R v Rice (No 2)

[2014] NSWSC 1447

Supreme Court

New South Wales

Medium Neutral Citation:	R v Rice & ors (No 2) [2014] NSWSC 1447
Hearing dates:	21 October 2014
Decision date:	21 October 2014
Before:	Bellew J
Decision:	The application for a discharge of the jury is refused.
Catchwords:	CRIMINAL LAW - trial - pre-trial publicity - application to discharge jury - application refused.
Legislation Cited:	Jury Act 1977
Category:	Procedural and other rulings
Parties:	Regina - Crown Colin Ray Rice - Accused Zlatan Popovic - Accused Tevi Koloamatangi - Accused Radomir Vukovic - Accused
Representation:	Counsel: Mr P Barrett - Crown Mr C Watson - Accused Rice Mr L Brasch - Accused Popovic Ms C Davenport SC - Accused Koloamatangi Mr Pickin - Accused Vukovic Solicitors: S Kavanagh Solicitor for Public Prosecutions - Crown Macquarie Lawyers - Accused Rice Toomey Defence Lawyers - Accused Popovic Peter Katsoolis Lawyers - Accused Koloamatangi R.F. Bergagnin & Co Solicitors and Attorneys - Accused Vukovic
File Number(s):	2012/380633 2012/232565 2012/370471 2012/387249
Publication restriction:	Nil

Judgment (EX TEMPORE - revised)

1. This trial commenced before me on 20 October 2014. After the jury were allowed to leave that afternoon I was provided with two separate notes from the jury, which are now MFI 3 and 4. For reasons to which I will come it is now apparent that although there are two separate notes, they were in fact written by the one member of the jury. That would explain, at least in part, why the terms of the notes are almost identical.

1. MFI 3 is in the following terms:

"I saw one of the accused names this morning and Googled it. Nothing came up in the results. Would that be a problem? (It was before I was selected as a jury [sic])."

1. I infer that the bracketed part of the note is a reference to the extensive directions that I gave the jury immediately following empanelment, included in which was a prohibition placed upon conducting any type of inquiry outside the courtroom. It is apparent from the note that the member of the jury concerned was at pains to emphasise that her inquiry had been conducted prior to those directions being given.

1. The names of the accused Koloamatangi and Popovic are anonymised on the court list. The names of the accused Rice and Vukovic appear in full. It follows that it is one of the latter two accused whose name was the subject of the search.

1. The notes were drawn to the attention of counsel for each of the accused. The matter was left at that point so that counsel could have the opportunity of reflecting on the matter overnight and obtaining instructions.

1. Upon the commencement of proceedings on 21 October Mr Pickin of counsel, who appears for the accused Vukovic, drew my attention to two articles which appeared in the Illawarra Mercury Newspaper on 15 December 2012 and 21 March 2013, respectively and which are now MFI 5. In the absence of knowing which of the two accused was the subject of the search, Mr Pickin made an application that the jury be discharged. He submitted that there was a "perceptible risk" that as a consequence of the search the member of the jury may have become aware of the extraneous and prejudicial material contained in MFI 5. Mr Pickin's submissions were largely predicated on the assumption that the name searched by the member of the jury was that of the accused Vukovic. His submissions also tended to ignore the fact that MFI 3 expressly stated that no results were obtained from the search which had been conducted.

1. When the matter first arose on 20 October 2014 Mr Watson of counsel, who appears for the accused Rice, informed me that as far as he was aware there was no material on the Internet relating to his client. It seems that overnight, Mr Watson's attention was drawn to the existence of such material, although it is not before me in evidence. Mr Watson did not make a formal application that the jury be discharged but suggested that an inquiry be made of the juror in question to ascertain, amongst other things, the nature and extent of the search.

1. Mr Brasch, who appears for the accused Popovic, made no application, although he did not oppose that made by Mr Pickin.

1. Ms Davenport SC, who appears for the accused Koloamatangi, did not make a specific application. However, she expressed considerable concern arising from the fact that her client was named in one or other (or perhaps both) of the articles upon which Mr Pickin's application relied. She supported the submission of Mr Watson that I question the jury member to ascertain what name she searched.

1. The Crown Prosecutor opposed the application but endorsed the proposal that I enquire of the jury member about the extent of the search which was undertaken. The Crown indicated, in response to a question from me, that depending upon the information which was elicited as a consequence of the juror being questioned, his position as to the application may change.

1. In those circumstances I considered it appropriate to exercise the power under s55D of the Jury Act and examine the juror in question. The juror was identified and affirmed. The questions I asked her elicited the following information:

(i)   the name of the accused who was the subject of the search was the accused Rice, not the accused Vukovic;

(ii)   the search conducted was by way of a Google search engine on a mobile phone;

(iii)   in stating in the note (MFI 3) that "nothing came up in the results" the juror intended to convey that there were "no matches".

1. At that point the juror was asked to retire to the jury room.

1. When I asked the officer to identify the author of MFI 4, I was informed that the author was in fact the same juror from whom I had previously taken evidence. Why two notes were written is not clear but in any event, is immaterial.

1. In the light of this evidence, Mr Pickin conceded that his application was of less weight than might otherwise have been the case. Whilst he did not abandon the application he acknowledged, as I understood it, that there was no evidence which suggested that the juror had searched his client's name on the Internet, or anywhere else. It would be fair to say, I think, that the force of that position was acknowledged (if not expressly, at least impliedly) by counsel for the remaining accused. The Crown Prosecutor, on the basis of the information elicited from the juror, opposed the application.

1. In my view, it is not appropriate for the jury to be discharged. On the evidence before me a search was conducted of one of the accused, namely the accused Rice, which brought no results. No formal application has been made on behalf of that accused that the jury be discharged. There is no suggestion that the material in MFI 5 would have become available as the consequence of a search of the name of the accused Rice. Moreover, there is no reason to reject the evidence of the member of the jury as being, in any way, unreliable or untruthful.

1. In circumstances where the name of the accused Vukovic was not searched (the application to discharge the jury having been made only by him and not by any other accused), and quite apart from the juror's assurance that there was no match in any event, I am satisfied that there is no risk that the material in MFI 5, which was published in a regional newspaper some time ago, has come to the attention of any member of the jury.

1. Accordingly, the application for a discharge of the jury is refused.

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Decision last updated: 10 November 2014