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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: NSW Court of Criminal Appeal
Date: 21 December 2010
Judge(s): McClellan CJ at CL, McCallum J, R A Hulme J

Background

The appellant was tried in the District Court on charges of detaining a person for advantage, doing an act to influence a witness to withhold evidence, and indecent assault. The charges arose from an incident on 30 December 2007 in which the Crown alleged the appellant imprisoned his then-partner in her home for approximately three hours, made threats while holding a knife, and attempted to dissuade her from giving evidence in a related assault matter. The appellant denied the detention, claiming he had locked the doors out of concern about a third party who had been at the house earlier that night.

During the trial, evidence emerged that the appellant was an adherent of Falun Gong, a Chinese spiritual practice. The complainant's evidence touched on this, and defence counsel cross-examined her about it. The topic was peripheral to the main issues in dispute.

On the fourth day of trial, a court officer reported that a juror had mentioned accessing the internet to search for information about Falun Gong. The trial judge acknowledged he had failed to direct the jury not to conduct internet searches, but expressed the view that the search was unlikely to have caused any harm and declined to discharge the jury. The jury returned guilty verdicts on the first and third charges, and the appellant was sentenced to a total of seven years three months imprisonment. He appealed against both his convictions and his sentence.

  • Whether the trial judge was required under the Jury Act 1977 to discharge the juror who had conducted an independent internet search about a matter raised in evidence.
  • Whether the trial judge was required to conduct a formal examination of the juror under the relevant provisions of the Jury Act 1977 to determine what information had been obtained and what prejudice, if any, had resulted.
  • Whether the trial judge gave adequate directions to the remaining jury about the impermissibility of using information obtained from outside sources.

Decision

The Court of Criminal Appeal found that the trial judge had failed to follow mandatory statutory procedures triggered when a juror conducts a prohibited inquiry into a matter relevant to the trial. The Jury Act 1977, as amended, imposed specific obligations on the trial judge once such conduct came to light: the judge was required to examine the juror to determine whether misconduct had in fact occurred, and if so, to discharge that juror. These steps were not discretionary.

Instead, the trial judge formed his own assessment that the internet search was harmless and declined to take the steps required by the legislation. His Honour noted, among other things, that the persecution of Falun Gong practitioners was widely known and that the search might even assist the accused. The Court found that this approach, however well-intentioned, was inconsistent with the mandatory nature of the statutory scheme.

On the question of the jury directions, the Court acknowledged that the trial judge had repeatedly directed the jury to decide the case only on "the evidentiary material," a term he defined as oral testimony and exhibits. The Court accepted that these directions were sufficiently clear and frequent that there was no realistic prospect the jury decided the case on anything other than the evidence before it. However, this finding on directions did not cure the underlying procedural failure.

Because the trial judge had not complied with the mandatory requirements of the Jury Act 1977 in response to the juror's conduct, the appeal against conviction was allowed and the convictions were quashed. Given that outcome, the Court found it unnecessary to rule on the sentence appeal.

Orders Made

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

Key Takeaways

  • Where a juror conducts a prohibited inquiry into a matter relevant to a trial, the Jury Act 1977 imposes mandatory obligations on the trial judge, including examining the juror and, if misconduct is established, discharging that juror. These steps are not at the judge's discretion.
  • A trial judge's personal assessment that an internet search was unlikely to cause prejudice does not substitute for compliance with the mandatory statutory procedures governing juror misconduct.
  • Under the Jury Act 1977, as amended by the Jury Amendment Act 2004 and Jury Amendment Act 2008, the examination of a juror suspected of conducting a prohibited inquiry is a required step before any other decision is made about the consequences of that conduct.
  • Clear and repeated judicial directions to the jury to decide the case only on the evidence presented may be relevant to assessing overall fairness, but they cannot remedy a failure to follow mandatory procedural requirements triggered by juror misconduct.
  • In dismissing the sentence appeal as unnecessary, the Court of Criminal Appeal confirmed that a successful conviction appeal will ordinarily render a related sentence appeal moot.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61L, 86(1), 323(a)
- Jury Act 1977 (NSW), including s 55DA
- Jury Amendment Act 2004 (NSW)
- Jury Amendment Act 2008 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Katsuno v The Queen [1999] HCA; 199 CLR 40
- Maher v The Queen [1987] HCA 31; 163 CLR 221
- R v Brown & Tran [2004] NSWCCA 324; 148 A Crim R 268
- R v Dempster [1924] SASR 299
- R v Petroulias [2007] NSWCCA 134; 73 NSWLR 134
- R v Short (1898) 15 WN (NSW) 140