Jury irregularities

Mason CJ and McHugh J (would dismiss the appeal)

1. The facts and issues in this matter are set out in the judgment of Toohey J. Except to the extent necessary to explain our reasons, it is unnecessary to refer to them.

The discharge of the jury - the flower incident

2. The learned trial judge held that he had a discretion to discharge the jury if he believed that "there was a real danger that the position of the accused had been or might have been prejudiced" by the conduct of the juror in arranging for flowers to be given to the deceased's mother (Webb and Hay (1992) 64 A Crim R 38 at 70.). The learned judge relied on English authority in formulating the "real danger" test (Sawyer (1980) 71 Cr App R 283 at 285; Reg. v. Spencer [1987] UKHL 2; (1987) AC 128 at 144.). However, we are of opinion that this was too stringent a test. In our opinion, the test that his Honour should have applied was whether, despite the warning that he proposed to give to the jury, the circumstances of the incident would still give a fair-minded and informed observer a reasonable apprehension of a lack of impartiality on the part of the juror.

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9. In considering the merits of the test to be applied in a case where a juror is alleged to be biased, it is important to keep in mind that the appearance as well as the fact of impartiality is necessary to retain confidence in the administration of justice. Both the parties to the case and the general public must be satisfied that justice has not only been done but that it has been seen to be done. Of the various tests used to determine an allegation of bias, the reasonable apprehension test of bias is by far the most appropriate for protecting the appearance of impartiality. The test of "reasonable likelihood" or "real danger" of bias tends to emphasise the court's view of the facts. In that context, the trial judge's acceptance of explanations becomes of primary importance. Those two tests tend to place inadequate emphasis on the public perception of the irregular incident.

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13. Furthermore, if the reasonable apprehension test remains the test for alleged bias on the part of a judge, as we think it should, it is not easy to see why a different test should be applied to a juror. In criminal trials in particular, the jury's function is of great public importance. It is certainly no less important than that of the judge sitting alone in a civil trial, a commissioner determining an industrial dispute or a member of a statutory tribunal inquiring into conduct in an industry which it supervises. The public is entitled to expect that issues tried by juries as well as judges and other public office holders should be decided by a tribunal free of prejudice and without bias. It is true that, unlike the judge and persons exercising quasi-judicial functions, the juror is subject to the directions of a third party - the trial judge. In considering whether a reasonable apprehension of bias exists, it is therefore necessary to consider the likely effect of the judge's directions (if any) as well as the irregularity in question. But that difference does not seem to us to be sufficient to distinguish the test for juror bias from the test for judges and persons who exercise quasi-judicial functions.

14. It follows that the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially.

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18. An accused person and the public at large are always entitled to be concerned with the fairness of a criminal trial where a juror exhibits sympathy for a relative of the victim. But this case goes further. One or other or both accused killed the deceased. It was a savage, senseless and unprovoked murder. The judge described the photographs of the deceased taken when the body was discovered and during the post mortem examination as "quite unpleasant" (ibid.). The murder was one, therefore, which was likely to excite feelings of revulsion against the person or persons responsible for a crime which defence counsel had conceded was "horrific". If the accused were to have a fair trial according to law, it was essential that the jurors perform their difficult task as unemotionally as possible. It was certainly open to the trial judge to find that the conduct of the juror gave rise to a reasonable apprehension of her inability to perform her task in a detached manner. Moreover, we think that his Honour should have concluded that the conduct of the juror did give rise to a reasonable apprehension of a lack of impartiality.

19. But a finding that the incident gave rise to a reasonable apprehension of bias is not the end of the matter. The fair-minded and informed observer would also consider the effect of the judge's warning on the juror and the judge's assessment of the character of the juror. We have already set out the passage where the learned judge said that he thought that, even if there was a risk of bias or prejudice, the case could be met with an appropriate warning. That was an opinion that a fair-minded person would not lightly reject. Further, the learned judge made findings concerning the juror and gave a warning which a fair-minded and informed person was bound to consider. His Honour found that the juror was a very attentive and diligent juror who had taken extensive notes of the evidence and addresses. He also found that she was very concerned about her conduct, conduct for which she had apologised. The warning which the learned judge gave was very detailed. Part of it was directed to the juror in question. He referred to the incident and said "that it might appear that in some way you had formed a view about the issues in this case and were displaying some kind (of), perhaps, bias towards the Crown case, or, alternatively the demonstration of your sympathy in that way might cloud your proper consideration of all of the evidence" ((50) ibid. at 73.). The judge concluded his warning to the jury by saying (ibid. at 74.):

"Sift and weigh each of the witnesses, all of the witnesses including Ms Hay without any feelings of emotion, any feelings of sympathy. Just look at it, coldly, dispassionately and above all, objectively and using your common sense."

20. Although, by her own admission, the juror was an impulsive person and had disobeyed an earlier warning not to communicate with persons associated with the case, we think that a fair-minded and informed person would not apprehend bias on her part. While her sympathy for the deceased's mother had caused her to act as she did, that sympathy had not manifested itself in any act of hostility towards the accused or of partiality to the Crown. Its significance lay in the fact that it indicated that the juror was or might be incapable of examining the evidence dispassionately and impartially. But the public ventilation of the incident, the juror's apology, the recognition of the seriousness of what she had done, the general attentiveness and diligence of the juror, and the strength and detail of the judge's second warning were countervailing factors of considerable strength. A fair-minded person would assume that the juror would do her best to follow the judge's direction to look at the evidence "coldly, dispassionately and above all, objectively and using (her) common sense".

Brennan J (would allow the appeal)

2. The practice and procedure of the criminal court are moulded to ensure that an accused is given no reasonable grounds for apprehending that the judge and jury will not discharge their respective duties impartially. Challenges to the array and challenges to individual jurors, the physical separation of jurors from the judge, prosecutor, accused and witnesses except in the court room, the keeping of the jury together and in isolation while considering their verdict, and judicial directions to jurors to disregard evidence not regularly adduced in court and not to discuss the case with any person other than fellow jurors are some of the steps taken to ensure both the appearance and the reality of a fair trial. If any of these safeguards of a fair trial are breached, the mere breach may lead the hypothetical informed and fair-minded member of the public reasonably to apprehend that the jurors involved will not discharge their duty impartially.

7. Unfortunately, I think that the suspicion of unfairness was not wiped away in this case. In my view, the conduct of the juror who made the gift of flowers to the mother of the victim and who thereby breached Debelle J's admonition gave reasonable grounds to apprehend that she might not give impartial consideration to the respective cases of the appellants.

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9. At the time of the flower incident, the trial had been proceeding for more than a month. All the evidence had been given. The members of the jury were in possession of all the facts. The Crown Prosecutor and Counsel for Webb had completed their final addresses. Counsel for Hay was reaching the end of his final address. Debelle J was about to sum up. At that stage of a criminal trial, even of a long criminal trial like the trial of Hay and Webb, there is a heightened sense of drama. The jurors, in whose hands the fate of the accused will shortly be left, become the focus of attention. It was at this stage that the juror, impetuously and generously, made her gesture of sympathy with the mother of the victim. Patrick's mother had been in court during the long trial. The hypothetical member of the public might reasonably have apprehended that she was there to see justice done to the two people who had been involved in assaulting her son before his death.The juror's gesture of sympathy might reasonably have been regarded as a gesture of solidarity with the mother of the victim. That gesture of solidarity might reasonably appear - particularly where each accused was seeking a discriminating consideration of his or her case - to make it difficult for the juror to acquit either of the accused who had been involved in the attack.

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11. It is not surprising that each of the accused, on learning of the juror's gift of flowers, protested through his or her counsel against having his or her fate decided by a jury of which that juror was a member. How was it possible to dispel the reasonable apprehension that the case of each accused would not be decided impartially? True it was that the juror frankly admitted the error in her conduct. But, as Lord Goff of Chieveley pointed out in Reg. v. Gough ([1993] UKHL 1; (1993) AC 646 at 659. See also Chaouk (1986) VR at 713 per Kaye J)…

It was not practically open to counsel for either accused to cross-examine the juror as to her state of mind. Once Debelle J had refused their application to discharge the jury, an accused's only hope of an impartial consideration of his or her case depended on the juror's disregard of the sympathy with Mrs Patrick that the juror had so recently demonstrated.

12. His Honour gave the jury a further and emphatic warning to "sift and weigh ... all of the evidence ... in a dispassionate manner". Although I would readily acknowledge that a warning can eliminate or virtually eliminate unfairness derived from external attempts to influence a jury (Jago (1989) 168 CLR at 49.), it is somewhat artificial to assume that either the juror's admission and apology or the judge's warning removed the grounds for apprehending that the juror would be unable to consider the defence cases impartially. The suspicion of partiality was not "wiped away". The flower incident was, in my opinion, an irregularity of a fundamental kind which vitiated the conviction (Wilde v. The Queen [1988] HCA 6; (1988) 164 CLR 365 at 373, 375.). I would therefore allow the appeal of both appellants.

