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3
Supreme Court 23 September 2013

R v Sio (No 3)

[2013] NSWSC 1414

Public order & justice offences
CRIMINAL LAW JURY ACT 1977 JUROR MISCONDUCT INTERNET RESEARCH DISCHARGE OF JUROR

Citation: R v Sio (No 3) [2013] NSWSC 1414
Court: Supreme Court of New South Wales
Date: 23 September 2013
Judge(s): Adamson J

Background

During a criminal trial, jury members raised a concern with the Sheriff's Officer late on Friday afternoon that a fellow juror had been conducting Internet research on legal matters connected with the proceedings. The judge had given both oral and written directions at the commencement of the trial expressly prohibiting jurors from conducting any Internet or other research into matters relevant to the trial.

On the following Monday morning, the court received a jury note confirming that the juror in question had taken the indictment and written directions of law home to study, and had let slip to other jurors that she had conducted research about "obligations of law." The note also raised concerns about that juror's understanding of the directions on how to reach a verdict.

The trial judge then conducted a formal examination to determine whether the juror had engaged in misconduct under the Jury Act 1977, which would trigger an obligation to discharge her.

  • Whether the juror had contravened s 68C of the Jury Act 1977 by conducting Internet research into legal matters relevant to the trial
  • Whether the trial judge was satisfied of misconduct to the standard required to trigger the mandatory discharge obligation under s 53A of the Act
  • Whether s 55DA of the Act permits the examination on oath of jurors who are not themselves suspected of misconduct, in order to investigate an allegation against another juror

Decision

The trial judge examined the suspected juror on oath under s 55DA(1) of the Jury Act 1977. The juror denied conducting any Internet research connected with the current trial, claiming her only research had occurred the previous year upon first receiving a jury summons. Adamson J rejected that evidence.

The foreperson and a second juror both gave evidence that the juror had disclosed to other members of the jury, as they were leaving on Friday afternoon, that she had taken documents home and had conducted Internet research. The other jurors were shocked, one instructing her to "cease and desist." No details of the research content were communicated, and the remaining jurors promptly reported the matter to the Sheriff's Officer.

On the question of whether non-suspected jurors could be examined, Adamson J held that s 55DA authorises such examination. The judge reasoned that the use of the indefinite article before "juror" in the provision (referring to "a juror" rather than "the juror") indicates a parliamentary intention to permit examination of jurors beyond the one specifically suspected of misconduct.

Satisfied on the evidence of the foreperson and second juror that the relevant juror had conducted Internet research on legal matters relating to the trial, Adamson J found she had engaged in misconduct within the meaning of s 68C. That finding activated the mandatory discharge obligation under s 53A, leaving the court with no discretion in the matter.

Orders Made

  • The relevant juror was discharged from the jury.

Key Takeaways

  • Under s 53A of the Jury Act 1977, discharge of a juror who has engaged in misconduct in relation to a trial is mandatory, not discretionary: once misconduct is established, the court has no choice but to discharge that juror.
  • A trial judge need not be satisfied of misconduct to the criminal standard of beyond reasonable doubt. The threshold applied, consistent with Smith v The Queen [2010] NSWCCA 325, is one of satisfaction on the evidence rather than proof beyond reasonable doubt.
  • Conducting Internet research on legal matters relevant to a trial constitutes a contravention of s 68C(1) of the Jury Act 1977 and, where it is also contrary to the judge's directions, additionally breaches s 68C(4).
  • Adamson J held that s 55DA authorises the examination on oath of jurors who are not themselves suspected of misconduct, a reading based on the use of the indefinite article in the provision's text.
  • The decision illustrates the significance of clear, written jury directions prohibiting Internet research: those directions formed the foundation for the finding that the juror's conduct was both a statutory offence and a breach of the court's directions.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), ss 53A, 55DA(1), 68C(1), 68C(4), 68C(5)

Cases:
- Smith v The Queen [2010] NSWCCA 325; 79 NSWLR 675