R v Sumpton (No. 3)
[2014] NSWSC 1556
•21 October 2014
Supreme Court
New South Wales
Medium Neutral Citation: R v Sumpton (No. 3) [2014] NSWSC 1556 Hearing dates: 21 October 2014 Decision date: 21 October 2014 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: I request that there be an investigation by the sheriff into the delivery of the note which is MFI 13 and envelope MFI 12. At this stage specifically request to a viewing of the CCTV footage outside of the Grafton Courthouse and once that is done to further report to me with a view to allowing the parties to view that footage.
Catchwords: CRIMINAL LAW - request to sheriff - secret note - sheriff investigation - investigation into improper conduct Legislation Cited: Jury Act 1977 (NSW) Category: Interlocutory applications Parties: Crown
Andrew Mervyn Sumpton (Accused)Representation: Counsel:
J McLennan SC (Crown)
M Dennis (Accused)
Solicitors:
New South Wales DPP (Crown)
Legal Aid NSW (Accused)
File Number(s): 2012/165950
EX TEMPORE Judgment
At about 10.50 am today, Tuesday 21 October 2014, it was brought to my attention that a note had been delivered indirectly to Mr Dennis who appears for the accused in the trial that has now been running for something like six days in front of the jury and 11 days including the pre-trial voir dire.
The note that was delivered has been marked for identification 13 and it includes a list of addresses, one of which is circled and I am told relates to a person identified as Darius Ohlsen with a date of birth 19 December 1960. Mr Ohlsen is to be a witness in the trial. In handwriting are the words.
"He was a close associate of Andrew Sumpton in period just before Michelle Robert's murder, he would be my suspect."
Mr Dennis received a note when he arrived at Court on Wednesday 15 October 2014. The note was found under the door of the registry of this Courthouse in Grafton that morning and appears to have been placed under the door on the afternoon of 14 October 2014 (a Tuesday) between the hours of 4 and 5.30 pm. 14 October 2014 was the day that the jury was empanelled. Mr Dennis brought the note to the attention of the learned Crown Prosecutor and they have been attempting to resolve the matter without involving me or disrupting the trial.
A concern shared by both parties is that the note may have emanated from a member of the jury. The basis of that concern is the fact that the note discloses a more detailed knowledge of the evidence than was reported in the local newspaper. If it was a juror who delivered the note, there may be a problem with the trial continuing. Relevant to the decision that I now have to make, it may be that it would affect the verdict and involve some improper conduct by a member of the jury: s 73A JuryAct1977 (NSW). I hasten to say that while some involvement by a juror is possible, there is no real evidence to support this. Nevertheless, in view of the possible consequences for the trial and any proceedings that might arise after the trial, it is the joint position of counsel that I should direct an investigation pursuant to s 73A of the JuryAct. I agree with the joint position of the barristers.
I am told and accept that there are closed circuit television cameras outside and around the curtilage of the Courthouse here in Grafton and that it may be that viewing of that CCTV footage would disclose the identity of the person who delivered the note. I am also told that the sheriff or court officer in Grafton who has had assistance at times during the trial is alone today and that places her in an impossible position in terms of undertaking such an investigation now because she is very busy handling the jury itself.
I am told that there is likely to be a shortage of witnesses to occupy the full day and that she may have an opportunity to review the CCTV footage later in the day. There is also the possibility that she could gain some assistance from either the Lismore or Coffs Harbour office of the sheriff.
Accordingly, I direct that there be an investigation by the sheriff into the delivery of the note which is MFI 13 and envelope MFI 12. At this stage specifically directed to a viewing of the CCTV footage outside of the Grafton Courthouse and once that is done to further report to me with a view to allowing the parties to view that footage.
ADDENDUM TO JUDGMENT
On closer review of s 73A, and to reflect the terminology of that section, I revised the order to substitute the word "request" for the word "direct".
In the course of the day a sheriff from Lismore attended and located the relevant part of the CCTV footage. The relevant part was burned to a DVD. The local sheriff and the Lismore sheriff reported to me in chambers that the footage did capture the person delivering the note and that the person was not a member of the jury. The report was brought to the attention of the parties and the DVD played in Court in the presence of the parties and their legal representatives. All parties agreed that the person depicted in the DVD was not a member of the jury. No further application was made and the trial continues.
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Decision last updated: 06 November 2014
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