Per Deane J (would dismiss the appeal)

3. None of the recent cases in the Court in which the above test was formulated and applied was concerned with an allegation of an appearance of bias on the part of a juror. The "reasonable apprehension" test has, however, been applied by the Court in cases involving a statutory officer other than a judge (See, e.g., Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; Stollery v. Greyhound Racing Control Board [1972] HCA 53; (1972) 128 CLR 509; Builders' Reg. Board of Qld v. Rauber (1983) 57 ALJR 376; 47 ALR 55; Laws v. Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70. See also Metropolitan Properties Co. C'(F.G.C.) Ltd. v. Lannon (1969) 1 QB 577.) and there is no convincing reason of principle why the test applicable to a case involving an allegation of an appearance of bias on the part of a juror entrusted with the discharge of the curial function of deciding questions of fact should be different from that applicable to a judge. In my view, the "reasonable apprehension test" should be applied regardless of whether a question of the appearance of bias arises in relation to a judge, a statutory office holder who is obliged to observe the requirements of procedural fairness…

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7. Nonetheless, I am of the firm view that the "reasonable apprehension" test should continue to be accepted in this country. That test was adopted only after a careful consideration by the Court of the competing claims of the "real likelihood" or "real danger" test. It cannot be said that the Court would have adopted some different test were it not for its reliance, in Watson, on English authority. In those circumstances the Court would not be justified in overruling the series of recent cases in which it formulated and applied the "reasonable apprehension" test unless it was persuaded that that test is misconceived or inappropriate. I am far from being so persuaded. To the contrary, it appears to me that, in so far as this country is concerned, the "reasonable apprehension" test is the more appropriate one.

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18. As has been said, Mr Patrick had been brutally killed. It was clear that the appellants had both been involved in the circumstances of the killing and that each of them had assaulted him. The issues in the trial arose from the fact that each of the appellants, either directly or by implication, accused the other of inflicting the fatal blow or blows. In these circumstances, it is obvious that members of Mr Patrick's family would inevitably be strongly antagonistic towards the appellants. In a context where his mother had been in regular attendance at the trial and where his fiancee had given evidence for the prosecution, it would also be almost inevitable that the fair-minded observer would be likely to closely identify the mother and other members of Mr Patrick's family and his fiancee and her mother with those involved in the prosecution of the two persons involved in the killing of her son.

Per Toohey J (would dismiss the appeal)

1. The appellants were tried jointly on a charge of murder by judge and jury in the Supreme Court of South Australia. They were both found guilty of the charge and their appeals to the Court of Criminal Appeal were dismissed ((113) Rulings of the trial judge, Debelle J, are reported in Webb and Hay (1992) 64 A Crim R 38. The decision of the Court of Criminal Appeal is reported in Reg. v. Webb and Hay (1992) 59 SASR 563.).

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5. The deceased, Lance Edward Patrick, met the appellants in a hotel in Mount Gambier one evening. The three left the hotel at about 10.25 p.m., taking with them a cask of moselle, and began drinking in a bus shelter. They were still there at 11.50 p.m. Just after midnight Webb was seen walking across a car park adjacent to the bus shelter, wearing the deceased's boots. Hay was in a telephone box across the road. Between 11.50 p.m. and just after midnight a person living nearby heard a loud, strong scream by a male voice, followed by two or three other screams. King CJ, with whose judgment Cox and Matheson JJ agreed, said ((114) ibid. at 566.) that the "overwhelming inference is that the incident which caused the death of the deceased occurred between 11.50 pm and 12.05 am". The appellants spent the rest of the night in a motel room which they entered without permission. At some point Webb deposited the deceased's jacket and belt in a used car yard but he retained the deceased's boots. Webb gave the buckle from the belt to another occupant of the house in which he and Hay were living. He burned the deceased's boots and his own jacket.

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11. On the morning of 31 July an unusual incident occurred. Before leaving for court, a juror picked two bunches of daffodils from her garden and brought them with her to court. Apparently it was the juror's intention to give them to another juror whose wife was in hospital. While in the courtroom building she spontaneously decided to give one bunch to Mrs Patrick, the mother of the deceased. Mrs Patrick had been in court during the trial and her identity was known. It does not appear that she was a witness. The juror handed the flowers to a woman whom she did not know but who had been in court and who, as it happened, was the mother of the deceased's fiancee. She did so with a request that the woman give the flowers to the mother of the deceased, saying: "Could you give these to Mrs. Patrick? I cannot talk to you."

12. The matter was brought to the attention of the trial judge by the Crown prosecutor. Counsel for each of the appellants asked for a "mistrial". The juror was identified and said:

"I plead guilty. I had beautiful daffodils in my garden. There was a lady I did not know at the door, I said, 'I cannot talk to you, those are for Mrs. Patrick', that is all I said.

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I humbly apologise to you (his Honour) and the court."

The jury then retired while submissions were made. After they had returned, his Honour asked the juror whether the other jurors had known of her actions. She answered:

"No one knew ... The jury have just said, why did I not tell them yesterday and they could have told you yesterday."

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21. In applying the "real danger" test the trial judge was in error. But when the correct test is applied, the charge of apparent bias in the case of this juror cannot be sustained.

22. I would dismiss Webb's appeal.

Hay's appeal

23. The appellant, Hay, relied upon the "flower incident" as justification for the argument that the trial judge should have discharged the jury. To that extent her appeal must fail. But she relied also upon some other matters which, together with that incident, were said to warrant discharge.

Mason P, Wood CJ at CL and Sully J

1. The appellants appeal against convictions following their joint trial in the District Court before Judge Finnane QC and a jury.

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194. On about 24 February 2004 the Registrar of the Court of Criminal Appeal was notified of information indicative of possible juror misconduct. A solicitor, unconnected with the parties, had written to the Public Defender with information about a conversation with a man known to her who said he had been on a jury involving “the Lebanese guy” who got 55 years for rape. The conversation had given the solicitor the impression that the juror had taken into account information obtained when he “went to the park” that was not evidence in the trial.

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The admissibility of the juror’s statement

204. The juror said this about the visit to Gosling Park:

1. This Statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated anything, which I know to be false, or do not believe to be true.
2. I am 64 years of age.
3. I am a carer for my wife and have been for about 2½ years. Before that I worked as a studio manager.
4. I was the jury foreman for the Skaf trial. After all the evidence had been given, the jury were considering the verdict. We were doing this for about 9 days; I think we started this on 1 July 2003 [sic]. One afternoon, maybe the 10th of July, as the foreman, I asked the Judge if we could go home early, as there was a little bit of frustration between the jurors. I think it was the day before the verdict. He let us go home early at about 2-2:30pm.
5. I went home. I was thinking about the trial. I didn’t say anything about the trial, not even my family. At about 7pm, I called one of the other jurors whose number I had. We had a discussion and both decided to visit the Gosling Park in the vicinity of Bankstown. I prefer not to divulge this person’s name unless the court directs me to.
6. He came to my place here and both went to Gosling Park in my vehicle. We got there about 8.15pm. I parked on either Chiswick Road or Hillcrest Avenue where there was a parking area. In the park, there was a cricket ground and a picnic area with tables and stalls, a gazebo. I also saw two concrete tanks.
7. We had a look around, walked through the park; we walked together the whole time. There was some people there playing cricket and a few people playing soccer with each other near the car park.
8. The weather was calm, it was dark. It was a beautiful night; I had a light jacket on and was comfortable. It wasn’t cold.
9. Where we walked is shown as a dotted line on the diagram (marked annexure “A”) attached to this statement. I saw the lighting of the park. I saw that the lighting was very clear. I could easily see the other juror at all times. On two or three times at several different spots on the park, I don’t recall exactly where but he and I separated a short distance from each other, say about 2-3 metres. I asked him “Can you see me clearly?” He said, “Yes”. At other times he asked me the same question and I would answer. On each occasion, our answer was “yes”.

10 We spent about 15 to 20 minutes there. We got back into the car and went back to my place. We arrived back about 8.45-9pm. The other juror left soon after we arrived back.

11. I only went to the park to clarify something for my own mind. I felt I had a duty to the court to be right. I wanted to be sure my decision was not in any doubt before the verdict. I did not tell anyone else in the jury about this visit. The only juror who knew about the visit was the one who was with me.

205. The diagram indicates the path followed by the two jurors. They walked back and forward across the park and near two tanks. The diagram depicts a row of four lights between the park and a “soccer ground”. The jurors do not appear to have gone onto that ground.

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224. We agree that “deliberations” may take place outside the jury box or jury room and that they may occur when less than the whole number of jurors are present. For example, deliberations are not interrupted because a juror goes to the toilet. There will be matters of degree and the line may not always be easy to draw. But there is no authority that we know of that suggests every discussion that takes place between a juror and a third party or between a handful of jurors represents deliberations whose nature cannot be examined because evidence will not be received from a juror or third party about what took place. The policies informing the preclusive rule must always be kept in mind.

