Watson v R

[2022] NSWCCA 208

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Watson v R [2022] NSWCCA 208

Hearing dates:

21 September 2022

Date of orders:

21 September 2022

Decision date:

23 September 2022

Before:

Bell CJ; Price J; Yehia J

Decision:

1. Grant leave to appeal pursuant to s 5G of the Criminal Appeal Act 1912 (NSW).

2.    Allow the appeal.

3.    Set aside orders 2 and 3 made by Walton J on 15 September 2022.

4. In lieu thereof, dismiss the application by the Crown to discharge the whole of the jury pursuant to s 53C(1)(a) of the Jury Act1977 (NSW).

5.    List the matter for directions at 4.00pm on 21 September 2022 in King Street Court Room No 5 before Walton J.

Catchwords:

APPEAL – criminal appeal – application for leave to appeal pursuant to s 5G of the Criminal Appeal Act 1912 (NSW) from decision pursuant to s 53C(1)(a) of the Jury Act 1977 (NSW) to discharge whole of a jury following discharge of a single juror – where discharge of jury occurred following the close of evidence – where discharge of jury opposed by the accused in a murder trial – whether open to trial judge to form the opinion that there was a risk of a substantial miscarriage of justice - standard of appellate review – where factual errors in relation to suggested breaches by jurors of trial judge’s directions – whether alleged breaches occurred on numerous occasions – materiality of any alleged breaches

CRIME – murder trial – where Crown applied to discharge the whole of the jury after close of the evidence – where accused opposed application for discharge – where jury nevertheless discharged - whether open to trial judge to form the opinion that there was a risk of a substantial miscarriage of justice - standard of appellate review – where factual errors in relation to suggested breaches by jurors of trial judge’s directions – whether alleged breaches occurred on numerous occasions – materiality of any alleged breaches

Legislation Cited:

Criminal Appeal Act 1912 (NSW), s 5G

Evidence Act 1995 (NSW), s 55

Jury Act 1977 (NSW), ss 53A, 53C(1)(a), 68C, Pt 9

Supreme Court Act 1970 (NSW), s 75A(10)

Cases Cited:

Barber v R; Zraika v R [2016] NSWCCA 125

Browne v Dunn (1893) 6 R 67

Clark v R [2010] NSWCCA 94

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

Curran v R [2017] NSWCCA 123

GAR v R (No 2) [2010] NSWCCA 164

Haile v R [2022] NSWCCA 71

Hamide v R [2019] 101 NSWLR 455; [2019] NSWCCA 219

Hoang v The Queen [2022] HCA 14; (2022) 96 ALJR 453

House v The King (1936) 55 CLR 499; [1936] HCA 40

Libdy v R [2021] NSWCCA 34

Medich v R [2021] NSWCCA 36; (2021) 390 ALR 398

Mikael v R [2015] NSWCCA 294

Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102

Pratten v R [2021] NSWCCA 251

R v Ahola (No 6) [2013] NSWSC 703

R v Edwards [2009] HCA 20; (2009) 255 ALR 399

R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377

R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135

Trieu v R [2012] NSWCCA 169

Vella v R [2022] NSWCCA 204

Winsor v R (1866) LR 1 QB 390

Younan v R [2016] NSWCCA 248

Zheng v R; Li v R; Pan v R (2021) 104 NSWLR 668; [2021] NSWCCA 78

Category:

Principal judgment

Parties:

Paul Anthony Watson (Applicant)
The Crown (Respondent)

Representation:

Counsel:

J Agius SC (Applicant)
G Newton (Respondent)

Solicitors:

Timothy Hemsley & Associates (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2019/324972

Publication restriction:

Publication restricted to the parties and their legal representatives pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) until the conclusion of the underlying trial.

Verdict delivered 27 September 2022.

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2022] NSWSC 1243

Date of Decision:

15 September 2022

Before:

Walton J

File Number(s):

2019/324972

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 21 September 2022, the Court heard (and allowed) an urgent appeal from the decision of Walton J (the trial judge) to discharge the whole jury in the trial of Paul Anthony Watson (the applicant) for the murder of William Chaplin, and to order a new trial. The trial judge had stayed his order to discharge the jury pending an urgent appeal by the applicant. These are the Court’s reasons for granting leave to appeal and allowing the appeal.

The factual circumstances preceding the trial judge’s decision to discharge the jury can be summarised as follows. The Crown closed its case on the fifth day of the trial. Early the following week, the trial judge received a communication from a court officer, reporting that a juror had raised concerns with the court officer about his mental health and about the conduct of another juror. The following day, the trial judge received a note (Jury Note 3) from the juror who had spoken to the court officer (the witness juror), disclosing a number of concerns of a similar nature. Following the receipt of Jury Note 3, the witness juror and the foreperson of the jury were called and examined by the trial judge. Jury Note 3, in combination with the evidence of the witness juror, disclosed the following:

• that the witness juror was experiencing a relapse of a pre-existing mental health condition;

• that the witness juror and another juror had disclosed general details of the trial to others who were not members of the jury;

• that at one point during the trial, after returning to the jury room, a number of jurors laughed in response to the evidence of an unspecified Crown witness;

• that before the jury was given directions on the first day of the trial, a juror searched “Gerogery” (the town where the murder was said to have taken place) on their mobile phone, before immediately switching the phone off and saying that a media report had appeared; and

• that another juror had reported to the jury the current population of Gerogery.

The foreperson, when examined by the trial judge, said that she was not aware of the incident involving the use of the mobile phone. She recalled the incident involving reference to the population of Gerogery, and believed that no enquiry had occurred, but that the juror concerned was aware of the town’s population. She said there was no conversation about the population of the town, other than a comment to the effect that “we didn’t think we should know that information”.

After the witness juror gave evidence, he was separated from the remainder of the jury. Later that day, while he was separated from the jury, the trial judge received a further jury note (Jury Note 4), containing three questions relating to the Crown case.

The Crown then applied for the discharge of the witness juror, and for the subsequent discharge of the whole jury pursuant to s 53C(1)(a) of the Jury Act 1977 (NSW). That subsection provides that, if a juror is discharged in the course of a criminal trial, the trial judge must discharge the remainder of the jury if they are “of the opinion that to continue the trial … would give rise to the risk of a substantial miscarriage of justice”. Alternatively, the Crown submitted that the trial judge should conduct an inquiry to ascertain whether any of the remaining jurors had engaged in misconduct in the course of the trial. Counsel for the accused agreed that the witness juror should be discharged, but opposed the discharge of the remainder of the jury or any further inquiry.

