R v Wrigley (No 6)

[2025] NSWSC 527

Supreme Court

New South Wales

Medium Neutral Citation:

R v Wrigley (No 6) [2025] NSWSC 527

Hearing dates:

16 May 2025

Date of orders:

16 May and 19 May 2025

Decision date:

02 June 2025

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

16 May 2025:

(1) Pursuant to s 53A(1)(c) of the Jury Act 1977 (NSW), Juror N is discharged.

19 May 2025:

(1)   The application to discharge the jury is refused.

(2) Pursuant to s 53C(1)(c) of the Jury Act 1977 (NSW) the trial shall continue with a jury of eleven.

Catchwords:

CRIMINAL PROCEDURE — Trial — Jury — Discharge of individual juror — Where juror has engaged in misconduct

CRIMINAL PROCEDURE — Trial — Jury — Discharge of whole jury — Whether to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice — Where strong inference that discharged juror was the dissident juror — Whether the accused has lost the sole voice standing against a conviction — Whether discharged juror’s misconduct has contaminated the remaining jurors

Legislation Cited:

Jury Act 1977 (NSW), ss 53A(1)(c), 53B, 53C(1), 55F, 55F(2)(a), 55F(3)(b), 55DA, 55DA(3), 68C

Cases Cited:

Addo v R (2022) 108 NSWLR 522; [2022] NSWCCA 141

BG v R (2012) 221 A Crim R 215; [2012] NSWCCA 139

Black v The Queen (1993) 179 CLR 44; [1993] HCA 71

Crofts v The Queen (1969) 186 CLR 427; [1996] HCA 22

Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71

Haines v R; Brown v R [2023] NSWCCA 108

R v Azari (No 9) [2018] NSWSC 1678

Rassi v R [2023] NSWCCA 119

Watson v R [2022] NSWCCA 208

Category:

Procedural rulings

Parties:

Rex
Clinton Beau Wrigley (Accused)

Representation:

Counsel:
M Swift (Crown)
N Broadbent SC (Accused)

Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s):

2023/101184

JUDGMENT

1. HIS HONOUR: The accused, Clinton Wrigley, is on trial on four counts. The first is a count of murder, namely, that on or about 23 January 2023, near Nyngan, he murdered Joel Carter (the deceased). The other three counts on the indictment, involve the theft and/or disposal of property that was allegedly taken from the deceased’s residence, at about the time of his death.

2. The jury retired to deliberate on its verdicts on Thursday 15 May 2025. On Friday 16 May, I discharged a juror for misconduct and on Monday 19 May, I determined that the trial would continue with a jury of 11. These are my reasons for those determinations.

3. Relevant background for the purposes of this judgment is that a key Crown witness who is subject to a non-publication order, and who I will refer to for that reason as witness A, gave evidence of some of the accused’s movements in the hours immediately prior to and after the time frame within which the four offences were likely committed. Evidence before the jury included information that, at the time, witness A had two brothers who had served or were still serving lengthy prison sentences for offences involving the supply of prohibited drugs. The jury were not informed that witness A had another sibling who at the time of the murder had a senior oversight role with regards to the New South Wales Police Force.

4. A central plank of the case for the defence involved an attack on witness A’s credibility and the contention that he had a motive to have committed or organised the murder himself. The defence relied upon the forensic identification of witness A’s DNA that was located on a curtain that was in close proximity to the deceased’s body, following its discovery; in other words, what was submitted to be an alternative reasonable hypothesis for at least the murder count. The presence of witness A’s DNA in that location had an innocent explanation in the Crown case.

5. The jury was empanelled on 3 April 2025. The trial before the jury commenced on Tuesday 8 April, following, in all, six days of the hearing of pre-trial issues. The jury retired to consider their verdict at 9.30am on Thursday 15 May. The following day at about 11am, by which time they had been deliberating for 6 hours and 51 minutes over the two days, the jury forwarded two notes simultaneously, which I marked for identification as MFI 102 and MFI 103.

