, during the trial, that a juror had commented to other members of the jury that the accused was facing other charges than those before the Court. This fact became known when another juror reported the fact to the presiding judge, by way of a note, in which he advised, additionally, that there had been heated discussion about this, and that several jurors had stressed that this was of no concern to them, and that they had to base their decision upon the facts presented as evidence.

64 The trial judge dismissed applications, first to inquire into the nature and extent of the discussions of the jury about this topic, and secondly, to excuse the juror who had made the comment to the other jurors. Instead, he gave strong and clear directions, inter alia, to the effect that it was necessary to decide the case on the evidence, that there was no evidence concerning any other charge, and that whether or not the accused was facing other charges was irrelevant. There was no general discharge application.

65 Upon appeal, it was held that the trial Judge had erred, in not making inquiries so as to determine the true facts, and in not then considering whether to discharge some or all of the jurors. It was held that the case was one where the Webb test of bias was made out, particularly as it was clear that the juror in question had failed to comply with the initial direction to the jury, to decide the case only on the basis of the evidence presented in court, and to put out of their mind anything which they may have read or heard about it, or any vague recollection that they may have had of anything they had read in the press.

66 It was held, additionally, that the case was not one that was fit for an application of the proviso to s 411(2) of the Criminal Code (NT) because the error had, in effect, involved a fundamental departure from the essential requirements of a fair trial.

67 As previously noted, the decisions in Booth, Box and Hood were cases where the fact that the jury had knowledge of past convictions, or of alleged criminal behaviour, had been regarded as insufficient to establish bias.

68 As I have earlier indicated, I do not regard the present case as one that is to be determined by reference to the Webb test of bias; rather, it is one involving a procedural irregularity. The accepted test for disturbing a verdict in such cases is laid down in R v Marsland NSWCCA 17 July 1991 and R v Rudkowsky NSWCCA 15 December 1992.

69 In Marsland, a forensic report was received into evidence which made reference to an allegation of sexual misconduct, on the part of the appellant, concerning the victim who was the subject of that charge before the Court, but which also made mention of his alleged misconduct concerning another person, in respect of which he had recently been tried and acquitted. The jury asked a question as to the identity of that second person and as to the reason why she had not given evidence. The trial judge declined to discharge the jury, but directed them that the second person had nothing to do with the matter and that the reference to her had been an error.

70 The ground of appeal which challenged this decision was held not to have been made out, but in the course of the reasons for that aspect of the case, Gleeson CJ, with whom Lee CJ at CL and Hunt J agreed, said (at p 7):

question we must ask ourselves is whether we can be satisfied that the irregularity has not affected the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred.

71 The case is distinguishable from the present case for two reasons: first, the irregularity was the subject of a clear express direction to the jury that was held to have been sufficient to overcome the prejudice; and secondly, it involved a matter that came to light, and was dealt with, before verdict.

72 However, the case is instructive in so far as a very senior and experienced Bench, pronounced upon what they considered to be the appropriate test, and it is a test that has been applied subsequently, in so far as I can see, consistently in this state.

73 In Rudkowsky the relevant irregularity was discovered following the return of the verdict in a trial, which was one of guilty of murder. It arose out of the tender of some handbags, the contents of which regrettably had not been carefully examined by the prosecutor or by defence counsel. It was later discovered that one of the bags contained several sheets of paper which appeared to bear the handwriting of the victim, which the Crown conceded would not have been included in the tender, had their presence been known. Their potential prejudice was obvious, in so far as the victim had, in these pages, made assertions to the effect that the accused had been paranoid, delusional and obsessive, had “damn near succeeded” in an attempt to murder her, and was on “an attempted murder charge”. That last mentioned assertion was in fact untrue, and there was no evidence of any prior unsuccessful attempt to murder the victim.

74 Gleeson CJ (with whom Cripps JA and McInerney J agreed), held that the appeal, should be allowed by reason of the extremely prejudicial potential of the material, which he considered to have been capable of “conveying information to the jury about the propensities of the accused”, and observed (at p 6):

"justice"

R v Marsland,

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, in accordance with the Marsland test, which I have observed has been applied, not only in Rudkowsky, but also in R v HJS [2000] NSWCCA 205, R v Allan [2002] 133 A Crim R 444 and R v Lansdell NSWCCA 22 May 1995.

