Citation: R v Kelu; R v Millner (No 5) [2023] NSWSC 1541
Court: Supreme Court of New South Wales
Date: 11 July 2023
Judge(s): Cavanagh J
Background
Two accused, referred to by their roles as defendants in a criminal trial, were before the Supreme Court awaiting the delivery of jury verdicts. The matter had reached the conclusion of deliberations when an administrative error came to light.
After the jury had retired to consider its verdicts, a court officer collected exhibits for delivery to the jury room. A folder containing documents marked for identification (MFIs) was inadvertently placed in the same box as the exhibits and delivered to the jury. MFIs are documents tendered during a trial for a limited procedural purpose and not formally admitted into evidence; they differ from exhibits, which the jury is entitled to consider.
The error was only discovered when the judge, upon reconvening to receive the verdicts, noticed the folder was no longer on the bench. Counsel for both defendants applied to have the jury discharged on the basis that the MFI folder had been in the jury room throughout deliberations.
Legal Issues
- Whether the inadvertent delivery of the MFI folder to the jury room gave rise to a substantial miscarriage of justice.
- Whether, in light of that risk, the jury should be discharged before delivering its verdicts.
Decision
Cavanagh J identified the appropriate course of action as questioning the foreperson under oath before determining whether any prejudice had occurred. Counsel for both defendants agreed to the foreperson giving evidence, though the Crown submitted it would likely be unnecessary to question additional jurors beyond the foreperson.
The foreperson gave evidence that the white folder labelled "MFIs" had not been opened by any member of the jury. The foreperson observed that a juror had reached into the box only to retrieve a USB drive, without removing or examining any folder. No juror had looked at or considered the contents of the MFI folder during deliberations.
On the basis of that evidence, Cavanagh J was satisfied that the jury had not accessed the MFI folder and that no substantial miscarriage of justice had occurred. The application to discharge the jury was accordingly refused.
Orders Made
No formal written orders were extracted in this decision. The operative ruling was the refusal of the application to discharge the jury.
Key Takeaways
- The Supreme Court confirmed that the test for discharging a jury in these circumstances is whether the irregularity gave rise to a substantial miscarriage of justice, not merely whether an error occurred.
- Questioning the foreperson under oath is an appropriate procedural mechanism for investigating whether a jury actually accessed material it should not have received.
- No miscarriage of justice was established where the foreperson gave uncontested evidence that an inadvertently delivered folder had not been opened or considered by any juror.
- The distinction between exhibits (which a jury may consider) and MFIs (which have not been admitted into evidence) underpinned the concern that prompted the discharge application.
- In refusing the application, Cavanagh J acted on direct evidence from the foreperson rather than treating the mere presence of the folder in the jury room as automatically disqualifying.
Legislation and Cases Referenced
Legislation: No specific legislation was cited in the judgment or metadata.
Cases: No cases were cited in the judgment or metadata.