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229. The evidence of Juror 3074295 as to what he and his fellow juror saw and did at Gosling Park related to events occurring after the jury had been sent out to consider their verdict. But on no account could they be considered part of the deliberations of the jury or even of the two jurors who went to the park. The discussion between the trial judge and the foreman recounted above indicates that the present jury were released from their deliberations when they were sent home early, albeit to the slight bemusement of the judge. This is not to suggest that any information improperly garnered by the two jurors was incapable of impacting upon their deliberations and, if communicated to their fellow jurors, upon the deliberations of the jury as a whole. (No one submitted that the verdict could stand if even one juror was privy to inadmissible material giving rise to a miscarriage.)

230. The portions of pars 9 and 11 of the juror’s statement to which particular objection is taken by the Crown and the Solicitor General do not, in our view, offend the preclusive rule, although par 11 comes close to the line. No part of the juror’s statement revealed what he or any other juror had said to each other in their deliberations earlier that day. Nor did it reveal the basis upon which the juror arrived at his verdict the following day. At its highest, it reveals his private thinking at the time of the visit to the park. The last sentence does not, in our view, assert anything about the state of mind of the other jurors referable to their verdict or deliberation processes. We later explain that no regard has been taken of any possibly reflective light that par 11 offers as regards the individual juror’s deliberative processes.

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235. The juror’s statement reveals that the two jurors engaged in an inspection and experiment of the lighting at the park with a view to considering how clearly a person could be recognised at night from close quarters (up to about 2-3 metres). This was relevant to the issue whether Bilal Skaf was the first assailant, a critical element of all three counts.

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238. What is the legal characterisation of the material disclosed?

239. We put aside the issue whether the conduct of the jurors amounted to a contempt of court. That matter lies outside the questions for determination in these appeals. We mention it only to indicate, for the information of jurors in other trials, the potential seriousness with which the law views this type of misconduct.

240. It seems to us that what has been revealed in the present case does not amount in itself to a departure from fundamental requirements as to the procedure of a criminal trial before judge and jury. The matter is not to be viewed as if it were evidence that there were a thirteenth unsworn juror in the jury room or that the verdict proceeded from deliberations involving less than 12 persons moving towards a unanimous decision.

241. Rather, the characterisation of the proven incident is that some (at least) of the jury had regard to information that was not evidence in the trial, or otherwise properly put before them by the judge to the knowledge of the parties. Such information as the jurors obtained was not evidence and it was obtained in circumstances amounting to a want of procedural fairness (denial of natural justice) in that the accused were unable to test the material, comment upon it or call evidence to rebut or qualify it. The Court needs to weigh the possible prejudicial impact of this extrinsic information upon the minds and deliberations of (at least) the two jurors directly involved.

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273. In our view there must, regrettably, be a new trial because of this ground.

274. The Court cannot be satisfied that the irregularity has not affected the verdict and that the jury would have returned the same verdict if the irregularity had not occurred. The juror treated what was seen and done at the park as information that he took into account in arriving at or confirming his conclusion that guilt had been established beyond reasonable doubt. The case is analogous to Gillespie.

275. Attempts to reconstruct material events or to conduct experiments are fraught with danger, even if conducted under the control of the court. Conditions may be different in perceptible and imperceptible ways. This is especially the case where there may be movement and potentially variable lighting conditions or perspectives of view (cf R v Quinn [1962] 2 QB 245 at 257, R v Neilan [1992] VicRp 5; [1992] 1 VR 57 at 74-5). These dangers increase exponentially when a view, coupled with an experiment, takes place in private and where its impact comes to be assessed years after the event.

276. The misconduct of the jurors caused the trial to miscarry.

Barr J

1. This judgment concerns competing applications made by the parties as a result of a report made to the Court and evidence adduced under the provisions of the Jury Act. The accused, Gordon Eric Wood, is charged with having murdered the deceased, Caroline Byrne, by throwing her from the top of the cliff at The Gap, Watsons Bay, one night in 1995. The Crown Prosecutor began his opening late on the first day of the trial and concluded it on the second day. By the conclusion of the opening the jury had a reasonably detailed knowledge of evidence the Crown expected to call and what assertions it would make relying on that evidence. On Wednesday 30 July, the third day of the trial, the jury were taken for an inspection of certain features at Watsons Bay. They were shown the place from which the Crown would be submitting that the accused had thrown Ms Byrne to her death and the place where the Crown would be saying that she landed at the foot of the cliff, meeting her death. Several other features were pointed out as well. It was obvious to the jury that the acts of the accused relied on would be said to have taken place on a dark night when visibility was limited. The Crown mentioned in opening that there was a sea mist on the same night which further interfered with visibility.

2. The evidence began on the fourth day of the trial, Thursday 31 July. At the conclusion of the evidence in chief of the first witness the Court adjourned. Later the same afternoon there was received in my chambers a report, the effect of which was that a person claiming to be a member of the jury had had a telephone conversation with a journalist and had disclosed that some members of the jury were intending to return to The Gap that night for a private inspection. That would have been contrary to explicit directions I had given the jury. I arranged for an officer of the Sheriff’s Department to retrieve confidential particulars about each juror and to telephone each juror and tell that juror three things namely, first, that the Court had been led to believe that some members of the jury were intending to return to The Gap that night to have a private inspection, secondly, that on no account should such an inspection be held and thirdly that the jury would be asked about this on the next sitting day, namely Monday 4 August. The officer concerned managed to do so by about 6:40pm on Thursday 31 July.

3. On Friday 1 August I invited counsel and their solicitors to my chambers. The accused was not present. I told counsel the substance of the report that I had received, what I had done in response and my understanding of the action the Sheriff’s officer had been able to take. The court reporter attended that conference and made an official transcript of everything that was said.

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11. It seemed to me that if the person who had spoken to Mr Morrison was indeed a member of the jury some things might have been said in contravention of the provisions of s68B. If the caller was telling the truth those jurors contemplating a private view at Watsons Bay were contemplating an act contravening the provisions of s68C. If they had already conspired to do that act they might already, without ever going to Watsons Bay, have committed an offence under s68C.

12. I took the view that s55DA gave express power to me to question any juror on oath or affirmation about any plan to visit Watsons Bay. I took the view that my inherent right to control the trial process included power to question any juror about any possible infringement of s68B. Having in mind the provisions of s55DA Jury Act and s128 Evidence Act I questioned each juror in turn, first informing the juror that there was nothing to fear from telling the truth and that any truthful answer that tended to incriminate would be unable to be used afterwards in a prosecution for any offence. I said that I would give a certificate accordingly if necessary.

13. Having first told the jury as a whole the substance of what had been reported to me and my intention to try to ascertain by examination of them answers to questions thereby raised, I invited the jury to retire. I invited any juror who had telephoned a journalist during the currency of the trial to send me a note to that effect. No note was forthcoming. I questioned each juror individually in the absence of all other jurors. In that way I asked each juror three questions…

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17. Mr Murray said that he had not been asked to gather information from jurors. He confirmed that by 6:40pm on Thursday 31 July he had spoken to all 12 jurors. I asked him whether any juror’s response had enabled him to know whether that juror had some knowledge of an intention by members of the jury to return to The Gap for a private inspection. He said that the response of one juror made him think so. He identified a female juror and repeated her jury number. He said that she had said that she had heard the conversation, something like that, in the jury room. Mr Murray was asked to state as precisely as possible what he had said to the juror and the response she had given. The evidence was as follows –

Murray My name is Brian Murray from the Sheriff's Office in Sydney. I am ringing on behalf of the court. The judge in the trial has asked me to contact all jurors this evening because the court has been led to believe that one or more jurors are going to visit The Gap tonight to make their own private inspection of the site.

Juror Oh, yes. I - I heard some of them mentioning that in the jury room.

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30. The evidence shows that one or more jurors probably misconducted themselves but, as I have explained, I am unable to identify any such juror. I have no reason to believe that all the members of the jury misconducted themselves, although I have found that one of the jurors was less than frank in answering the Court’s questions. Although I believe that one or more others were less than frank I have no way of knowing how many. My judgment should not be taken as implying that all the members of the jury have given less than completely truthful answers. This has the unfortunate result that I am unable publicly to vindicate those jurors who have throughout acted properly. They know who they are. The Court thanks them for their service.

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32. The test to be applied for determining whether any irregular incident involving a juror warrants the discharge of the juror or the jury as a whole is whether or not the incident is such that, notwithstanding any proposed direction of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that a juror or jury will not discharge its tasks impartially. Webb and Hay v R [1994] HCA 30; (1994) 181 CLR 41 at 46-47.

33. One of the overriding factors to keep in mind is that the appearance as well as the fact of impartiality is necessary to retain confidence in the administration of justice. Both the parties to the case and the general public must be satisfied that justice has not only been done but that it has been seen to be done. Webb and Hay v R at 50.

