R v Wood [2008] NSWSC 817

New South Wales Supreme Court

CITATION : R v Wood [2008] NSWSC 817

HEARING DATE(S) : 28 July to 6 August 2008

JUDGMENT DATE : 6 August 2008

JURISDICTION : Common Law

JUDGMENT OF : Barr J at 1

DECISION : Jury discharged.

CATCHWORDS : CRIMINAL LAW - Jury misconduct - directions given to a jury - examination of jurors on oath - contravention of s68C of the Jury Act - discretion to discharge a jury

LEGISLATION CITED : Jury Act 1977, s68B, s68C, s55DA Evidence Act 1995, s128

Winsor v R (1866) LR 1 QB 390 R v Boland [1974] VR 849 R v George, Harris and Hilton (1987) 9 NSWLR 527 CASES CITED : Crofts v R (1996) 186 CLR 427 Webb and Hay v R (1994) 181 CLR 41 Bartle and Ors [2003] NSWCCA 329 Qing An v R [2007] NSWCCA 53

PARTIES : Regina Gordon Eric Wood

FILE NUMBER(S) : SC 2007/1675

COUNSEL : M Tedeschi QC and K McKay (Crown) W Terracini SC and S Hughes (Defendant)

SOLICITORS : Solicitor for Public Prosecutions (Crown) Michael Bowe (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUSTICE GRAHAM BARR

6 AUGUST 2008

2007/1675 REGINA v GORDON ERIC WOOD

JUDGMENT ON A REPORT OF JURY MISCONDUCT 1 HIS HONOUR: This judgment concerns competing applications made by the parties as a result of a report made to the Court and evidence adduced under the provisions of the Jury Act. The accused, Gordon Eric Wood, is charged with having murdered the deceased, Caroline Byrne, by throwing her from the top of the cliff at The Gap, Watsons Bay, one night in 1995. The Crown Prosecutor began his opening late on the first day of the trial and concluded it on the second day. By the conclusion of the opening the jury had a reasonably detailed knowledge of evidence the Crown expected to call and what assertions it would make relying on that evidence. On Wednesday 30 July, the third day of the trial, the jury were taken for an inspection of certain features at Watsons Bay. They were shown the place from which the Crown would be submitting that the accused had thrown Ms Byrne to her death and the place where the Crown would be saying that she landed at the foot of the cliff, meeting her death. Several other features were pointed out as well. It was obvious to the jury that the acts of the accused relied on would be said to have taken place on a dark night when visibility was limited. The Crown mentioned in opening that there was a sea mist on the same night which further interfered with visibility. 2 The evidence began on the fourth day of the trial, Thursday 31 July. At the conclusion of the evidence in chief of the first witness the Court adjourned. Later the same afternoon there was received in my chambers a report, the effect of which was that a person claiming to be a member of the jury had had a telephone conversation with a journalist and had disclosed that some members of the jury were intending to return to The Gap that night for a private inspection. That would have been contrary to explicit directions I had given the jury. I arranged for an officer of the Sheriff's Department to retrieve confidential particulars about each juror and to telephone each juror and tell that juror three things namely, first, that the Court had been led to believe that some members of the jury were intending to return to The Gap that night to have a private inspection, secondly, that on no account should such an inspection be held and thirdly that the jury would be asked about this on the next sitting day, namely Monday 4 August. The officer concerned managed to do so by about 6:40pm on Thursday 31 July. 3 On Friday 1 August I invited counsel and their solicitors to my chambers. The accused was not present. I told counsel the substance of the report that I had received, what I had done in response and my understanding of the action the Sheriff's officer had been able to take. The court reporter attended that conference and made an official transcript of everything that was said. 4 The Court sat on Monday 4 August. The accused was present. I repeated for the benefit of the accused and everybody else present the substance of what had happened on Thursday, 31 July. At my request Mr Jason Morrison attended. He gave evidence on oath. I asked all the questions myself, having given counsel an opportunity to suggest things that I should ask. Mr Morrison is a broadcaster at radio station 2GB. He said that he received a telephone call at 9:20am on the morning of Thursday 31 July. This evidence followed - Q. And did you speak to the person on the other end of the phone? A. I did, yes. Will gender help you at all?