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Supreme Court 29 July 2024

R v Alex & Ors (Trial Ruling No 6)

[2024] NSWSC 1130

Public order & justice offences

Citation: R v Alex & Ors (Trial Ruling No 6) [2024] NSWSC 1130
Court: Supreme Court of NSW
Date: 29 July 2024
Judge: Fagan J

Background

This ruling arose during a lengthy criminal trial involving George Alex and others, which had reached its 73rd day when a significant jury irregularity came to light. On 5 June 2024, the Australian Federal Police notified the Sheriff that, in the course of an unrelated investigation, a search warrant had been executed at the home of one juror (Juror G). Examination of his mobile phone revealed that he had made internet searches in April 2024 about one of the accused and at least one other person connected to the Crown case, in clear breach of the Jury Act 1977 (NSW).

A Sheriff's investigator, Superintendent York, interviewed all jurors. Those inquiries also uncovered that Juror G and another juror (Juror A) had socialised outside court, exchanged private messages, and that Juror A had deleted his phone messages before being interviewed. Juror G additionally alleged that Juror A had mentioned a financial incentive for a not guilty verdict and that other jurors had been "approached," claims that the Superintendent found vague and contradictory.

On 6 June 2024, Fagan J discharged both Juror G and Juror A and ordered the trial to continue with the remaining 12 jurors. A further application to discharge the entire jury was argued on 25 June 2024, after the Sheriff's written report and interview transcripts became available, and was dismissed.

Legal Issues

  • Whether Juror G must be mandatorily discharged under s 53A(1)(c) of the Jury Act for conducting prohibited internet searches.
  • Whether Juror A should be discharged in the exercise of judicial discretion under s 53B(b) and (d) of the Jury Act.
  • Whether the trial should continue with the remaining 12 jurors, or whether the whole jury should be discharged, under s 53C of the Jury Act, having regard to the risk of a substantial miscarriage of justice.
  • Which legal test governs the assessment of jury irregularity: the "reasonable apprehension" test or the "real danger of bias" test, and how that test applies where irregularity emerges before verdict.

Decision

Issue 1: Mandatory discharge of Juror G

Juror G's admitted internet searches constituted a clear breach of s 68C(1) of the Jury Act, making his discharge mandatory under s 53A(1)(c). The content found at the sites he visited was capable of being prejudicial to the accused (at [19]).

Issue 2: Discretionary discharge of Juror A

Fagan J discharged Juror A under s 53B(b) and (d), not for proven misconduct but for several compounding concerns. Juror A's extensive out-of-court contact with Juror G, his deletion of phone messages before the Sheriff's interview, and his communications with Juror G about an illicit drug transaction all gave rise to a significant apprehension that he may have been informed of Juror G's internet searches. Those circumstances would also likely cause Juror A ongoing discomfort and adversely affect his ability to perform his functions as a juror (at [20]).

Issue 3: Juror G's allegation of jury tampering

Juror G alleged that Juror A had spoken of a financial incentive for a not guilty verdict and that six jurors had been "approached." Fagan J found this allegation not credible. It was internally contradictory, unsupported by any other juror, and most readily explained as an attempt by Juror G to dilute his own responsibility. Juror G was found to be an inherently unreliable source, having been caught with evidence of his own misconduct on the same device used to make the allegations (at [19], [41]).

Issue 4: Applicable legal test and continuation of the trial

Fagan J applied the "reasonable apprehension" test confirmed by the High Court in HCF v The Queen [2023] HCA 35, which requires the court to ask whether a fair-minded, informed member of the public might perceive a risk that the jury might not discharge its function according to law. This test applies to all jury irregularities, not only cases of possible bias (at [26], [31]).

Applying that test, Fagan J concluded that a fair-minded observer, aware of all the circumstances, would not perceive such a risk. The remaining 12 jurors had each denied conducting independent internet searches or being exposed to any inducement. Juror G's contrary assertions were found to be speculative and reckless. Importantly, the court took into account that the jury had received repeated directions from the outset to decide the case only on evidence adduced in court, and a reinforcing direction was given on 6 June 2024 after the discharges (at [40], [52], [58]). The jury's demonstrated attentiveness over 64 days of dense financial and intercept evidence further supported the conclusion that they would follow those directions (at [59]).

The fundamental presumption that jurors obey judicial directions, endorsed by the High Court in Gilbert v The Queen (2000) 201 CLR 414, underpinned the rejection of the submission that the internet material was so prejudicial that remaining jurors could not be expected to disregard it (at [82]). The application to discharge the entire jury, renewed on 25 June 2024 after the Sheriff's written report and transcripts became available, was dismissed because those materials disclosed no material difference from what had already been considered (at [67], [85]).

Orders Made

  • Juror G discharged pursuant to s 53A(1)(c) of the Jury Act 1977.
  • Juror A discharged pursuant to s 53B(b) and (d) of the Jury Act 1977.
  • Trial ordered to continue with the remaining 12 jurors pursuant to ss 22 and 53C of the Jury Act 1977.

Key Takeaways

  • Following HCF v The Queen [2023] HCA 35, the Supreme Court confirmed that the "reasonable apprehension" test applies to all forms of jury irregularity arising during a trial, not only to cases of possible juror bias. The question is whether a fair-minded, informed member of the public might perceive a risk that the jury might not discharge its function according to law.

  • Where a trial judge becomes aware of a jury irregularity before verdict and gives specific curative directions, those directions form part of the picture that a hypothetical fair-minded observer must assess. Their existence can materially reduce the apprehension of risk.

  • A juror who did not personally conduct prohibited research but who had extensive private communications with the offending juror, deleted messages before a Sheriff's investigation, and was exposed to associated misconduct may be discharged in the exercise of judicial discretion under s 53B, even in the absence of proven independent wrongdoing.

  • Allegations made by a discharged juror about the conduct of other jurors are to be assessed for credibility in light of all available evidence. Where those allegations are internally contradictory, denied by every other juror, and advanced by a source objectively shown to have given false information in related matters, they will carry little weight.

  • Under s 53C of the Jury Act 1977, the court must assess whether continuing the trial with reduced numbers would give rise to a risk of substantial miscarriage of justice. That assessment encompasses both the judge's own view and the application of the reasonable apprehension test, and may properly account for further directions the judge proposes to give.

Legislation and Cases Referenced

Legislation
- Jury Act 1977 (NSW)

Cases
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- HCF v The Queen [2023] HCA 35; (2023) 415 ALR 190
- Reg v Gough [1993] AC 646
- Reg v Spencer [1987] AC 128
- Webb & Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30