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37. I apply these principles. Ordinarily a trial judge is entitled to expect that jurors will obey the Court’s directions. There is evidence before me that at least one member of this jury is not prepared to do so. There is evidence to suggest that one member of the jury may be prepared to decide the case without regard to the evidence. That person cannot be identified and therefore cannot be removed from the jury. It becomes necessary for the whole jury to be discharged and for the trial to begin before a jury selected from a panel which does not contain any of the present jurors.

38. The jury is discharged. The accused is remanded for trial on a date to be fixed.

McClennan CJ at CL

1. I agree with R A Hulme J.

McCallum J

2. I agree with R A Hulme J.

R A Hulme J

3. On 27 April 2009 the appellant was arraigned before his Honour Judge Nield and a jury and pleaded not guilty to charges of detaining for advantage (s 86(1) Crimes Act 1900), doing an act with intent to influence a witness to withhold evidence (s 323(a)) and indecent assault (s 61L). The second charge was in the alternative to the first.

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7. It is unnecessary to say much about the respective cases presented at trial as the appeal against conviction is brought in relation to a discrete procedural aspect. It relates to what might be termed a jury irregularity.

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Grounds of appeal

11. There are three grounds of appeal against conviction:

1. His Honour erred in not discharging the jury once it had become apparent that one of the jurors had conducted an independent inquiry in respect to a part of the evidence.

2. His Honour erred in not conducting an examination pursuant to section 55BA (sic – 55DA) of the Jury Act to determine what, if any, prejudice was caused to the Accused by one of the jurors conducting an independent inquiry, in respect to one part of the evidence.

3. His Honour failed to direct, or adequately direct, the jury in respect to any information that may have been obtained from the Internet in respect to the independent inquiry of one of the jurors.

Events relevant to the grounds

12. The grounds of appeal relate to evidence that the appellant was an adherent to the Falun Gong (or Falun Dafa) system of beliefs and practices.

13. The topic first arose in the course of the complainant’s evidence chief. She was describing the various events that occurred in the course of the incident. At one point she said that she was sitting on a lounge and the appellant was sitting on a coffee table facing her with a knife presented at her chest. She said:

He had it at my chest, the point of it he was – he went into some tangent about religion and all this stuff I didn’t understand and he was running the knife up and down my chest telling me it only takes three centimetres, three centimetres is all it takes. (28.4.09 T38.15)

14. A little later she was asked what the appellant had said about religion and she replied:

He was into some Falun Gong or Buddhism type of religion and we often had a lot of conversations about it with my religion being parallel to just the same sort of beliefs, but different ways of doing things and we often used to talk about it. (28.4.09 T38.45)

15. Nothing more was said on the subject until it was raised in cross-examination by the appellant’s counsel. Reference was made to discussions she agreed had occurred in which the appellant had told her that the Chinese government did not like Falun Gong and that people involved with it had been the subject of persecution in that country. The complainant confirmed that the appellant had told her that he had experienced some (unspecified) problems with Chinese government agents. She said that he had told her of his involvement in protecting a dignitary in China and she understood that this had lead to him changing his name. She was not clear as to whether this had anything to do with Falun Gong. (29.4.09 T21-22).

16. On the morning of the fourth day of the trial the judge informed counsel that a juror was ill and he was inclined to discharge her. He then proceeded to say:

The second thing is this: In a passing comment this morning by a juror to the court officer in control of the jury, mentioned having accessed the internet about Fa-Long Gong. It is my error, I failed to tell the jury, as I ought to have told them, not to access, among other things, the internet about anything.

Having said that, the persecution of the Fa-Long Gong followers by the Chinese authority is something well known. Indeed, one of my close friends, a former solicitor, uses the Fa-Long Gong technique in meditation and indeed it’s been mentioned in this trial by the accused’s counsel. I do not see any problem with the jury accessing the internet about the Fa-Long Gong movement. Indeed, it might assist the accused. I leave that for your consideration also. (Emphasis added).

17. After a short adjournment to permit counsel to consider the matter, the court reconvened and the appellant’s counsel applied for a discharge of the jury. The application was put on a dual basis. It was contended that there should be a discharge of the entire jury because of the need to discharge the ill juror on the basis that the jury would be reduced in number at a stage when only the evidence of two witnesses had been taken. The second basis was that it was not known what information the other juror had accessed and that “there is a real risk that highly prejudicial material may have at least come to one member of the jury in relation to that aspect”. The Crown Prosecutor had made an internet inquiry during the short adjournment and the judge was told that he had found a reference to Falun Gong as “an evil cult”. The appellant’s counsel also alluded to the possibility that the information may have passed from that juror to other jurors.

18. The trial judge announced his decision to discharge the ill juror and then said:

Frankly, I do not see any problem with the matter proceeding with a jury of eleven. We’ve proceeded for three days, today is the fourth day. The principal witness has given her evidence. Unfortunately, it was not video recorded. If the trial proceeded in front of another jury with the audio recording they would not see the complainant and it is clear this is a case in which the complainants should be seen by the jury and the reference to the Fa-Long Gong movement, it is unfortunate that I failed to tell the jury about not accessing the internet. I failed to do so, that is my fault, but nonetheless it was raised by Mr O’Connor in his cross-examination of the witness and I cannot see, in the circumstance in which it was raised, any prejudice to the accused in a juror or indeed every one of them accessing the internet in relation to the Fa-Long Gong movement.

I do not propose to discharge the jury. (Emphasis added).

19. When the jury returned to the court room the judge told them of his decision to discharge the ill juror. He then gave them a direction that they should refrain from making inquiries for themselves about anything to do with the trial. He said…

…

23. The information relayed to counsel as to what the juror had said to the court officer was not in a satisfactory form. There is no suggestion of the judge receiving a note from the juror. It is unknown whether the judge was given a verbatim account of precisely what the juror said. As best as can be gleaned from the transcript, the judge does not appear to have been providing to counsel a verbatim account of what the court officer had said. Further, it is not clear whether the court officer passed the information directly to the judge or via the judge’s associate. What was relayed to counsel was either second or third hand hearsay.

24. Despite these difficulties, it can at least be said that the judge was on notice that there may have been a transgression by a juror of the terms of s 68C. I hasten to add that without the judge having informed the jury in his opening remarks of the substance of the provision, the juror’s actions were most likely unwitting. Nevertheless, the possibility of such a transgression should have given rise to consideration of some further provisions of the Act.

…

26. It is clear enough that if a trial judge is satisfied that a juror has “engaged in misconduct in relation to the trial”, there is no course available other than to discharge that juror. The terms of the section do not appear to permit a consideration of whether anything in the conduct of the juror could work to the disadvantage of the prosecution or defence.

27. A question was raised in the present case as to whether the trial judge was, or could have been, satisfied that such misconduct had occurred.

28. For the Crown it was submitted that before a judge is required by s 53A to discharge a juror for misconduct, the information available must be sufficient for the judge to be satisfied beyond reasonable doubt that an offence against s 68C had been committed. I do not accept that submission. There is nothing in s 53A, or elsewhere in the Act, that requires the criminal standard of proof to apply. Certainly it would in a prosecution of a juror for an offence against s 68C but that is a different matter.

…

31. For there to have been misconduct, as defined in s 53A, requiring mandatory discharge of the juror, there must not only have been an inquiry made by the juror but one that was “for the purpose of obtaining information about ... (a matter) relevant to the trial”: s 68C(1). There is nothing in what the judge conveyed to counsel about the juror’s “passing comment” to indicate what the juror’s purpose was. The correct construction and scope of this part of s 68C(1) may raise questions but they do not need to be resolved here. It can either be assumed that the juror’s “purpose” was of the type the provision is concerned with, or there was error in not inquiring as to what it was.

…

40. In the present case, it can at least be said that there was a distinct possibility that there was a person serving as a member of the jury and involved in the return of its verdicts who should not have been. If, as seems likely, the juror had made an inquiry that was prohibited by s 68C, mandatory discharge of that juror was required. A failure to discharge the juror would amount to “a failure to comply with a mandatory provision relating to the constitution and authority of the jury”.

Adamson J

1. Last Friday afternoon, 20 September 2013, I acceded to the jury's request that they be permitted to leave early because the foreperson was indisposed and needed to attend a medical appointment. Soon afterwards the Sheriff's Officer informed me through my associate that members of the jury had raised a concern with him that a juror had been conducting Internet research on matters of law in connection with this trial.

2. I asked the Sheriff to ensure that the juror who was said to have made the enquiries was kept separate from the other jurors when she arrived for jury duty this morning, Monday 23 September 2013, so that I could investigate whether there was misconduct within the meaning of s 68C of the Jury Act 1977 (the Act) which would oblige me to discharge the juror pursuant to s 53A of the Act.

…

8. When I arrived at Court on Monday morning I was handed a jury note which I have marked MFI 22 which reads as follows:

"It has come to the attention of the jury late Friday afternoon that a member of the jury has taken 'the indictment' and 'written directions of law' home to study and make notes without discussion with the rest of the jury. Also let slip that research at home was made about obligations of law. This is the same juror who is not understanding the direction and approach in reaching a verdict based on evidence."