The following day, on 15 September 2022, the trial judge made orders discharging the witness juror pursuant to s 53B of the Jury Act, discharging the balance of the jury pursuant to s 53C(1)(a) of the Jury Act, and ordering a new trial. With respect to the discharge of the whole jury, his Honour found that the contents of Jury Note 3, particularly the allegation that a number of jurors laughed in response to the evidence of a Crown witness, impermissibly disclosed an aspect of jury deliberations to the parties. His Honour considered there to be “a real risk that counsel may tailor their submissions to the jury in a manner consistent with or responsive to” the information disclosed by the jury note. Further, the trial judge found that a number of members of the jury had disregarded his directions on numerous occasions.

The applicant sought leave to appeal from the orders of the primary judge pursuant to s 5G of the Criminal Appeal Act 1912 (NSW). The principal issues on appeal were:

1. whether the trial judge erred in finding that a number of members of the jury had disregarded the directions given to them on numerous occasions;

2. whether the trial judge erred in finding that the continuation of the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice; and

3. whether, in re-exercising the power conferred by s 53C(1) of the Jury Act, the Court should discharge the whole jury.

The Court (Bell CJ; Price and Yehia JJ) held, granting leave to appeal, allowing the appeal, setting aside the trial judge’s orders discharging the jury and ordering a new trial, and dismissing the Crown’s application for the discharge of the whole jury:

As to the first issue

1. There was no proper evidentiary foundation for the observations of the trial judge that “members of the jury were disregarding the directions given to them by the Court” and that “a number of members of the jury” disregarded the Court’s directions “on numerous occasions”. The instances of jury misconduct relied on by the trial judge variously did not amount to breaches of the directions given to the jury, or were wholly immaterial: [54]–[61].

2. Although it may be accepted that the witness juror had himself disregarded the trial judge’s directions, the trial judge had already determined to discharge him. When considering whether to discharge the remainder of the jury, the jury must not have included the witness juror, as s 53C(1)(a) is necessarily predicated upon the prior discharge of a juror: [55].

As to the second issue

3. It was not explained by the trial judge in what respect the alleged conduct of the jurors was “material”, in the sense that it would materially give rise to the risk of a substantial miscarriage of justice. Any concern on the part of the trial judge about the jury’s adherence to his directions could have been accommodated by a firm direction against distraction or prejudice: [63].

R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135, considered.

4. Decisions requiring irregularities to be “material” and that there should be a “high degree of necessity” before a jury will be discharged demonstrate that not every irregularity or departure from the ideal conduct of a jury trial will result in discharge. An inquiry into whether there is a risk of a substantial miscarriage of justice focuses principally upon the impact of any irregularity on an accused person’s ability to obtain a fair trial: [68]–[69], [36]–[42].

Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22; Clark v R [2010] NSWCCA 94; GAR v R (No 2) [2010] NSWCCA 164; Trieu v R [2012] NSWCCA 169; Mikael v R [2015] NSWCCA 294; Hamide v R [2019] 101 NSWLR 455; [2019] NSWCCA 219; Medich v R [2021] NSWCCA 36; (2021) 390 ALR 398; Pratten v R [2021] NSWCCA 251; Haile v R [2022] NSWCCA 71; R v Ahola (No 6) [2013] NSWSC 703; Younan v R [2016] NSWCCA 248; (2016) 316 FLR 122; R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377; Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102; R v Edwards [2009] HCA 20; (2009) 255 ALR 399, considered.

5. Although it may be accepted that jury deliberations should be confined to the jury room, no risk of substantial miscarriage of justice arose from the fact that Jury Note 3 disclosed an aspect of the jury deliberations to the parties. To the extent that the jury note may have disclosed that members of the jury entertained doubts about the credibility of an unspecified Crown witness, it was not clear how unfairness arose in circumstances where it had been made obvious from the defence counsel’s opening submissions that the credit of Crown witnesses would squarely be in issue: [70]–[71].

As to the third issue

6. Having found that the trial judge erred, it was appropriate for the Court to consider by way of rehearing the Crown’s application for discharge of the whole jury. On doing so, the Court did not form the opinion that there was a risk of a substantial miscarriage of justice if the jury was not discharged: [74]–[76].

7. That the witness juror perceived that certain other jurors laughed at the evidence of a Crown witness, and this fact became known to counsel, did not generate a risk of a substantial miscarriage of justice. This was a case where the credit of Crown witnesses was always going to be in play, and vigorously so: [78].

Vella v R [2022] NSWCCA 204, considered.

8. Although the decision is ultimately for the judge asked to exercise the power conferred by s 53C(1)(a) of the Jury Act, and although a prosecutor should be astute to any risk of a substantial miscarriage of justice, the accused has an obvious, close and vital interest in ensuring that any risk of a substantial miscarriage of justice be avoided. It will be a rare case that a jury will be discharged on the basis of a risk of a substantial miscarriage of justice where, in circumstances such as the present case, the accused strongly opposes the discharge: [80]–[81].

JUDGMENT

1. THE COURT: On 21 September 2022, the Court heard (and allowed) an urgent appeal pursuant to s 5G of the Criminal Appeal Act 1912 (NSW) from the decision of Walton J (the trial judge) to discharge the whole jury in the applicant accused’s trial for the murder of William Chaplin between 31 March 2010 and 30 May 2010 at Gerogery in the State of New South Wales: R v Watson [2022] NSWSC 1243 (the Discharge Judgment or DJ).

2. Consistent with authorities such as Barber v R; Zraika v R [2016] NSWCCA 125 and R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135 (Lamb), the trial judge stayed his decision to discharge the jury pending an urgent appeal by the accused who we shall refer to as the applicant.

3. These are our reasons for granting leave to appeal, allowing the appeal, setting aside the trial judge’s orders discharging the jury and ordering a new trial and, in lieu thereof, dismissing the Crown’s application for the discharge of the whole of the jury pursuant to s 53C(1)(a) of the Jury Act 1977 (NSW).

Background

4. The trial commenced on 5 September 2022, originally having been set down for three weeks.

5. The Crown closed its case on the fifth day of the trial, Friday 9 September 2022.

6. No evidence was called for the accused.

7. The Court did not sit on 12 September 2022 with 13 September 2022 being reserved to hear argument as to directions, and with 14 and 15 September reserved for closing submissions and summing up respectively.

8. To pick up the narrative from the Discharge Judgment at [8]-[10]:

“[8]    On the morning of Tuesday 13 September 2022, the Court received a report from a Court Officer assigned to the trial. The report concerned a communication received from a juror after the jury retired on Friday 9 September 2022. It was indicated to counsel that the court officer reported that the juror had raised two issues with them. The first was that the juror was experiencing mental health issues. The second was that another juror had been undertaking a google search in the jury room.

