Supreme Court New South Wales Medium Neutral Citation: R v Watson [2022] NSWSC 1243 Hearing dates: 14 September 2022 Date of orders: 15 September 2022 Decision date: 15 September 2022 Jurisdiction: Common Law - Criminal Before: Walton J Decision: (1) Pursuant to s 53B of the Jury Act 1977 (NSW) ("the Act"), the witness juror is discharged. (2) Pursuant to s 53C(1)(a) of the Act, the remaining jury is discharged. (3) Order a new trial. (4) List the matter in the Arraignment List at 10:00am on 7 October 2022. (5) Subject to further order of this Court or the Court of Criminal Appeal, orders (2), (3) and (4) are stayed until Monday 19 September 2022 at 10:00am. (6) The proceedings are adjourned to 10:00am on Monday 19 September 2022. (7) Liberty to apply on short notice with respect to order (6). Catchwords: CRIMINAL LAW – juries – application for discharge of individual juror and remaining jury – Jury Act 1977 (NSW), ss 53B, 53C – alleged misconduct – individual juror discharged – remaining jury discharged – stay ordered Legislation Cited: Jury Act 1977 (NSW), ss 53B, 53C, 55DA, 68C, 73A Criminal Appeal Act 1912 (NSW), s 5G Cases Cited: Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 Haile v R [2022] NSWCCA 71 Hoang v The Queen [2022] HCA 14; (2022) 96 ALJR 453 Phan v R [2018] NSWCCA 225 Potter v The Queen [2007] EWCA 2485 R v Azari (No 9) [2018] NSWSC 1678 R v Glennon [1992] HCA 16; (1992) 173 CLR 592 R v Hunter (No 8) [2014] NSWSC 1151 R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135 R v Popovic; R v Koloamatangi (No 3) [2017] NSWSC 1110 R v Rinaldi; R v Kessey (1993) 30 NSWLR 605 Category: Procedural rulings Parties: Rex (Prosecutor) Paul Anthony Watson (Accused) Representation: Counsel: P Kerr and A Dixon (Prosecutor) J Agius SC (Accused) Solicitors: Office of the Director of Public Prosecutions (Prosecutor) Timothy Hemsley & Associates (Accused) File Number(s): 2019/324972 Judgment (REVISED) 1. On 5 September 2022, Paul Anthony Watson ("the accused") was arraigned before the Court as presently constituted and a jury panel on an indictment containing a single count. 2. The count averred that, between 31 March 2010 and 31 May 2010 at Gerogery in the State of New South Wales, the accused did murder William Chaplin ("the deceased"). 3. The trial proceeded with a jury of 14. 4. The trial was scheduled for a three-week period, but it had been expected the trial may conclude in a period of two weeks. 5. On the first day of the trial, directions were given to the jury in oral and written form. The following is an extract or summary of those directions: 1. Do not discuss the case with anyone apart from your fellow jurors in the privacy of the jury room when every other member of the jury is present. A criminal trial is not an investigation into the incidents surrounding the allegations made by the Crown. Therefore, neither the judge nor the jury has any right to make investigations or inquiries of any kind outside the courtroom. 2. Do not undertake any form of research or inquiry (whether via the internet or any other means) concerning any matter connected with the case. 3. You should keep away from the internet and the other communication sources which may pass comment upon the issues in this trial. You may not communicate with anyone about the case on your mobile phone, smart phone, through email, text messaging, or on Twitter, through any blog or website, any internet chatroom, or by way of any other social networking websites including Facebook, MySpace, LinkedIn and YouTube. You should avoid any communication which may expose you to other people's opinions or views. 4. It is forbidden for you to have a computer or mobile phone in the jury room. 5. A failure to follow these directions may result in a miscarriage of justice. 1. As the trial progressed, the Crown confined the legal questions of liability to whether the accused was guilty of murder as a principal in the first degree. Mr Agius SC for the accused made clear in his opening submissions that a central part of his defence was a challenge to the honesty and reliability of the Crown witnesses. He said to the jury that "before they are to cast judgment on the reliability of the Crown's evidence" they were to ensure they had "taken into account the cross-examination by the accused". 2. On the fifth day of the trial, namely Friday 9 September 2022, the Crown case closed. No evidence was called for the accused. By prior arrangement to accommodate senior counsel for the accused, who had come into the trial late, the jury was advised that the Court would not sit on Monday 12 September 2022. Tuesday 13 September 2022 was reserved to hear argument as to directions and the following two days for closing submissions and summing up respectively. 3. On the morning of Tuesday 13 September 2022, the Court received a report from a Court Officer assigned to the trial. The report concerned a communication received from a juror after the jury retired on Friday 9 September 2022. It was indicated to counsel that the court officer reported that the juror had raised two issues with them. The first was that the juror was experiencing mental health issues. The second was that another juror had been undertaking a google search in the jury room. 4. The court officer was called to give evidence on 13 September 2022. He stated that after the jury adjourned on Friday 9 September 2022, a juror had approached him. The juror looked "very stressed" and mentioned that he had "mental health [issues]". The juror asked to "talk to the judge directly". 