9. For the purposes of investigating whether there had been private enquiries made about trial matters, I first examined the juror in question on oath pursuant to s 55DA(1) of the Act, which provides:

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.

10. The relevant juror denied that she had conducted any Internet research to do with this trial and said that, although she had done some research at the time of first receiving a letter requiring her to serve on a jury last year, she had not conducted any more recent enquiries about legal matters to do with criminal trials.

11. In my view, s 55DA also authorises the examination of members of the jury who are not suspected of having engaged in any conduct that may constitute a contravention of s 68C. The use of the indefinite article before the word "juror" where it appears for the second time in s 68C(1) indicates that Parliament intended to authorise the examination of a juror who was not "the" juror who was suspected of engaging in the prohibited conduct.

12. Accordingly, I examined the foreperson on oath. The foreperson, who happened to be the juror who was indisposed and who was the reason for the early adjournment, said that, as he was leaving, the relevant juror gave him and other jurors to understand that she had taken her working copy of the indictment and the written directions of law home with her and had conducted some research on the Internet. The other jurors were shocked by her disclosure. One of the jurors told her "to cease and desist" and reminded her that such conduct was not allowed. The foreperson then left in order to attend a medical appointment. As far as he was aware she did not speak further about her research.

13. For abundance of caution I also asked the foreperson to nominate, after consultation with the other jurors and in the absence of the relevant juror, a person who would be best able to tell me what happened after the foreperson left. The second juror gave evidence of the exchange concerning the disclosure and the reaction of the jurors to that communication. He said that the contents of the Internet research were not disclosed and that there was no further conversation to which the relevant juror was a party. The only further conversation on the topic was that the remaining jurors approached the Sheriff's Officer with a view to informing me of the irregularity, as I had enjoined them to do in my opening remarks to the jury. Although I had directed the jurors in those opening remarks that any suspected misconduct be communicated to me by way of note, it was nonetheless appropriate in the circumstances that they contact the Sheriff's Officer in order that I could be made aware, as soon as practicable, of what had occurred.

14. I do not accept the relevant juror's evidence. I am satisfied on the basis of the evidence of the foreperson and the second juror that she conducted research of legal matters relating to this trial on the Internet. I find that she engaged in misconduct in beach of s 68C of the Act.

15. Having found that the relevant juror engaged in misconduct in relation to the trial, I am obliged to discharge her from the jury pursuant to section 53A of the Act.

Basten JA

1. On 15 October 2012, the applicant, Bradley Keith Carr, entered a plea of guilty to three charges in the Burwood Local Court (with two further charges being taken into account on sentence). He went to trial on 10 further charges, being found guilty with respect to eight and not guilty with respect to two of the charges. The trial judge, Garling ADCJ, sentenced the applicant on 29 November 2013 to an aggregate sentence of imprisonment for 15 years with a non-parole period of 9 years and 4 months. The aggregate sentence related to the charges to which he had pleaded and those for which he was convicted following the jury trial.

2. On 6 February 2015 the applicant sought to appeal with respect to each conviction on three grounds, namely:

(1) The trial judge erred by not discharging a juror (the foreperson) under s 53A(1)(c) of the Jury Act 1977.

(2) The trial judge erred by not discharging the jury under s 53C of the Jury Act 1977.

(3) The trial judge erred by limiting the examination of the foreperson and the jury to whether inquires had been made outside of the jury room, by way of accessing the internet and social media.

…

6. There is no suggestion that any juror was mistakenly or irregularly empanelled, nor that any had become “excluded from jury service”, for the purposes of pars (a) and (b) of subs (1). Rather, it was said that the foreperson had engaged in misconduct within par (c), as misconduct is defined in the subs (2). The relevant misconduct was said to be a breach of s 68C, which provides…

…

7. On the morning of 20 June 2013, well into the trial, the judge noted in the presence of counsel, but not of the jury, that when the jury room had been cleaned on the previous evening, copies of four brief newspaper accounts of events at the trial had been found, three of which referred to the evidence of Mr Justin Hemmes, who had given evidence on 13 June 2013, and one to the opening statement of the prosecutor. Counsel were asked to indicate what course, if any, should be taken.

8. It was not submitted by counsel that reading newspaper accounts of the trial constituted misconduct on the part of any juror. However, someone had gone a step further and cut out the four items in the press and brought them into the jury room. It was difficult to make much of those two additional steps, particularly in circumstances where the trial judge, while giving detailed instructions as to what was and was not appropriate conduct (at the opening and during the course of the trial) had told the jury that they were not prohibited from reading newspapers.

…

10. The additional matter was that one of the articles referred to Mr Carr as having been charged with a specific offence for which he was not charged and had never been charged. So far as a juror was concerned, that would have been a simple (and understandable) error on the part of the journalist: nevertheless, there was some concern expressed by counsel for Mr Carr that the jury might speculate that there was more to it and that he had been charged at some stage, but that had not been disclosed to them. However, that issue was addressed directly and forcefully in directions, in terms accepted by counsel at the trial. It is not the subject of a separate ground of appeal.

11. The judge took two specific steps by way of inquiry. First, he called the foreperson, had him sworn, and noting the fact that the newspaper clippings had been found in the jury room, asked a number of questions…

…

12. The second step taken by the judge was to have the jury return to the courtroom, at which stage he raised with the whole jury the fact that the copies of the newspaper articles had been found in the jury room and posed to all of them a question as to whether any of them had or were aware of anyone having made inquiries outside the jury room “including the use of the internet or similar social media in relation to this trial.” He invited any person who had undertaken or was aware of such events having happened to send him a note.

13. On being informed by the court officer that no one wished to pass a note to the judge, he then turned to deal with an application by counsel for Mr Carr that he discharge the jury. That application was made before the interrogation of the foreperson and jury members.

…

19. Nor should the statutory language be given a meaning which would encompass conduct involved in reading newspaper reports of the trial and bringing a newspaper (or a clipping from the paper) into the jury room. Something more would be required. Of course, there is a risk that a journalist may have made a mistake, which is a good reason for a juror not to make reference to a press clipping. On the other hand, unless the article revealed extraneous information, that is information not the subject of evidence in the trial, reading the article would not constitute making an inquiry in the sense in which that phrase is used in s 68C. That is because the focus of the prohibition is upon obtaining, or attempting to obtain, extraneous information about the accused or some other matter relevant to the trial.

…

21. As noted above, a realistic concern as to the risk of a miscarriage of justice could only arise from the inference that one or more of the jurors had taken a further step, namely to search the internet. The foreperson was asked on oath whether he had done that and denied it. He readily admitted, however, that he was the person who brought the newspaper clippings to the court. That inquiry having been made, and the judge being satisfied that he had obtained a truthful answer (and the transcript gives no hint to the contrary), the basis for the necessary inference was missing. The risk was, as the judge accepted, ever present. If it materialized, there was no doubt that a substantial miscarriage could and probably would occur. Nevertheless, the applicant’s claim falls at the first hurdle, that of establishing relevant misconduct.

McCallum J

24. I agree with Basten J

R A Hulme J

25. I also agree

N Adams J

1. On 11 October 2018, a jury was empanelled and the trial commenced against Omarjan Azari on one count that he did an act in planning or preparation of a terrorist act or acts. The Crown case is that the accused participated in a telephone conversation with Mohammad Ali Baryalei at about 9:00pm on 15 September 2014. Mr Baryalei was at that time associated with Islamic State and presumed to be in Syria.

…

3. A significant witness in the Crown case is a man known for the purpose of these proceedings as Ahmed Hussain. Mr Hussain has pleaded guilty in relation to a separate terrorism-related offence and is currently in custody. It has been foreshadowed that there will be a significant attack on his credibility in this trial.

…

5. The trial proceeded on Thursday and Friday of that week and Monday and Tuesday of this week. A number of documents were tendered during that time which included references to Mr Hussain’s real name. At approximately midday on Wednesday, 17 October 2018, Mr Hussain commenced giving his evidence. At 1:00pm, Court adjourned for the luncheon break. When Court resumed at 2:00pm, the Crown Prosecutor indicated the following in relation to Mr Hussain:

“He’s reported, your Honour, that he thinks he might know someone on the jury and it’s the person who’s the young female juror second in the front row. He said that when he was giving his evidence and looked over at one stage he had a flicker of recognition that that might be someone he knows...”

At the moment, your Honour, we’ve indicated we would raise it with your Honour. He knows the name of the person, at least her first name, and some other details about the person that he thinks that it is. What might be appropriate, your Honour, is that if that could be perhaps written down and communicated through your Honour, through the Sheriffs, to make an inquiry so that we can find out if is it or not.”

6. The brief description provided by the Crown Prosecutor was sufficient for me to identify the particular juror. On the application of Mr Hughes that juror was separated from the rest of the jury whilst further investigations were made. As foreshadowed, the Crown Prosecutor requested that Mr Hussain write down on a piece of paper the name of the juror and any other identifying information. Neither counsel saw that note - it was provided to me by the Court officer. The note provided only the first name of the juror and other identifying material as to her high school, area of residence and ethnicity. The first name of the juror was an unusual one and not a female name I was previously familiar with.

