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Supreme Court 15 September 2022

R v Watson

[2022] NSWSC 1243

HomicidePublic order & justice offences
CRIMINAL LAW JURIES JURY ACT 1977 (NSW), SS 53B, 53C ALLEGED MISCONDUCT INDIVIDUAL JUROR DISCHARGED REMAINING JURY DISCHARGED

Citation: R v Watson [2022] NSWSC 1243
Court: Supreme Court of New South Wales
Date: 15 September 2022
Judge(s): Walton J

Background

The accused stood trial on a single count of murder, alleged to have been committed in 2010 at Gerogery, NSW. The prosecution case concerned events investigated from 2019 onward, following disclosures made in 2017. The trial commenced on 5 September 2022 before a jury of 14, with a three-week estimate.

On the first day, the jury received detailed written and oral directions prohibiting outside research, internet use, and any discussion of the case with persons outside the jury room. The Crown case closed on the fifth day. No evidence was called for the accused, and the matter was set down for directions, closing submissions, and summing up in the days following.

On the morning of the seventh day, a court officer reported that a juror (described throughout as the "witness juror") had approached him after the jury's adjournment on the Friday. The juror appeared visibly stressed, raised mental health concerns, and disclosed that another juror had conducted a Google search on a case-related matter inside the jury room. A jury note from the witness juror was subsequently received by the Court.

  • Whether the witness juror should be discharged under s 53B of the Jury Act 1977 (NSW) on the basis of his own conduct.
  • Whether the remaining jurors should be discharged under s 53C(1)(a) of the Jury Act 1977 (NSW) on the basis that continuing the trial would risk a substantial miscarriage of justice.
  • Whether a stay of the discharge orders was appropriate to preserve the parties' appeal rights.

Decision

The witness juror's own conduct provided independent grounds for his discharge. In addition to reporting another juror's Google search, the witness juror disclosed in his jury note that he had discussed aspects of the proceedings with people outside the jury, including commenting on how badly a witness had lied and reporting that jurors had laughed at witness testimony. These disclosures were made to non-jurors, in breach of the directions given on the first day of trial.

The Court then turned to whether the remaining jury could safely continue. The central concern was the conduct of another juror who, on the first day of the trial, had searched the name "Gerogerie" on a phone inside the jury room and immediately switched the phone off after a media report appeared. The witness juror's note further alleged that a juror had been observed conducting Google searches on subsequent days. These allegations raised serious questions about whether one or more jurors had been exposed to extraneous material touching on the trial.

Walton J concluded that continuing the trial with the remaining jurors would give rise to a real risk of substantial miscarriage of justice. The judge noted the trial was relatively short, that the evidence had closed, and that only closing submissions and a summing-up remained. These factors were weighed against the seriousness of the potential contamination. The Court found the balance fell in favour of discharge.

The discharge orders for the remaining jury were stayed for a short period, in accordance with the approach in R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135 and s 5G of the Criminal Appeal Act 1912 (NSW), to allow the parties time to exercise any appeal rights before the orders took effect.

Orders Made

  • The witness juror was discharged pursuant to s 53B of the Jury Act 1977 (NSW).
  • The remaining jury was discharged pursuant to s 53C(1)(a) of the Act.
  • A new trial was ordered.
  • The matter was listed in the Arraignment List at 10:00am on 7 October 2022.
  • Orders 2, 3, and 4 were stayed until 12:00pm on Monday 19 September 2022, subject to further order of the Supreme Court or the Court of Criminal Appeal.
  • The proceedings were adjourned to 12:00pm on 19 September 2022.
  • Liberty to apply on short notice was granted with respect to the adjournment order.

Key Takeaways

  • Under s 53C(1)(a) of the Jury Act 1977 (NSW), a trial judge may discharge the entire remaining jury where continuing the trial would give rise to a real risk of substantial miscarriage of justice, even when the trial is near its conclusion.
  • A juror's Google search for a case-related term inside the jury room, combined with an immediate concealment of the results, constituted conduct capable of warranting discharge of the full jury.
  • Breach of juror directions by one juror (here, discussing witness credibility with persons outside the jury) can independently justify that juror's discharge under s 53B, separately from the misconduct of other jurors.
  • The relative brevity of a trial and the proximity of its conclusion are relevant factors in the miscarriage of justice assessment, but they do not preclude a full jury discharge where the risk of contamination is sufficiently serious.
  • Consistent with R v Lamb and s 5G of the Criminal Appeal Act 1912 (NSW), discharge orders may be stayed for a short period to preserve the parties' rights to seek appellate review before those orders take effect.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW), ss 53B, 53C, 55DA, 68C, 73A
- Criminal Appeal Act 1912 (NSW), s 5G

Cases:
- Crofts v The Queen (1996) 186 CLR 427
- Filippou v The Queen (2015) 256 CLR 47
- Gilbert v R (2000) 201 CLR 414
- Haile v R [2022] NSWCCA 71
- Hoang v The Queen [2022] HCA 14
- Phan v R [2018] NSWCCA 225
- Potter v The Queen [2007] EWCA 2485
- R v Azari (No 9) [2018] NSWSC 1678
- R v Glennon (1992) 173 CLR 592
- R v Hunter (No 8) [2014] NSWSC 1151
- R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135
- R v Popovic; R v Koloamatangi (No 3) [2017] NSWSC 1110
- R v Rinaldi; R v Kessey (1993) 30 NSWLR 605