Regina v JP (No 2) [2013] NSWSC 1679

Supreme Court New South Wales

Medium Neutral Citation: Regina v JP (No 2) [2013] NSWSC 1679 Hearing dates: 30-31 October 2013 Decision date: 31 October 2013 Jurisdiction: Common Law - Criminal Before: Hall J Decision: Order made pursuant to s 53C of the Jury Act for trial to continue with eleven jurors Catchwords: CRIMINAL LAW - juries - application by accused to discharge whole jury - whether research of discharged juror contaminated whole jury - where foreperson immediately intervened when discharged juror raised terms of her researches - where no opportunity nor sufficient time for other jurors to read discharged juror's researches - where material researched related to 'malice' being the only matter disclosed or discussed - no risk of substantial miscarriage of justice - trial to continue with the remaining eleven jurors Legislation Cited: Jury Act 1977 Cases Cited: R v Sio (No. 4) [2013] NSWSC 1415 Wu v The Queen [1999] HCA 52; 199 CLR 99 Category: Procedural and other rulings Parties: Regina (Crown) JP (Accused) Representation: Counsel: P Leask (Crown) P Young SC (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Lex Fori Lawyers (Accused) File Number(s): 2011/235975

Judgment 1On 30 October 2013 I made an order pursuant to s 53A(1)(c) of the Jury Act 1977 ("the Act") discharging a juror on the basis of misconduct within the meaning of s 53A(2) of the Act. 2Application was made by Mr Young SC, for the accused, for an order discharging the jury pursuant to s 53C(1)(a) of the Act. 3The trial commenced on 30 September 2013. 4At 10.56am on Monday, 28 October 2013, the jury retired to consider its verdict. 5At approximately 12.30pm Wednesday, 30 October 2013, the jury sent a note (MFI-68) which was in the following terms: "It has been brought to our attention that one juror had been making their own enquiries on the Internet as to legal definitions of murder & manslaughter & discussing their findings with certain jurors. I felt that this needed to be brought to your attention." 6Counsel for the Crown and the accused were soon after informed by me that the Jury Note, MFI-68 had been received and it was then made available to counsel. 7I determined that I would proceed with an examination of both the foreperson and the juror referred to in the Jury Note pursuant to s 55DA of the Act. 8The court reconvened shortly after 2.00pm whereupon the foreperson was brought into court, affirmed and examined in relation to MFI-68 9The foreperson confirmed that he was the author of the Jury Note. He also confirmed that he was present when the events to which the Jury Note referred took place. He said that there were two separate episodes relevant to those events. 10The first episode occurred some minutes before 10.00am Wednesday, 30 October 2013. There were then eleven jurors in attendance in the jury room. The juror referred to in the Jury Note was seen reading her iPhone. When questioned by a juror sitting next to that juror as to what she was doing she replied to the effect that the previous evening she had downloaded information from the Internet being material that dealt with the meaning in law of "murder" and "manslaughter". The foreperson's evidence was that the juror in question said: "I've been looking at this overnight, and I'm having trouble determining the difference between murder and manslaughter, that is what it says" and then looking at her phone. T 132-133. The foreperson intervened and told the juror she should not have brought such material into the jury room. Her mobile phone was then switched off and taken away. 11The second episode occurred at approximately midday when the juror in question said words to the effect that based on her abovementioned research, that the difference between murder and manslaughter involved malice. The juror did not have her iPhone at that time: T 133. The foreperson in the examination said up to four jurors commenced to make a verbal response but at the time were talking over each other. The foreperson said when he realised the context of what the juror was referring to he then told them to stop talking about it "... based on your legal direction we should be making no outside inquiries" (a reference to the relevant trial direction): T 134. The foreperson said he could not hear what was said by the four jurors because of the fact that they were talking over one another.