7. The note was marked as MFI 5. I provided MFI 5 to the Court officer and requested that the Sheriff investigate whether there was anyone on the jury with that first name. Shortly afterwards, the document MFI 5 was returned to me by the Court officer with the full name of a juror on it who had the same first name as that in the note written by Mr Hussain in MFI 5. I then requested that the Court officer compare the name on the note with the juror number of the female juror who had been separated from the rest of the jury. It was subsequently confirmed that the juror who had been separated was the juror with the first name provided in MFI 5.

…

9. Although I accepted that there was sufficient material already to discharge the juror without any questioning of her, the potential difficulty with that course was the second question as to whether the trial should proceed with eleven jurors. Counsel then agreed that the next course was to ask questions of the juror of a limited nature. The juror was then brought into Court and sat in the witness box. She provided her juror number and I asked her the following questions:

“HER HONOUR: Remember at the beginning of the trial when I was asking persons whether they knew anyone connected with the trial, it’s come to the attention of the Court that you may have some association with the trial. What I’m going to ask you is this; you know the last witness that’s given evidence, who’s still in the witness box?

JUROR: Yes.

HER HONOUR: Known by Ahmed Hussain, have you ever seen that witness before?

JUROR: No your Honour.

HER HONOUR: I know this question is going to sound unusual because you’ve just said that you don’t know him; but have you discussed that witness, not his evidence he’s given but him or any possible prior association you might’ve had of him, with the other jurors?

JUROR: No.

HER HONOUR: And that was before you were asked to be separated?

JUROR: Yeah.”

10. I then asked counsel whether there were any other questions to be asked and both counsel indicated that there were not.

11. Following her evidence I formally discharged the juror under s 53B(b) of the Jury Act. That section relevantly provides…

12. As the transcript of yesterday’s proceedings records, I was not satisfied at that time that there was any actual bias on the part of the juror, rather, she was discharged on the basis of apprehension of bias; that is, the accused was aware that the witness Mr Hussain knew the juror even if the juror did not recall that fact. Moreover, as Mr Hughes noted, even if the juror did not currently remember the witness, there would always be the risk that she may later come to recognise him as his evidence continued. Having seen the juror answer the questions, I was not satisfied that she was being untruthful in that regard. Both the Crown Prosecutor and Mr Hughes agreed that the juror had to be discharged on the basis of apprehension of bias. Counsel agreed that there was no need to ask her any further questions for the purpose of discharging her.

13. I was satisfied that the fact that the witness had provided the first name of the juror, which was consistent with the juror’s name, was sufficient to conclude that the witness remembered the juror and the accused is aware of that fact. Although the juror did not remember him, the coincidence of the witness identifying her by her somewhat unusual first name is such that I have no basis to conclude that the witness is not telling the truth.

…

17. In circumstances where I have discharged a juror, I am required under s 53C of the Jury Act to make an order as to whether to discharge the jury or proceed with a jury of eleven. I am required to discharge the jury if I am of the opinion that continuing the trial with eleven jurors would give rise to the risk of a substantial miscarriage of justice. It is only if I am not of that opinion that I would order the trial continue with eleven jurors. The words “substantial miscarriage of justice” are not defined in the Jury Act. I have recently considered what these words mean in their particular statutory context in the Jury Act at [127]-[132] of the decision of Hoang v R [2018] NSWCCA 166 (“Hoang”). As I noted in that decision, there has been very little judicial consideration of what this phrase means in the context of the Jury Act as opposed to s 6(1) of the Criminal Appeal Act 1912 (NSW). There has been considerable judicial consideration of what this phrase means in the context of the Criminal Appeal Act, most recently in the decision of the High Court in Kalbasi v Western Australia (2018) 352 ALR 1; [2018] HCA 7.

…

19. Giving the words “risk of substantial miscarriage of justice” their ordinary meaning in the context of the Jury Act, and in particular s 53C, I propose to approach the question of potential discharge on the question of whether what has occurred could affect the outcome of the trial in any way.

…

29. Having had regard to the submissions of counsel and the terms of s 53C of the Jury Act, I am of the opinion that there is no substantial risk of miscarriage as a result of the discharge of the juror and the basis for that discharge.

Bell P

2. On 5 February 2019, Messrs Sonny Zheng, Ji Li and Hoa Liang Pan (the Applicants) stood trial on an indictment containing 8 counts at the District Court of New South Wales before her Honour Judge Culver (the trial judge) and a jury of 12.

…

4, On 26 March 2019, following a lengthy trial, the jury came to a unanimous verdict on all counts. Mr Zheng was found not guilty in respect of count 1 and guilty in respect of counts 2 and 3. Mr Li was found guilty of counts 5, 6 and 7. Mr Pan was found guilty of counts 4, 5, 6, 7 and 8.

...

6. On 25 March 2019, one day prior to the jury returning its verdict but some 13 days after the jury retired to consider its verdict, two jurors (Juror E3 and Juror M) were both, with the agreement of counsel, discharged under s 53A of the Jury Act 1977 (NSW) for having made inquiries contrary to s 68C of that Act. That meant that, by the time the verdicts were delivered the following day, the jury had been reduced from 12 to 10 members.

7. On the same day that Juror E3 and Juror M were discharged, an application, joined in by counsel for all 3 accused, was made for the discharge of a third juror (Juror G2W). Juror G2W’s discharge would have had the consequence that the trial could not have continued absent “approval in writing [] given to the reduced number of jurors by or on behalf of both the person prosecuting for the Crown and the accused or each of the accused”: Jury Act, s 22(a)(ii).

8. The application to discharge Juror G2W was ultimately pressed pursuant to s 53A(1)(c) and, in the alternative, s 53B(d) of the Jury Act.

…

10. An application was also made to discharge the whole jury pursuant to s 53C(1)(a) of the Jury Act which provides for such a discharge if, following the discharge of a juror, the court “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.”

11. In an ex tempore judgment delivered on 26 March 2019, the trial judge declined to discharge Juror G2W under either s 53A or s 53B, and declined to discharge the jury under s 53C of the Jury Act.

12. As already noted (at [6] above), the jury returned its verdicts later that day.

13. Messrs Zheng, Li and Pan each bring separate appeals but on the common grounds (the failure to discharge grounds) that the trial judge erred in:

(i) failing to discharge Juror G2W; and

(ii) failing to discharge the jury.

…

15. In relation to the challenge to the verdicts on counts 5, 6 and 7, I have had the benefit of reading the reasons of Ierace J with which I agree and for those reasons consider that the grounds of appeal in relation to those counts should be rejected. In what follows, I deal with the failure to discharge grounds which are common to all applications.

…

28. On the following day, whilst still in the course of the summing up but prior to the jury having returned to Court following the luncheon adjournment, the trial judge raised an issue with counsel about the conduct of a particular juror who had been observed to have with him a Chinese language dictionary. This was Juror E3. Having raised that issue with defence counsel, her Honour also informed them that:

“My court officer has also in that light reported to me something that again is not on a note from the jury but I feel that I am compelled to let the parties know, should it be relevant to any person. A juror - and I understand it perhaps to be a different juror, but I don't know - was overheard at some stage in the lift by my court officer to - and this is obviously very sensitive but I think it's appropriate my court officer raised it with me as extraneous material to the trial - to provide a translation of a word that came up during the course of the proceedings in Mandarin. In particular, the word was in respect of ‘lan drunk’.”

29. Although her Honour referred in this passage to what I will refer to as “the overheard conversation” occurring “at some stage”, it would appear from later parts of the transcript and her Honour’s judgment on the discharge applications that the conversation was overheard and reported to her Honour during the course of the luncheon adjournment on 8 March 2019, immediately prior to the resumption of the hearing when the trial judge made the disclosure to counsel as set out above.

30. After discussion with counsel, it was decided that the most appropriate way to deal with the exchange which the Court Officer had overheard and reported was to give a general direction to the jury (without expressly referring to what the Court Officer had reported or to the term “Ian drunk”). Accordingly, the following direction was given on 8 March 2019…

…

60. It is sufficient for present purposes to note that her Honour conscientiously worked through the various matters that had been raised by defence counsel and which had been the subject of detailed written submissions by the Crown before declining to exercise her discretion to discharge the jury.

Section 53A of the Jury Act

61. The arguments presented on appeal in relation to the mandatory discharge application made pursuant to s 53A of the Jury Act were, in essence, threefold. The first related to the proper construction of s 53A and the question of what needed to be established to engage that section. The second related to what the trial judge in fact found on Juror G2W’s (or Juror C’s) evidence and whether or not her Honour should have found that he had been deliberately lying to the Court when giving that evidence.

62. It was also put that if, on a proper understanding of the trial judge’s reasons, her Honour had made no finding one way or the other as to whether or not the juror was being honest or truthful in his evidence, her failure to do so was in itself an error which deprived the Applicants of the opportunity to argue that the jury should have been discharged.