5. The court officer gave evidence that he had indicated that the juror could communicate with the Court via a jury note. The juror was provided jury note paper for that purpose. Upon it being observed that he was stressed and troubled and being asked "what is the problem?" the juror indicated that he "saw one juror using google to search something that is related to this matter". At the time of giving evidence, the jury note had not been received. 6. The court officer stated that after, he finished a jury trial at the Downing Centre on Monday 12 September 2022, he was advised by his coordinator around 4pm that one of the jurors in this trial had sought to speak to him as a matter of urgency. The coordinator mentioned that the person had a mental health issue. Due to the provision of that information, the court officer assumed that the juror who had attempted to contact him was the same person that had approached him on the Friday afternoon. 7. After the completion of the evidence of the court officer, counsel for the parties agreed that it would be appropriate for inquiries to be made of the juror who had contacted the court officer (hereinafter the "witness juror") on the day following. Counsel agreed to provide a note as to the appropriate procedure. A document described as "joint submissions on procedure to be adopted in respect of potential juror misconduct" was provided by the parties on 13 September 2022. In that document, the parties suggested that the witness juror should be called to give evidence of his observations in relation to the conduct of the subject juror. Further, it was suggested that the subject juror should then be identified and called to give evidence. If neither the witness juror or the subject juror was the foreperson, then the foreperson could then be called to give evidence of any observations he or she made as to conduct of the subject juror. It may be necessary "subject to the Courts [discretion]" to call evidence of other jurors. 8. In a communication to the parties on the same day, the Court indicated that it was inclined to the first procedure whereby the witness juror would provide information to the Court. However, the Court contemplated having a relevant court officer have inquiries of each juror separately other than the witness juror as to their observations of what had occurred in the jury room. What was in contemplation at that junction was an initial investigation for the purposes of s 73A of the Jury Act 1977 (NSW) ("the Act"). 9. Upon the matter resuming on the seventh day of the trial, the Court indicated to the parties that it had received a jury note from the witness juror. 10. Upon referring to the note, the Court stated to counsel: The juror is not identified by the note but I need to raise a matter with the parties before I provide it to them or read it to them. The note, arguably, contains reference to things said or done by the jury in the jury room and in addition to or separate to those that have already been raised in the course of the evidence given by the court officer. … So if counsel are content with that course, I propose to give it a jury note number, and then to have a copy of it provided to counsel, give them an opportunity to consider it, and then in the light of that consideration to make any submissions they may wish to make about the procedures to be adopted. I can indicate that, subject to hearing from them in that respect, the next step I would contemplate is having the witness juror attend upon the court to answer some questions from the court but not the parties, without the witness being sworn. So I've raised all of those matters for the consideration of counsel in the receipt of the note. So I'll pass that note down now, there's only two copies, one for each counsel (handed). 1. There was no demur from counsel as to the procedure and the note was received by them. 2. The procedure that was then adopted by the consent of the parties was that the witness juror was called to the witness box and asked questions by the court as to the contents of the note. The juror was not required to take an oath or affirmation. 3. After confirming the content of the note, the witness juror was asked questions with regard to two components of the jury note, namely, paragraph 3 and paragraphs 5-7. 4. In paragraph 3, the witness juror, inter alia, said that he had "disclosed that at one time after returning to the deliberation room, many jurors laughed in response to a witness testimony. I did not disclose which witness" (paragraph 3(c)) and further he "told a person I was having trouble comprehending how a witness could lie so badly. I did not disclosure which witness" (paragraph 3(d)). 