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Court of Criminal Appeal 21 December 2010

Smith v R

[2010] NSWCCA 325

Also reported as (2010) 79 NSWLR 675
Assault & violenceDomestic & family violencePublic order & justice offences
CRIMINAL LAW APPEAL AND NEW TRIAL

Citation: Smith v R [2010] NSWCCA 325
Court: Court of Criminal Appeal
Date: 21 December 2010
Judge(s): McClellan CJ at CL, McCallum J, R A Hulme J (Hulme J delivered the principal judgment, with the others agreeing)

Background

The appellant was convicted in the District Court of detaining a person for advantage and indecent assault, following a trial before Judge Nield. The offences related to an incident in December 2007 in which the appellant was alleged to have imprisoned his partner in her own home for several hours, threatening and abusing her. He was sentenced to an overall term of seven years and three months imprisonment.

During the trial, evidence emerged that the appellant was an adherent of Falun Gong. The topic arose briefly in the complainant's evidence and was explored in cross-examination, touching on Chinese government persecution of Falun Gong practitioners and the appellant's reasons for changing his name.

On the fourth day of the trial, the judge was informed that a juror had made a comment to a court officer about having accessed the internet to look up Falun Gong. The trial judge declined to discharge the juror or the jury, gave a general direction to the jury about not using outside sources, and the trial continued to verdicts of guilty.

Legal Issues

  • Whether the trial judge erred in failing to discharge the jury once it became apparent that a juror had conducted an independent internet inquiry into a matter relevant to the trial
  • Whether the trial judge erred in failing to conduct an examination of the juror under section 55DA of the Jury Act 1977 to determine whether misconduct had occurred
  • Whether the trial judge failed to adequately direct the jury regarding any information the juror may have obtained from the internet

Decision

Ground 1: Failure to discharge the juror

Section 68C of the Jury Act 1977 makes it an offence for a juror to conduct research, including via the internet, for the purpose of obtaining information about matters relevant to a trial. Section 53A, introduced in 2008, requires a trial judge to mandatorily discharge a juror who has engaged in misconduct, which expressly includes conduct constituting an offence under section 68C. The Court found that once the judge was on notice of a possible contravention, the mandatory discharge obligation under section 53A was engaged. A failure to discharge a juror who should have been discharged amounts to a failure to comply with a mandatory provision relating to the constitution and authority of the jury, which is a fundamental flaw in the trial process.

The Court accepted that it was most likely the judge did find, at least implicitly, that the juror had made an internet inquiry. That finding, taken with the statutory framework, meant the juror should have been discharged. Because the issue was not properly explored or resolved, the Court could not exclude the possibility that a miscarriage of justice had occurred.

Ground 2: Failure to examine the juror under section 55DA

Section 55DA expressly empowers a judge to examine a juror on oath to determine whether a contravention of section 68C has occurred. The Court found the judge should have used this power. Examination of the juror would have confirmed or dispelled the alleged inquiry, clarified its purpose, and allowed the judge to determine whether mandatory discharge was required. The information available to the judge came through at least second or third-hand hearsay, making it an unsatisfactory basis for proceeding without examination. Because this step was not taken, the question of misconduct was never properly resolved, and the trial miscarried.

Ground 3: Adequacy of jury directions

The Court was not persuaded that this ground was made out. The judge had consistently directed the jury throughout the trial and summing up that verdicts could only be based on "evidentiary material," a term he had expressly defined as comprising the oral testimony and the exhibits in the trial. The topic of Falun Gong was peripheral to the central issues, and the Court found there was no real prospect that the jury failed to apply itself appropriately. This ground was dismissed.

Orders Made

  • Appeal against conviction allowed
  • Convictions quashed
  • New trial directed

Key Takeaways

  • Section 53A of the Jury Act 1977 imposes a mandatory obligation to discharge a juror who has engaged in misconduct, including conduct constituting an offence under section 68C. The obligation is not subject to any assessment of whether the conduct caused actual prejudice to the accused or the Crown.
  • Under section 68C, a juror conducting internet research into matters relevant to a trial commits an offence, regardless of the content of what is found. The prohibition applies from the time of being sworn in until discharge.
  • Section 55DA provides an express mechanism for examining a juror on oath to determine whether a contravention of section 68C has occurred. Failure to use that power, where the circumstances called for it, contributed directly to the miscarriage of justice found in this case.
  • A conviction cannot stand where the trial process is flawed in a fundamental respect, including a failure to comply with mandatory provisions relating to the constitution and authority of the jury. This principle applies even where the underlying conduct appears unlikely to have caused actual prejudice.
  • The criminal standard of proof does not apply when a judge is determining, under section 53A, whether a juror has engaged in misconduct sufficient to warrant mandatory discharge. The section imposes no such requirement.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated