R v Rogerson; R v McNamara (No 16)

[2016] NSWSC 20

Supreme Court

New South Wales

Medium Neutral Citation:	R v Rogerson; R v McNamara (No 16) [2016] NSWSC 20
Hearing dates:	3 February 2016
Date of orders:	03 February 2016
Decision date:	03 February 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [10]
Catchwords:	CRIMINAL LAW – Jury – Where journalist reporting on trial proceedings had a close friendship with a member of the jury – Where journalist had only become aware of the juror’s presence upon attending court on day 2 of the trial – Necessity to ensure right to a fair trial for all parties – Juror discharged.
Category:	Procedural and other rulings
Parties:	Regina – Crown Roger Caleb Rogerson - Accused Glen Patrick McNamara – Accused
Representation:	Counsel: Mr C Maxwell QC - Crown Mr G Thomas – Accused Rogerson Ms K Shead – Accused McNamara   Solicitors: Director of Public Prosecutions - Crown Katsoolis and Co – Accused Rogerson Kings Law Group – Accused McNamara
File Number(s):	2014/157408; 2014/156921
Publication restriction:	Nil

Judgment – EX TEMPORE (REVISED)

1. Prior to the commencement of proceedings this morning I was advised by the Sheriff that an officer of her Department had been approached by a man who identified himself as Mr Buckingham-Jones, a journalist from “The Australian” newspaper. I was advised that Mr Buckingham-Jones informed the Sheriff that he was acquainted with one of the jurors. I directed the Sheriff to obtain some further information for me as to the nature and extent of that relationship so that I could better appraise counsel of the situation which had arisen.

2. As a consequence of those inquiries that I directed be made, I was informed by the Sheriff that Mr Buckingham-Jones and the juror had, through a family association, known each other for some 23 years. The name of the juror was made known to me, as was her number.

3. The transcript will reflect that I appraised counsel of this information upon commencing the proceedings this morning, following which Mr Buckingham-Jones was called to give evidence. He confirmed that he was employed as a journalist at “The Australian” newspaper and that he had been directed by his superiors to file reports in relation to this trial. He said that he had been given that direction yesterday morning (2 February) as a consequence of which he attended court. Upon entering, he immediately recognised a member of the jury. He was not present when the jury was empanelled on the morning of 1 February.

4. Mr Buckingham-Jones confirmed that he had known the juror for his entire life and described their relationship as one which was "reasonably close". He explained that they both attended the same church and that their respective families had been "reasonably close friends" for 23 years. He said that he spoke with the juror "perhaps once a fortnight" and that prior to the commencement of this trial she had indicated to him that she had been issued with a jury summons. In answer to a question put by the Crown Prosecutor, Mr Buckingham-Jones said that the juror had not made him aware of any further details regarding the summons and that they had not discussed anything about either of the accused, nor anything about this trial. He also confirmed that he did not report on the previous trial.

5. In answer to questions from Ms Shead of counsel who appears for the accused Mr McNamara, Mr Buckingham-Jones confirmed that he was present in court all day yesterday. He said that he had no eye contact with the juror, and that upon recognising her, he specifically avoided such contact. He also confirmed that he filed a story yesterday in relation to the trial and that it was published in today's edition of “The Australian”. It is unclear whether or not it appeared in the online or the print editions of that publication but, for present purposes, that probably does not matter.

6. Following Mr Buckingham-Jones' evidence I gave the Crown and counsel for each of the accused the opportunity to obtain instructions as to what course should be taken. Neither the Crown nor Mr Thomas, who appears for the accused Rogerson, made any application. However, Ms Shead made application that the juror be discharged. She cited, in support of that application, the juror’s obvious (and close) personal and social relationship with Mr Buckingham-Jones. She also pointed to the fact that Mr Buckingham-Jones has reported on the trial and emphasised that this was a trial which has attracted, and will continue to attract, significant media interest. The effect of Ms Shead's submissions was that there was an attendant risk in allowing that situation to continue, for fear that some discussion might take place between the juror and Mr Buckingham-Jones in the course of the trial.

7. Despite the fact that there was some delay in bringing the matter to my attention, no blame can be cast at the feet of either Mr Buckingham-Jones, or the juror, for the situation which has arisen. During the course of submissions this morning, I received a note from the juror (MFI 3) drawing my attention to the fact that she had recognised a member of the media in court yesterday. Both Mr Buckingham-Jones, and the juror have acted responsibly in bringing the matter to my attention.

8. Whilst I have no reason to think that the juror and Mr Buckingham-Jones are unaware of their respective responsibilities, it is an undesirable situation to allow the juror to remain, in circumstances where she has a close personal association with a journalist who may report on aspects of the trial, and in circumstances where the trial will continue to attract significant publicity. I am obviously not able to prevent the juror and Mr Buckingham-Jones from associating with one another during the months over which the trial will be conducted. It goes without saying that all parties in this case are entitled to a fair trial. Anything which may have the capacity to impinge upon that right is an obviously serious matter. A total of 15 jurors were selected in light of the fact that the trial is expected to take at least 3 months, and possibly longer, to complete. We are presently at day 3. There will be significant media publicity for the duration of the trial. For all of these reasons, it is my view that the appropriate course is to discharge the juror and proceed with a jury of 14.

9. After I had expressed that conclusion, Ms Shead made a further application that I discharge the entire jury on the basis of the possibility of “contamination”. In my view, there is no warrant whatsoever for making an order that the entire jury be discharged. Accepting, as I do, that the evidence of Mr Buckingham-Jones is truthful, he has not engaged in any conversation with the juror in question about the trial. In these circumstances it is difficult, to say the least, to envisage the possibility of any contamination of the other 14 members of the jury as a consequence of the events which have arisen. On the evidence before me, the most that the juror in question could have shared with her fellow jurors is the fact that she recognised a member of the media in court with whom she has a close personal friendship. That falls substantially short of the evidence which would be required to conclude that the entire jury should be discharged. For these reasons I do not propose to accede to Ms Shead's application.

10. The formal orders that I make will be as follows:

1. Juror number 650-14 is discharged.

2. The trial will proceed with the remaining 14persons who have been empanelled.

11. When the proceedings resume with those 14 persons I will explain to them, in obviously broad terms, what has happened and will direct them as to the necessity to refrain from any speculation as to why I have taken the course that I have taken.

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Decision last updated: 15 June 2016