5. The witness juror indicated that he had informed two or three persons as to that disclosed in paragraph 3(c) and one person with respect to paragraph 3(d). Those persons were not members of the jury. As to paragraph 3(c), the witness juror stated that it was possible that he had discussed the matter with other members of the jury. 6. Paragraphs 5, 6 and 7 of the note were in the following terms: 5. Another juror searched the name "Gerogerie" on their phone, then immediately switched their phone off saying that a media report had shown up. This happened on day 1, I believe before we were given instructions. 6. Another juror reported to us the current population of Gerogerie. 7. Another juror shared with a non-juror that this was a murder trial. 1. The witness juror confirmed that paragraph 5 was referred to a member of the jury, other than himself, who he could identify. Paragraph 6 was referring to another member of the jury and paragraph 7 to yet another member. In total he was referring to three separate jurors, other than himself, with respect to paragraph 5 to 7 of his note. 2. He confirmed that with respect to paragraph 5, 6 and 7, that the jurors were nearby and in the jury room. The events referred to in paragraph 5 happened on the first day of the empanelment of the jury, after the jury had been selected. Notwithstanding his note that he believed the event in paragraph 5 happened before the jury was given instructions, he could not recall whether the step was taken before or after instructions were given to the jury. 3. The event which occurred in paragraph 6 occurred on the second day of the trial. 4. Subsequently, the foreperson was called before the Court to give an account. in the case of the witness juror, no oath or affirmation was administered. Steps were taken before calling the foreperson to ensure that there was no risk of self-incrimination. 5. The foreperson was not aware of the circumstance of paragraph 5 having occurred. The foreperson was aware that the circumstance described in paragraph 6 had occurred in the jury room. The result of the inquiry was reported in the jury room to members of the jury although the foreperson was unclear if every member of the jury was present. There was no conversation regarding contents of paragraph 6 save that a member or members of the jury indicated that it was not appropriate for such information to be provided. 6. The foreperson could not recall the events described in paragraph 3(c) of the jury note. 7. After these steps were taken, counsel was asked to confer as to the procedure that might be followed thereafter. The outcome of those discussions was productive, of only one point of agreement, namely, that the witness juror should be discharged. Otherwise, as the Crown submitted, the parties adopted polar opposite positions. 8. Before turning to the submissions of the parties it may also be noted that after providing information to the Court the witness juror was returned to a room separate to the remainder of the jury (the foreperson was also placed in a separate room). After the foreperson was permitted to join the remainder of the jury and whilst the witness juror remained separated from the jury, as he had been placed for the entirety of the day. The court received a further jury note (Jury Note 4) raising three questions as follows: (1) Why has the Crown not called ZT? (2) Can the accused be charged with accessory instead of murder? (3) Why has the Crown not called Johanna Watson Hodgers to the stand? 1. The Crown applied for the discharge of the whole jury based upon the fact that the deliberations of the jury had been exposed to the parties. As a secondary position, the Crown submitted that the Court should embark upon an inquiry of the remaining 12 jurors as to the content of paragraphs 3(c) (concerning the disclosure of jury deliberations) and 5, 6 and 7 (concerning searches or inquiries by jurors inside or outside the jury room) of Jury Note 3, using a similar process to that which was adopted with respect to the witness juror and the foreperson save that, the Court may wish to require the jurors to take an oath or affirmation. 2. Mr Agius SC for the accused submitted that there is no basis to discharge other than the witness juror. He opposed any further inquiry as to the jurors beyond the inquiries already made from witness juror and the foreperson. 3. I shall provide a brief summary of the of the submissions for the Crown and the accused at this juncture before returning to some of counsel's submissions in my consideration, having regard to the late submissions of the parties. 4. In summary the submissions of the Crown in support of discharging the jury pursuant to s 53C(1)(a) of the Act, or any other procedures proposed by the Crown were: 1. First, due to the information contained within Jury Note 3, the parties became privy to potential "deliberations" of the jury and on this basis the jury should be discharged. 2. As a secondary submission, that each juror should be called into Court and questioned individually as to the contents in Jury Note 3 (specifically paragraphs 5, 6 and 7) under s 73A of the Act. These paragraphs contained information of potential "internet searches" which were conducted by a jury member. In this respect, the discharge of particular jurors for misconduct may result in the Court having to discharge the whole jury. 1. The Crown elaborated upon that approach in its written submissions. In respect of the first submission, the Crown contended that, as the parties were now aware of information from both the witness juror and the foreperson, they were therefore privy to information that they should not have had, and the jury should be discharged. The parties were exposed to a juror's though processes, which had the potential to "infect" the closing arguments. 