[9]     The court officer was called to give evidence on 13 September 2022. He stated that after the jury adjourned on Friday 9 September 2022, a juror had approached him. The juror looked ‘very stressed’ and mentioned that he had ‘mental health [issues]’. The juror asked to ‘talk to the judge directly’.

[10]   The court officer gave evidence that he had indicated that the juror could communicate with the Court via a jury note. The juror was provided jury note paper for that purpose. Upon it being observed that he was stressed and troubled and being asked ‘what is the problem?’ the juror indicated that he ‘saw one juror using google to search something that is related to this matter’. At the time of giving evidence, the jury note had not been received.”

9. The trial judge received a note (Jury Note 3) from the juror who had spoken to the court officer (the witness juror) dated 14 September 2022. Jury Note 3 was in the following terms:

“1.   On Friday (9/9/22) I experienced a relapse of depression. I was physically sick and on 10/9/22 resumed antidepressant medication.

2.    My depression makes me anxious/obsessive on matters of grave importance such as an order by the court. The following caused me significant distress.

3.         (a)   I disclosed that I was in Court 6 at King Street.

(b)   I disclosed that it was a Supreme Court and that it’s a serious or unpleasant and ‘messy’ crime.

(c)   I disclosed that at one time, after returning to the deliberation room, many jurors laughed in response to a witness testimony. I did not disclose which witness.

(d)   I told a person I was having trouble comprehending how a witness could lie so boldly. I did not disclose which witness.

4.   At no point did I disclose any names of people or places or any details about the crim (sic).

5.   Another juror searched the name ‘Gerogerie’ on their phone, then immediately switched their phone off saying that a media report had shown up. This happened on day 1, I believe before we were given instructions.

6.   Another juror reported to us the current population of Gerogerie.

7.   Another juror shared with a non-juror that this was a murder trial.

8.   My distress is substantially less now about these matters, but advice from two court staff was to write this note.”

10. The witness juror was asked questions by the trial judge in relation to Jury Note 3 on the morning of 14 September 2022.

11. In relation to the witness juror’s recollections as to the matters referred to in paragraphs 5, 6 and 7 of Jury Note 3, the witness juror said that none of these matters were the subject of any discussion in the jury room.

12. The witness juror clarified that what was referred to in paragraph 5 of Jury Note 3 occurred on the first day of the trial “immediately when we exited the courtroom for the first time”, that the matter referred to in paragraph 6 of Jury Note 3 occurred on the second day of the trial, and that he did not recall when the matter referred to in paragraph 7 occurred.

13. The juror also clarified that the matters referred to in paragraphs 3(a), (b) and (d) of Jury Note 3 were not discussed with other members of the jury but that it was “possible” that the matter referred to in paragraph 3(c) was.

14. At noon on 14 September 2022, the foreperson of the jury was called and examined.

15. The trial judge drew the foreperson’s attention to paragraph 5 of Jury Note 3. The foreperson said that she was not aware of the circumstance there described as having occurred.

16. The foreperson’s attention was then drawn to paragraph 6 of Jury Note 3. The foreperson said that she was “aware that that occurred” and said:

“I don’t believe the inquiry happened. I believe that they reported it in the jury room … They were aware of the current population.”

17. The foreperson said that she was “unsure” if everyone was assembled in the jury room at the time of the occurrence of the matter referred to in paragraph 6 of Jury Note 3. The foreperson said that there was no conversation about the subject matter referred to in paragraph 6 of Jury Note 3 other than that “a comment was made that we didn’t think we should know that information”.

18. The foreperson said that she did not know of nor had she observed “any other occurrences of that kind or other irregularities in the jury room since the beginning of the trial”.

19. After the foreperson gave her evidence, she was inadvertently returned to the jury room rather than kept separated from the balance of the jury as the trial judge had evidently intended pending the resolution of the discharge applications. After the luncheon adjournment, the trial judge reported this to counsel. At 3.12 pm in the presence of the foreperson, the trial judge said to her:

“If you could sit down. I’m going to now ask you to return to the balance of the jury but give you a direction that in doing so you are not to discuss in any way what has transpired during the course of the day, in particular your involvement in the process of providing information to the court. So even if there are inquiries made of you or you are asked to do so, you should indicate that you are directed not to. In a moment I will bring you and the remainder of the jury out and have the jury retire for the day. So if you could return to the jury room, thank you, we’ll then take that procedure.”

20. At 3.20 pm, according to the note of the applicant’s solicitor, the jury returned and were addressed by the trial judge as follows, before retiring at 3.22pm:

“Members of the jury, I regret the delay that has been occasioned to you today. It has been unavoidable I’m afraid as the court has had to consider some important legal issues. Those deliberations have not completed and the result is we’ll be proceeding no further today. So momentarily I’ll ask you to retire and return here tomorrow morning.

Having said that, I need to emphasise to you that you are not to discuss any part of the proceedings or the evidence in the proceedings with any other person, not undertake any research in relation to the proceedings by way of searches or otherwise consulting media or social media considerations, and to apply the terms of the written directions that I have given you.

Therefore, if you could retire for the day, returning here for a commencement at 10am tomorrow morning, thank you.”

21. At 3.29 pm on 14 September 2022, after the jury had retired but whilst the trial judge was still discussing the matter with counsel, the trial judge said “[s]peaking of the devil, I have a jury note. Well, this will be jury note 4.” His Honour had evidently been handed the note by the Court Officer or his Associate. Jury Note 4, which his Honour read to counsel, was in these terms:

“(1)   Why has the Crown not called ZT?

(2)    Can the accused be charged with accessory instead of murder?

(3)    Why has the Crown not called Johanna Watson Hedgers to the stand?”

22. After receipt of this note, according to the narrative of events provided by the trial judge at DJ [30]–[31]:

“[30]   The Crown applied for the discharge of the whole jury based upon the fact that the deliberations of the jury had been exposed to the parties. As a secondary position, the Crown submitted that the Court should embark upon an inquiry of the remaining 12 jurors as to the content of paragraphs 3(c) (concerning the disclosure of jury deliberations) and 5, 6 and 7 (concerning searches or inquiries by jurors inside or outside the jury room) of Jury Note 3, using a similar process to that which was adopted with respect to the witness juror and the foreperson save that, the Court may wish to require the jurors to take an oath or affirmation.

[31]    Mr Agius SC for the accused submitted that there is no basis to discharge other than the witness juror. He opposed any further inquiry as to the jurors beyond the inquiries already made from witness juror and the foreperson.”

