R v Nehme (No 2)

[2024] NSWSC 513

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Nehme (No 2) [2024] NSWSC 513

Hearing dates:

06 March 2024

Date of orders:

06 March 2024

Decision date:

06 March 2024

Jurisdiction:

Common Law

Before:

McNaughton J

Decision:

The Court makes the following orders:

(1) Juror A is discharged;

(2) The jury is discharged.

Catchwords:

CRIME – jury discharge – where juror is alleged to have googled information or searched for material relating to the case – whether a fair-minded lay observer might reasonably apprehend that the jury might not discharge its duties in accordance with the law

Legislation Cited:

Jury Act 1977 (NSW), ss 53A, 53C

Cases Cited:

HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Rex (Crown)
Joseph Nehme (Accused)

Representation:

Counsel:
K Ratcliffe (Crown)
D Dalton SC / T Weller-Wong (Accused)

Solicitors:
Solicitor for Public Prosecutions (Crown)
JB Corban Lawyers (Accused)

File Number(s):

2019/388186

Publication restriction:

No publication until the conclusion of the trial against Joseph Nehme

EX TEMPORE JUDGMENT (REVISED)

1. This morning I was handed a note, Marked MFI 4, which I was told was from Juror M. That note indicated that Juror M had been privy to a conversation with Juror A to the effect that Juror A had Googled information in relation to the case, and had searched for photos of persons mentioned, witnesses and/or potential witnesses. The note also said that Juror A stated, in the same conversation, that they strongly disagreed with the concept of joint responsibility for a crime, and implied they may also have Googled information concerning this legal principle. I note that this trial involves the concepts of joint criminal enterprise and extended joint criminal enterprise which the Crown prosecutor had touched on in her opening address.

2. I invited Juror M into the courtroom and he was sworn to tell the truth. He confirmed that he had written the note and that the contents of it were true to the best of his knowledge and belief.

3. The contents of the note indicate to me a number of things.

4. One is that, despite what I believe to have been very strong directions given to the jury when they were empanelled that they should not make any inquiries including inquiries on the Internet, and that making inquiries might constitute a criminal offence, someone disobeyed those directions not only by making such inquiries, but also talked about having done it to another juror or jurors.

5. As also has been fairly pointed out, we do not know if Juror A has spoken to all or some of the rest of the jury, and whether other jurors have, therefore, been potentially infected by what Juror A had possibly found on the Internet and/or their belief in relation to the law.

6. I also note that it is only the morning of Wednesday 6 March 2024, the third substantive day of the trial; that is, the jury was empanelled on Wednesday, 28 February 2024, before being sent away until Monday 4 March 2024 for the opening addresses and the evidence to start. It was last Wednesday, 28 February, that I gave the jurors very strong directions about not making any inquiries, which would still have been very fresh in their minds. I also note it is only an early stage in the trial, so the loss to the community in terms of time and trouble is less than it might otherwise have been.

7. In all of the circumstances, because Juror A was prepared to completely disregard the strong directions I gave about not searching the Internet and has potentially informed other jurors about such searches, I have come to the view that I must discharge Juror A pursuant to s 53A(1)(c) of the Jury Act 1977 (NSW) because, on the information before me, the juror has engaged in misconduct in relation to the trial.

8. I am further of the view that pursuant to s 53C(1)(a) of the Jury Act that I must discharge the jury as I am of the opinion that to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice. This is because it is not ascertainable to what extent Juror A may have spoken to other members of the jury.

9. On any view, a fair-minded lay observer might reasonably apprehend that the whole of the jury in this trial might not discharge its function of deciding the accused’s guilt according to law, on the evidence, and in accordance with my directions: see HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978.

10. In my view, the jury must be discharged.

**********

Amendments

07 May 2024 - Representation amended.

Decision last updated: 07 May 2024