R v Sio (No 3)

[2013] NSWSC 1414

Supreme Court

New South Wales

Medium Neutral Citation:	R v Sio (No 3) [2013] NSWSC 1414
Hearing dates:	23 September 2013
Decision date:	23 September 2013
Jurisdiction:	Common Law - Criminal
Before:	Adamson J
Decision:	(1) The relevant juror is discharged.
Catchwords:	CRIMINAL LAW - Jury Act 1977 - juror misconduct - Internet research - discharge of juror - examination by judge of jurors not suspected of misconduct
Legislation Cited:	Jury Act 1977, s 53A, s 55DA(1), s 68C, s 68C(1), s 68C(4), s 68C(5),
Cases Cited:	Smith v The Queen [2010] NSWCCA 325; 79 NSWLR 675
Category:	Interlocutory applications
Parties:	Regina Daniel Jefferey Sio (Accused)
Representation:	Counsel: PE Barrett (Crown) CJ Watson (Accused) Solicitors: Director of Public Prosecutions (Crown) Sydney Criminal & Traffic Lawyers (Accused)
File Number(s):	2012/334972
Publication restriction:	Nil

EX TEMPORE Judgment

Introduction

1. Last Friday afternoon, 20 September 2013, I acceded to the jury's request that they be permitted to leave early because the foreperson was indisposed and needed to attend a medical appointment. Soon afterwards the Sheriff's Officer informed me through my associate that members of the jury had raised a concern with him that a juror had been conducting Internet research on matters of law in connection with this trial.

1. I asked the Sheriff to ensure that the juror who was said to have made the enquiries was kept separate from the other jurors when she arrived for jury duty this morning, Monday 23 September 2013, so that I could investigate whether there was misconduct within the meaning of s 68C of the Jury Act 1977 (the Act) which would oblige me to discharge the juror pursuant to s 53A of the Act.

Relevant legislation

1. Section 68C of the Act prohibits enquiries by jurors about trial matters. Relevantly, s 68C(1) provides:

Inquiries by juror about trial matters prohibited

(1) A juror for the trial of any criminal proceedings must not make an inquiry for the purpose of obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions as a juror.

Maximum penalty: 50 penalty units or imprisonment for 2 years, or both.

. . .

(4) Anything done by a juror in contravention of a direction given to the jury by the judge in the criminal proceedings is not a proper exercise by the juror of his or her functions as a juror.

(5) For the purpose of this section, making an inquiry includes the following:

. . .

(b) conducting any research, for example, by searching an electronic database for information (such as by using the Internet),

. . .

1. Section 53A of the Act provides for mandatory discharge of a juror who has engaged in misconduct in relation to the trial. It relevantly provides:

Mandatory discharge of individual juror

(1) The court . . . must discharge a juror if, in the course of any trial . . .:

. . .

(c) the juror has engaged in misconduct in relation to the trial . . ..

(2) In this section:

misconduct, in relation to a trial . . ., means:

(a) conduct that constitutes an offence against this Act, or

Note. For example, under section 68C it is an offence for a juror to make certain inquiries except in the proper exercise of his or her functions as a juror.

. . .

1. In an investigation of alleged misconduct by a juror in the course of a trial, it is not necessary that the trial judge be satisfied that a juror has engaged in misconduct beyond reasonable doubt: Smith v The Queen [2010] NSWCCA 325; 79 NSWLR 675 at [28] per RA Hulme J, McClellan CJ at CL and McCallum J agreeing.

Facts

1. At the commencement of the trial I directed the jury orally that they were not to make any inquiries on the Internet about the trial and they were not to conduct any research into the law. I also provided written directions to the jury which were marked MFI 1 which contained the following passage:

"It is criminal offence for a juror to make any inquiry during the course of a trial for the purpose of obtaining information about the accused or any matters relevant to the trial. The offence is punishable by maximum of 2 years imprisonment. For this offence "making any inquiry" includes:

(i)   asking a question of any person

(ii)   conducting any research including the use of the internet

(iii)   viewing or inspecting any place or object

(iv)   conducting an experiment

(v)   causing another person to make an inquiry."

1. Accordingly, a juror who conducted legal research on the Internet would be in breach of my directions and would therefore be in breach not only of s 68C(1) but also of s 68C(4) of the Act.

1. When I arrived at Court on Monday morning I was handed a jury note which I have marked MFI 22 which reads as follows:

"It has come to the attention of the jury late Friday afternoon that a member of the jury has taken 'the indictment' and 'written directions of law' home to study and make notes without discussion with the rest of the jury. Also let slip that research at home was made about obligations of law. This is the same juror who is not understanding the direction and approach in reaching a verdict based on evidence."

1. For the purposes of investigating whether there had been private enquiries made about trial matters, I first examined the juror in question on oath pursuant to s 55DA(1) of the Act, which provides:

Examination of juror-juror making private inquiries about trial matters

(1) A judge may examine a juror on oath to determine whether a juror has engaged in any conduct that may constitute a contravention of section 68C.

1. The relevant juror denied that she had conducted any Internet research to do with this trial and said that, although she had done some research at the time of first receiving a letter requiring her to serve on a jury last year, she had not conducted any more recent enquiries about legal matters to do with criminal trials.

1. In my view, s 55DA also authorises the examination of members of the jury who are not suspected of having engaged in any conduct that may constitute a contravention of s 68C. The use of the indefinite article before the word "juror" where it appears for the second time in s 68C(1) indicates that Parliament intended to authorise the examination of a juror who was not "the" juror who was suspected of engaging in the prohibited conduct.

1. Accordingly, I examined the foreperson on oath. The foreperson, who happened to be the juror who was indisposed and who was the reason for the early adjournment, said that, as he was leaving, the relevant juror gave him and other jurors to understand that she had taken her working copy of the indictment and the written directions of law home with her and had conducted some research on the Internet. The other jurors were shocked by her disclosure. One of the jurors told her "to cease and desist" and reminded her that such conduct was not allowed. The foreperson then left in order to attend a medical appointment. As far as he was aware she did not speak further about her research.

1. For abundance of caution I also asked the foreperson to nominate, after consultation with the other jurors and in the absence of the relevant juror, a person who would be best able to tell me what happened after the foreperson left. The second juror gave evidence of the exchange concerning the disclosure and the reaction of the jurors to that communication. He said that the contents of the Internet research were not disclosed and that there was no further conversation to which the relevant juror was a party. The only further conversation on the topic was that the remaining jurors approached the Sheriff's Officer with a view to informing me of the irregularity, as I had enjoined them to do in my opening remarks to the jury. Although I had directed the jurors in those opening remarks that any suspected misconduct be communicated to me by way of note, it was nonetheless appropriate in the circumstances that they contact the Sheriff's Officer in order that I could be made aware, as soon as practicable, of what had occurred.

1. I do not accept the relevant juror's evidence. I am satisfied on the basis of the evidence of the foreperson and the second juror that she conducted research of legal matters relating to this trial on the Internet. I find that she engaged in misconduct in beach of s 68C of the Act.

1. Having found that the relevant juror engaged in misconduct in relation to the trial, I am obliged to discharge her from the jury pursuant to section 53A of the Act.

Order

1. I make the following order:

(1)   The relevant juror is discharged.

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Decision last updated: 24 September 2013