23. On 15 September 2022, prior to giving his reasons, the witness juror provided a further note to the trial judge (Jury Note 5) in which he revealed that he had disclosed certain matters about which he was concerned to persons outside the jury and may have disclosed other matters in relation to the trial to a number of outsiders.

The Discharge Judgment

24. The trial judge noted at the outset of his reasons in summary form the following standard directions which he had given to the jury on the first day of the trial in written and oral form: DJ [5]. These gave context to his subsequent reasons, and were as follows:

“(1)  Do not discuss the case with anyone apart from your fellow jurors in the privacy of the jury room when every other member of the jury is present. A criminal trial is not an investigation into the incidents surrounding the allegations made by the Crown. Therefore, neither the judge nor the jury has any right to make investigations or inquiries of any kind outside the courtroom.

(2)   Do not undertake any form of research or inquiry (whether via the internet or any other means) concerning any matter connected with the case.

(3)   You should keep away from the internet and the other communication sources which may pass comment upon the issues in this trial. You may not communicate with anyone about the case on your mobile phone, smart phone, through email, text messaging, or on Twitter, through any blog or website, any internet chatroom, or by way of any other social networking websites including Facebook, MySpace, Linkedln and YouTube. You should avoid any communication which may expose you to other people's opinions or views.

(4)   It is forbidden for you to have a computer or mobile phone in the jury room.

(5)   A failure to follow these directions may result in a miscarriage of justice.”

25. The trial judge then recited the parties’ respective submissions and various authorities in relation to the discharge of juries, including the important proposition associated with the High Court’s decision in Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 (Crofts), namely that trial judges are required to be satisfied to a "‘high degree of necessity’ before discharging the jury”. That proposition dates back to the observations of Erle CJ in Winsor v R (1866) LR 1 QB 390 at 394.

26. The trial judge then proceeded to express his conclusions as follows:

“[57]   In my view, the whole of the jury should be discharged commencing with the discharge of the witness juror and then followed by the discharge of the remainder of the jury. The witness juror should be discharged because the trial is exacerbating his mental health issues and because returning him to the jury room would be untenable. I make no findings as to any alleged misconduct having regard to paragraph 3 of Jury Note 3 but I observe that the further Jury Note 5, provided to me this morning, provides even further reason to discharge.

[58]   First, I accept the submission of the Crown that the contents of paragraphs 3(c) and (d) of Jury Note 3 should be understood as disclosing an aspect of the jury deliberations. When read together, they disclose that the jury considered that a Crown witness was lying to such an extent that it brought ‘many of them in the jury’ to laughter.

[59]   Whether consciously or unconsciously, there is a real risk that counsel for the Crown or senior counsel for the accused may tailor their submissions to the jury in a manner consistent with or responsive to the information with which they have been provided via Jury Note 3.

[60]   That issue is not met by Mr Agius' submission that it is not surprising that the jury may find some witnesses are lying or his further submission that some witnesses told lies during the trial.

[61]   It is not the Court's role to express a view as to Mr Agius' contention that a witness or witnesses were lying. lt is the incursion into the sanctity of the jury room that raises the prospect to which I have referred; one that is significantly corrosive to the proper administration of justice. It is an essential part of the administration of the criminal justice system that jury deliberations are confined to the jury room when all members of the jury are together in that place.

[62]   The second basis for the discharge of the remaining jury members is that the information disclosed by the witness juror and the foreperson makes it clear that members of the jury were disregarding the directions given to them by the Court when engaging in conduct referred to in paragraphs 3(c) and (d) and 5 and 6 of Jury Note 3. The reference to ‘Gerogery’ in paragraphs 5 and 6 is a reference to the location of the alleged murder, which location forms part of the indictment.

[63]   On the issue of materiality, as raised in the written submissions of Mr Agius[,] there is abundant authority from the Court of Criminal Appeal and this Court that, where there is an irregularity with the jury, consideration should be given as to whether the irregularity is material: see, eg, R v Hunter (No 8) [2014] NSWSC 1151 at [31]; (Button J); Haile v R [2022] NSWCCA 71 at [243] (Bellew J with whom Bell CJ and lerace J agreed).

[64]   I note that the High Court's judgment in Hoang, however, did not consider whether the irregularity was material. Rather, at [36], the Court emphasised that ‘[i]t is the fact of the inquiry, and that the purpose of the inquiry was to obtain information about a particular matter relevant to the trial, which is the subject of the prohibition’ (emphasis in original) in s 68C of the Act. The Court emphasised that it is not concerned with the juror's motive for making the inquiry, just that there was an inquiry made for the purpose of obtaining information about a matter relevant to the trial.

[65]   In my view, the proper approach to reconciling the authority of the High Court in Hoang and decisions of this Court and the Court of Criminal Appeal is that materiality of an irregularity should be satisfied before discharging a jury because it invokes the overriding principle of a fair trial. However, in determining whether an irregularity is material, this Court may also follow the inquiry set out by the High Court in Hoang.

[66]   I am satisfied that, when viewing all the material as a whole, the trial and the jury's deliberations were irregular or compromised in a material way. My conclusion in that respect is based upon the entirety of the irregularities disclosed, as they must be taken into account and not simply of an assessment of each particular irregularity illustrated by particular paragraphs in Jury Note 3.

[67] It is understandable in those circumstances why the Crown would direct the Court's attention to ss 68C(1) and 53A of the Act and to passages from Hoang addressing the implications of misconduct. I also note the Crown's reliance upon [27] to [37] of Hoang and in particular the High Court's statement, as earlier mentioned, that ‘[i]t is the fact of the inquiry, and that the purpose of the inquiry was to obtain information about a particular matter relevant to the trial, which is the subject of the prohibition’.

[68] It is also understandable that the Crown would, in that light point, to the potential examination of jurors under s 55DA of the Act because of the real potential for other irregularities.

[69]   The Crown contended that it was necessary for the proper continuance of the trial to ascertain what searches had been undertaken by jurors and that jurors may in the result be discharged, as noted in the submission of the Crown. Subject to the outcome of that inquiry and any discharge of jurors, the Crown considered that the continuance of the trial may give rise to a risk of a substantial miscarriage of justice. Mr Agius opposed any further inquiry.

[70]   However, in my view it is not necessary to conduct further inquiry for the purposes of reaching my conclusion as to the discharge of the jury on the bases that I have identified.

[71]   Even without any further inquiry by the Crown, it is in my view plain that there have been a number of members of the jury members of the jury who have disregarded, at the least, the directions given by the Court in this matter on numerous occasions. There must be real doubts in the circumstances as to the continuing adherence by the jury to those directions.

