R v Rumsby (No 5) [2023] NSWSC 771

Supreme Court New South Wales

Medium Neutral Citation: R v Rumsby (No 5) [2023] NSWSC 771 Hearing dates: 27 June 2023 Date of orders: 27 June 2023 Decision date: 27 June 2023 Jurisdiction: Common Law Before: R A Hulme AJ Decision: Trial to continue with a jury of 11 Catchwords: CRIME – practice and procedure – jury trials – discharging juror for misconduct – question of proceeding with balance of jury – Jury Act, s 53C – whether risk of substantial miscarriage of justice – information illicitly obtained by juror and passed on to other jurors not prejudicial to accused – trial may continue Legislation Cited: Jury Act 1977 (NSW) Category: Procedural rulings Parties: Rex (Crown) Craig Henry Rumsby (Accused) Representation: Counsel: L Carr SC with C Hodgeman (Crown) N Broadbent with Z Alderton (Accused)

Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 234445/2020

JUDGMENT 1. HIS HONOUR: I discharged Juror 965‑73 pursuant to s 53A of the Jury Act 1977 (NSW) (the Act) for misconduct because of prohibited inquiries she made contrary to s 68C. 2. Pursuant to s 53C of the Act, the question then arose as to whether continuing with the remaining jurors would give rise to the risk of a substantial miscarriage of justice. If so, I would have had to discharge the balance of the jury. If not, then subject to s 22, I was required to order that the trial continue with a reduced number of jurors. 3. Having heard submissions, I decided that continuing with the remaining jurors would not give rise to the risk of a substantial miscarriage of justice. I had regard to a number of factors, including the following. 4. First, the stage the trial had reached. The jury are well advanced in their deliberations, having retired on Thursday 15 June at 2.00pm. They were given a Black direction on Wednesday 21 June, but since then have continued deliberating. They seemed to have made progress and I deduce that mostly on the basis that they sent a note late yesterday afternoon indicating they had reached a unanimous verdict on one count but could not do so on the other and asked for my guidance. 5. Upon examination of the foreperson, it emerged that there was some doubt about whether it was unlikely the jury would reach a unanimous verdict with further time for deliberation. I intended to inform them this morning that they should continue their deliberations and let me know if they reached a point where a unanimous verdict on one of the counts was unlikely. That, of course, would open the gateway to allow a majority verdict to be returned. 6. Overnight, I became aware of an email sent to my chamber's email account. It was sent last Saturday morning. It is not an account I regularly access. My associate usually does, but she is absent on leave at the moment. The email alerted me to the possibility that a juror had made prohibited inquiries on two subjects and had passed on information to the jury. With the concurrence of counsel this morning, I embarked upon a process of examining each of the jurors on oath one at a time in the courtroom, acting in accordance with s 55DA of the Act. 7. It emerged through that process that Juror 965‑73 had made inquiries about three subjects. It also emerged that she had passed on information to other jurors, and this was confirmed by a number of them. Some jurors did not say that they had heard anything of a juror making a prohibited inquiry, while others heard of Juror 965‑73 having done so in relation to one or two, but not all three topics. It is hard to know the extent to which this divergence of evidence may be attributed to jurors not being focused upon what Juror 965‑73 said at relevant times. 8. A critical factor was whether information that may have been passed on by Juror 965‑73 was such that would give rise to a substantial risk of a miscarriage of justice. I determined that it would not. 9. One topic upon which inquiries were made concerned walking speeds. Having made this inquiry the juror discussed or commented upon the result with at least some other jurors. This concerned something that has been mentioned in the trial regarding the accused walking from Gulgong to his then residence at a place called Home Rule. It appears Juror 965-73 was doubtful that he could have walked the distance in the time indicated but her inquiry seems to have confirmed in her mind, and perhaps others, that what the accused had said was indeed correct. 10. Hair loss from the body after death was another topic of inquiry for Juror 965-73. The relevance of this is that part of the accused's admissions to the undercover police was that the genital area of the deceased was "shaved". Evidence was given by Dr Botterill, the forensic pathologist, about his post-mortem examination in this respect. Juror 965-73 said that what she found on the internet on this subject was consistent with the evidence that had been given by Dr Botterill. 11. The other topic of inquiry for Juror 965-73 was to obtain information about body language and the ability to discern truthfulness or dishonesty from it. This obviously relates to the demeanour of the accused during his conversations with the undercover police officers on 11 August 2020, the recording of which was both audio and audio-visual. The conversations occurred in a rented apartment in Parramatta and on location at various places in Gulgong. The latter were at night-time and the vision in the recording was poor but the vision in respect of the earlier conversations in the apartment was reasonably clear. It was there that the accused commenced to make admissions after an earlier period of denying any involvement in either of the two incidents. The Crown Prosecutor invited the jury in his closing address to look at the accused's body language when he altered his approach and began (purportedly) to admit responsibility for the offences. 12. It appears that what Juror 965-73 discovered on this body language issue was rather vague and not useful. I would very much doubt that it was anything that would have influenced either herself or anyone to whom she spoke to discern anything of value that they would not otherwise have been able to do by using their own experience and knowledge of human nature. 13. In summary, it seemed to me that none of the information derived by Juror 965-73 was of any real use to her or the jury generally. It did not add to what they already had in the way of evidence and it certainly was not prejudicial to the accused. 14. Another factor I took into account was my intention to direct the jury that they should completely disregard anything said by Juror 965‑73 that related to her inquiries, or anything she said concerning her thoughts about any aspect of the evidence, or as to what the verdicts might be. I agreed with the proposal advanced by counsel for the accused that a strong direction to this effect was the appropriate course to take, rather than to discharge the entire jury. 15. Finally, I had regard to the fact that there was no information available which might suggest how Juror 965‑73 might have voted in terms of the verdict on either count, except that she must have agreed with the decision of every other juror in coming to a unanimous verdict on one of the counts. I incorporated something dealing with that aspect in the direction I ultimately gave to the jury when indicating to them that I had determined the trial would continue with the 11 of them. It included that if they considered that they were in any way influenced in coming to that decision they should revisit it and make a further assessment with the exclusion of anything said by Juror 965-73.