63. It may be accepted that “misconduct” within the meaning of s 53A(1)(c) of the Jury Act is a term of broad ambit and need not constitute an offence. Whether or not there has been “misconduct” such as to engage s 53A involves a process of evaluation, a matter that has implications for the extent to which an appellate court may interfere with such an assessment: see Hoang v R (2018) 98 NSWLR 406; [2018] NSWCCA 166 at [138] (Hoang). Furthermore, it has been held that “[t]he terms of s 53A are unequivocal: if the trial judge is satisfied that a juror has engaged in misconduct there is no other course available but to discharge the juror”: Hoang at [73] per N Adams J, Hoeben CJ at CL agreeing. Sometimes, depending on the nature of the misconduct and the extent, if any, to which it has infected other members of the jury, the discharge of a juror may lead to the discharge of the entire jury pursuant to s 53C(1) of the Jury Act.

64. Both Mr Lange for Mr Zheng and Ms Lewer for Mr Li submitted that s 53A(1)(c) would be satisfied and engaged if the Court formed the view that there was a “reasonable apprehension”, “reasonable possibility” or a “real risk” that the juror had given false evidence. This submission took as its foundation the reference in s 53A(2)(b) to “a risk of a substantial miscarriage of justice” in defining “misconduct” for the purposes of s 53A(1)(c).

65. No authority was cited in support of this suggested construction and it is not consistent with the plain language of the section which has been set out at [9] above. Section 53A(1)(c) will be engaged where the court finds that “the juror has engaged in misconduct” (emphasis added). The section’s directive to discharge a juror is dependent upon a finding to this effect. The section is not expressed in terms of “risk” or “possibility”. So, also, the definition of “misconduct” in s 53A(2) requires a finding that certain “conduct” has occurred. Section 53A(2)(b) is concerned with conduct that gives rise to a risk; it is not concerned with a risk that actual conduct has occurred.

…

67. Whichever aspect of the definition is applicable, certain conduct must be found to have occurred. It is only if that conduct constitutes an offence or, in the opinion of the court, gives rise to the risk of a substantial miscarriage of justice that it will amount to misconduct. The key point, for present purposes, is that s 53A(1)(c) involves a two stage process: (i) a finding that certain conduct has occurred; and (ii) an analysis of its character, whether that be as amounting to an offence against the Act or as giving rise to the risk of a substantial miscarriage of justice.

68. The expression “gives rise to”, like the expression “arising out of”, connotes a causal relationship (even if not necessarily proximate) or, when coupled with the word “risk”, a potential causal relationship: compare State Government Insurance Commission v Stevens Brothers Pty Ltd [1984] HCA 32; (1984) 154 CLR 552 at 555 and 559; [1984] HCA 32; Comcare v PVYW (2013) 250 CLR 246; [2013] HCA 41 at [53], [94] and [110]–[111]; and see P Herzfeld and T Prince, Interpretation (2nd ed, Thomson Reuters, 2020) at [4.350].

69. In the context of s 53A(2)(b), the relationship to be examined is that between the established conduct, on the one hand, and whether it is potentially (“a risk”) causative of a substantial miscarriage of justice. The word “risk” in s 53A(2)(b) does not warrant a dilution of the standard of proof in relation to the conduct or misconduct with which the section is concerned. That conduct must be established on the balance of probabilities as the first step in the s 53A(1)(c) inquiry before the second stage, namely whether it “gives rise to” the relevant risk, is undertaken.

70. It follows that the Applicants’ submission that, on its proper construction, s 53A(1)(c) does not require the establishment of misconduct on the balance of probabilities but simply the possibility of, a reasonable apprehension of, or a risk of misconduct, must be rejected.

71. This conclusion is reinforced by a number of further considerations. First, it may be noted that, in contrast to s 53A, s 53B(b) authorises a discretionary discharge where it “appears to the court ... that the juror may not be able to give impartial consideration to the case because of ... any reasonable apprehension of bias ... or any similar reason” (emphasis added). This is conspicuously different language to that which is employed in s 53A, and this difference is not only significant in itself but is reinforced by the fact that, once misconduct is established and the court forms a positive opinion as to the existence of a risk of a substantial miscarriage of justice, the court is required (“must”) to discharge the juror; it has no discretion to do otherwise.

72. It is a serious matter for a juror to be discharged. This is why, in undertaking an inquiry whether there has been misconduct for the purposes of s 53A(1)(c), it is appropriate in my opinion to apply the observations of Dixon J in Briginshaw at 360–361. (The expression “the observations in Briginshaw” is, in my opinion, preferable to the expression “the Briginshaw standard” as that expression is apt to suggest, wrongly, some intermediate standard of proof).

73. The application of Briginshaw to a finding of misconduct for the purposes of s 53A(1)(c) is appropriate notwithstanding the fact that a juror’s identity will invariably be anonymised in any judgment or ruling discharging the juror from service. To discharge a juror for deliberately lying under oath, that is to say, perjury, as was sought in the present case, involves a serious and adverse conclusion and one with serious potential consequences, not just for the juror in question (who could be subject to a referral if such a conclusion were reached) but also for the trial. In the present case, a successful challenge would have resulted in the discharge of the entire jury as its number would have fallen under the statutorily required 10 jurors: see s 22 of the Jury Act.

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Section 53B of the Jury Act

88. It follows from the above analysis that the trial judge also did not err in dismissing, in the exercise of her discretion, the alternative discharge application to the extent that it was advanced under s 53B of the Jury Act. Such a discretionary decision not only attracts the strictures appropriately placed on appellate interference by decisions such as House v The King (1936) 55 CLR 499; [1936] HCA 40 but also is a decision of a kind which the trial judge is best placed to make by reference to “first hand impressions” rather than the “review of a cold record”: see Wu at [101]–[102]; R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135 at [40] (Lamb).

Button J

101. I agree with Bell P with regard to the grounds of appeal based on failures to discharge.

Ierace J

103. I have had the advantage of reading in draft the reasons of Bell P and respectfully agree with his Honour’s judgment and reasons as to the ground advanced by Mr Zheng and grounds 1 and 2 advanced by Messrs Pan and Li: the “failure to discharge” grounds.

Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ

1. In New South Wales, a juror in a jury trial takes an oath, or makes an affirmation, that they will give a true verdict according to the evidence. From the time a juror is sworn in as a juror, and until they are discharged by the court, they must not make an inquiry for the purpose of obtaining information about any matters relevant to the trial. "[M]aking an inquiry" includes conducting any research, for example, by using the internet.

2. Section 53A of the Jury Act 1977 (NSW) relevantly provides that a court "must discharge a juror if, in the course of any trial ... the juror has engaged in misconduct in relation to the trial" (emphasis added). "[M]isconduct", in relation to a trial, relevantly means "conduct that constitutes an offence against [the Jury Act]". It is an offence against the Jury Act for a juror to make an inquiry for the purpose of obtaining information about a matter relevant to the trial.

3. The appellant, Mr Hoang, was tried in the District Court of New South Wales on an indictment charging him with 12 counts of sexual offences against children: five counts of aggravated indecent assault (counts 1, 6, 8, 9 and 10); two counts of aggravated acts of indecency (counts 2 and 3) and five counts of aggravated sexual intercourse (counts 4, 5, 7, 11 and 12). There were five complainants. The offences were alleged to have been committed whilst the appellant was a mathematics tutor between 1 January 2007 and 31 July 2014. The appellant pleaded not guilty to all charges.

4 The trial judge gave directions to the jury at the start of the trial, both orally and in writing, that jurors were not to search the internet for anything relevant to the trial. As part of its case, the Crown led evidence that the appellant did not hold a Working with Children Check. Character evidence was adduced by the appellant to counter that evidence, and his counsel made submissions about that evidence, which the trial judge then referred to in her summing up.

5 During the course of jury deliberations, the jury provided a note to the trial judge stating that they had reached agreement on eight of the 12 counts and had varying degrees of agreement about the other counts. The jury continued to deliberate until approximately 4pm that day, at which time they were sent home.

6 The jury returned the following morning. At approximately 12.30pm, the jury foreperson sent the trial judge a note which stated:

"This morning a juror disclosed that yesterday evening they google/looked up on the internet the requirements for a working with children check. The juror had previously been a teacher and was curious as to why they themselves did not have a check. They discovered the legislation, which was only introduced in 2013.

I myself have completed a working with children course and so already know this information but it had not been discussed in the jury room.

This information discovery of a juror making their own enquiry I do not feel has had an impact, however I understand my duty to notify you of this as per the written instructions at the commencement of this trial."

7 Upon the trial judge being informed of the inquiry, her Honour proceeded to take the eight verdicts referred to in the jury note from the previous day as well as two further verdicts which, that afternoon, the jury indicated they had reached a unanimous verdict on. The jury returned verdicts of not guilty in respect of counts 2 and 3 and guilty verdicts in respect of counts 4 and 6 to 12. The trial judge then discharged the juror for misconduct under s 53A(1)(c) of the Jury Act. The remaining jurors then continued to deliberate in respect of the remaining two counts (counts 1 and 5). Unanimous guilty verdicts were later delivered with respect to those counts. Two weeks after the last verdict was delivered, the trial judge delivered reasons for discharging the juror.