[72]   So much is confirmed by the provision of Jury Note 4 which plainly indicated the jury engaged in deliberations when the whole of the jury was not present, contrary to the directions of the Court.

[73]   An additional consideration is the impact that an inquiry of the kind contemplated by the Crown, which will most likely involve cautions involving warnings against self-incrimination, may have upon the proper discharge by the jury of their obligations.

[74]   A further and separate consideration to those primary reasons are the issues raised by the accused concerning the period of time that has passed, since the alleged murder and the period of time that may elapse before another jury may be empanelled and a further trial.

[75]   At the point the report from the Court Officer was received, the trial had proceeded for six days, the evidence had closed and there was in contemplation the receipt of submissions as to directions and rulings on the same on that day. The balance of the trial before the jury's deliberations, would have taken two days, one for closing submissions and a part day for summing up. Thus, there was a real prospect of the trial concluding, subject to jury deliberations, within the three-week estimate for the trial and may, in that respect, be considered a relatively short trial. There is no reason that immediately presents itself as to why, in the event of the discharge of the jury, the trial might not be able to proceed within a relatively short period of time, even allowing for the availability of counsel.

[76]   As to the further issue raised by Mr Agius as to the period of time since the alleged murder, it should be observed that the murder was alleged to have occurred in 2010. An investigation in relation to it only commenced in 2019 after revelations by Mr Sacha Priest in 2017, who gave evidence in the proceedings.

[77] In my view, the witness juror should be discharged pursuant to s 53B of the Act and the remaining jurors be discharged under s 53C(1)(a) of the Act because the continuation of the trial with the remaining jurors would give rise to the risk of the substantial miscarriage of justice”.

27. Consistent with Lamb, the trial judge stayed his order discharging the whole of the jury pending the hearing and determination of the appeal pursuant to s 5G of the Criminal Appeal Act.

Grounds of appeal

28. The applicant sought leave to appeal on the following grounds:

“a.  The trial judge erred when he made an order discharging the balance of the jury, on the basis that to continue with the balance of the jury would give rise to a risk of a substantial miscarriage of justice.

b.   The trial judge ought not to have found that there was a ‘high degree of necessity’ that the jury be discharged ([Discharge] Judgment at [50]).

c.   The trial judge was wrong to find, based upon what the Witness Juror had said at paragraphs 3 (c) and (d) ‘whether consciously or unconsciously, there is a real risk that counsel for the Crown or senior counsel for the accused may tailor their submissions to the jury in a manner consistent with or responsive to the information which they have been provided via Jury Note 3’ ([Discharge] Judgment at [59]) and, or that such a finding was capable alone or with other matters of creating a risk of a substantial miscarriage of justice;

d.   The trial judge was wrong to find that paragraphs [3](c) and (d), [5] and [6] of [Jury Note 3] demonstrated that jurors were disregarding directions and the trial and the jury's deliberations were irregular or compromised in a material way, ([Discharge] Judgment [62], [66], [71]) and, or that such a finding was capable alone or with other matters of creating a risk of a substantial miscarriage of justice.

e.   The trial judge was in error when he found that because counsel had been given access to the content of [Jury Note 3], and, in particular, to paragraph 3 thereof, the privacy of jury deliberations had been breached in such a way as to create either alone or together with other matters a risk of a substantial miscarriage of justice.

f.   The trial judge was in error in concluding that there was a risk the jury had impermissibly deliberated when they were not all gathered together ([Discharge] Judgment [72]) either alone or together with other matters a risk of a substantial miscarriage of justice.”

29. Written submissions were received from both the applicant, for whom Mr Agius SC appeared, and the Crown, for whom Mr Newton appeared. Oral argument was also entertained. The Court had before it relevant portions of the transcript of the proceedings before the trial judge, the trial judge’s written directions to the jury, the written submissions at first instance in relation to the discharge application, as well as the various jury notes.

Relevant legislation and authorities

30. Section 5G of the Criminal Appeal Act provides that:

“5G   Appeal against discharge of whole jury

(1)   The Attorney General, Director of Public Prosecutions or any other party to a trial of criminal proceedings before a jury may appeal to the Court of Criminal Appeal for review of any decision by the court to discharge the jury, but only with the leave of the Court of Criminal Appeal.

(2)   The Court of Criminal Appeal is to deal with an appeal as soon as possible after the application for leave to appeal is lodged.

(3)   The Court of Criminal Appeal--

(a)   may affirm or vacate the decision appealed against, and

(b)   if it vacates the decision, may make some other decision instead of the decision appealed against.

(4)   If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related.

(5) This section does not apply to the discharge of a jury under section 51, 55E, 56 or 58 of the Jury Act 1977.”

31. In the present case, the jury was discharged pursuant to s 53C(1)(a) of the Jury Act, which is in these terms:

“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.”

32. Section 53C(1)(a) was engaged because of the Court’s decision to discharge the witness juror for the reasons provided by the trial judge at DJ [57]-[77], reproduced at [26] above.

33. It is also relevant to note the terms of s 68C of the Jury Act which provides:

“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.

(2)   This section applies in respect of a juror from the time the juror is sworn in as a juror and until the juror, or the jury of which the juror is a member, is discharged by the court having conduct of the proceedings.

(3)   This section does not prohibit a juror—

(a)   from making an inquiry of the court, or of another member of the jury, in the proper exercise of his or her functions as a juror, or

(b)   from making an inquiry authorised by the court.

(4)   Anything done by a juror in contravention of a direction given to the jury by the judge in the criminal proceedings is not a proper exercise by the juror of his or her functions as a juror.

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

(a)   asking a question of any person,

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

(c)   viewing or inspecting any place or object,

(d)   conducting an experiment,

(e)   causing someone else to make an inquiry.”

34. In Crofts at 440-441, albeit in the context of a non-statutory test for the discharge of the jury, Toohey, Gaudron, Gummow and Kirby JJ emphasised the discretionary nature of a decision whether or not to discharge a jury and said:

“No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.”

35. In support of the deference that should be given to the trial judge’s assessment, see also Trieu v R [2012] NSWCCA 169 at [28] (Trieu); Zheng v R; Li v R; Pan v R (2021) 104 NSWLR 668; [2021] NSWCCA 78 at [97] (Zheng).

