Citation: R v Ronald Edward Medich (No. 23) [2017] NSWSC 267
Court: Supreme Court of New South Wales
Date: 17 March 2017
Judge: Bellew J
Background
The accused was on trial before a jury of fourteen in what was evidently a substantial criminal proceeding. During the trial, a Crown Prosecutor unconnected with the case was told by a friend (who is a solicitor) that the solicitor's spouse was serving on the jury. The Crown Prosecutor told the solicitor to say nothing further about it.
Despite that warning, the solicitor raised the subject again at a subsequent lunch with the Crown Prosecutor. The solicitor made an unsolicited comment comparing the cross-examination styles of the two lead counsel in the trial, a detail that could only have come from the juror spouse. That evening, the solicitor also texted the Crown Prosecutor to mention that a mutual acquaintance had been spotted in the courtroom, again information apparently sourced from the juror.
The Crown Prosecutor's junior counsel notified the trial judge's associate by email. Bellew J heard submissions the following morning, took sworn evidence from the Crown Prosecutor, and then examined the juror in closed court.
Legal Issues
- Whether sufficient grounds existed under s 53B(d) of the Jury Act 1977 (NSW) to discharge a sitting juror.
- Whether the juror had acted in contravention of the court's repeated directions not to discuss the case with anyone outside the jury.
- Whether the juror's denial of having discussed the trial with his partner could be accepted.
Decision
Bellew J received sworn evidence from the Crown Prosecutor, who recounted three separate contacts with the solicitor friend: an initial disclosure that the friend's spouse was on the jury, an unsolicited lunchtime comment comparing counsel's cross-examination styles, and an evening text message identifying a mutual acquaintance who had been in the courtroom that day. His Honour found that the juror was the apparent source of all three pieces of information.
The juror was then examined under oath in closed court under s 55DA of the Act, which empowers a judge to examine a juror to determine whether conduct in contravention of s 68C has occurred. Section 68C prohibits jurors from making inquiries about trial matters outside the proper exercise of their functions, and provides that any act in contravention of a judicial direction is not such a proper exercise. The juror denied discussing the trial or commenting on counsel's styles, though he did admit to telling his partner that he had recognised a solicitor in the courtroom.
Bellew J found the juror's denials difficult to accept and expressed grave misgivings about their truthfulness. His Honour was satisfied that there was at minimum a real concern the juror had failed, perhaps on more than one occasion, to comply with the court's directions. That failure was, by definition, not a proper exercise of the juror's functions. Both the accused's counsel and the Crown did not oppose discharge.
Separately, Bellew J was critical of the conduct of the solicitor who initiated and continued the communications with the Crown Prosecutor. His Honour described the original disclosure as entirely inappropriate, the subsequent lunchtime comment as even more inappropriate, and the arrangement to meet for lunch at all as unfortunate and ill-advised in the circumstances.
Orders Made
- Juror number 01737387 was discharged.
- The trial was to continue with the remaining thirteen jurors.
Key Takeaways
- Under s 53B(d) of the Jury Act 1977 (NSW), a judge may discharge a juror where there is sufficient cause to believe the juror has not complied with judicial directions governing conduct during a trial.
- Section 55DA of the Act provides a mechanism for examining a juror on oath to determine whether conduct in contravention of s 68C has occurred, and the evidence given in that examination may attract a certificate protecting it from later use against the juror.
- A juror who communicates information about proceedings to someone outside the jury, in defiance of a direction not to do so, is not acting in the proper exercise of their functions as a juror, within the meaning of s 68C.
- The court found that a solicitor who initiates or continues unsolicited conversations about an ongoing trial with a practitioner having any connection to that trial acts inappropriately, regardless of their own lack of direct involvement in the proceedings.
- Discharging a juror mid-trial does not necessarily terminate the proceedings; the Supreme Court here directed the trial to continue with the thirteen remaining jurors.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), ss 53B(d), 55DA, 68C
Cases: No cases were cited in the judgment.