R v Kelu; R v Millner (No 5)

The defendants, Kelu and Millner, faced a criminal trial in the Supreme Court of Victoria. The dispute centred on whether the jury had inadvertently accessed material that was not supposed to be in their possession during deliberations. Specifically, the jury had access to a folder containing Material from the First Instance (MFIs). The prosecution applied to discharge the jury, arguing that the potential exposure to these documents constituted a substantial miscarriage of justice. The defendants opposed the application, asserting that there was no evidence the folder had been opened and that any prejudice was speculative.

The court was tasked with determining whether the inadvertent access to the folder containing MFIs constituted a substantial miscarriage of justice. The key issue was whether the potential exposure to the material was significant enough to warrant discharging the jury. The court examined the evidence provided by the jury foreperson, who testified that the folder had not been opened by any jury member. The court also considered the nature of the material in the folder and the likelihood of its influence on the jury’s deliberations.

In its reasoning, the court held that the foreperson’s evidence that the folder had not been opened by any jury member was credible and uncontradicted. The court found that there was no evidence suggesting that the material had been accessed or read by the jury. Given the absence of any actual exposure to the material, the court concluded that it was highly unlikely that the jury had been influenced by the inadvertent access. Therefore, the court rejected the application to discharge the jury, ruling that there was no substantial miscarriage of justice.

The court ordered that the jury remain in place to continue with the trial. The defendants were not discharged, and the trial proceeded as scheduled. The court’s decision hinged on the lack of evidence that the material had been accessed or considered by the jury, affirming the integrity of the trial process in the face of inadvertent procedural errors.