36. The observations in Crofts as to the “high degree of necessity” required before a jury will be discharged have already been noted at [25] above. They appear in both the dissenting judgment of Dawson J (“high degree of need” at 432) as well as in the majority’s decision (at 440), approving the employment of that phrase by the New South Wales Court of Criminal Appeal. Justice Dawson also emphasised (at 432) that the discretion was “to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice.” As will be pointed out, it is highly significant that the applicant pointed to no such apprehension of a risk of miscarriage of justice or a substantial miscarriage of justice, to use the language of s 53C(1)(a) of the Jury Act in the event that the jury was not discharged. Indeed, he opposed the discharge of the whole of the jury (but not the discharge of the witness juror), and continues that opposition by pursuing this s 5G appeal.

37. Crofts’ reference to the requirement of a high degree of need or necessity to be established before a jury should be discharged has been either quoted with approval or referred to in a large number of decisions of the New South Wales Court of Criminal Appeal, including Clark v R [2010] NSWCCA 94 at [68]; GAR v R (No 2) [2010] NSWCCA 164 at [59]; Trieu at [28]; Mikael v R [2015] NSWCCA 294 at [43]; Hamide v R [2019] 101 NSWLR 455; [2019] NSWCCA 219 at [7] (Hamide); Medich v R [2021] NSWCCA 36; (2021) 390 ALR 398 at [84]; and Pratten v R [2021] NSWCCA 251 at [158].

38. There are sound and obvious reasons for a high degree of necessity to be established before a jury should be discharged, especially in circumstances where the hearing of the trial is well advanced, where an accused has been in custody awaiting trial for a number of years and does not seek a discharge, and where any irregularity may be able to be cured by directions to the jury. That having been said, s 53C(1)(a) of the Jury Act requires a trial judge to discharge the whole of the jury, following the discharge of one juror, where he or she forms the opinion that there is a risk of a substantial miscarriage of justice if that course is not taken.

39. In Haile v R [2022] NSWCCA 71 (Haile), Bellew J (with whom Bell CJ and Ierace J agreed) observed at [199]-[201] that (omitting footnotes):

“[199] Any determination that a jury be discharged following the discharge of an individual juror involves the exercise of the power contained in s 53C of the Act. Although the heading to s 53C makes reference to a discretion, the terms of s 53C(1)(a) are such that if the Court, having discharged a member of the jury, is of the opinion that to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, the discharge of the jury is mandatory. In order to discharge the jury pursuant to that power, the Court does not have to be satisfied that a miscarriage of justice will eventuate, but only that there is a risk that this will be the case. The position was explained by Price J (with whom Hoeben CJ at CL and Fullerton J agreed) in Phan v R:

Section 53C(1)(a) of the Jury Act imposes an obligation on a trial judge who discharges a juror in the course of a trial, to discharge the jury if the judge is of the opinion that to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice. However, if the trial judge is of the opinion that there is no such risk, the trial judge is required to order the trial continue with a reduced number of jurors as long as the numbers do not fall below the statutory minimum in s 22 of the Jury Act. The opinion is to be formed on all of the material then available to the Court.

[200]   Because the circumstances which may give rise to a substantial miscarriage of justice are difficult to define, 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. However, some guidance can be obtained from the decision of the plurality in Filippou v The Queen:

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.”

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 “the 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].

43. The standard of appellate review to a decision to discharge a jury is that associated with House v The King (1936) 55 CLR 499; [1936] HCA 40: see, for example, Lamb at [39]-[40]; Curran v R [2017] NSWCCA 123; Barber at [24]; Zheng at [98]. Consistent with the House v The King standard of review and the “leeway” to be afforded to a trial judge (see Crofts at 440), it was observed in Libdy v R [2021] NSWCCA 34 at [19] that “[g]enerally, an intermediate appellate Court is cautious in interfering with the decision of a trial Judge to discharge a jury”.

44. An appellate court must be conscious of the fact that merely because it may have come to a different view in all of the circumstances to the trial judge does not mean that the test in House v The King for appellate review of the exercise of judicial discretion (or the making of an evaluative judgment) will be made out: see Lamb at [39].

45. Reference should also be made to the decision of the High Court in Hoang v The Queen [2022] HCA 14; (2022) 96 ALJR 453 (Hoang) as reliance was placed upon it by the Crown and it was referred to by the trial judge in his reasons. That decision was concerned with individual juror misconduct within the meaning of s 53A of the Jury Act. In that context, reference was also made to Part 9 of the Jury Act and s 68C(1), which prohibits a juror in any criminal proceedings making an inquiry for the purpose of obtaining information about any matters relevant to the trial except in the proper exercise of their functions as a juror. As the Court in Hoang observed at [14], “[s]ection 53A(1)(c) imposes a mandatory duty upon a court to discharge a juror if, in relation to a trial, they have engaged in misconduct, being, relevantly, conduct that constitutes an offence against the Jury Act – including an offence against s 68C.”

46. Hoang was not concerned with the discharge of the whole of a jury following the discharge of a single juror pursuant to s 53C of the Jury Act on the basis that the failure to do so would give rise to the risk of a substantial miscarriage of justice. Rather, the case was concerned with the question of whether this Court had erred in its conclusion on the particular facts of that case that a particular juror had not engaged in juror misconduct. In the context of its consideration of s 68C(1) and the question of whether an inquiry made by a juror was a “matter relevant to the trial”, the Court in Hoang said at [32] that:

“What is a ‘matter relevant to the trial’ will, of course, vary from trial to trial and it is therefore unnecessary and inappropriate to attempt to chart the metes and bounds of s 68C(1). The phrase ‘information about ... any matters relevant to the trial’ is to be understood as including, at least, a juror acquiring information about matters of evidence given or addresses to the jury at the trial.”

47. To this observation we would add that the concept of relevance in this context should also be understood by reference to the definition of “relevance” in s 55 of the Evidence Act 1995 (NSW), namely “evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”.

Consideration

48. It is important to identify what emerged from the evidence before the trial judge about the conduct of members of the jury (other than the witness juror who was discharged prior to the discharge of the balance of the jury).

49. First, according to Jury Note 3 but unbeknown to the foreperson of the jury, an unspecified juror “searched the name ‘Gerogerie’ on their phone, then immediately switched their phone off saying that a media report had shown up.” This was said to have happened, and the Crown accepted that it had happened, on day one of the trial before the jury was given instructions as to the need not to make any inquiries in relation to matters associated with the trial. The witness juror confirmed under cross examination that this matter was not the subject of any discussion in the jury room by the jury.

