Citation: R v Ngo; Dao; Dinh [2000] NSWSC 1254
Court: Supreme Court of New South Wales, Common Law Division
Date: 4 October 2000
Judge(s): Dunford J
Background
Three accused persons faced trial for serious criminal offences. The Crown brought a motion seeking several protective measures for the conduct of the upcoming trial, including restricted access to the public gallery, special transport arrangements for jurors, jury sequestration during deliberations, and an in-camera hearing of the application itself.
The application arose against a background of concern about the integrity of proceedings. An earlier trial involving two of the accused had resulted in a hung jury. Evidence emerged that, following that trial, several jurors had spoken to a senior detective about the conduct of a minority juror during deliberations, describing behaviour they considered obstructive.
The Crown sought to rely on that evidence to support the need for enhanced security and jury management measures. Defence counsel for two of the three accused opposed some of the proposed orders, primarily on the basis that special arrangements might create bias against their clients in the minds of the jury.
Legal Issues
- Whether access to the public and press galleries should be restricted to approved persons, given concerns about witness intimidation
- Whether hearsay evidence of what jurors had told a detective about a fellow juror's conduct during deliberations was admissible in support of the motion
- Whether special transport arrangements for jurors were appropriate, and whether such arrangements could unfairly prejudice the accused in the eyes of the jury
- Whether the jury should be sequestered during deliberations
Decision
Dunford J declined to restrict access to the public and press galleries. His Honour applied the longstanding principle from Scott v Scott that justice must be administered in open court. The evidence that some witnesses were afraid to give evidence did not, by itself, justify limiting gallery access to accredited persons only. His Honour left open the possibility of imposing a lesser measure, such as requiring gallery visitors to provide their names and addresses, if circumstances later warranted it.
On the admissibility of the jurors' accounts of deliberations from the earlier trial, Dunford J rejected the Crown's evidence. Drawing on a consistent line of authority, including Ellis v Deheer, R v Emmett, and the Full Court decision in R v Brown, his Honour held that public policy requires the secrecy and integrity of jury deliberations to be preserved absolutely. The court could not receive evidence of what occurred during a jury's deliberations, even where there had been no verdict and even where the purpose was to protect the integrity of a future trial rather than to set aside an existing one. Because the same public policy considerations applied to hearsay accounts of jury deliberations, that evidence was excluded.
Despite rejecting that evidence, Dunford J proceeded to consider the transport order on the remaining evidentiary foundation, which included evidence from R v Richards concerning a prior approach made to a juror. His Honour accepted that the special transport arrangements were justified. Referring to the Court of Criminal Appeal's reasoning in R v Richards, he found that a reasonable-minded juror would not necessarily draw any adverse inference against the accused merely from being driven to and from court. Any residual concern could be addressed by a direction to the jury not to attribute the arrangements to any wrongful conduct by the accused.
On sequestration, Dunford J indicated a present intention to make an order sequestering the jury once it retired to deliberate, though he declined to make that order at that stage of the proceedings.
Orders Made
- A non-publication order was continued, covering all matters relating to the application
- Order 2 was made: the Sheriff was authorised to provide transportation for jurors to and from court in a manner deemed appropriate by the Sheriff
- Order 1 (restricted gallery access) was refused on the evidence then available
- Order 3 (sequestration during deliberations) was not made at this stage, though Dunford J indicated an intention to make it when the time came
- Order 4 (in-camera hearing) had been addressed by the non-publication order, made without objection
Key Takeaways
- The principle that justice must be administered in open court, confirmed in Scott v Scott, remains a high threshold: evidence that witnesses were fearful did not, without more, justify restricting public gallery access in this case.
- Evidence of what occurs during jury deliberations is inadmissible as a matter of public policy, regardless of whether the purpose is to set aside a verdict, punish a juror, or protect the integrity of a future trial. The rule, as expressed by the Full Court in R v Brown, is stated in absolute terms and Dunford J treated it as binding.
- The exclusionary rule extends to hearsay accounts of jury deliberations, not only to direct evidence from the jurors themselves, where the same public policy considerations apply.
- Special jury transport arrangements do not automatically give rise to a presumption of bias against accused persons in the minds of jurors. Any risk of prejudice can be addressed through an appropriate jury direction.
- Under s 54(a) of the Jury Act 1977, jury sequestration during deliberations remains available in long or complex trials, even though it is no longer the norm.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), s 54(a)
Cases
- Scott v Scott [1913] AC 417
- Ellis v Deheer [1922] 2 KB 113
- R v Brown (1907) 7 SR 290
- R v Emmett (1988) 14 NSWLR 327
- R v Renaldi (1993) 68 A Crim R 284
- R v Richards (1999) 107 A Crim R 318