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

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).
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.
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.”

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).…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Tembeleski (No 2)

Details

AGLC: R v Tembeleski (No 2) [2024] NSWDC 504
Case: [2024] NSWDC 504
Decision Date: 14 October 2024

CaseChat Overview and Summary

The case of R v Tembeleski (No 2) involved the defendant, Tembeleski, who was on trial for a criminal offence. The matter was heard in the relevant Australian court, and the central issue was the handling of a jury during the trial. Specifically, the court had to determine whether the jury was compromised by the presence of a legal dictionary in the jury room, which was brought in by one juror and referred to during discussions. This led to the consideration of whether individual jurors or the entire jury should be discharged due to their disobedience of the court's directions against conducting independent research.

The court examined the legal issues surrounding the discharge of individual jurors and the entire jury. It considered the directive given to the jury not to conduct any independent research and the potential impact of a legal dictionary being present and referred to in the jury room for seven days. The court had to balance the need for a fair trial with the risk of a substantial miscarriage of justice if the jury had been influenced by the dictionary.

In reaching its decision, the court concluded that the presence of the legal dictionary and its use in jury discussions constituted a significant irregularity. The court found that the jury's disobedience of the direction not to conduct independent research risked a substantial miscarriage of justice. As a result, the court ordered the discharge of the entire jury to ensure the integrity of the trial process. The final order was that the whole jury be discharged to prevent any further risk of bias or improper influence on the trial outcome.

Orders

Orders of the court

The whole jury be discharged.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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