50. Second, according to Jury Note 3, another juror reported to the jury the current population of Gerogery. The witness juror did not identify that other juror’s source of that information, and the foreperson indicated in her evidence to the trial judge that the juror in question was aware of that information. That is to say, there was no evidence that the information was ascertained from an external source. According to the foreperson, there was no discussion about that information other than a comment that “we didn’t think we should know that information”. The witness juror also confirmed under cross examination that this matter was not the subject of any discussion in the jury room by the jury.

51. Third, according to Jury Note 3, “another juror shared with a non-juror that this was a murder trial”. The witness juror also confirmed under cross examination that this matter was not the subject of any discussion in the jury room by the jury.

52. Fourth, whilst the witness juror was separated from the balance of the jury pending the judge’s determination as to the witness juror’s discharge, the balance of the jury submitted the three questions to the Court that formed the basis of Jury Note 4 referred to at [21] above.

53. Fifthly, according to Jury Note 3, on one occasion after returning to the jury room, “many jurors laughed in response to [an unidentified] witness’ testimony”.

54. It is convenient to deal with appeal ground (d) first because, in our opinion, the observations made in DJ [62], [66] and [71] are not supported by the evidence before the trial judge on the discharge application. In particular, there was in our view no proper foundation for the observations made by the trial judge at DJ [62] that:

“… the information disclosed by the witness juror and the foreperson makes it clear that members of the jury were disregarding the directions given to them by the Court when engaging in conduct referred to in paragraphs 3(c) and (d) and 5 and 6 of Jury Note 3”,

or at DJ [71] that:

“… it is in my view plain that there have been a number of members … of the jury who have disregarded, at the least, the directions given by the Court in this matter on numerous occasions. There must be real doubts in the circumstances as to the continuing adherence by the jury to those directions.”

55. The trial judge’s remarks at DJ [62] and [71] must be considered in a context where the trial judge had already discharged (or determined to discharge) the witness juror who, it may be accepted, had himself disregarded the primary judge’s directions not to discuss the case with anyone other than fellow jurors. But, by the time the trial judge came to consider the discharge of the whole of the jury, the jury must not have included the witness juror as the s 53C(1)(a) power is necessarily predicated upon the prior discharge of a juror.

56. Who, then, constituted the “number of members of the jury who have disregarded … the directions given by the Court” and what were the “numerous occasions” when this was said to have occurred? Which jurors engaged in the conduct referred to in paragraphs 3(c) and (d) and 5 and 6 of Jury Note 3? Neither the jurors nor the numerous occasions were identified in terms by the trial judge.

57. First, the juror who was said by the witness juror to have searched “Gerogery” on his phone did not violate any directions given by the Court as it was accepted by the Crown that that conduct occurred prior to the giving of directions. It might be observed, moreover, that, according to the witness juror’s evidence, the juror who commenced the search of Gerogery “immediately” shut it down when he or she discovered that it identified a media report. Such conduct demonstrated an understanding of the juror’s appreciation that he or she should not expose him or herself to such external information.

58. Second, the weight of the evidence and, in particular, that of the foreperson, suggested that the statement by a second juror as to the population of Gerogery derived from the juror’s own knowledge of that fact. On this footing, it was not the result of some external inquiry and thus not a breach of any direction of the trial judge.

59. Third, the fact that a further juror “shared with a non-juror that this was a murder trial” is arguably a breach of the trial judge’s first direction not to discuss the case with anyone other than fellow jurors, although this statement alone (which was as high as the vague evidence arose) might be doubted to amount to a “discussion” or at least a discussion of the kind the trial judge’s direction was intended to warn against.

60. Fourth, the jury’s formulation of three further questions for the trial judge in Jury Note 4 may have amounted to a breach of the trial judge’s direction not to “discuss the case with anyone apart from your fellow jurors in the privacy of the jury room when every other member of the jury is present”(see at [24] above), but even this conclusion was far from self-evident: the questions may have been formulated following a discussion in the absence of the witness juror or they may have been formulated at an earlier point in time when the jury was all together and they were sent to the judge on the afternoon of 14 September 2022 immediately after the jury had retired for the day. In any event, for reasons explained below, if breach there was, it was wholly immaterial as the only juror suggested to have been absent from the assumed discussion was the witness juror who was subsequently discharged.

61. The foregoing analysis exposes an important factual error in the trial judge’s reasoning such that, in our view, appeal ground (d) is sustained. In terms of DJ [62], the conduct referred to in paragraphs 3(c) and 3 (d) of Jury Note 3 was engaged in by the witness juror and not any other member of the jury, and the conduct referred to in paragraphs 5 and 6 of Jury Note 3 did not involve breaches of any relevant directions, for reasons explained above. DJ [71] effectively picks up the erroneous legal and factual conclusions contained in DJ [62].

62. House v The King opens up the review of a discretionary decision to which appellate deference would otherwise be due where it is tainted by an error of fact such as that we have identified above.

63. Turning to the other appeal grounds, at DJ [77], the trial judge expressed the opinion that the “continuation of the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice”. Apart from his Honour’s conclusions expressed in DJ [62], [71] and [72], which were the subject of appeal ground (d) and which we consider were without proper basis, it was not explained by the trial judge in what respect the four matters referred to at [49]–[52] above were material, especially in circumstances where any concern on the part of the trial judge as to the jury’s adherence to his directions could have been accommodated by “a firm direction against distraction or prejudice”: Lamb at [38].

64. The first matter referred to at [49] did not result in the discovery of any information. As to the second matter referred to at [50], the relevance or otherwise of the population of Gerogery in 2022 was not explained either generally or in the context of a murder alleged to have taken place in 2010. Moreover, Gerogery was described by the Crown in opening as a “small country town”. The third matter referred to at [51] related to an unidentified juror’s alleged statement to a third party that the case was a murder trial. That was an obvious, publicly known matter. Its disclosure to a person outside the jury could not conceivably be material. As to the fourth matter referred to at [52], there was also no materiality as the questions were formulated by the whole of the jury other than the discharged witness juror.

55. The only other strand of his Honour’s reasoning which could conceivably support the conclusion that there was a risk of a substantial miscarriage of justice was the discussion of the fact recorded in Jury Note 3 at 3(c) that “many jurors laughed in response to a witness testimony”. As to this, the trial judge said at DJ [58] that he accepted the Crown’s submissions that:

“… the contents of paragraphs 3(c) and (d) of Jury Note 3 should be understood as disclosing an aspect of the jury deliberations. When read together, they disclose that the jury considered that a Crown witness was lying to such an extent that it brought ‘many of them in the jury’ to laughter.”

66. One difficulty with this observation is that paragraph 3(d) of Jury Note 3 was not apparently directed to any discussion by the witness juror with other jurors. That subparagraph stated that the witness juror “told a person I was having trouble comprehending how a witness could lie so boldly”. That “person” was not said to be a fellow juror, but the trial judge appears to have proceeded on the unwarranted assumption that he or she was.