8 The appellant applied for leave to appeal against his convictions to the Court of Criminal Appeal of the Supreme Court of New South Wales. The three proposed appeal grounds relevantly related to the juror's conduct in conducting the search and whether that search constituted misconduct within the meaning of s 53A(1)(c) of the Jury Act and, if so, whether the juror should have been discharged prior to taking the first ten verdicts.

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11 As will be explained, the appeals must be allowed. On the proper construction of s 68C(1), read with s 53A(1)(c), the juror had engaged in misconduct by making an inquiry for the purpose of obtaining information about a matter relevant to the trial and the trial judge was in error in taking the ten verdicts before discharging that juror.

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The trial

16 Specific aspects of what transpired during the appellant's trial need to be addressed in some detail – in particular, the Working with Children Check evidence and how it was dealt with during the trial, and then what steps were taken by the trial judge in response to the note from the foreperson.

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21 The next day, defence counsel addressed this issue squarely in his closing address. Counsel referred to and disparaged the Crown's reliance on the classified advertisements, characterising the Crown's submission as being that there was "some dark mystery, some fraud or ruse played out to get the accused into houses where he [could] tutor". Immediately following those submissions, defence counsel referred to the evidence of Mr Nguyen, describing him as an "intelligent young man" who would have "impressed you as an impartial witness". He made the following remarks in relation to the Working with Children Check evidence:

"You remember the evidence late in the trial again from Detective Paul in relation to the inquiries that were made with the State Office of the Children's Guardian as to whether the accused had a working with children certificate. He didn't. It sounded bad at the time. Then we found out from David Nguyen, a capable young man, he is studying to be a doctor and working as a private tutor, he tells us that 90 per cent of undergraduate students have tutored at some point and lots of his friends are tutors and none of them have that qualification." (emphasis added)

It is significant, as Campbell J said in the Court of Criminal Appeal, that defence counsel ("who must be taken to have a better feel for the potential significance of the evidence lead at the trial" than an appellate court) "thought it pertinent to remind the jury of the evidence on this topic".

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Steps taken by the trial judge

24. On reading the note from the jury foreperson, the trial judge formed the view, without the need to conduct any inquiry or examination under s 55DA of the Jury Act, that she was satisfied that a juror had engaged in misconduct in relation to the trial. The majority in the Court of Criminal Appeal held that the trial judge was in error in determining that there was juror misconduct warranting mandatory discharge of that juror under s 53A(1)(c) of the Jury Act. That conclusion is the subject of ground 1 of these appeals. It turns on the proper construction of s 68C(1), read with s 53A(1)(c).

25 That leads to the second issue in these appeals. There was no dispute before the trial judge or in the Court of Criminal Appeal that the combined effect of ss 68C(1) and 53A(1)(c) is that once the trial judge is satisfied that a juror has engaged in misconduct, "there is no course available other than to discharge [the] juror". In the trial judge's reasons for her approach in discharging the juror, her Honour said:

"Prior to making specific inquiries in relation to the jury note, ... I heard submissions from both counsel. Both counsel submitted that an inquiry into the juror who had made inquiries on the Internet should take place before any steps were taken to take the eight verdicts. I declined to conduct the inquiry with the juror before taking the verdicts as I was of the opinion that I had sufficient information in [the] jury note ... that a breach had occurred. It was therefore mandatory that that juror had to be dismissed." (emphasis added)

26. However, as we have seen, the trial judge did not dismiss the juror, and proceeded to take verdicts on ten counts and only then discharged the juror. The majority of the Court of Criminal Appeal held that mandatory discharge was not required prior to the trial judge taking the verdicts even though the trial judge was satisfied that misconduct under s 53A(1)(c) had occurred. As will be seen, that was contrary to the "mandatory" terms of the statute "which govern the constitution and authority of the jury as the tribunal of fact in a criminal trial".

Construction of s 68C(1), read with s 53A

27. As has been explained, s 53A(1)(c) imposes a duty upon the court to discharge a juror during the course of a trial if the juror has engaged in misconduct in relation to the tria. Section 53A(2)(a) relevantly defines "misconduct" as an offence against the .

28. Section 53A(2)(a) does not itself create an offence. It refers to "conduct that constitutes an offence against" the Jury Act (emphasis added). None of the various offences listed in the Jury Act (including s 68C(1)) is constituted by the specified actus reus alone. To "constitute" each offence, the conduct includes both the actus reus and the applicable mens rea. Of course, proof beyond reasonable doubt that the identified conduct constitutes an offence against the Jury Act is not required for the purposes of s 53A(2)(a)[28].

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32. 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.

33. Contrary to the Crown submissions, s 68C(1) is not limited to asking whether the juror had an intention to acquire information that bears upon a juror's deliberation about a fact in issue, the elements of the offence or the issues on which the guilt of the accused depends. Nor, as the Crown submitted, is s 68C(1) limited to asking whether the juror's purpose was to obtain information "that is understood and intended by the juror" to have relevance to contested issues in the trial. The words of s 68C(1) do not permit of either construction.

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35. Section 68C(1), read with s 68C(5)(b), does not extend to what might be called inadvertent searching. Section 68C(1) is directed to a juror making an inquiry for the purpose of obtaining information about a matter relevant to the trial. Any concern for the safety and propriety of a jury trial arising from an inadvertent search undertaken by a juror may be addressed by the trial judge under s 53A(1)(c) read with sub‑s (2)(b) or, alternatively, s 53B.

36. It is for the same reasons that the mental element – making the inquiry for the purpose of obtaining information about a matter relevant to the trial – is not concerned with the juror's motive for making the inquiry. It 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. That a juror might have undertaken such an inquiry for their own purposes does not mean that, consistently with the terms of s 68C(1), the inquiry was not also made for the purpose of obtaining information about a matter relevant to the trial.

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Inquiry was about a relevant matter and was for a prohibited purpose

38. In this case, the matter about which the juror made the inquiry was the Working with Children Check. Evidence had been given about that at the trial, and defence counsel made submissions about that evidence, which the trial judge then referred to in her summing up. One purpose of the juror making the inquiry was to obtain information that was relevant to the trial. As the note from the foreperson records, the juror Googled "the requirements for a working with children check" and "discovered the legislation, which was only introduced in 2013". That is prohibited. That information obtained by the juror by making the inquiry was not in evidence before the Court, and consideration of it by the juror was contrary to the oath or affirmation that they took when they were sworn in as a juror – to "give a true verdict according to the evidence" (emphasis added). The fact that the juror had previously been a teacher and was curious as to why they themselves did not have a Working with Children Check was irrelevant. For those reasons, the trial judge was correct to find that the juror, in the course of the trial, had engaged in misconduct in relation to the trial, namely by making an inquiry for the purpose of obtaining information about a matter relevant to the trial within the meaning of s 68C(1).

Mandatory discharge

39. Section 53A(1)(c) relevantly provides that a court "must discharge a juror if, in the course of any trial ... the juror has engaged in misconduct in relation to the trial". As we have seen, prior to the juror engaging in the misconduct, the jury told the trial judge that they had reached a unanimous decision on the verdicts on eight counts (the following day confirmed to be counts 4 and 6 to 12). Those 11 jurors included the juror who subsequently engaged in the misconduct. However, the next day, despite being told of the juror's inquiry, the trial judge proceeded to take the eight verdicts, as well as two further verdicts which the jury that day indicated that they had reached a unanimous verdict on. The trial judge did so before discharging the juror, so that those verdicts included the verdicts of that juror. The question is whether the trial judge was correct to take those verdicts at the time she did. The answer is no.

40. As has been explained, the trial judge, immediately after she had read the foreperson's note disclosing that the juror had made the inquiry on the internet, indicated that she intended to take the verdicts prior to dealing with the issue of the juror's inquiry. During a lengthy debate with counsel, throughout which she was urged by both the Crown and defence counsel not to adopt that course, her Honour agreed that s 68C had been "breach[ed]". In her written reasons for discharging the juror, the trial judge recorded that the juror "did make an inquiry for the purposes of obtaining information about a matter relevant to the trial", that that inquiry was "specifically prohibited", that therefore s 53A was "enlivened" and that she "had no option but to discharge that juror".

41. The majority of the Court of Criminal Appeal held, and the Crown submitted before this Court, that the trial judge's views were "tentative", and that her Honour had not made a "decision at the earlier point in time that the juror was guilty of misconduct". That was an error. The only available conclusion that can be drawn from the record of the trial and, in particular, from what the trial judge said was that, before taking the ten verdicts, the trial judge was affirmatively satisfied that there had been misconduct by the juror. The trial judge was required to immediately discharge the juror before taking the ten verdicts.