Citation: R v Rumsby (No 5) [2023] NSWSC 771
Court: Supreme Court of New South Wales
Date: 27 June 2023
Judge(s): R A Hulme AJ
Background
The accused was standing trial in the Supreme Court on criminal charges. The jury had been deliberating for over a week when the court became aware, via an email to chambers, that a juror may have conducted prohibited internet inquiries and shared that information with other jurors.
The court examined each juror individually and on oath, in accordance with the Jury Act 1977 (NSW). It emerged that one juror (identified by number) had searched three topics online and discussed her findings with at least some of her fellow jurors.
The juror was discharged for misconduct under s 53A of the Jury Act. The question then became whether the remaining eleven jurors could lawfully continue to deliberate.
Legal Issues
- Whether continuing the trial with the remaining eleven jurors would give rise to a risk of a substantial miscarriage of justice under s 53C of the Jury Act 1977 (NSW)
- If that risk existed, whether the entire jury must be discharged
- If that risk did not exist, whether the trial should proceed with the reduced jury and on what conditions
Decision
Issue: Risk of substantial miscarriage of justice under s 53C
Hulme AJ determined that continuing with the remaining eleven jurors would not give rise to a risk of substantial miscarriage of justice (at [3]). The court reached this conclusion by examining several factors in combination.
The nature of the improperly obtained information
The discharged juror had searched three topics: walking speeds, post-mortem hair loss, and body language as an indicator of truthfulness (at [9]-[11]). The court found that none of this information was genuinely useful or prejudicial to the accused (at [13]). The walking speed inquiry appeared to confirm, rather than undermine, what the accused himself had said (at [9]). The hair loss research was consistent with evidence already given by the forensic pathologist (at [10]). The body language material was described as vague and unlikely to have assisted jurors beyond their own ordinary experience of human nature (at [12]).
The advanced state of deliberations
The jury had deliberated for an extended period and had already reached a unanimous verdict on one of two counts (at [4]-[5]). The court took into account that the discharged juror must have agreed with the other jurors to produce that unanimous result, and directed the remaining eleven to revisit their verdict on that count if they considered they had been influenced in any way by the discharged juror's inquiries (at [15]).
The curative direction
The court gave the remaining jurors a strong direction to disregard entirely anything said by the discharged juror, including her comments about the evidence or her views on the verdict (at [14]). Both the direction and the reduced composition of the jury were communicated to the eleven continuing jurors directly.
Orders Made
- Trial to continue with a jury of eleven
Key Takeaways
- Under s 53C of the Jury Act 1977 (NSW), a trial must continue with a reduced jury unless doing so would give rise to a risk of a substantial miscarriage of justice; the court assessed that risk by examining both the nature of the improperly obtained information and the stage of deliberations (at [2]-[3]).
- Where information illicitly obtained by a juror confirms or is consistent with evidence already before the jury, and does not add anything prejudicial to the accused, that factor weighs against a finding that continuing the trial risks a substantial miscarriage of justice (at [8]-[13]).
- A strong curative direction to disregard the discharged juror's contributions entirely can be an appropriate and sufficient remedy, particularly where the information shared was not genuinely probative (at [14]).
- The Supreme Court treated the unanimous verdict already reached on one count as a relevant consideration, directing the remaining jurors to revisit that verdict if they believed it had been influenced by the discharged juror's misconduct (at [15]).
- Juror misconduct discovered late in deliberations does not automatically require discharge of the whole jury; the court weighs the practical prejudice caused by the misconduct against the costs and disruption of a retrial.
Legislation and Cases Referenced
Legislation
- Jury Act 1977 (NSW)
Cases
- Not stated