R v Tembeleski (No 2)

[2024] NSWDC 504

District Court

New South Wales

Medium Neutral Citation:

R v Tembeleski (No 2) [2024] NSWDC 504

Hearing dates:

24 September 2024
26 September 2024
30 September 2024
1 October 2024
2 October 2024
3 October 2024
8 October 2024
9 October 2024
10 October 2024
14 October 2024

Date of orders:

14 October 2024

Decision date:

14 October 2024

Jurisdiction:

Criminal

Before:

Montgomery DCJ

Decision:

The whole jury be discharged.

Catchwords:

CRIMINAL PROCEDURE — Trial — Jury — Discharge of individual juror — Disobey directions against research — Bring a legal dictionary into the jury room

CRIMINAL PROCEDURE — Trial — Jury — Discharge of whole jury — Disobey directions to report irregularities and risk of a substantial miscarriage of justice

CRIMINAL PROCEDURE — Trial — Jury — Examination of jurors

CRIMINAL PROCEDURE — Trial — Jury — Irregularities — A legal dictionary on jury room table for seven days and referred to in jury discussions

Legislation Cited:

Crimes Act 1900 (NSW), s 115A

Jury Act 1977 (NSW), ss 19, 22, 53A(1)(c), 53A(2)(a), 53A(2)(b), 53C, 68C(1), 68C(4), 68C(5)(b)

Cases Cited:

Director of Public Prosecutions v Lehrmann (No 5) [2022] ACTSC 296

Hoang v The Queen (2022) 276 CLR 252

Category:

Procedural rulings

Parties:

Rex (Crown)
Jason Tembeleski (Accused)

Representation:

Counsel:
Mr Will Tuckey (Crown)
Ms Leah Rowan (Accused)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Australian Criminal Law Group (Accused)

File Number(s):

2023/00062145

Judgment

1. This is Ex Tempore judgment in Voir Dire 9 (Note: due to an administrative error, this should be Voir Dire 10. For convenience I will continue to refer to Voir Dire 9 in the judgment and exhibit marking. Also note: Voir Dire 8 in paragraph 6 is a reference to Voir Dire 9).

2. On Friday, 18 October 2024 in the late afternoon, two Court Officers, when cleaning up the jury room, located the book which is Exhibit VD9B. This trial did not sit Friday. There had been no access to the jury room between the departure of the jury on Thursday afternoon, being Thursday, 10 October 2024, and when the book was discovered on 11 October 2024. The book, Exhibit VD9B, will be referred to hereafter as “the book”. It was brought into the jury room by Juror M.

3. The book is entitled Oxford Australian Law Dictionary. It is a 2010 publication by Oxford University Press. The definitions within it are not simply of words, but the book provides statements of legal principle in relation to words. For instance, for the word “indictment” at p 299, the book provides:

“The formal written document charging an accused with one or more indictable offences and presented in a court other than a court of summary jurisdiction. Each offence is listed as a separate count on the indictment.”

4. Immediately above that definition is the definition of “indictable offence”. It reads:

“At common law, an indictable crime is one for which the accused is entitled to a trial by judge and jury (refer summary offence or simple offence). With the consent of the defendant, some indictable crimes can be dealt with summarily by a magistrate sitting alone. Indictable offences which are not triable summarily must be heard in the higher courts, by way of either a guilty plea or a plea of not guilty. For federal indictable offences, the prosecution presents the charges to the count in an indictment, but for state offences it uses a presentment.”

5. In that definition, there is at least reference to a hierarchy between matters dealt with summarily and matters dealt on indictment in this Court, which is information a jury ought not have reference to, that is, the consequences of verdicts.

6. In the present case, as my judgment in Voir Dire 8 concerns, there is potential for, pursuant to s 115A of the Crimes Act 1900 (NSW), ultimate reference to other alternative offences to those charged on the indictment. That has not arisen and may very well not arise.