2. It was submitted that it could be inferred from the content contained in jury note 3, that there was a "shared view" among certain jurors as to the veracity of particular evidence. The Crown was concerned with the context in which the witness juror used the word "many"; being a reference to "many jurors laughed" in paragraph 3(c) of Jury Note 3. 3. It was submitted that this was "a defect in the procedure" where "this knowledge is now with the parties" as the parties should never know what is going on in a jury room. 4. Should the jury be released, it was submitted by the Crown that the jury would require a "strong direction that they are not to associate outside the Court at all, together with the normal direction". 5. In support of the second submission, it was stated that, if s 73A inquires were not undertaken, the extent of the "searching" or misconduct would not be fully known. It was contended that the subject of the searches "should not be the focus of the inquiry", but rather the fact that the searches were done at all. 6. The Crown relied on Hoang v The Queen [2022] HCA 14; (2022) 96 ALJR 453 ("Hoang"). Hoang dealt directly with the issue of inquiries by jurors, and the implications arising from the terms of ss 68C(1) and 53A of the Act. It was held at [36] that an inquiry made "for the purpose of obtaining information about … any matters relevant to the trial" amounts to misconduct. This renders the purpose of the inquiry or the intention of the inquirer irrelevant. Where misconduct is found, the juror must be discharged. 7. The Crown submitted that as the content of paragraphs 5 and 6 of Jury Note 3 revealed prohibited conduct by two separate jurors and an inquiry under s 73A should be held, to discover the extent of the searches conducted and any further misconduct which was "alive". The discharge of the remainder of the jury would therefore become contingent on the outcome of those inquiries. If the jurors engaged in misconduct that could be identified by questioning under s 55DA of the Act, then those jurors must be discharged. If those jurors could not be identified by that process, or the questioning does not occur, then the entire jury must be discharged. 8. The discharge of a juror or jurors engages s 53C of the Act. The Court then must consider whether continuing the trial, following the discharge of the juror(s), would give rise to the risk of a substantial miscarriage of justice or not. 9. Finally, the Crown also raised questions concerning Jury Note 4. As the "witness juror" had not been with the remaining jurors for the entire day, it was evident that the contents of Jury Note 4 were deliberated in his absence. 10. In oral submissions, Mr Agius SC was strongly opposed to discharging the jury which he submitted would not be in the interests of the accused, of justice or of the Crown witnesses. In summary, his submissions were as follows: 1. The witnesses had given evidence and had been cross-examined. 2. The witness juror's information suggested that a juror had "become interested in the cross-examination. If that juror is discharged, then there is no reason to assume that anybody else on the jury was infected by what this juror says he did. There is absolutely no reason to draw any inference that the jurors have already made up their mind. 3. That a juror thinks one of the witnesses was lying should not be a surprise and does not indicate that the jury is not fit to try the case. 4. The trial is already 12 years after the date when the Crown alleges the offence was committed and if there is to be a retrial, the accused would continue to have this "hanging over his head" until there was a verdict. 5. The fact that the witness juror was attentive, thoughtful and rational should not be taken to be infecting the capacity of the balance of the jury to attend to their task. 6. The fact that the witness juror expressed a view that people laughed on a particular subject in the jury room is not a reason to sack the jury. 7. The authorities indicate that in all but exceptional circumstances the Court should adjourn the proceedings until the parties have considered whether to appeal against the decision, and if there is to be a review the judge should give reasons for the decision and excuse the jury until the determination. 1. Senior counsel for the accused submitted that sufficient inquiries had been made and that nothing had occurred which would require the discharge of the jury. RELEVANT PRINCIPLES 1. Section 53C(1) of the Act concerns the discharge of the whole jury (or the discharge of an individual juror) and is in the following terms: (1) If a juror dies, or the court or coroner discharges a juror in the course of a trial or coronial inquest, the court or coroner must— (a) discharge the jury if the court or coroner is of the opinion that to continue the trial or coronial inquest with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, or (b) if of the opinion that there is no such risk and subject to section 22, order that the trial or coronial inquest continue with a reduced number of jurors. 