Registrar of the Supreme Court of South Australia v S; Registrar of the Supreme Court of South Australia v C - [2016] SASC 93

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
REGISTRAR OF THE SUPREME COURT OF SOUTH AUSTRALIA v S; REGISTRAR OF THE SUPREME COURT OF SOUTH AUSTRALIA v C
[2016] SASC 93
Judgment of The Honourable Justice Doyle
22 June 2016
PROCEDURE - CONTEMPT, ATTACHMENT AND SEQUESTRATION - CONTEMPT - WHAT CONSTITUTES - INTERFERENCE WITH COURSE OF JUSTICE AND ADMINISTRATION OF LAW - IN GENERAL
The defendants were jurors in a criminal trial. They were each charged with contempt pursuant to a summons issued by the Registrar of the Supreme Court of South Australia. It was alleged that they deliberately contravened a direction of the Judge presiding over the criminal trial in which they were jurors by conducting research on the internet about matters related to the trial.
The defendants pleaded guilty and made submissions in mitigation of the penalty.
Held (per Doyle J):
1.       The defendants' conduct was serious. Such conduct has the capacity to undermine the integrity of the jury system and the administration of justice more generally.
2.       While general deterrence remains very significant, a sentence of imprisonment was not necessary or appropriate in the circumstances of this case.
3.       Conviction recorded and a fine of $3,000 imposed.
Attorney-General v Fraill [2011] EWCA Crim 1570; Attorney-General v Dallas [2012] 1 WLR 991, considered.

REGISTRAR OF THE SUPREME COURT OF SOUTH AUSTRALIA v S; REGISTRAR OF THE SUPREME COURT OF SOUTH AUSTRALIA v C
[2016] SASC 93
Contempt of Court.
DOYLE J:

The defendants, MS and MC, were jurors in a criminal trial in which the three accused persons (CMD, AWW and RPM) were charged with blackmail.
MS and MC have each been charged with contempt pursuant to a summons issued by the Registrar of this Court. The summons alleges that between 9 February and 12 February 2016 they deliberately contravened a direction of the Judge presiding over the criminal trial in which they were jurors by conducting research on the internet about matters related to the trial.
The defendants pleaded guilty to the charge of contempt on the first return of the summons issued against them. These are my reasons for the penalty I have determined to impose.
Background
As mentioned, CMD, AWW and RPM were charged with blackmail. Their alleged offending occurred in December 2014 at the Adelaide Remand Centre, while CMD and AWW were prisoners on remand.
The trial was to be conducted before a jury. The first jury was empanelled on Friday, 5 February 2016. After counsel for the prosecution had opened, a successful application for a mistrial was made. The second jury was empanelled on Monday, 8 February 2016. After the opening, a juror indicated that he was friendly with a person who worked in the remand centre and who may have known about the details of the case. The Judge declared a mistrial and discharged the jury. It was agreed that a third jury should be empanelled.
The present defendants were members of the third jury empanelled. On Tuesday, 9 February 2016, immediately prior to empanelling the third jury, the Judge noted that some members of the jury panel had been members of the earlier panels before whom the accused had been arraigned, and so knew that two previous juries had been empanelled. The Judge informed them that “[o]n each occasion, through no fault of anyone, the case has had to be abandoned because certain matters arose very early in the case which meant that I had to discharge the jury.” The Judge went on to explain that this happens from time to time, but that it was unusual for two juries to be discharged on the first day of the trial with the result that they were starting the trial for the third time.