67. The trial judge was concerned that there was a risk that the Crown or senior counsel for the accused may tailor their submissions to the jury in a manner responsive to what they had learnt from Jury Note 3, and referred (at DJ [61]) to the “incursion into the sanctity of the jury room” as something that was “significantly corrosive of the administration of justice”, going on to state (at DJ [61]-[62]) that “[i]t is an essential part of the administration of the criminal justice system that jury deliberations are confined to the jury room when all members of the jury are together in that place.”

68. This last statement might be readily accepted, but decisions such as those cited by his Honour requiring irregularities to be “material” and that there should be a “high degree of necessity” before a jury will be discharged demonstrate that not every irregularity or departure from the ideal will result in discharge. As has been said, “[t]he criminal justice system in its practical operation is not perfect, and it must be remembered and appreciated that a fair trial is not synonymous with a perfect trial: Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [89]; R v Edwards [2009] HCA 20; (2009) 255 ALR 399 at 405 [31]”: Hamide at [87].

69. More significantly, an inquiry into a substantial miscarriage of justice focuses principally upon the impact of the irregularity on an accused person’s ability to obtain a fair trial: see [36] and [41] above. This, with respect, appears to have been somewhat lost sight of in the decision of the trial judge. The accused evidently perceived no unfairness or risk of unfairness to him in the jury continuing, notwithstanding what had been disclosed.

70. Furthermore, it was not clear how any unfairness to the Crown arose in circumstances where it was and had been made obvious from Mr Agius’ opening to the jury that the credit of Crown witnesses would squarely be in issue. Thus, in his opening submissions to the jury, he had said:

“What the Crown hasn't taken into account, and which you will have to take into account, is whether there are doubts about the story given by various witnesses. I'll come to that in a little while”,

and continued later in his opening with regard to a particular Crown witness, Mr Priest, as follows:

“There is a strong inference that we will be asking you to draw that Mr Priest was either confused or deliberately lying when he gave a prison officer a version of what he said the accused had told him. There are things in what we expect will be Mr Priest's story that you will hear today that he never told to the prison officer. Mr Priest said that he overheard the accused speaking to his wife, Samone, on the telephones that are available to inmates and in which inmates can use to call people. This is standard practise in prisons. He said certain things about that call to the prison officer. In his report to the prison officer he lied. In his report he inferred or he said that the accused had spoken about the murder that he had been involved in. We have that recording and it will demonstrate to you the lie that Mr Priest said.

Our case is, and this is significant issue in the case, that Mr Priest is unreliable, that he's not telling the truth, and his assertion that within three days of meeting the accused, who he didn't know him from Adam, the accused blurted out and admitted to him that he was a murderer is just ridiculous and shouldn't be accepted. Ultimately, it will be a matter for you to judge the reliability of Mr Priest. Did he exaggerate what he heard? I won't take time now going through the credibility problems that we expect to expose during his evidence. We will address you further about that at the end of the trial. Suffice it to say that it will be our submission that there are serious issues about Mr Priest's credibility. What we ask at this time is that you withhold judgment about Mr Priest and what we expect he will say when he's called by the Crown until you've heard all of the evidence. That is one significant issue in the case.” (Emphasis added.)

71. There was no suggestion that there had been any failure by Mr Agius to discharge his Browne v Dunn obligations in putting to witnesses whose credit he proposed to impugn in final address that their evidence was not accurate or honest.

72. In addition to the applicant’s success on ground (d), he should also succeed in respect of his challenge to the trial judge’s conclusion that to continue with the balance of the jury would give rise to a risk of a substantial miscarriage of justice and that there was a high degree of necessity that the jury be discharged.

73. It was for these reasons that the appeal was upheld and the decision of the trial judge to discharge the whole of the jury following the discharge of the witness juror and to order a new trial was set aside.

74. As this was an appeal by way of rehearing, and s 75A(10) of the Supreme Court Act 1970 (NSW) authorises the Court to “make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires”, it was also appropriate for the Court to consider by way of rehearing the Crown’s application for discharge of the whole of the jury.

75. In doing so, we had regard to the evidence that was before the trial judge on the discharge application, namely the jury notes and the examination of the witness juror and the foreperson of the jury. We also had regard to the arguments that had been advanced before the trial judge together with the additional submissions advanced on appeal.

76. We did not reach the opinion that there was a risk of a substantial miscarriage of justice if the jury was not discharged, and thus the predicate to a decision to discharge pursuant to s 53C(1)(a) of the Jury Act was not satisfied. In addition, but noting the importance not to gloss the statute, we did not consider there to be any necessity or need, let alone a high degree of necessity, for the jury to be discharged in the present case.

77. The matters relied upon by the Crown in aid of its application were either not breaches of any directions by the trial judge or, to the extent that there were any such breaches, they were not of any materiality, for the detailed reasons explained above.

78. That the witness juror’s perception that some unidentified number of jurors laughed at an unidentified witness’ evidence (a perception that was evidently not shared by the foreperson of the jury cf Vella v R [2022] NSWCCA 204 at [136]), and this fact became known to counsel on both sides of the record as the result of the disclosure to them of Jury Note 3, did not generate a risk of a substantial miscarriage of justice. This was a case where the credit of Crown witnesses was always going to be in play, and vigorously so, as the opening by Mr Agius, extracts of which are set out at [70] above, made plain. It would be inevitable that the credibility of at least some of the Crown’s witnesses would be attacked and held up to ridicule, and it would be equally inevitable that the Crown would, to the extent ethically available, seek to uphold the credibility of witnesses whose evidence was the subject of attack by the accused.

79. However unfortunate the disclosure of the witness juror’s perceptions of other unidentified jurors’ reaction to certain evidence of an unidentified Crown witness may have been, it did not imperil the fairness of the trial nor generate the risk of a substantial miscarriage of justice.

80. Although the decision is ultimately for the judge asked to exercise the power conferred by s 53C(1)(a) of the Jury Act, and although a prosecutor, in the discharge of his or her special responsibilities, should be astute to any risk that a substantial miscarriage of justice may occur, the accused and his or her counsel also have an obvious, close and vital interest in ensuring that any risk of a substantial miscarriage of justice be avoided.

81. It will be a rare case that a jury will be discharged on the basis of a risk of a substantial miscarriage of justice where, in circumstances such as the present case, the accused, represented by senior counsel of vast experience, strongly opposes the discharge.

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Decision last updated: 29 September 2022