79 It follows, in my view that the appeal should be allowed, and a new trial ordered.

80 The case is one of potential ongoing importance, having regard to the extent of the information which is now available on the internet, concerning criminal investigations and trials, not only via online media reports and services, but also via legal databases and the judgment systems of the Courts. The problem is compounded by the greater familiarity which the current generation has with the use of information technology, and the ever reducing cost of acquiring and using that technology.

81 It may well become the case, as a matter of habit arising out of the way that ordinary affairs are conducted, that the inevitable reaction of any person who is summonsed as a juror, will be to undertake an online search in relation to the case, to ascertain what it may involve.

82 It is not possible to place any practicable limit on the content or the extent of the material available in this way, and the powers of the Courts to place effective restrictions on the publication of their own proceedings is severely limited, save in relation to a narrow category of cases, such as those involving minors, sexual assault proceedings, or offences which threaten the safety of the country: see John Fairfax and Sons Limited v Police Tribunal of NSW (1986) 5 NSWLR 465 and Attorney General (NSW) v Mayas Pty Limited (1988) 14 NSWLR 342.

83 Those circumstances may render it tempting for trial lawyers to encourage, either directly or indirectly, the disclosure of events of the kind which emerged in this case. That should, in my view, be firmly discouraged. The sanctity of the jury room and the finality of the verdict are important safeguards in the integrity of the system of justice which operates in this country. Public confidence in the jury system would be jeopardised if they were to be undermined, in any way.

84 I believe that the point should be made, as forcefully as possible, that any member of the legal profession who seeks out jurors, in order to question them about matters which arose in the jury room, or encourages them in any way, to speak out about these matters, should run the risk of prosecution for an offence under s 68A of the Jury Act and should also face the prospect of being disciplined professionally.

85 I would, in that respect, consider it profitable for s 68A to be amended, to clarify, and if necessary to extend, its application so that it encompasses all aspects of the activities undertaken by the jury, in the discharge of their duties, and is not confined simply to the final deliberative process, after retirement, which leads to a verdict.

86 I would also consider it appropriate, in order to deal with the case where a serious irregularity is suspected, which may affect the integrity of the verdict, that the Office of the Sheriff, be given express power, at the request of the Court, to investigate and report back to it on that matter. I believe that the present provision is unduly narrow, in that the permitted inquiry is confined to approved research and to investigation and prosecution of contempt, or of offences under the Act.

87 Additionally, I consider that the Act should be amended to introduce a provision comparable to s 69A of the Jury Act 1995 (QLD) which is in the following terms:

69A Inquiries by juror about accused prohibited

88 The provision should, however, be widened, so as to embrace not only inquiries concerning the background of the accused, but also any matter relevant to the trial, including the history of the offence, and its investigation, and the proceedings themselves.

89 I consider it highly desirable for judges now to routinely expand upon the direction, which it has become customary to give at the commencement of a trial, to the effect that the jury should not take into account any publicity, of which they may be aware, concerning the matter before them; to disregard, as being of no relevance, the fact that it involves a retrial (if that is the case); and to confine their deliberations to the evidence which is presented to them.

90 This direction should, in my view, now embrace an additional instruction that they should not undertake any independent research, by internet or otherwise, concerning the proceedings, or the law applicable thereto, with a suitable explanation as to why they should not do so. In the event that a provision of the kind found in the Juries Act (QLD) is enacted, then the jury should additionally be informed at the outset that it would be an offence for them to make any such inquiry.

91 Finally, I believe that the time has come for trial lawyers to consider very carefully whether it is appropriate for them to adjourn to hotels, in the near vicinity of the trial courts, to which it seems to have become customary for some lawyers, police, media representatives, and jurors, to visit, at the conclusion of trials.

92 There is a real risk of such an occasion developing into a general discussion, concerning the case and its outcome, in which the jurors are likely to join, possibly without any true awareness of the provisions of s 68A of the Jury act. The possibility of an offence occurring in these circumstances is tangible.