Having empanelled the jury, the Judge gave them a number of directions, including the following:
A trial, ladies and gentlemen, is a trial in this court. We try people on the evidence in this court. It is a careful, as I have said, consideration of the material in this court. In this modern day ladies and gentlemen where we have newspapers, television, nowadays the internet, Google, various other search tools, many of which I am not acquainted with but many of which you might be acquainted with, there is a lot of ways of getting information. I direct you ladies and gentlemen that you should decide this case purely on the evidence that is given in this courtoom and I direct you that if you are inclined to do any of your own researches to try and find out anything more about this case than you are hearing in this case, that would be inappropriate and it would cause a mistrial. There is a very good reason for that. We try people in this court on admissible evidence in this court. There is a lot of material out there which would never be appropriate in a court of law. Some of it is misinformation, some of it is inaccurate, some of it is just not relevant to the determination of a case in this court and so, ladies and gentlemen, I direct you that whilst you are sitting on this case you should not do any of your own researches about what might or might not have happened or what you might be able to find out nor should you speak to any other people about the case.
Counsel for the prosecution opened, as did counsel for one of the accused, CMD. The primary witness commenced his evidence.
On the afternoon of Friday, 12 February 2016, the Judge received information that two jurors had conducted internet searches in relation to the case. In open court he asked the jury whether any of them had used the internet to search for anything in relation to the case. The Judge asked any jurors who had done this to identify themselves and to indicate whether they had communicated what they saw to any other members of the jury. MS identified himself and said he had communicated with “a few” jurors. MC then identified herself and said she had communicated with one juror. She said that what she saw on the internet related to the accused, CMD, whom she “remembered from a long time ago”. Upon questioning by the Judge, both MS and MC acknowledged that they knew their actions were in contravention of the Judge’s directions.
Both jurors were separated from the balance of the jury. They were subsequently released and excluded from any further jury panel.
Counsel for each of the accused applied for the discharge of the jury. This was not opposed by the prosecution. The Judge granted the application and declared a mistrial.
On Monday, 15 February 2016, each accused made a formal election for trial by judge alone and an application to abridge the time within which to make that election. The application was granted, and the trial proceeded before the Judge without a jury. The accused were subsequently found not guilty.
After seeking advice from the Crown Solicitor’s Office, the Judge directed the Registrar of this Court to issue a summons for contempt to each of the two jurors in question, MS and MC.
The contempt proceedings
At the first return of the summonses, both defendants appeared without legal representation. They declined the opportunity to adjourn so as to seek legal advice or otherwise consider their position. They proceeded to admit their guilt of the charge of contempt brought against them, and then make brief submissions as to the circumstances of their conduct and matters relevant to any penalty the Court was minded to impose.
After expressing his contrition for his conduct, MS explained that he had remembered the name of one of the accused, CMD, “from an incident when he was a bikie club member”. He carried out a Google search of his name which led him to find a reference on a news website confirming that the accused was the person he had remembered. MS acknowledged that at the time he searched the internet he knew the Judge had said that was not appropriate. MS explained that the following morning he and MC were present with two other female jurors who were discussing why the accused had been in gaol. MS told them that he thought one of them was a bikie and was in gaol for a “club incident”.
MC also commenced by expressing her contrition. She said that while she knew it was not in her “best interest” to search on Google, she did so. She said she recognised one of the accused from “the news and all over the papers” and that that was why she carried out an internet search. She said she did not do so in order to try to and sway the jury, or otherwise make a “big scene” about it, or to inconvenience the Court. But she accepted, as MS said, the matter did come up in discussion over coffee with some other jurors the next morning.
Counsel for the Registrar accepted that both defendants were people of good character and with no history of offending. He nevertheless contended that a short period of imprisonment, but suspended, was appropriate having regard to the importance of general deterrence and protection of the processes of the Court.
The defendants contended that a fine would be more appropriate. MS explained that he was responsible for the care of his father who is a double amputee. MC has school aged children. Both MS and MC are employed, and neither claimed they would be unable to pay a fine.
Penalty
The defendants have admitted their guilt of contempt. Their offending is serious. Their conduct in searching the internet to confirm their recollections as to one of the accused’s background occurred in the face of an express direction from the Judge to decide the case “purely on the evidence that is given in this courtroom”, and not to do their own researches on the internet or otherwise. It occurred in the knowledge of both defendants that they were acting contrary to the Judge’s direction.
