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Supreme Court 28 August 2014

R v JH (No 3)

[2014] NSWSC 1966

Public order & justice offences
CRIMINAL LAW JURIES JUROR MISCONDUCT DISCHARGE OF JUROR

Citation: R v JH (No 3) [2014] NSWSC 1966
Court: Supreme Court of New South Wales
Date: 28 August 2014
Judge(s): Hall J

Background

During a criminal trial before the Supreme Court, the foreperson sent a note to the trial judge advising that a fellow juror had searched the internet for a photograph of the deceased. The foreperson had not shared this information with any other juror. Hall J immediately separated the juror in question from the rest of the jury and conducted a formal examination under the Jury Act 1977.

On examination, the juror acknowledged searching Google Images using the deceased's name. She explained that she wanted to see his face without injuries, as distressing images of the deceased had been shown during the trial. The search returned not only photographs of the deceased but also an image of his parents holding a framed photograph of him, which the juror viewed.

Hall J delivered brief reasons on the day and later provided these more detailed reasons explaining why the juror was discharged and the trial continued with the eleven remaining jurors.

  • Whether the juror's internet search constituted a contravention of s 68C of the Jury Act 1977, which prohibits jurors from making inquiries about the accused or any matters relevant to the trial outside their proper functions as a juror
  • Whether the juror's conduct amounted to "misconduct" within the meaning of the Jury Act 1977 warranting discharge under s 53B
  • Whether the internet search, and the image it produced, created a risk of substantial miscarriage of justice sufficient to justify discharge

Decision

Hall J found that the juror's internet search clearly contravened s 68C of the Jury Act 1977. That provision expressly includes "conducting any research, for example, by searching an electronic database for information (such as by using the Internet)" within the definition of making an inquiry. The juror had been directed not to conduct external research, and her acknowledgment that she searched for the deceased's name at home left no room for doubt.

The court emphasised the foundational principle that a jury verdict must be based solely on the evidence presented in court, not on material gathered independently. This principle was drawn from the reasoning in R v Karakaya, where the English Court of Appeal described the rationale for prohibiting juror inquiries as "simple": the case must be decided on evidence produced before the jury after hearing argument and directions.

Hall J acknowledged that the image the juror viewed, of the deceased's parents holding a framed photograph of their son, did not directly bear on a fact in issue. However, it was plainly capable of eliciting strong emotion and had the potential to operate as an extraneous consideration during deliberations. The court was satisfied that the juror's prompt separation from the other jurors prevented any risk of a substantial miscarriage of justice spreading to the broader jury, but that the juror herself could not continue.

The court also reflected on the particular challenges posed by the internet in this context. While the ease of access to online information is unprecedented, much of that information is inaccurate, biased, or not legally applicable, making independent juror research all the more problematic.

Orders Made

  • The juror was discharged from the jury pursuant to s 53B of the Jury Act 1977.
  • The juror was issued a certificate pursuant to s 55DA of the Jury Act 1977.

Key Takeaways

  • Searching the internet for information about any person or matter connected to a trial, including searching for photographs, constitutes making an "inquiry" in breach of s 68C of the Jury Act 1977.
  • Under s 55DA of the Jury Act 1977, a trial judge may examine a juror on oath to determine whether conduct amounting to a contravention of s 68C has occurred, and the examination of both the juror and the foreperson formed a central part of the court's process here.
  • The court confirmed that an image obtained through an independent internet search need not directly bear on a contested fact in order to give rise to a real risk of prejudice: material capable of eliciting strong emotion carries its own potential to distort deliberations.
  • Prompt action to quarantine the affected juror from fellow jurors was critical to the court's satisfaction that no broader risk of miscarriage of justice had materialised, allowing the trial to continue with eleven jurors.
  • The Supreme Court noted the broader concern that internet content, including images drawn from media reporting, may be inaccurate, emotionally charged, or otherwise unsuitable as a basis for jury deliberation, reinforcing why the prohibition in s 68C exists.

Legislation and Cases Referenced

Legislation
- Jury Act 1977 (NSW), ss 53B, 55DA, 68C
- Evidence Act 1995 (NSW)

Cases
- R v Karakaya [2005] EWCA Crim 346
- R v Bilal Skaf, R v Mohammed Skaf [2004] NSWCCA 37
- Folbigg v R [2007] NSWCCA 371
- R v K [2003] NSWCCA 406
- R v JP (No 1) [2013] NSWSC 1678
- R v JP (No 2) [2013] NSWSC 1679
- R v Sio (No 3) [2013] NSWSC 1414
- Attorney General v Dallas [2012] EWHC 156
- R v Hawkins [2005] EWCA Crim 2842
- R v Marshall [2007] EWCA Crim 35