6. MFI 102 was as follows:

“Your Honour

We have reached a unanimous verdict on indictments counts 2, 3, 4.

Regarding count 1 (indictment 1) there is 1 juror who has stated they are unwilling to change their verdict regardless of any further discussion or weighing of evidence and testimony, Could you please provide us some direction.”

7. The note marked MFI 103 was expressed to be by Juror N, who stated that he “did some research” on a particular person with the same family name as witness A as to his precise status concerning NSW police. The Court was convened and the parties were informed of the contents of both notes.

8. The note from Juror N was, prima facie, an admission by him that he had breached the terms of s 68C of the Jury Act 1977 (NSW) (the Act), which relevantly states as follows:

“68C   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.

…

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

(a)   …

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

…”

9. Following the empanelment of the jury on 3 April 2025, I had directed them to not engage in research, in particular on the internet, as follows:

“One of my responsibilities as the judge of the law is from time to time to give you directions about the law. When I give you a direction you must accept that direction and you must act in accordance with it.

There is a matter that I want to raise with you at this stage which is of paramount importance for a jury in a criminal trial. Indeed, what I’m about to say to you is a direction of law. Members of the jury, you must not make any inquiry outside of this courtroom about any aspect of the evidence that you will hear and see, any witness, or about the accused or the deceased, indeed about any aspect of the trial at all. I mean any inquiry.

That means that you must not search the internet in relation to any aspect of the trial, including the name of the accused, the name of the deceased or the name of any witness. That includes making an inquiry through any social media, including Facebook, Google, Snapchat, Instagram, Telegram, Twitter, Myspace or any other such service or app that I haven’t mentioned. You must not travel to any place mentioned in the trial where something is alleged to have happened in order to check it out.

Members of the jury, you must understand that this direction is of paramount importance in the trial. You may have read of trials that have fallen over, that have collapsed because it turned out that a member of a jury had made some inquiry on the internet about something to do with the trial.

As I have said, you’ve sworn an oath or made an affirmation to return a verdict - and these are key words - according to the evidence. Not according to any outside inquiry that you might make or read or hear in relation to the evidence in the trial. If you did make that sort of inquiry, your role would change from being an impartial member of a jury to that of an investigator, which is no part of your function. It would be unfair to the Crown and the defence because they would not know what you had seen, read or heard, and therefore they would not have an opportunity to properly respond to it, to clarify whatever it was that you'd learned.

This direction of law is so important that I also direct each of you that if you become aware of a fellow juror having done any of these things you need to immediately bring it to my attention. The seriousness of acting contrary to that direction is demonstrated by the fact that if any of you were to make such inquiries, that person making the inquiry would be committing a criminal offence which carries a maximum penalty of a term of imprisonment. I’m not saying that to scare you. I’m letting you know that fact simply to demonstrate the seriousness with which such misconduct is regarded by parliament.”

10. Juror N was affirmed and examined, pursuant to s 55DA of the Act, which states:

“55DA   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.

(2) A juror is not excused from a requirement to give evidence on such an examination on the ground that the evidence may tend to prove that the juror has committed an offence against section 68C.

(3) However, if the judge is satisfied, after the evidence has been given, that the evidence may tend to prove that the juror has committed an offence against section 68C, the judge is to cause the juror to be given a certificate under this section in respect of the evidence.

(4) In any proceedings for an offence against section 68C, evidence given by a person in respect of which a certificate under this section has been given cannot be used against the person.”

11. Juror N said that he did his research overnight, that is, on the evening of Thursday 15 May, and that it was the only research he had done during the trial. Consistently with the content of his note, the effect of his answer was that the purpose of his research was to discover the nature of the relationship between the particular sibling of witness A and NSW police. When asked what the relevance of that inquiry was to the jury deliberations, he said: “I had two concerns. Why [witness A] wasn’t arrested and the quality of police evidence at the murder scene”. He was of the view that the police did not investigate witness A as rigorously as they should have, because of the occupation of that sibling.

