Citation: R v Tembeleski (No 2) [2024] NSWDC 504
Court: District Court of New South Wales
Date: 14 October 2024
Judge: Montgomery DCJ
Background
The accused was on trial for criminal offences before a jury empanelled on 1 October 2024. The trial had been running for seven days, though only two and a half of those days involved the taking of evidence. The complainant's evidence-in-chief had not yet been completed.
Following the departure of jurors on Thursday 10 October 2024, court officers discovered a copy of the Oxford Australian Law Dictionary in the jury room. The book had been brought into the jury room by Juror M and placed on the jury table each day across the seven days of the trial.
Evidence was taken on a voir dire (a hearing within the trial to determine a preliminary legal question) from both Juror M and the foreperson. Their accounts differed in key respects, particularly regarding when the book first appeared and whether it had actually been consulted. Juror M admitted to having looked up the words "indictment", "jury", and "jury trial" in the presence of all jurors, and confirmed that jurors had discussed the book. The foreperson said he had not seen anyone access it.
Legal Issues
- Whether Juror M should be discharged as an individual juror under s 53A of the Jury Act 1977 (NSW) for conducting independent legal research and disobeying the court's directions
- Whether the foreperson's conduct and inconsistent evidence raised questions about his continued suitability as a juror
- Whether the whole jury should be discharged under s 53C of the Jury Act 1977 (NSW) due to the risk of a substantial miscarriage of justice
- Whether the jury's collective failure to report the presence of the book, as required by the court's written directions, contaminated the trial process
Decision
His Honour found that Juror M had breached clear written directions given to all jurors at the commencement of the trial. Those directions prohibited independent research into the law, required jurors to direct all legal questions to the trial judge by written note, and expressly required any juror who became aware of outside material entering the jury room to report it immediately. Every juror, including the foreperson, was aware of the book's presence but none reported it or raised the applicable directions.
The book was not a simple word list. The Oxford Australian Law Dictionary contained statements of legal principle, including definitions of "indictable offence" that touched on the hierarchy of courts and the consequences of verdicts. His Honour noted this was information a jury ought not have access to during deliberations.
Montgomery DCJ distinguished the circumstances from those in Hoang v The Queen (2022) 276 CLR 252, where a juror had incidentally encountered relevant information for personal reasons unconnected to the trial and the foreperson had promptly reported it. Here, by contrast, the book was deliberately brought in, placed on the jury table daily, consulted openly, and its presence was collectively concealed from the trial judge.
The court found it could have no confidence the jury would comply with future directions, including those concerning elements of the charges, joint criminal enterprise, or other critical legal matters. His Honour also identified a real risk that Juror M's research and opinions expressed to fellow jurors had contaminated the jury's approach to the trial. Separately, the court noted concern about the foreperson's reliability, but did not make a final determination on that question. Given that a further juror was already due to be discharged the following Friday, discharging both Juror M and the foreperson would reduce the jury below the minimum of ten required by s 22 of the Jury Act, making continuation impossible in any event. His Honour ordered the discharge of the whole jury.
Orders Made
- The whole jury was discharged.
Key Takeaways
- The District Court held that a jury's collective, conscious failure to report the presence of a legal dictionary in the jury room, in direct breach of written directions, amounted to disobedience of directions that could not be cured by discharging only the individual juror who brought the book in.
- A legal dictionary placed on the jury table daily constituted independent research into the law for the purposes of the Jury Act 1977 (NSW), particularly where the book contained statements of legal principle touching on matters such as the hierarchy of courts and the consequences of verdicts.
- Hoang v The Queen (2022) 276 CLR 252 was distinguished on the basis that the juror there had encountered relevant material incidentally and the foreperson had promptly reported it; neither feature was present in this case.
- Where discharging individual problematic jurors would reduce the jury below the statutory minimum of ten required by s 22 of the Jury Act 1977 (NSW), the practical consequence is that discharge of the whole jury and termination of the trial becomes unavoidable.
- Confidence in a jury's willingness to comply with directions of law is a central consideration under s 53C; evidence that jurors consciously ignored multiple specific directions over seven days was sufficient to justify whole-jury discharge even at an early stage of the trial.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 115A
- Jury Act 1977 (NSW), ss 19, 22, 53A(1)(c), 53A(2)(a), 53A(2)(b), 53C, 68C(1), 68C(4), 68C(5)(b)
Cases
- Director of Public Prosecutions v Lehrmann (No 5) [2022] ACTSC 296
- Hoang v The Queen (2022) 276 CLR 252