1. In Phan v R [2018] NSWCCA 225 ("Phan"), Price J (with whom Hoeben CJ at CL and Fullerton J agreed) held at [122]: Section 53C(1)(a) of the Jury Act imposes an obligation on a trial judge who discharges a juror in the course of a trial, to discharge the jury if the judge is of the opinion that to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice. However, if the trial judge is of the opinion that there is no such risk, the trial judge is required to order the trial continue with a reduced number of jurors as long as the numbers do not fall below the statutory minimum in s 22 of the Jury Act. The opinion is to be formed on all of the material then available to the Court. 1. In Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 ("Crofts"), the High Court emphasised that trial judges are required to be satisfied to a "high degree of necessity" before discharging the jury. As the plurality (Toohey, Gaudron, Gummow and Kirby JJ) observed in that decision (at 440): No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. 1. In R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135 ("Lamb"), Bathurst CJ, Harrison and Button JJ did not consider it necessary resolve the controversy as to whether or not the statutory test that it would "give rise to the risk of a substantial miscarriage of justice" contained in s 53C(1)(a) of the Act is to be considered on its own, or whether it can be informed by the "seemingly higher test" contained in Crofts: at [37]. 2. In R v Popovic; R v Koloamatangi (No 3) [2017] NSWSC 1110 ("Popovic"), N Adams J held at [25] that the relevant test is that set out in Crofts and that "before discharging the jury in this trial, I am required to be satisfied that there is a "high degree of necessity" to do so". Her Honour stated in R v Azari (No 9) [2018] NSWSC 1678 ("Azari") at [21] that the authorities and principles stated in Popovic can be incorporated into a consideration under s 53C(1) of the Act. In Azari, N Adams J also held at [18]-[19] [18] As I noted at [129] of Hoang [v The Queen [2020] NSWCCA 324], the test for a potential substantial miscarriage of justice in s 53A(2)(b) of the Jury Act and also in s 53C(1)(a) of the Jury Act is to be assessed prior to the verdict rather than retrospectively at the time of an appeal. In addition to that contextual difference there is another: in s 53C(1)(a) the question is whether there will be a risk of a substantial miscarriage of justice, whereas in s 6(1) of the Criminal Appeal Act, the question is whether the Court is satisfied that no substantial miscarriage of justice has actually occurred. [19] Giving the words "risk of substantial miscarriage of justice" their ordinary meaning in the context of the Jury Act, and in particular s 53C, I propose to approach the question of potential discharge on the question of whether what has occurred could affect the outcome of the trial in any way. 1. No bases have been demonstrated to depart from N Adams J decision in Azari. However, it is unnecessary to resolve the issue left open in Lamb because, as I will apply below, I am satisfied, in any event, to the higher standard of a "high degree of necessity" that the jury should be discharged. 2. In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, French CJ, Bell, Keane and Nettle JJ stated at [15]: By "substantial miscarriage of justice" what is meant is that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal, which was fairly open to him or her or that there was some other departure from a trial according to law that warrants that description. 1. The plurality further explained at [15]: Where the third limb is engaged, if the Court of Criminal Appeal has concluded that the appellant has not received a fair trial it will follow that it has concluded that there has been a substantial miscarriage of justice. But where, despite some other identified irregularity, the Court of Criminal Appeal is satisfied that the appellant has received a fair trial according to law and not otherwise been deprived of a chance of acquittal that was fairly open to him or her, once again the proviso will operate. 1. In Phan, the Court of Criminal Appeal emphasised that "[w]here matters of evidence or a trial judge's directions are not in issue, the inscrutability of a jury's verdict may present a difficulty for an appellate court". The Court cited approvingly the passage in Potter v The Queen [2007] EWCA 2485 where Moses LJ observed at [30]: Since juries are not required to give reasons for their verdict, the only objective assurance that the process by which the jury has reached its conclusion is rational, lies in the fair conduct of a trial. A rational conclusion demands a fair process. A trial must be managed to enable those objectives to be achieved 1. I should also mention authority on the sanctity of the jury process and searches undertaken. In R v Rinaldi; R v Kessey (1993) 30 NSWLR 605, Carruthers, Sully and Abadee JJ said: What has to be made