12. Juror N’s evidence included the following:

“Q. This morning did you discuss what you had learned with anyone on the jury?

A. Yes.

Q. With everyone on the jury or just some?

A. Everyone.

Q. Did you tell them that you’d gone onto - I take it you made these inquiries on the internet?

A. Mm-hmm.

Q. Did you tell them that you’d gone onto the internet?

A. Yes I did.

…

Q. What did you tell your fellow members of the jury that you had learned through these inquiries?

A. Only told them that - what my concerns were.

…

Q. What did you say to them about what you had done?

A. I, I, I was saying to them that - I was saying to them that I had concerns with the evidence because of the, the two brothers being convicted and that [witness A’s sibling had the relationship with NSW police].

Q. Did you discuss with the jury that information? You've told them that. Was there then some discussion about that?

A. Not really no. They weren't really concerned about it.”

13. I granted Juror N a certificate in accordance with s 55DA(3) of the Act and isolated him from the balance of the jury. Later that day, I discharged him pursuant to s 53A(1)(c) of the Act.

14. The next issue was whether the jury should be discharged pursuant to s 53C(1) of the Act, which provides:

“53C   Discretion to continue trial or coronial inquest or discharge whole jury

(1)   If a juror dies, or the court or coroner discharges a juror in the course of a trial or coronial inquest, the court or coroner must—

(a)   discharge the jury if the court or coroner is of the opinion that to continue the trial or coronial inquest with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, or

(b)   if of the opinion that there is no such risk and subject to section 22, order that the trial or coronial inquest continue with a reduced number of jurors.”

15. Although the heading to the section refers to the power to discharge as being discretionary, the terms of the section make plain that a discharge is mandatory if that test is satisfied: Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71 per Bellew J (Bell CJ and Ierace J agreeing) at [199]. In Haile, Bellew J continued, as to the nature of a substantial miscarriage of justice:

“200   Because the circumstances which may give rise to a substantial miscarriage of justice are difficult to define, ^[1] it is similarly difficult to formulate rigid rules governing the circumstances in which it may be necessary to discharge a jury because the risk of a substantial miscarriage of justice has arisen. ^[2] However, some guidance can be obtained from the decision of the plurality in Filippou v The Queen: ^[3]

By ‘substantial miscarriage of justice’ what is meant is that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal, which was fairly open to him or her or that there was some other departure from a trial according to law that warrants that description.

201   In Phan, Price J concluded that this definition applied to decisions pursuant to s 53C(1)(a), and that the overriding consideration must be the entitlement of the parties to a fair trial.” ^[4]

1. Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at 312.

2. Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 at 436.

3. (2015) 256 CLR 47; [2015] HCA 29 at [15].

4. At [128].

16. As to the contamination issue in the instant case, the foreperson was examined to determine what Juror N had told the jury and whether it had been discussed. The foreperson’s account was:

“I remember him talking about research of the family [of witness A], like that, that family, and that he did it on Google, and that in what he had found out, that he had found out about a [sibling], he did use the word ‘[sibling]’ and ‘police’ and I think he said [what the nature of the relationship was].

Q. Okay. That’s the totality of the words?

A. Absolutely.”

17. When asked if any discussion followed, the foreperson said:

“I think somebody asked whether or not that the person he’d researched had actually been [in that relationship with NSW police]. I remember hearing that but I don’t remember then that juror [had got a] response, I don’t know. But there was just - and then that was sort of it.”

18. The foreperson said:

“… we might’ve had a little bit of a break and then said to somebody else and then it sort of came to light in the general discussion that what he’d said wasn't appropriate. It wasn’t identified straight away.”

19. The foreperson was asked:

“Q. Just checking that the only response from the jury members was in response to was [witness A’s sibling] actually [in that relationship with NSW police]?