7. There is a practical matter, for my consideration under s 53C of the Jury Act 1977 (NSW) (‘Jury Act’) in the exercise of the discretion whether or not to discharge the jury, as I consider whether or not to discharge Juror M pursuant to s 53A. There would, in that event, be 11 jurors from today. It is already known from Jury Note 3 that, from Friday 18 October 2024, another juror will be discharged. That is because that juror has travel commitments internationally. The juror had responsibly told court officers prior to empanelment of his or her commitment and was told that the trial was not estimated to continue so long as for that to be a problem.

8. Unfortunately, including by seven Basha inquiries, the trial has been interrupted. The parties informed the Court today that the trial is not expected to complete by Friday 18 October 2024. Therefore, should a juror be discharged today, from Friday 18 October 2024 there will be 10. The trial commenced with 12 jurors in compliance with s 19 of the Jury Act. Pursuant to s 22 of the Jury Act, the trial cannot continue if the jury is reduced below 10.

9. The jury were empanelled on 1 October 2024. The trial is in the very early stages of evidence. The complainant’s evidence-in-chief is not completed. Witnesses have been interposed. Presently, a witness, Mr Eid, who made certain observations of the location on the night of the alleged offences, is in cross-examination. Although the trial has been running for seven days, there have only been two-and-a-half days of evidence.

10. Defence counsel raises the additional consideration that the Court would be concerned as to inconsistencies between the evidence of the foreperson and of Juror M given today, which inconsistencies would cause the Court to weigh in consideration whether or not to discharge the foreperson. If that was done, there would no longer be a jury of 10. The trial would be terminated.

11. At the commencement of the trial, the jury were told, and by written document Exhibit VD9C, provided written directions for their conduct during the trial. The document is entitled “Directions Concerning Jurors Conduct During Trial”. It includes, “Failure to follow the directions may result in a miscarriage of justice”, and that until they are discharged, each juror is to abide by the written directions set out:

“4. Do not undertake any form of research or enquiry [whether via the internet or any other means] concerning any matter connected with the case.

5. You must not undertake your own research [whether via the internet or any other means] into law. The judge will give you the directions of law during the trial and in the summing-up.

…

11. You must direct any enquiry that you have about the evidence, the law or procedures to the trial judge. Do that via written note handed to the Court Officer.

…

14. If, in the course of the trial, you become aware that a fellow juror has made some independent enquiry in relation to any aspect of the case including the law, the background of the offences, the subject of the charges, the background of anyone else involved in the case, or has undertaken or caused to be undertaken any visit or experiment in connection with such matters, you must bring that to the attention of the trial judge, by a written note handed to the Court Officer.

15. If, in the course of the trial, you become aware that any matter that is not part of the evidence has found its way into the jury room, then you must bring it to the attention of the trial judge immediately.”

12. Evidence has been taken from the foreperson and from Juror M. It is Juror M who brought the book into the jury room.

13. It is apparent from the evidence of the foreperson that from immediately following my directions of law as to juror conduct, Juror M brought the book into the jury room and placed it on the jury room table, which I will from now on refer to as the jury table. Every day for the seven days, that occurred. The book was there, as that evidence necessarily infers, as an available source for reference, because otherwise there could be no purpose to it being present. The foreperson said that, to his observation, no one ever accessed the book. He also said that nothing was communicated concerning the book.

14. Juror M’s evidence was not identical. Juror M said that she first brought the book into the jury room on the third or fourth day of the trial. This evidence fitted uncomfortably with her testimony that she was given the book as a gift when she commenced jury duty. Their joint evidence is that she brought the book to the jury room, whereas the foreperson said that no reference was made to it, Juror M’s evidence was that she did, in the presence of all jurors, refer to the book to research the words “indictment”, “jury” and “jury trial”. Juror M said that this was to supplement what had been heard in court during directions. She said that no one else had used the book, but the jurors did discuss it, she described jurors speaking jokingly about looking something up. She explained that this was about supplementing or finding further information concerning a word or words.

15. Each of the foreperson and Juror M said that despite the presence of the book on the table day after day, no juror raised the directions to which I have just referred, which prohibited the making of inquiries, the performing of research into the law, and as to procedures to follow in the event of anyone bringing into the jury room anything which was not part of the evidence. Each of them said that there was no discussion of the directed alternative of inquiries being written on a note to be serviced by me as trial judge.