clear, and which we here seek to emphasise, is the necessity for not only ensuring the finality of jury verdicts, but also the need to ensure that jurors or former jurors are not subjected to pressure, harassment or otherwise, either in relation to their deliberations in reaching a verdict, or, in relation to the verdict itself. The need to ensure that a juror or former juror's privacy and anonymity are respected, is self evident. Further, a juror's performance of the civic duty of service ought not to be accompanied by fear, apprehension, or concern for actual or potential embarrassment. The Court has a duty to see that the sanctity of the jury room is not invaded and also, to ensure that an attempt by anyone to breach a juror's confidentiality is to be rejected. Public confidence in the jury system demands nothing less. 1. Brennan J (as his Honour then was) observed in R v Glennon [1992] HCA 16; (1992) 173 CLR 592 (at 614-615): Of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts is that the reliance is not misplaced. 1. Similarly, in Gilbert v R (2000) 201 CLR 414; [2000] HCA 15, McHugh J observed at [31]: The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one – accused, trial judge or member of the public – could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials. CONSIDERATION 1. In my view, the whole of the jury should be discharged commencing with the discharge of the witness juror and then followed by the discharge of the remainder of the jury. The witness juror should be discharged because the trial is exacerbating his mental health issues and because returning him to the jury room would be untenable. I make no findings as to any alleged misconduct having regard to paragraph 3 of Jury Note 3 but I observe that the further Jury Note 5, provided to me this morning, provides even further reason to discharge. 2. First, I accept the submission of the Crown that the contents of paragraphs 3(c) and (d) of Jury Note 3 should be understood as disclosing an aspect of the jury deliberations. When read together, they disclose that the jury considered that a Crown witness was lying to such an extent that it brought "many of them in the jury" to laughter. 3. Whether consciously or unconsciously, there is a real risk that counsel for the Crown or senior counsel for the accused may tailor their submissions to the jury in a manner consistent with or responsive to the information with which they have been provided via Jury Note 3. 4. That issue is not met by Mr Agius' submission that it is not surprising that the jury may find some witnesses are lying or his further submission that some witnesses told lies during the trial. 5. It is not the Court's role to express a view as to Mr Agius' contention that a witness or witnesses were lying. It is the incursion into the sanctity of the jury room that raises the prospect to which I have referred; one that is significantly corrosive to the proper administration of justice. It is an essential part of the administration of the criminal justice system that jury deliberations are confined to the jury room when all members of the jury are together in that place. 6. The second basis for the discharge of the remaining jury members is that the information disclosed by the witness juror and the foreperson makes it clear that members of the jury were disregarding the directions given to them by the Court when engaging in conduct referred to in paragraphs 3(c) and (d) and 5 and 6 of Jury Note 3. The reference to "Gerogery" in paragraphs 5 and 6 is a reference to the location of the alleged murder, which location forms part of the indictment. 7. On the issue of materiality, as raised in the written submissions of Mr Agius. there is abundant authority from the Court of Criminal Appeal and this Court that, where there is an irregularity with the jury, consideration should be given as to whether the irregularity is material: see, eg, R v Hunter (No 8) [2014] NSWSC 1151 at [31] (Button J); Haile v R [2022] NSWCCA 71 at [243] (Bellew J with whom Bell CJ and Ierace J agreed). 8. I note that the High Court's judgment in Hoang, however, did not consider whether the irregularity was material. Rather, at [36], the Court emphasised that "[i]t is the fact of the inquiry, and that the purpose of the inquiry was to obtain information about a particular matter relevant to the trial, which is the subject of the prohibition" (emphasis in original) in s 68C of the Act. The Court emphasised that it is not concerned with the juror's motive for making the inquiry, just that there was an inquiry made for the purpose of obtaining information about a matter relevant to the trial. 9. In my view, the proper approach to reconciling the authority of the High Court in Hoang and decisions of this Court and the Court of Criminal Appeal is that materiality of an irregularity should be satisfied before discharging a jury because it invokes the overriding principle of a fair trial. However, in determining whether an irregularity is material, this Court may also follow the inquiry set out by the High Court in Hoang. 