Citation: Regina v JP (No 2) [2013] NSWSC 1679
Court: Supreme Court of New South Wales
Date: 31 October 2013
Judge: Hall J
Background
The accused stood trial on charges of murder and manslaughter, with the jury retiring to consider its verdict on 28 October 2013. During deliberations, a juror used her iPhone overnight to research the legal definitions of "murder" and "manslaughter," then brought that research into the jury room the following morning.
The jury foreperson sent a note to the court advising that the juror had been making her own internet inquiries and discussing her findings with other jurors. Hall J examined both the foreperson and the juror in question under s 55DA of the Jury Act 1977. On 30 October 2013, the court discharged the offending juror for misconduct under s 53A(1)(c) of the Act.
Senior counsel for the accused then applied for the entire remaining jury to be discharged under s 53C(1)(a) of the Act, arguing that the misconduct had contaminated the panel as a whole.
Legal Issues
- Whether the discharged juror's internet research and in-room discussion contaminated the remaining eleven jurors to a degree that risked a substantial miscarriage of justice.
- Whether the trial should continue with eleven jurors under s 53C of the Jury Act 1977, or whether the whole jury should be discharged.
Decision
Hall J refused the application to discharge the entire jury and ordered the trial to continue with the remaining eleven jurors. His Honour's reasoning turned on the limited scope and brief duration of the contamination, as well as the prompt intervention by the foreperson on both occasions the research was raised.
In the first episode, the juror placed her phone on the table and mentioned she had been researching the difference between murder and manslaughter. The foreperson immediately directed her to put the phone away, and the episode lasted no more than one to two minutes. Only one other juror appeared to have been in a position to read anything on the screen, and the juror did not articulate the content of her research at that point.
In the second episode, which occurred roughly two hours later, the juror mentioned that her research identified "malice" as the distinguishing concept between murder and manslaughter. Up to four jurors began responding, but the foreperson promptly intervened again and directed the group to stop. The word "malice" had not featured in counsel's addresses or in the summing-up directions, and the jury had received comprehensive written and oral directions on the elements of both offences.
Hall J concluded that the impermissible material, in the limited form it was communicated, did not give rise to a risk of substantial miscarriage of justice. The jury had demonstrated conscientiousness throughout the trial and understood the legal framework within which they were required to deliberate. The brief reference to an archaic concept not appearing anywhere in the trial directions was unlikely to mislead or confuse the remaining jurors as to the elements of either offence.
Orders Made
- Pursuant to s 53C of the Jury Act 1977, the trial is to continue with the remaining eleven jurors.
Key Takeaways
- Not every instance of juror misconduct involving internet research will infect the whole panel. The Supreme Court assessed contamination risk by examining the precise content disclosed, the brevity of the exposure, and the conduct of the other jurors in response.
- Where a foreperson intervenes promptly and effectively to halt the communication of impermissible research, that intervention is a significant factor weighing against a finding of whole-jury contamination.
- Under s 53C of the Jury Act 1977, a court may order a trial to continue with a reduced jury following the discharge of an individual juror for misconduct, provided the remaining jurors have not been contaminated in a way that risks substantial miscarriage of justice.
- The nature of the impermissible material matters. The court considered it relevant that the only substantive concept disclosed, "malice," was an archaic legal term that had not appeared in any of the trial's directions, opening addresses, or closing submissions, reducing its capacity to mislead.
- Comprehensive and clear judicial directions on the elements of the offences charged are a relevant contextual consideration when assessing whether brief exposure to erroneous external material could distort jury deliberations.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), ss 53A, 53C, 55DA
Cases
- R v Sio (No 4) [2013] NSWSC 1415
- Wu v The Queen [1999] HCA 52; 199 CLR 99