16. Each of them therefore confirmed the jury’s conscious ignoring and disobedience of those directions of law, that they shall not proceed in that way.

17. In Hoang v The Queen (2022) 276 CLR 252, the facts, in my view, were very different. There, the source of the research by a juror was the requirements for a Working With Children Check performed by the juror not for a purpose of the trial, but for the inadvertent purpose of the juror them self being a teacher who had a Working With Children Check, looking up what the requirements were. Indeed, the foreperson informed the Court in evidence that they also had a Working With Children certificate. The foreperson in that trial told the Court, “I do not feel the information had any impact.”

18. In that case, the foreperson, in accordance with his or her duty, informed the Court of their knowledge that the juror had conducted them self in that way.

19. In this trial, the enquiry and research is not inadvertent. The enquiry and research is for the purposes of the trial. To date, it might only have involved searching “indictment”, “jury” and “jury trial”, but the jury joked about how it might be used if questions come up in the future concerning words or definitions. And this is from a jury making those jokes, each of whom was equipped with Exhibit VD9C, the written directions informing them that it was against the law to so conduct themselves. The book being a Dictionary of Law has no utility whatsoever, except for the purposes of use in this trial. I repeat, it was not an inadvertent purpose.

20. And I emphasise it was not a one-off that someone came to the jury room with a book, maybe had a laugh about it, threw it in a bag and it was not seen again. That would be bad enough. The book was brought in day after day for seven days and placed on the table in sight of the whole jury and there were, in fact, references made to it so far as the jury wanted to do to this point in the trial. There is a significant risk that the jury would continue in that conduct of ignoring the directions of law that they had been given and refer to it in the future.

21. There is also, in my view, compounding that, the problem of security of justice in this trial in that all jurors disobeyed the directions by failing to make a report to the Court and therefore I have significant concern as to the jury’s attention to and compliance with the directions of law I might ultimately have to give them to do with such things as joint criminal enterprise, if that arises, alternative verdicts, directions as to evidence. In other words, all directions of law. They are a jury who has determined, despite the direction of the opportunity of assistance, which by compulsion is to be complied with, have taken it upon themselves to find a supplementing source. Each juror has failed to comply with directions in that way.

22. Following the High Court’s decision in Hoang, in Director of Public Prosecutions v Lehrmann (No 5) [2022] ACTSC 296, the Chief Justice of the Australian Capital Territory Supreme Court, McCallum CJ, dealt with circumstances in which, when tidying up a jury room, sheriff’s officers located a document being an academic research paper on the topic of sexual assault, that being a sexual assault trial. At para 12 of her judgment, the Chief Justice said:

“It is neither possible nor helpful to speculate as to the use to which this information might have been put in the jury room, if any. The juror in question has this morning given an explanation that the document was not used or relied upon by any juror. However, it is appropriate in the circumstances to approach that evidence with some scepticism. At the very least, the fact that the paper was located and taken into the jury room by the juror indicates that it may have influenced that juror’s contribution to the jury’s deliberations. The unfairness to both parties is manifest.”

23. In that case, her Honour discharged the jury. In the Australian Capital Territory, there is no equivalent to s 68C(1) of the Jury Act. However, her Honour was of the view that it was beyond question that the conduct of the juror was such as to abort the trial. At para 10, her Honour’s reason was that the discovery of the article and the fact that it was brought into the jury room of itself necessitated the discharge of the whole jury.

24. In this instance, Juror M said that, as I have recounted, there was discussion with jurors. The effect of her evidence is that she did not read them direct quotes, but she had referred to the book and then spoken to the jurors providing supplemental information to directions of this Court. Further, this was not, as I have said, brought to the jury room on one occasion. The jury had participated with Juror M in a practice of the book being there, available to be used in that way on every one of the seven days.

