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Court of Criminal Appeal 9 July 2015

Carr v R

[2015] NSWCCA 186

Public order & justice offences
APPEAL CRIMINAL APPLICATION TO DISCHARGE JUROR APPLICATION REFUSED WHETHER MISCONDUCT OF JUROR APPLICATION TO DISCHARGE

Citation: Carr v R [2015] NSWCCA 186
Court: Court of Criminal Appeal, NSW
Date: 9 July 2015
Judge(s): Basten JA, McCallum J, R A Hulme J

Background

The applicant was tried alongside two co-accused in the District Court and was convicted on eight counts following a jury trial. The trial judge sentenced him to an aggregate term of 15 years' imprisonment with a non-parole period of just over nine years.

During the trial, court staff discovered four newspaper clippings reporting on trial events in the jury room. The clippings had been cut out and brought in by the foreperson. Three of the articles related to a prominent witness's evidence; one reported on the prosecutor's opening. One article incorrectly identified the applicant as having been charged with an offence he was never actually charged with.

The trial judge responded by questioning the foreperson on oath. The foreperson admitted bringing the clippings but denied that he or any other juror had conducted internet searches or made inquiries outside the jury room. The judge gave strong directions to address any prejudice from the misidentified charge and declined to discharge either the foreperson or the jury. The applicant sought leave to appeal, arguing the judge erred in those decisions.

  • Whether the foreperson's conduct in bringing newspaper clippings into the jury room constituted "misconduct" under s 53A(1)(c) of the Jury Act 1977 (NSW), specifically whether it amounted to a prohibited inquiry under s 68C.
  • Whether the trial judge was required to discharge the jury under s 53C of the Jury Act once any individual juror had been discharged.
  • Whether the trial judge erred by limiting the examination of the foreperson and jurors to questions about internet and social media searches, rather than inquiring more broadly.

Decision

The Court granted leave to appeal on the basis that the grounds raised mixed questions of fact, inference, and law rather than questions of law alone. However, it dismissed the appeal on all grounds.

On Ground 1, the Court found that neither reading newspaper accounts of a trial nor physically bringing clippings into the jury room constituted a "prohibited inquiry" within the meaning of s 68C. The trial judge had in fact told the jury they were not prohibited from reading newspapers. The conduct that would trigger the mandatory discharge obligation was making an inquiry to obtain information about the accused or trial matters outside the proper exercise of juror functions. Clipping and carrying news reports did not, of itself, cross that line.

The real concern, the Court observed, was whether a juror had gone further and searched the internet. The foreperson was questioned on oath and denied any such search. The trial judge was satisfied the denial was truthful, and nothing in the transcript suggested otherwise. Without an established inference that an internet search had occurred, there was no basis to find the misconduct required to trigger the mandatory discharge obligation.

Ground 2 fell away because it was consequential on Ground 1: the power to discharge the whole jury under s 53C only arises after an individual juror has first been discharged. Since no discharge of the foreperson was warranted, the question of jury discharge did not arise. On Ground 3, the Court noted that no party at trial had requested broader questioning of jurors, and no specific further inquiry was suggested on appeal either. This ground added nothing to the applicant's case.

Orders Made

  • Leave to appeal granted, but the appeal dismissed.
  • Applications by co-accused Glover and Stuart to amend their notices of appeal to include the same grounds also dismissed.

Key Takeaways

  • Under s 53A(1)(c) of the Jury Act 1977, a court must discharge a juror only where the juror has engaged in "misconduct," which relevantly requires either a breach of s 68C (making a prohibited inquiry) or conduct giving rise to a risk of substantial miscarriage of justice.
  • Bringing newspaper clippings into a jury room does not, without more, constitute a prohibited inquiry under s 68C, particularly where the trial judge has not instructed jurors to refrain from reading newspapers.
  • The power to discharge an entire jury under s 53C is contingent on a juror first having been discharged during the trial; it is not an independent power that can be invoked on its own.
  • In dismissing the appeal, the Court confirmed that a foreperson's sworn denial of internet searching, accepted as truthful by the trial judge, was a sufficient basis for declining to discharge the juror where no contrary inference was otherwise available.
  • A ground of appeal criticising the scope of judicial inquiry into juror conduct will not succeed where no broader inquiry was sought at trial and no specific alternative line of questioning is identified on appeal.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Jury Act 1977 (NSW), ss 53A, 53C, 68C

Cases
- Webb v The Queen (1994) 181 CLR 41
- Regina v Pearson [2000] NSWCCA 149; 114 A Crim R 80