Such conduct potentially undermines the integrity of the jury system and the administration of justice more generally. The trial process is designed to ensure that an accused is tried only on the information presented in court. It is fundamental to the notion of a fair trial that this occur, not least so that the accused knows what evidence or information has been presented to the jury, and thereby has an opportunity to challenge or address that evidence or information. The Court goes to great lengths to ensure, so far as it can, that this objective is achieved. It is to the achievement of this objective that many of the rules of evidence and directions given by a trial judge are directed.
The widespread availability and usage of the internet, and search engines such as the one operated by Google, mean that information about accused people is often readily and widely accessible. However, this only serves to underscore the importance of directions, such as the one given by the Judge in this case, being given, and being observed. For so long as criminal trials continue to be conducted on the premise that accused persons are tried solely on the evidence presented in court, it will continue to be fundamental to the achievement of a fair trial that jurors not conduct their own research on people or matters relevant to the trial.[1]
[1] See the discussions in Spigelman J, “The Internet and the Right to a Fair Trial” (2006) 7 TJR 403, and Harvey D, “The Googling Juror: The Fate of the Jury Trial in the Digital Paradigm” [2014] NZLR 203.
Such conduct by jurors also has the very real potential, which was realised in this case, to cause a mistrial and hence occasion delay, expense and inconvenience affecting not only the accused, but also the administration of justice more generally.
For these reasons, considerations of general deterrence weigh heavily in determining the appropriate penalty for contempt by a juror in conducting their own research. In some cases, such conduct will warrant a term of imprisonment. Attorney-General v Fraill[2] is an example of such a case. In that case, despite warnings from the trial judge in similar terms to the one given here, a juror used the internet to research the defendants and also used Facebook to contact the partner of one of the defendants and answer a question that the partner had about the charges. The juror, and partner of one of the defendants, were found guilty of contempt. The juror was imprisoned for eight months.
[2] Attorney-General v Fraill [2011] EWCA Crim 1570.
In Attorney-General v Dallas,[3] a juror, after learning through an internet search that the accused who was facing assault charges had earlier been accused of rape, told her fellow jurors this information. She was sentenced to six months imprisonment for contempt of court. The juror had carried out her own internet research despite being well aware of repeated directions by the trial judge not to do so.
[3] Attorney-General v Dallas [2012] 1 WLR 991.
In both of these cases, the Court’s referred to the seriousness of the contempts involved given their threat to the integrity of trial by jury, and the consequential virtual inevitability of custodial sentences. [4]
[4] Attorney-General v Fraill [2011] EWCA Crim 1570 at [53]; Attorney-General v Dallas [2012] 1 WLR 991 at [43].
The conduct of MS and MC, whilst serious, was not as egregious as the conduct of the jurors in the above cases. I accept that MS and MC were merely seeking to confirm their recollection of what they recalled having previously heard in media reports, rather than undertaking a more general investigation or otherwise seeking to ascertain information that they were not generally aware of. I also accept that neither intended to use their knowledge to sway or influence other jurors. Indeed, they only revealed their knowledge when two other jurors speculated in their presence as to the reason for the accused being in custody at the relevant time.
It is also relevant that both jurors promptly acknowledged their wrongdoing, both before the Judge and on the first return of these proceedings. Both expressed what I accept to be their genuine contrition for their conduct. Both are people of good character and I have no reason to think that either of them are likely to offend again.
Both defendants are employed, and a sentence of imprisonment would operate not only to interrupt their employment, but would also have the effect of preventing MS from caring for his father, and MC from caring for her school aged children. In determining the appropriate penalty for each defendant, I have considered their individual conduct and circumstances. However, having done so, I see no reason to distinguish between them in terms of the penalty which it is appropriate to impose.
While considerations of general deterrence remain very significant, I do not consider it necessary or appropriate in the circumstances of this case to impose a sentence of imprisonment. I consider it sufficient and appropriate to record a conviction and impose a fine of $3,000.
Conclusion
In respect of each defendant, I convict them of contempt and order that a fine of $3,000 be imposed.