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Court of Criminal Appeal 23 October 2026

Pele v R

[2026] NSWCCA 172

Assault & violenceTheft & property
CRIME APPEALS APPEAL AGAINST CONVICTION WHETHER A FAIR

Citation: Pele v R [2026] NSWCCA 172
Court: Court of Criminal Appeal
Date: 23 October 2026
Judge(s): Price AJA (primary judgment); Chen J and Coleman J (agreeing)

Background

The applicant was found guilty by a jury in the District Court at Sydney of specially aggravated break and enter and commit a serious indictable offence, and detaining a person in company without consent with intent to obtain a financial advantage, occasioning actual bodily harm. The offences arose from the kidnapping of a man from his home in Sans Souci, who was then transported to a granny flat in Padstow and subjected to threats and violence while a ransom demand was made. The central issue at trial was identification: the Crown relied on circumstantial evidence including CCTV footage and cell tower records to establish that the applicant was one of four men involved in the kidnapping and detention.

The applicant was sentenced to an aggregate term of six years and three months' imprisonment with a non-parole period of three years and nine months. He appealed against his convictions only, on a single ground.

Legal Issues

  • Whether the trial judge's failure to ask the foreperson of the jury whether four questions sent during deliberations resulted from impermissible internet research by one or more jurors constituted an irregularity amounting to a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether the form and content of the jury questions provided an objective evidentiary basis from which impermissible juror research could be inferred, sufficient to engage the "double might" test in HCF v The Queen (2023) 280 CLR 596
  • Whether the trial judge was required to exercise the power under s 55DA of the Jury Act 1977 (NSW) to examine the foreperson in the circumstances

Decision

Sole Ground: Alleged Jury Irregularity Arising from Jury Questions

During deliberations, the jury sent four questions to the trial judge touching on the legal element of acting "in company," including questions about proximity, awareness and duration of presence. The applicant's counsel at trial submitted that those questions suggested one or more jurors had conducted private legal research, potentially including internet searches about the applicant or his brother, who was the subject of highly prejudicial online articles. The trial judge refused to discharge the jury and did not examine the foreperson, concluding that the questions were consistent with the jury trying to understand the meaning of "in company" in the context of the evidence.

Price AJA, applying the "double might" test from HCF, held that the first step requires the Court to make factual findings on the balance of probabilities from evidence extrinsic to the jury's deliberations. No such extrinsic facts were available: unlike in HCF or Smith v R, there was no sheriff's investigation, no juror comment, and no material beyond the jury questions themselves. The jury questions were explicable by reference to the evidence, the addresses of counsel and the judge's directions on the "in company" element, all of which raised legitimate questions about timing, presence and awareness (at [83]–[85]). The applicant's assertion that a significant possibility of legal research existed did not rise above mere conjecture, guesswork or surmise (at [86]).

On the balance of probabilities, a fair-minded and informed member of the public would not reasonably apprehend that the jury might not have discharged its function of returning verdicts according to law (at [87]). There was no error or irregularity in the trial arising from the judge's decision not to examine the foreperson under s 55DA of the Jury Act (at [88]).

Chen J agreed and added additional observations about the internal tension in the applicant's approach. The applicant did not challenge the trial judge's key finding that the questions were consistent with the jury trying to understand "in company," nor the refusal to discharge the jury. Yet he sought to establish a miscarriage of justice from the failure to make an inquiry of the foreperson, an inquiry whose only basis was the same factual inference the trial judge had already rejected (at [95]–[96]). Chen J also noted that the circumstances here were quite unlike those in HCF, which concerned an undisputed irregularity in jury conduct, and that applying HCF to a case where no irregularity had been found was problematic (at [104]).

Orders Made

  • Time for leave to appeal against conviction extended
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The "double might" test from HCF v The Queen requires an appellate court to first find, on the balance of probabilities, facts extrinsic to jury deliberations establishing an irregularity before asking whether a fair-minded observer might reasonably apprehend the jury did not decide according to law. Jury questions alone, without supporting extrinsic evidence such as a juror's comment or a sheriff's investigation, will not satisfy that threshold (at [82]–[83], [86]).

  • A trial judge's finding that jury questions were consistent with legitimate deliberation, rather than impermissible research, is a dispositive factual determination. On appeal, a party who does not challenge that finding cannot construct a miscarriage argument that depends on the opposite inference being true (at [95]–[96]).

  • Under s 53A(1)(c) of the Jury Act 1977 (NSW), the mandatory obligation to discharge a juror for misconduct is triggered only by a finding, on the balance of probabilities, that the juror has actually engaged in misconduct. Formulae such as "real risk" or "reasonable possibility" do not meet that standard and do not engage the provision (at [94]).

  • The power in s 55DA of the Jury Act to examine a juror exists in context. Where a trial judge has already rejected the factual premise said to warrant examination, the basis for exercising that power is far from clear, and an applicant who neither identifies error in that finding nor presses the secondary application as a discrete matter will face significant difficulty on appeal (at [98]).

  • In dismissing the appeal, the Court confirmed that HCF applies to cases of undisputed jury irregularity. Applying its framework to a case where no irregularity has been established, and where the trial judge's characterisation of the jury conduct has not been challenged, sits uneasily with the structure of that authority (at [104]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) , ss 86, 112
- Criminal Appeal Act 1912 (NSW), ss 5, 6, 10
- Evidence Act 1995 (NSW), s 191
- Jury Act 1977 (NSW) , ss 53A, 53C, 55DA, 68C , 72A, 73A
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5

Cases
- Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
- Decision Restricted [2026] NSWCCA 121
- HCF v The Queen (2023) 280 CLR 596; [2023] HCA 35
- Hoang v The Queen (2022) 276 CLR 252; [2022] HCA 14
- Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Smith v R (2010) 79 NSWLR 675; [2010] NSWCCA 325
- Smith v State of Western Australia (2014) 250 CLR 473; [2014] HCA 3
- The King v Bechaud [2026] HCA 36
- The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16
- Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30
- Zheng v R (2021) 104 NSWLR 668; [2021] NSWCCA 78