93 While this is very much a personal view, which I recognise that others may not share, I believe that the spectacle of lawyers, jurors, police and other persons who may have had an interest in the case, fraternising openly in such a venue, after a trial, does little for the image of the justice system, or for the apparent professionalism of those who practice in this area of the law.

94 For the reasons previously mentioned, I would propose the following orders:

1. Appeal allowed;
2. Conviction and sentence quashed;
3. Direct a new trial.

95 GROVE J: I agree with Wood CJ at CL.

96 DUNFORD J: I agree with Wood CJ at CL.

**********

Last Modified: 03/19/2004

Citations

R v K [2003] NSWCCA 406

Most Recent Citation

Cases Citing This Decision

63

HCF v The Queen [2023] HCA 35

Hoang v The Queen [2022] HCA 14

Petroulias v The Hon Justice McClellan [2013] NSWCA 434

Cases Cited

16

Statutory Material Cited

4

Mathews v The State of Western Australia [2015] WASCA 134

Qing An v R [2007] NSWCCA 53

Actions

Download as PDF Download as Word Document

CITATION:	R v K [2003] NSWCCA 406 revised - 29/01/2004
HEARING DATE(S):	5 December 2003
JUDGMENT DATE:	23 December 2003
JUDGMENT OF:	Wood CJ at CL at 1; Grove J at 95; Dunford J at 96
DECISION:	1. Appeal allowed; 2. Conviction and sentence quashed; 3. Direct a new trial.
CATCHWORDS:	CRIMINAL LAW - Appeal against conviction - whether murder trial miscarried if jury sought and found irrelevant, inadmissible and highly prejudicial material concerning the appellant.
LEGISLATION CITED:	Contempt of Court Act 1981 (UK) Juries Act 1974 (UK) Jury Act 1977 (NSW) Jury Act 1995 (Qld)
CASES CITED:	Attorney General (NSW) v Mayas Pty Limited (1988) 14 NSWLR 342 Attorney General for New South Wales v Murphy [1869] 21 LT 598 Clamp v Lyne [1895] 11 WN (NSW) 108 John Fairfax and Sons Limited v Police Tribunal of NSW (1986) 5 NSWLR 465 Lalchan Nassan v The State [1986] AC 860 Nesbitt v Parrett [1902] 18 TLR 510 Ras Behari Lal v The King-Emporor [1933] 1 All ER 723 R v Allan [2002] 133 A Crim R 444 R v Bell [1998] NSWCCA 131 R v Booth (1982) 8 A Crim R 4 R v Brown (1907) 7 SR (NSW) 290 R v Cant [2002] NTCCA 8 R v Chapman (1976) 63 Cr App R 75 R v Cogley [2000] VSCA 231 R v Dudko [2002] NSWCCA 336 R v Emmett, R v Masland (1988) 14 NSWLR 327 Regina v Fairclough Court of Criminal Appeal Supreme Court of Western Australia 14 February 1995 R v HJS [2000] NSWCCA 205 R v Landsdell NSWCCA 22 May 1995 R v Laws [No 2] (2000) 116 A Crim R 70 R v Marsland NSWCCA 17 July 1991 R v McLaclan [2000] VSC 215 R v Minarowska and Kozial (1995) 83 A Crim R 78 R v Papadopoulos [1979] 1 NZLR 621 Regina v Rinaldi & Kessey (1993) 30 NSWLR 605 R v Roads [1967] 2 QB 108 R v Rudkowsky NSWCCA 15 December 1992 R v Sumner (1985) 19 A Crim R 210 R v Thompson [1962] 1 All ER 65 R v Woolcott Forbes (1944) 44 SR (NSW) 333 R v Wooler [1817] 2 Stark 111 R v Young [1995] 2 QB 324 Re Mathews & Ford [1973] VR 199 Vaise v Delaval [1785] 1 TR 11 Webb v The Queen (1994) 181 CLR 41
PARTIES :	Regina K
FILE NUMBER(S):	CCA 60076/03
COUNSEL:	M G Sexton SC with J A Quilter (Crown) M Thangaraj and J McLachlan
SOLICITORS:	C K Smith (Crown) S E O'Connor

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70012/02
LOWER COURT JUDICIAL OFFICER :	Kirby J