Citation: Fenech v R [2019] NSWCCA 95
Court: NSW Court of Criminal Appeal
Date: 7 May 2019
Judge(s): Meagher JA, Bellew and Fagan JJ
Background
The appellant was convicted on 17 July 2016 following a jury trial in the District Court before Colefax DCJ. The offence was manufacturing methylamphetamine in a quantity not less than a large commercial quantity, contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). He was sentenced on 30 September 2016 to four years and six months imprisonment.
Following conviction, it came to light that members of the jury had made inquiries about trial matters outside the courtroom, in breach of s 68C of the Jury Act 1997 (NSW). Compounding that conduct, those same jurors failed to disclose what they had done when questioned by the Court.
The appellant appealed his conviction on the ground of jury misconduct. The Crown accepted that the misconduct had occurred and that it had fundamentally flawed the trial process.
Legal Issues
- Whether jury members made unauthorised inquiries about trial matters in contravention of s 68C of the Jury Act 1997 (NSW)
- Whether those jury members compounded the misconduct by failing to disclose their conduct when questioned by the Court
- Whether the misconduct constituted a miscarriage of justice requiring the conviction to be quashed and a new trial ordered
Decision
The Court of Criminal Appeal was satisfied, having reviewed the parties' submissions, that the jury misconduct had occurred as alleged. Two distinct forms of misconduct were identified: jurors making external inquiries about trial matters in breach of s 68C of the Jury Act 1997, and then failing to be candid with the Court when asked about that conduct.
The Crown conceded that both forms of misconduct were established and that together they rendered the trial process fundamentally flawed. On that basis, the Crown accepted that a miscarriage of justice had occurred.
The Court agreed with that assessment. It allowed the appeal, quashed both the conviction and the sentence, and ordered a new trial of the charge. The reasons were delivered some months after the orders themselves, which the Court acknowledged had been issued on 13 June 2018.
Orders Made
- The appeal against conviction is allowed
- The appellant's conviction of 13 July 2016 and the sentence imposed for that conviction are quashed
- A new trial of the charge is ordered
Key Takeaways
- Jury misconduct under s 68C of the Jury Act 1997 (NSW), which prohibits jurors from making external inquiries about trial matters, can constitute a fundamental flaw in the trial process sufficient to warrant quashing a conviction
- Where jurors not only breach s 68C but also fail to disclose that breach when questioned by the court, the combined conduct may amount to a miscarriage of justice
- A Crown concession that jury misconduct occurred and that a miscarriage of justice resulted carries significant weight; the Court of Criminal Appeal was satisfied on that basis to allow the appeal without requiring further elaboration of principle
- Quashing a conviction for jury misconduct does not result in an acquittal; the Court ordered a new trial, meaning the appellant remained liable to be tried again on the same charge
- This decision turned entirely on its particular facts and the parties' agreed position; the Court expressly noted it raised no question of principle
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 24(2)
- Jury Act 1997 (NSW), s 68C
Cases cited: None identified in the judgment or metadata