A. Yeah.

Q. Was there any other discussion about what juror N had said?

A. No.”

20. The foreperson said that it was agreed amongst the jury that the Court needed to be told of Juror N’s actions. Juror N said he would write a note. The foreperson said: “I would’ve written it had he not have”.

21. Initially, I determined to examine the balance of the jury separately as to what Juror N had said he learned from his internet inquiries and whether there was any discussion of that material. Juror D, who was next examined, gave a version in which Juror N used the information he gleaned to advance the theory he gave in Court:

“… he was giving us a scenario and in that scenario he said he searched [witness A’s] family, he mentioned searching the [sibling of witness A] … and that in that role he felt that the police probably didn’t interrogate the case as hard as he should have against [witness A].”

22. Juror A was examined. I note that the only matter that Juror A related that was said by Juror N that was not the subject of evidence in the trial was “about his other [sibling], how he’s something to do with the police”.

23. It became apparent that conducting examinations of individual jurors in this fashion risked them inadvertently disclosing the substance of their deliberations, so I discontinued that process. Instead, the jury was brought into Court and were informed that if any juror was of the view that they could not put out of their minds what Juror N had told them he had learned through his out of Court inquiries, or if they had a concern that they could not do so, they should forward me a note. No note was received.

24. It was apparent that Juror N was likely the juror who, according to the jury note, was unwilling to change his verdict on the murder count “regardless of any further discussion or weighing of evidence and testimony”. That observation, coming immediately after the words “We have reached a unanimous verdict on indictments counts 2, 3, 4”, suggested that it was the view of the jury that they had reached a deadlock.

25. Two issues arose from the discharge of Juror N and the two jury notes being forwarded together, namely, whether the trial should continue with a jury of 11 in view of the loss of possibly the sole voice standing against a conviction on the first count, and whether the jury’s consideration of the counts exclusively on the evidence in the trial had been compromised by the introduction of information from outside the jury room (the contamination issue).

26. The accused submitted that the jury should be discharged. The Crown sought an adjournment until the following Monday, 19 May, to further consider the application, which I granted. The parties provided written submissions over the weekend, supplemented by further oral submissions by Mr Broadbent SC on Monday morning.

27. The accused submitted that from the combined content of MFIs 102 and 103, “there is a strong inference that Juror N may have been that person” who, according to MFI 102, was at that stage implacably at odds with the rest of the jury in respect of the verdict for count 1, and that the discharge of Juror N therefore may have removed the only juror who at that time was of a strong view that the appropriate verdict for the murder count was an acquittal.

28. The accused referred to a categorisation of scenarios described in BG v R (2012) 221 A Crim R 215; [2012] NSWCCA 139 by Adamson J (as her Honour then was), McClellan CJ at CL and McDougall J agreeing), at [103] and following, in which the issue of whether the trial should continue with a jury fewer than twelve may arise. That passage was affirmed in Haile as follows:

“208   In BG v R Adamson J considered the power in s 53C of the Act and identified three categories of case in which a question may arise as to whether a trial should continue with a reduced number of jurors:

(i)   where there is no indication how the discharged juror would have voted;

(ii)   where there is evidence from which it can be inferred prospectively that the discharged juror would, if not discharged, have voted for an acquittal; and

(iii)   where it can be inferred, but only with the benefit of hindsight, that the juror who was discharged would, if not discharged, have voted for an acquittal.

209   Her Honour went on to observe, by reference to authority, that if a trial judge has discharged a member of the jury, it will not be appropriate to continue to the trial with a reduced number of jurors if the case falls into either the second or third category. Her Honour concluded that in such circumstances, there is a risk of a substantial miscarriage of justice because:

…[I]t is one thing for an accused person to lose a right to be tried by a jury of twelve; it is quite another for such a person to lose a juror whom could reasonably be inferred, even if only with the benefit of hindsight, to have been at least unwilling to convict, if not determined to acquit.

