Citation: R v Sio (No. 4) [2013] NSWSC 1415
Court: Supreme Court of New South Wales
Date: 23 September 2013
Judge(s): Adamson J
Background
This decision arose during a criminal trial before Adamson J. In a preceding judgment (R v Sio (No. 3) [2013] NSWSC 1414), the court had already discharged one juror for misconduct after it emerged she had conducted unauthorised internet research at home. The research related to legal concepts including the standard of proof and juror responsibilities.
Once the misconduct was discovered, the remaining jurors reacted promptly. The foreperson and others present refused to hear the contents of the research and told the juror to stop. The matter was then reported to the Sheriff's Officer, which led to the court's examination of the juror and, ultimately, her discharge.
After discharging the individual juror, the court turned to the separate and distinct question of whether the entire jury should also be discharged, or whether the trial should continue with the remaining eleven jurors.
Legal Issues
- Whether the discharge of a single juror for misconduct should lead to the discharge of the whole jury under s 53C(1) of the Jury Act 1977 (NSW)
- Whether the unauthorised internet research conducted by the discharged juror had contaminated the remaining jurors, giving rise to a risk of a substantial miscarriage of justice
- Whether questions the discharged juror had previously raised during deliberations may have infected the jury's thinking more broadly
Decision
Adamson J confirmed that the question of discharging a single juror and the question of discharging the whole jury are legally distinct and must be addressed separately, as established by the High Court in Wu v The Queen (1999) 199 CLR 99. Under s 53C(1) of the Jury Act 1977, the court must discharge the entire jury if continuing with the remaining jurors would give rise to a risk of a substantial miscarriage of justice. If no such risk exists, the court must order the trial to continue with a reduced number, provided the number does not fall below ten (s 22).
The court examined both the foreperson and a second juror under oath. Their evidence was consistent: when the discharged juror began to disclose the contents of her research, the other jurors told her to stop and she did. None of the remaining jurors heard the substance of what she had found.
The defence submitted that the jury may have been contaminated because questions the discharged juror had raised during deliberations (including questions about terms such as "positive act," "participation," and "beyond reasonable doubt") may have had their origin in the unauthorised research. Adamson J acknowledged this was possible but characterised the second juror's remarks on this point as hindsight speculation. Critically, those questions had not revealed to the other jurors that any research had been conducted, nor disclosed the contents of that research.
The court concluded that the timely intervention by the foreperson and other jurors was sufficient to prevent any contamination of the jury as a whole. There was no risk of a substantial miscarriage of justice, and the trial was ordered to continue with eleven jurors.
Orders Made
- The trial continue with the remaining eleven jurors.
Key Takeaways
- The question of discharging a single juror and the question of discharging the whole jury are distinct legal questions that must be addressed separately, following Wu v The Queen (1999) 199 CLR 99.
- Under s 53C(1) of the Jury Act 1977 (NSW), the court must discharge the whole jury only if continuing with the remaining jurors would give rise to a risk of a substantial miscarriage of justice; absent that risk, the trial must continue with a reduced number.
- Prompt action by fellow jurors to stop a misbehaving juror from disclosing the contents of unauthorised research can be sufficient to prevent contamination of the remaining jury panel.
- Where questions raised by a juror during deliberations may speculatively have arisen from unauthorised research, that speculation alone does not establish contamination if the other jurors were unaware either that research had occurred or what it contained.
- The court declined to further examine jurors about questions raised during deliberations, citing the limits on judicial inquiry into jury deliberations established in R v K [2003] NSWCCA 406.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), ss 22, 53A, 53C, 53C(1), 53C(1)(b)
Cases
- Wu v The Queen [1999] HCA 52; 199 CLR 99
- R v K [2003] NSWCCA 406; 59 NSWLR 431
- R v Sio (No. 3) [2013] NSWSC 1414