25. In their evidence, both the foreperson and Juror M claimed that they did not really understand what they were doing was wrong, even though each of them acknowledged in their evidence that what they did was in contravention of the directions I had given, and that the jury were participating in a manner not in accordance with the directions of law.

26. Pursuant to s 53A(1)(c), the Court must discharge a juror if in the course of the trial, the juror has engaged in misconduct in relation to the trial. Section 53A(2) defines the relevant misconduct as: (a) conduct that constitutes an offence under the Jury Act, and (b) any other conduct that in the opinion of the Court gives rise to the risk of substantial miscarriage of justice.

27. The contemplated offence is conduct against s 68C. I have referred to Hoang, which decision was ultimately based on a consideration of s 68C, the point to the case being that the juror’s inadvertent research in that case was not a breach of s 68C. In my opinion, the conduct of the juror in this case was misconduct in breach of s 68C. So far as I am able to determine on the evidence that is before me, this is because the juror did make an inquiry for the purpose of obtaining information on matters relevant to the trial, which was not in accordance with the proper exercise of her functions as a juror. Pursuant to s 68C(4), her conduct, as I have described it, was done in contravention of the directions to which I have referred that were given to the jury.

28. In relation to each member of the jury, their failure to report the conduct, and, to the extent that the evidence has exposed it, to participate in the conduct of references being made to the book and sharing of information from the book and maintaining the book as a reference within the jury room to supplement the directions of law given by me as trial judge; was also conduct done by each of them in contravention of the directions which I gave. I repeat what I have said by reference to Hoang’s case. Pursuant to s 68C(5)(b), research and inquiry conducted by researching in the book was making an inquiry in breach of s 68C.

29. I conclude that, pursuant to s 53A(1)(c), I must discharge Juror M because of her misconduct, both satisfying s 53A(2)(a) and (b), considered separately. In relation to the balance of the jurors, I am of the view that their individual conduct, as I have described it, was in breach of s 53A(2)(b).

30. Turning to the separate consideration of the exercise of my discretion under s 53C, which is required in the event that I am wrong in my determination that each juror, separately, should be discharged pursuant to the provisions of s 53A, I conclude that to continue the trial would give rise to the risk of a substantial miscarriage of justice. This is because:

1. I weigh the practical but important consideration of cost and inconvenience, which I have addressed. This is the early part of the trial. As of Friday, there would be 10 jurors, but in addition to that, there is weight in defence counsel’s argument that the forepersons’ evidence was inadequate today, and I would have scepticism as to his suitability to continue as a juror. I do not have to make a final determination of that, and on the brevity of the inquiry made of each of Juror M and of the foreperson today, it may not be fair to either of them to determine that that is so. By that I mean, as to which of them was accurate in their evidence.

2. Even if no juror whilst in the jury room would have further researched the law by use of the book, or the presence of the book was not going to turn them from the directions of law that I would give, and they were to ask for explanation of directions of law, each of them has nevertheless displayed a willingness to participate in continuing conduct in contravention of the Court’s directions of law. And the only true verdict is one delivered on the evidence received in the courtroom in accordance with the directions of law given.

3. I can have no confidence, as I have said above, that the jury would comply with other directions of law I give including directions as might be contained as to the elements of the counts, as to important issues such as joint criminal enterprise, if that became an issue, and otherwise as to the evidence.

4. I consider there to be a real risk that Juror M’s participation, including her evidence of expressing opinions to other jurors, will have contained an influence and provided an effect from her research, and in that way her research has contaminated the true consideration of the trial by the jurors.

5. Again, the use of the book to supplement directions of law shows at least the jury has been contaminated away from focus on the obligation to only seek directions of law and assistance as to the law from the trial judge.

6. There are no identified difficulties caused to major witnesses.

7. If the jury is discharged and the trial terminated, the Accused is on bail.

31. The Crown’s position, having helpfully addressed these considerations, is that counsel did not seek time for instructions and that whilst not making an application for discharge of the whole jury, would be silent in regard to that proposition.

32. The Defence position is that discharge of the jury is inevitable in these circumstances.

33. I determine that the whole jury be discharged.

**********

Decision last updated: 28 October 2024