210   Her Honour also observed that what distinguishes the second and third categories from the first is that in each of those two categories, something is known, or can be inferred, about what has transpired in the jury room, so as to give rise to a risk of a substantial miscarriage of justice if the trial continues with the remaining members of the jury.

211   In reaching these conclusions, her Honour made reference to a number of authorities, including R v Roberts ^[5] in which Cullinane J observed:

[46]   To discharge a juror at a time when it is known that the jury is in a state of disagreement and that the juror, who is discharged, is the sole dissenter carries the risk of giving rise to the perception that an obstacle to a verdict has been removed and a verdict of the remaining 11 gives rise in those circumstances to the perception that there has been, in the result, a majority verdict …” (page references omitted)

5. [2005] 1 Qd R 408; [2004] QCA 366 at [46].

29. The accused submitted that this was a case that fell into Adamson J’s second category. Had Juror N not been discharged, the jury predictably would have received a Black direction ^[6] in response to MFI 102, which would have obliged them to listen carefully and objectively to the views of every one of their fellow jurors. The accused submitted, “the possibility cannot (and should not) be discounted that a ‘holdout’ or dissenting position may become the position of the majority, or even a position of unanimity”. In this case, that may have been Juror N’s lone voice for an acquittal for the murder count.

    6. Black v The Queen (1993) 179 CLR 44; [1993] HCA 71 at 50.

30. The accused submitted that the voice of Juror N could not have been overcome by a majority verdict for at least another one hour and nine minutes of deliberations, pursuant to s 55F of the Act. By juror N’s necessary discharge, that voice and the opportunity for it to persuade the other jurors in that intervening period was lost, thus exposing the accused to the risk of a substantial miscarriage of justice.

Consideration

31. The present situation is similar in some respects to that which the Court of Criminal Appeal considered in Addo v R (2022) 108 NSWLR 522; [2022] NSWCCA 141 in a judgment of the Court (Beech-Jones CJ at CL, Adamson and Bellew JJ). In that case, the appellant was charged with 14 sexual offences. Five days after the jury retired to consider its verdict, it informed the Court in a note that they were “no longer moving forward”. They received a Black direction. The following day, although the trial judge had given a direction pursuant to s 55F of the Act permitting a majority verdict, the jury forwarded a note stating that on 10 counts they were agreed 11-1 on a verdict and on the other four counts, as the trial judge explained it, “the jury has reached a majority verdict, but not 11 – 1”. The jury were then given a majority verdict direction and told to formally retire to consider:

“… whether, in the light of what I have just said to you, you are likely to be able to come to either a unanimous verdict on any count or majority verdicts on any counts in addition to what you’ve already told me because the direction that I have given you may indicate that your 11:1 view, for example, on any counts may change when you reconsider the other counts on which you are not at an 11:1 position.”

32. The jury responded in a note that they wished to return the following day “to try to reach a majority verdict on the remaining indictments”. Shortly afterwards, the trial judge received a note from an individual juror, stating, “I doubt I will be able to continue with this as my blood pressure has been continually increasing to dangerous levels. I need to visit a doctor”. That juror, who was referred to as Juror G, did not return to court the next day and was discharged pursuant to s 53B of the Act. The trial judge made an order for the trial to continue with a jury of 11 pursuant to s 53C(1) of the Act. The accused then sought a discharge of the jury on the basis that there was no explanation as to why Juror G had not wished to continue on the jury. The Court extracted part of the defence counsel’s submissions to the trial judge, at [124]:

“There is no basis to know the reason why this juror no longer wants to deliberate, and that there is a real possibility that there might be some contamination amongst the jurors, and that anything that has occurred in the jury room that we know nothing about, may have influenced other jurors and that on that basis, the jury should be discharged. This accused is entitled to be tried by jury of 12 people deliberating. The fact that one person now does not give a valid reason for no longer wanting to participate in that process, I would submit is unfair and it is not in the interest of justice.”

