Citation: R v Sarkis (No 2) [2023] NSWDC 479
Court: District Court of New South Wales
Date: 3 November 2023
Judge: Newlinds SC DCJ
Background
The accused stood trial on a charge of attempting to break and enter a dwelling house at Lalor Park with intent to commit larceny. The Crown's case was largely circumstantial, turning on whether the accused was one of two men visible in CCTV footage. Identity was the central issue, with the Crown relying on communications records, geographical proximity, and a partially visible tattoo.
The trial was brief, commencing midweek and moving to jury deliberations by late Thursday morning. The jury proved attentive, sending a series of considered questions to the judge shortly after retiring.
One of those questions revealed that, when jurors reviewed a CCTV exhibit in the jury room, at least some of them heard audio on the disc that had never been played in court. No party had known the audio existed, and its presence on the disc was entirely inadvertent.
Legal Issues
- Whether the inadvertent exposure of at least some jurors to inadmissible audio material created a real risk of a miscarriage of justice.
- Whether the jury should be discharged under the principles governing applications to discharge, given the high threshold and strong presumption against taking that step.
- Whether a curative judicial direction to the jury to disregard the material would be sufficient to prevent that miscarriage.
Decision
His Honour accepted without reservation that no party bore any blame for the audio reaching the jury room. The detective who originally filmed the CCTV footage had done so with his phone while seated beside the now-deceased complainant, who provided a running commentary. That commentary included statements that both men in the footage were known to a third person, that this third person had a criminal history involving drugs, that he had been arrested by police, and that he had previously stolen money from the complainant's kitchen at the very premises in question.
The court found that this material, while not direct evidence, was plainly inadmissible and carried meaningful prejudicial potential. Most significantly, the suggestion that one of the two men in the footage had previously stolen from the kitchen at that address introduced a prior propensity narrative. Crucially, the Crown had never put the case on that basis, meaning the accused had no opportunity to respond to it and could not reasonably have been expected to.
Applying the framework from Crofts v The Queen (1996) 186 CLR 427, the court assessed the seriousness of the occurrence, the stage of the trial, the inadvertent nature of the conduct, and the likely effectiveness of a remedial direction. Although the conduct was accidental and the jury had itself acted commendably in flagging the issue, the court concluded that no direction could realistically cure the problem. The judge reasoned that even the most conscientious juror could not be expected to compartmentalise and wholly disregard information already absorbed, particularly information touching directly on the central identity question in a short trial.
The court also drew significance from the jury's earlier question, which signalled close attention to the final element of the charge. The fact that the jury flagged the audio as potentially important reinforced, rather than diminished, the concern that it had registered as meaningful. Taking all factors into account, the judge was satisfied that proceeding would amount to a miscarriage of justice and that discharge was the only available remedy.
Orders Made
- The jury was discharged.
- The matter was listed for retrial before the same judge commencing at 10:00am on the following Tuesday.
Key Takeaways
- The District Court confirmed that the threshold for discharging a jury is high, requiring satisfaction that discharge is the only means of preventing a miscarriage of justice, consistent with Crofts v The Queen (1996) 186 CLR 427.
- Where inadmissible material reaches jurors during deliberations, the likely effectiveness of a curative direction is a central consideration. Here, the court held that no direction could realistically require jurors to excise from their minds information they had already absorbed.
- The brevity of the trial weighed against the accused: because the overall volume of evidence was small, the inadmissible audio represented a proportionally more significant intrusion than it might in a lengthy, evidence-heavy trial.
- A jury's own recognition that material may be significant is capable of reinforcing, rather than neutralising, a discharge application. The jury's decision to notify the court of the audio supported the inference that at least some members regarded it as important.
- Inadvertent introduction of material touching on prior misconduct by a person associated with the accused, in circumstances where the Crown had never relied on that narrative, can give rise to prejudice that is irreconcilable and not addressable by direction alone.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW), Pt 7A
Cases
- Crofts v The Queen (1996) 186 CLR 427
- Hameed v R [2019] NSWCCA 219
- Gilbert v The Queen (2000) CLR 413
- R v Rogerson (No 34) [2016] NSWSC 259
- Ahola (No 6) [2013] NSWSC 703