Citation: R v JH (No 4) [2014] NSWSC 1967
Court: Supreme Court of New South Wales
Date: 28 August 2014
Judge(s): Hall J
Background
The accused stood trial on a charge of murder. On the fourth day of trial, the jury sent a note to the presiding judge advising that one juror had conducted an internet search for images of the deceased and had told the foreperson about it.
Hall J examined both the foreperson and the relevant juror under the procedure in s 55DA of the Jury Act 1977. The juror confirmed she had conducted a Google image search, which returned a photograph of the deceased's parents holding a picture of the deceased. She stated no text appeared under the images and she did not click on them; she replicated the searches on an iPad in the witness box.
Following the discharge of that juror under s 53A(1)(c) of the Act on the ground of misconduct, counsel for the accused applied for the entire jury to be discharged. The Crown opposed the application.
Legal Issues
- Whether continuing the trial with the remaining eleven jurors would give rise to a risk of a substantial miscarriage of justice under s 53C(1)(a) of the Jury Act 1977.
- Whether the misconduct of the discharged juror had contaminated the remaining members of the jury.
- Whether the foreperson's knowledge of the internet search undermined the jury's impartiality.
Decision
Hall J determined that no risk of a substantial miscarriage of justice existed and ordered the trial to continue with eleven jurors. The court emphasised that the question of discharging a single juror and the question of discharging the whole jury are distinct inquiries, each requiring separate consideration, as confirmed in Wu v The Queen (1999) 199 CLR 99.
The court was satisfied on the evidence from both examinations that no other juror had been informed of the internet search or its results. The foreperson had not passed on the information to fellow jurors, and the juror in question had been quarantined promptly after making the disclosure. The foreperson's timely reporting was treated as a factor weighing against any finding of contamination.
Hall J applied the principle from Crofts v The Queen (1996) 186 CLR 427 that a jury should be discharged only where that course is necessary to prevent a miscarriage of justice, and that a high degree of need must appear before discharge will be ordered. The court acknowledged the gravity of a murder charge and the accused's right to a fair trial, but found those considerations did not outweigh the evidence that the remaining eleven jurors remained unaffected and capable of performing their duties impartially.
The jury was then brought back into court, informed briefly of the discharge and the circumstances, and reminded that making independent inquiries is a criminal offence under the Act.
Orders Made
- Pursuant to s 53C of the Jury Act 1977, the trial is to continue with the remaining eleven jurors.
Key Takeaways
- The question of discharging a single juror and the question of discharging the entire jury are legally distinct and must be addressed separately, as confirmed by the High Court in Wu v The Queen.
- Under s 53C(1)(a) of the Jury Act 1977, a whole jury must be discharged only where continuing would give rise to a risk of a substantial miscarriage of justice; a high degree of need for discharge must be established before that course is taken.
- Where examination of the foreperson and the offending juror established that no other juror had been told of the internet research, the Supreme Court found no contamination of the remaining jury.
- Prompt reporting by a foreperson and immediate quarantine of the juror in question were treated as relevant factors supporting a conclusion that the jury's integrity remained intact.
- Section 22 of the Jury Act 1977 permits criminal proceedings to continue with a reduced jury, provided the number does not fall below ten and the court orders continuation under Part 7A.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), ss 22, 53A, 53C, 55DA
Cases
- Crofts v The Queen (1996) 186 CLR 427
- Wu v The Queen (1999) 199 CLR 99
- R v K [2003] NSWCCA 406; 59 NSWLR 431
- R v Rinaldi & Kessey (1993) 30 NSWLR 605
- R v JH (No 3) [2014] NSWSC 1966