33. The trial judge refused the application and gave the jury a majority verdict direction, that is, that if they were unable to achieve unanimity, they could deliver a verdict on which 10 were agreed; that is, 10:1. The jury retired and returned approximately one hour and 18 minutes later with verdicts for all counts, which were twelve convictions and two acquittals.

34. On appeal, the appellant submitted that it was reasonable to infer from the rapidity of the final stage of the jury’s deliberations that Juror G was a “dissident juror” and that his discharge deprived the accused of “a sympathetic vote on the jury” which gave rise to a substantial miscarriage of justice according to the third category identified by Adamson J in BG. The Crown submitted that even if it was accepted that Juror G had expressed views contrary to those of the majority, his absence was immaterial because a majority verdict was permitted.

35. The Court referred to what was said in Haile at [200]-[201], to the three categories identified by Adamson J in BG and made similar observations to those made by Bellew J in the passage from Haile at [209]-[211], extracted above at [28]. For the purposes of considering the appellant’s contention that the continuation of the trial with a jury of 11 in the absence of Juror G had given rise to a risk of a substantial miscarriage of justice, the Court accepted that “the overwhelming inference” was that Juror G was a dissident juror. Since the point in the trial had been reached where a majority verdict could be taken, if Juror G had been the only dissenting voice – in other words, that the verdicts delivered by the jury of 11 were unanimous – then it could be safely concluded that Juror G’s dissenting voice was of no consequence.

36. The Court concluded that the evidence of the taking of the verdicts did not allow for a finding that the verdicts were unanimous, which meant that the Court could not be confident that Juror G’s absence was inconsequential. It concluded, at [154]:

“In those circumstances, it is not possible to reach an affirmative conclusion that all of the verdicts were the unanimous verdicts of the eleven jurors who remained. Whilst it is likely that some were, there is also a possibility that some were not. If some were not unanimous, then the continuation of the trial in the absence of Juror G becomes significant, and brings the circumstances of the case within the third category set out in BG v R. Bearing in mind the terms in which the phrase ‘miscarriage of justice’ was explained in Filippou v The Queen, it is important to emphasise that s 53C of the Jury Act speaks of a risk of a substantial miscarriage of justice.” (original emphasis)

37. I infer from this passage that the reason that Juror G’s absence was significant is that a majority (rather than unanimous) guilty verdict on any count would have meant that, if Juror G had remained on the jury, two dissenting votes would have resulted in the jury being hung on that count. Accordingly, the Court upheld the ground and quashed the convictions.

38. The situation in the instant case differed from that in Addo in two key aspects. At the time that Juror N had engaged in misconduct (and subsequently discharged), the jury had arrived at unanimous verdicts for three of the counts and were at 11:1 in respect of the remaining (murder) count, whereas in Addo the jury were at 11:1 for some counts and less than 11:1 for others.

39. The other difference is that in the instant case, the jury had not been deliberating for the minimum period of time that permitted the Court to direct the jury that they may return a majority verdict, namely, not less than eight hours (s 55F(2)(a) of the Act). Even so, I concluded there was not a risk of a substantial miscarriage of justice if the jury of 11 was not discharged.

40. Had Juror N not been discharged, I would have given the jury a Black direction. When I directed the jury of 11 to continue their deliberations, I reminded them of the content of MFI 102 as to their request for “some direction” in view of being 11:1 on the murder count, and said, “When you retire to continue your deliberations shortly, if you still need that direction, let me know straight away in a note”. No such note was received.

41. In relation to the issue of potential contamination of the jury, I had regard to Rassi v R [2023] NSWCCA 119, in which the Court found that the trial judge erred in not discharging the jury following a juror having inadvertently received a copy of an interlocutory judgment concerning the admissibility of expert evidence by the Crown.

