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15
Court of Criminal Appeal 23 December 2003

R v K [2003] NSWCCA 406 revised - 29

[2003] NSWCCA 406

Also reported as (2003) 59 NSWLR 431
HomicidePublic order & justice offences
CRIMINAL LAW APPEAL AGAINST CONVICTION

Citation: R v K [2003] NSWCCA 406 revised - 29/01/2004; reported at 59 NSWLR 431; 144 A Crim R 468
Court: NSW Court of Criminal Appeal
Date: 23 December 2003
Judge(s): Wood CJ at CL; Grove J; Dunford J

Background

The appellant was convicted of murdering his first wife following a retrial before Kirby J in the Supreme Court. The original 1999 conviction had been overturned due to misdirections on DNA evidence, and a new trial had been ordered. The jury in the retrial were aware they were sitting on a retrial, as Kirby J had disclosed this in his opening remarks and witnesses were cross-examined about prior evidence.

Critically, the appellant had previously been tried and acquitted of murdering his second wife. That acquittal, and the circumstances surrounding it, were deliberately kept from the jury. The defence had also specifically requested that no direction be given to jurors about conducting internet research, fearing such a direction might prompt the very curiosity it sought to discourage.

After the guilty verdict was returned, most of the jurors and defence counsel adjourned to a nearby hotel. Conversations there revealed that a number of jurors had conducted internet searches during the trial and had discovered the appellant's prior acquittal for the murder of his second wife, and that the case was a retrial. Affidavits were obtained from nine of the twelve jurors by the Sheriff.

  • Whether affidavit evidence from jurors about their internet searches was admissible to support the appeal
  • Whether evidence about juror deliberations, including the effect the external information had on their decision-making, was admissible
  • Whether the jury's discovery through internet searches that the trial was a retrial warranted a new trial
  • Whether the jury's discovery of the appellant's prior acquittal for murdering his second wife caused the trial to miscarry and warranted a new trial

Decision

The Court held that the affidavit evidence relating to the internet searches themselves was admissible. By analogy with established cases where documents not in evidence had been found their way to the jury room, evidence of the external information the jurors had obtained could be received. The court distinguished this from evidence about what the jurors said or thought during deliberations.

Evidence of the jurors' internal deliberations, including any discussion about the effect the external information had on their decision-making, was held to be inadmissible. The long-established rule that courts will not receive evidence of jury deliberations remained intact, supported by strong public policy considerations protecting the confidentiality of the deliberative process.

The court found that the jury's awareness of the retrial did not, of itself, warrant a new trial. That circumstance had been properly disclosed by the trial judge, and clear directions had been given to ignore information from the previous trial and focus solely on the evidence presented.

However, the discovery through internet searches that the appellant had been previously tried and acquitted for the murder of his second wife was a different matter entirely. That information was highly prejudicial: it carried a real risk that jurors would apply tendency or coincidence reasoning, or treat it as evidence of bad character, neither of which had been placed before the jury through any legitimate evidentiary pathway. The trial had therefore miscarried and a new trial was required.

The Court also observed, by way of obiter commentary (that is, observations not strictly necessary to the decision), that the growing availability of information online about criminal proceedings posed serious challenges to the integrity of jury trials. Wood CJ at CL called for expanded standard directions warning jurors against independent research, and noted the possible need to amend the Jury Act 1977 (NSW) to create an offence of juror misconduct by way of external inquiry, modelled on equivalent Queensland legislation. His Honour also expressed personal concern about the practice of lawyers, jurors, police, and others congregating at hotels near courthouses after trials, noting the reputational and professional risks this practice carries.

Orders Made

  • Appeal allowed
  • Conviction and sentence quashed
  • New trial directed

Key Takeaways

  • Juror affidavit evidence about the external information obtained through internet research is admissible on appeal, by analogy with established principles governing unauthorised documents reaching the jury room.
  • The long-standing rule against receiving evidence of jury deliberations remains intact: what jurors discussed among themselves, and any account of how external information affected their reasoning, is inadmissible.
  • Where jurors obtain, through their own external research, highly prejudicial material that was deliberately withheld from them at trial, such as evidence of a prior acquittal for a similar offence, a conviction will not stand if there is a real risk the jury applied impermissible tendency, coincidence, or bad character reasoning.
  • The NSW Court of Criminal Appeal identified a significant and growing gap in the regulatory framework governing juror use of the internet, and called for both expanded judicial directions and possible legislative reform to make independent juror research an offence under the Jury Act 1977 (NSW).
  • Disclosure that a trial is a retrial does not automatically warrant a new trial where the trial judge has given clear and unambiguous directions to the jury to disregard information about the prior proceedings and focus only on the evidence before them.

Legislation and Cases Referenced

Legislation:
- Jury Act 1977 (NSW)
- Jury Act 1995 (Qld)
- Juries Act 1974 (UK)
- Contempt of Court Act 1981 (UK)

Cases:
- Webb v The Queen (1994) 181 CLR 41
- R v Allan [2002] 133 A Crim R 444
- R v Bell [1998] NSWCCA 131
- R v Emmett, R v Masland (1988) 14 NSWLR 327
- Regina v Rinaldi & Kessey (1993) 30 NSWLR 605
- R v Brown (1907) 7 SR (NSW) 290
- R v Young [1995] 2 QB 324
- Ras Behari Lal v The King-Emperor [1933] 1 All ER 723
- R v Cogley [2000] VSCA 231
- R v Chapman (1976) 63 Cr App R 75
- R v Roads [1967] 2 QB 108
- Attorney General (NSW) v Mayas Pty Limited (1988) 14 NSWLR 342
- Vaise v Delaval [1785] 1 TR 11
- R v Cant [2002] NTCCA 8
- R v Dudko [2002] NSWCCA 336
- R v Laws [No 2] (2000) 116 A Crim R 70