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Court of Criminal Appeal 3 August 2018

Hoang v R

[2018] NSWCCA 166

Sexual offencesPublic order & justice offences
CRIMINAL LAW CONVICTION APPEAL

Citation: Hoang v R [2018] NSWCCA 166
Court: NSW Court of Criminal Appeal
Date: 3 August 2018
Judge(s): Hoeben CJ at CL, Campbell J, N Adams J

Background

The appellant was tried on multiple counts of sexual offences. During the trial, evidence was led by the Crown (without objection) that the appellant had not obtained Working with Children clearances under the Child Protection (Working with Children) Act 2012 (NSW). On the evening of 5 November 2015, after the jury indicated it had reached agreement on eight counts, one juror (Juror A) conducted an internet search about Working with Children checks, apparently motivated by personal curiosity as a retired teacher. The following morning, Juror A shared the results with the other jurors.

When the trial judge received a note from the foreperson disclosing what had happened, she formed the view that Juror A had engaged in juror misconduct. Rather than first inquiring into or examining Juror A, the trial judge took ten verdicts the jury had reached (eight guilty and two not guilty), then discharged Juror A, and allowed the remaining ten jurors to deliberate on the two outstanding counts, returning two further guilty verdicts.

The appellant appealed against the convictions, arguing that Juror A's internet search constituted misconduct requiring mandatory discharge under s 53A of the Jury Act 1977 (NSW), and that the trial judge's failure to deal with that misconduct before taking verdicts was a fundamental error that could not be cured by the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW).

  • Whether Juror A's internet search constituted "misconduct" under s 53A of the Jury Act 1977 (NSW), either as an offence under s 68C (making an inquiry about a matter relevant to the trial) or as conduct giving rise to a risk of substantial miscarriage of justice under s 53A(2)(b).
  • Whether the trial judge erred by taking ten verdicts before addressing the question of Juror A's misconduct, and whether that error amounted to a breach of mandatory provisions governing the constitution and authority of the jury.
  • Whether the trial judge erred in not discharging the whole jury after discharging Juror A, and whether the two further guilty verdicts reached by the remaining ten jurors were infected by any earlier irregularity.

Decision

The Court was divided on the first issue, and the majority view (Hoeben CJ at CL and N Adams J) determined the outcome of the appeal. The majority concluded that Juror A had not engaged in misconduct within the meaning of s 53A of the Jury Act. The purpose of the internet search was Juror A's personal curiosity about why she herself had never obtained a Working with Children check, rather than a purpose of obtaining information about a matter relevant to the trial. The fact that Juror A later shared the results with fellow jurors did not, in the majority's view, establish that the search was made for the prohibited purpose under s 68C. The majority also concluded that the conduct did not give rise to a risk of substantial miscarriage of justice under s 53A(2)(b).

Campbell J dissented on the misconduct question. His Honour considered that the Working with Children clearance evidence had been led at trial, was actively addressed in defence counsel's closing address, and was plainly on Juror A's mind when she conducted the search. In his Honour's view, a person's motives can be mixed, and the dominant personal motive did not exclude the inference that the inquiry was also made for the purpose of obtaining information about a matter relevant to the trial. Campbell J therefore found misconduct established and held that the trial judge erred in taking ten verdicts before discharging Juror A, which, by concession of the Crown, would have constituted a breach of mandatory provisions going to the jury's constitution and authority, precluding application of the proviso.

Because the majority found no misconduct, the Crown's concession about the consequences of an erroneous failure to immediately discharge did not arise. The majority held that the trial judge's erroneous discharge of Juror A (absent actual misconduct) did not amount to a breach of a mandatory provision relating to the constitution and authority of the jury. The remaining jury of ten was validly constituted under s 22 of the Jury Act, and the two further verdicts were unaffected. All three grounds of appeal failed on the majority's analysis.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • The majority of the Court of Criminal Appeal held that a juror's internet search motivated by personal curiosity does not constitute an offence under s 68C of the Jury Act 1977 (NSW), which requires that the inquiry be made "for the purpose of obtaining information about any matters relevant to the trial." Purpose is the critical element.
  • Campbell J, in dissent, found that mixed or complex motivations do not necessarily exclude the proscribed purpose under s 68C, particularly where the subject matter of the search was squarely in evidence and addressed in closing addresses at trial.
  • Under s 53A of the Jury Act, a finding of misconduct triggers a mandatory obligation to discharge the juror immediately. The Crown conceded, and both the majority and Campbell J accepted, that a failure to comply with this mandatory discharge obligation upon a finding of misconduct would constitute a fundamental defect in the trial process, precluding reliance on the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW).
  • An erroneous decision to discharge a juror who had not in fact engaged in misconduct does not, of itself, constitute a breach of mandatory provisions relating to the jury's constitution and authority. Section 22 of the Jury Act authorises a trial to continue with a reduced jury of not fewer than ten members following a discharge.
  • The decision illustrates the significance of identifying a juror's purpose when assessing whether internet research during a trial crosses the threshold from permissible curiosity into prohibited conduct under s 68C of the Jury Act.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), ss 22, 53A, 53C, 55DA, 68C
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Child Protection (Working with Children) Act 2012 (NSW), Pt 3
- Crimes Act 1900 (NSW), ss 61M, 61O, 66A
- Evidence Act 1995 (NSW), s 75
- Jury Amendment Act 2004 (NSW)
- Jury Amendment Act 2008 (NSW)

Key Cases:
- Katsuno v The Queen (1999) 199 CLR 40; [1999] HCA 50
- Maher v The Queen (1987) 163 CLR 221; [1987] HCA 31
- AK v State of Western Australia (2008) 232 CLR 438; [2008] HCA 8
- Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52
- Kalbasi v The State of Western Australia (2018) 352 ALR 1; [2018] HCA 7
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Bahrami v R [2017] NSWCCA 8
- Petroulias v R (2007) 73 NSWLR 134; [2007] NSWCCA 134
- R v Brown & Tran (2004) 148 A Crim R 268; [2004] NSWCCA 324
- R v K (2003) 59 NSWLR 431; [2003] NSWCCA 406
- R v McCormack (1996) 85 A Crim R 445
- Li v R (2010) 265 ALR 445; [2010] NSWCCA 40
- Carr v R [2015] NSWCCA 186