42. In the instant case, the Crown submitted that the Court should not discharge the jury unless there was “a high degree of necessity” to do so, relying upon Haines v R; Brown v R [2023] NSWCCA 108 at [40]-[43]. That phrase may be traced back to Crofts v The Queen (1969) 186 CLR 427; [1996] HCA 22, in which Toohey, Gaudron, Gummow and Kirby JJ, at 440-441, approved the test of necessity on an application for a discharge as stated below by the New South Wales Court of Criminal Appeal. However, Crofts predates the introduction of s 53C of the Act. Although it might be thought that the test in s 53C(1) overrides the common law test, that is not entirely clear: see Watson v R [2022] NSWCCA 208 (Bell CJ, Price and Yehia JJ) at [37]-[38] and also R v Azari (No 9) [2018] NSWSC 1678 per N Adams J at [20]-[21].

43. The principles I applied in respect of this aspect of the application were those identified in Watson as follows:

“40   Considerations relevant upon an application to discharge the whole of the jury include but are not limited to the extent of the prejudice to the accused; the ability to ameliorate that prejudice to any degree by direction, comment or other step; and the stage that the proceedings have reached: R v Ahola (No 6) [2013] NSWSC 703 at [18] (Ahola). This decision was referred to with approval by the Court of Criminal Appeal in Younan v R [2016] NSWCCA 248; (2016) 316 FLR 122, where Beazley P observed, with reference to Ahola, that ‘he authorities did not require or encourage trial judges to take an overly sensitive approach to the accidental receipt of prejudicial material’: at [39].

41   Justice Bellew’s judgment in Haile also provides a useful summary of the important observations by Spigelman CJ in R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377 in relation to irregularities, including irregularities involving a jury, and the requirement of materiality. His Honour said at [243], omitting footnotes and with our emphasis added:

‘… Spigelman CJ formulated the following general propositions:

(i)   the occurrence of an irregularity in a criminal trial, including an irregularity involving the jury, invokes the overriding principle of a fair trial;

(ii)   usually, the issue will be whether something that was done or said in the course of the trial resulted in the accused being deprived of a fair trial, and led to a miscarriage of justice;

(iii) the reference to ‘miscarriage of justice’ invokes the traditional formulation set out in s 6 of the Criminal Appeal Act 1912 (NSW), and the irregularity must be material;

(iv)   the test in New South Wales for determining the materiality of an irregularity is whether the Court can be satisfied that the irregularity had no effect of the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred; and

(v)   the test in Victoria is whether the irregularity was such to give rise to a reasonable suspicion or concern about the fairness of the trial, and such terms do not operate differently to the test that applies in this state.”

42   The reference to ‘materiality’ in subparagraph (iv) in the above passage was expressed in the context of the jury having given their verdicts but is readily transposed to a case such as the present where the inquiry is as to whether an irregularity may have an effect on any ultimate verdict. The obverse of the requirement for materiality is that not every irregularity will be prejudicial:  Hamide at [101].”

44. However, as noted by Hamill J in Rassi at [68], considerations such as the trial nearing its end will rarely prevail where the jury was exposed to material to which it should not have been exposed.

45. Ultimately, I determined that to continue with the trial would not carry a risk of a substantial miscarriage of justice, in particular to the accused, in view of the following: the timing and content of note MFI 102 from the foreperson that the jury had reached unanimous verdicts on three counts and that on the fourth count they were 11-1; that the offending material favoured the defence, so that any prejudice flowing from it would not disadvantage the defence; the jury’s view that they did not have a concern that they could not disregard what Juror N had told them of his research; and the provision of a direction to the effect that the discharge of Juror N was exclusively for his misconduct and not because of any view he may have communicated on the evidence in the trial.

46. On 16 May 2025, I made the following order:

1. Pursuant to s 53A(1)(c) of the Jury Act 1977 (NSW), Juror N is discharged.

47. On 19 May 2025, I made the following orders:

1. The application to discharge the jury is refused.

2. Pursuant to s 53C(1)(c) of the Jury Act 1977 (NSW) the trial shall continue with a jury of eleven.

**********

Endnotes

Decision last updated: 03 June 2025