10. I am satisfied that, when viewing all the material as a whole, the trial and the jury's deliberations were irregular or compromised in a material way. My conclusion in that respect is based upon the entirety of the irregularities disclosed, as they must be taken into account and not simply of an assessment of each particular irregularity illustrated by particular paragraphs in Jury Note 3. 11. It is understandable in those circumstances why the Crown would direct the Court's attention to ss 68C(1) and 53A of the Act and to passages from Hoang addressing the implications of misconduct. I also note the Crown's reliance upon [27] to [37] of Hoang and in particular the High Court's statement, as earlier mentioned, that "[i]t is the fact of the inquiry, and that the purpose of the inquiry was to obtain information about a particular matter relevant to the trial, which is the subject of the prohibition". 12. It is also understandable that the Crown would, in that light point, to the potential examination of jurors under s 55DA of the Act because of the real potential for other irregularities. 13. The Crown contended that it was necessary for the proper continuance of the trial to ascertain what searches had been undertaken by jurors and that jurors may in the result be discharged, as noted in the submission of the Crown. Subject to the outcome of that inquiry and any discharge of jurors, the Crown considered that the continuance of the trial may give rise to a risk of a substantial miscarriage of justice. Mr Agius opposed any further inquiry. 14. However, in my view it is not necessary to conduct further inquiry for the purposes of reaching my conclusion as to the discharge of the jury on the bases that I have identified. 15. Even without any further inquiry by the Crown, it is in my view plain that there have been a number of members of the jury members of the jury who have disregarded, at the least, the directions given by the Court in this matter on numerous occasions. There must be real doubts in the circumstances as to the continuing adherence by the jury to those directions. 16. So much is confirmed by the provision of Jury Note 4 which plainly indicated the jury engaged in deliberations when the whole of the jury was not present, contrary to the directions of the Court. 17. An additional consideration is the impact that an inquiry of the kind contemplated by the Crown, which will most likely involve cautions involving warnings against self-incrimination, may have upon the proper discharge by the jury of their obligations. 18. A further and separate consideration to those primary reasons are the issues raised by the accused concerning the period of time that has passed, since the alleged murder and the period of time that may elapse before another jury may be empanelled and a further trial. 19. At the point the report from the Court Officer was received, the trial had proceeded for six days, the evidence had closed and there was in contemplation the receipt of submissions as to directions and rulings on the same on that day. The balance of the trial before the jury's deliberations, would have taken two days, one for closing submissions and a part day for summing up. Thus, there was a real prospect of the trial concluding, subject to jury deliberations, within the three-week estimate for the trial and may, in that respect, be considered a relatively short trial. There is no reason that immediately presents itself as to why, in the event of the discharge of the jury, the trial might not be able to proceed within a relatively short period of time, even allowing for the availability of counsel. 20. As to the further issue raised by Mr Agius as to the period of time since the alleged murder, it should be observed that the murder was alleged to have occurred in 2010. An investigation in relation to it only commenced in 2019 after revelations by Mr Sacha Priest in 2017, who gave evidence in the proceedings. 21. In my view, the witness juror should be discharged pursuant to s 53B of the Act and the remaining jurors be discharged under s 53C(1)(a) of the Act because the continuation of the trial with the remaining jurors would give rise to the risk of the substantial miscarriage of justice. 22. Having regard to s 5G of the Criminal Appeal Act 1912 (NSW) and the decision in Lamb at [35], I propose to stay orders discharging the remaining jury members for a short period of time to permit the parties to exercise their rights with regard to my decision. ORDERS 1. The orders of the Court are as follows: 1. Pursuant to s 53B of the Jury Act 1977 (NSW) ("the Act"), the witness juror is discharged. 2. Pursuant to s 53C(1)(a) of the Act, the remaining jury is discharged. 3. Order a new trial. 4. List the matter in the Arraignment List at 10:00am on 7 October 2022. 5. Subject to further order of this Court or the Court of Criminal Appeal, orders (2), (3) and (4) are stayed until Monday 19 September 2022 at 12:00pm. 6. The proceedings are adjourned to 12:00pm on Monday 19 September 2022. 7. Liberty to apply on short notice with respect to order (6). ********** Amendments 25 October 2022 - This judgment is published following the conclusion of the trial in the matter. 26 October 2022 - Amendment to the names of the legal representatives for the prosecutor. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 October 2022