R v Ronald Edward Medich (No. 23) [2017] NSWSC 267

Supreme Court New South Wales

Medium Neutral Citation: R v Ronald Edward Medich (No. 23) [2017] NSWSC 267 Hearing dates: 17 March 2017 Date of orders: 17 March 2017 Decision date: 17 March 2017 Jurisdiction: Common Law Before: Bellew J Decision: (1) Juror number 01737387 is discharged. (2) The trial is to continue with the 13 members of the jury who remain. Catchwords: CRIMINAL LAW – Practice and procedure – Juries – Where there was evidence that a jury member had discussed the trial with his partner who was a solicitor – Where partner then sought to initiate discussion with a Crown Prosecutor concerning aspects of the trial about which she had been informed by that juror – Where the jury had been repeatedly directed not to discuss the case – Juror discharged Legislation Cited: Jury Act 1977 (NSW) Category: Procedural and other rulings Parties: Regina (Crown) Ronald Edward Medich (Accused) Representation: Counsel: Ms G O'Rourke SC and Ms S Harris (Crown) Mr W Terracini SC, Ms M Curry and Mr T Quilter (Accused)

Solicitors: Director of Public Prosecutions New South Wales (Crown) Colin Daley Quinn (Accused) File Number(s): 2010/356916 Publication restriction: Nil

Judgment – ex tempore (revised) 1. An application has been made on behalf of the accused pursuant to s. 53B(d) of the Jury Act 1977 (NSW) ("the Act"), which the Crown does not oppose, that I make an order discharging one of the members of the jury in this trial. I agree that this course should be taken. It is appropriate that I set out my reasons for coming to that conclusion. 2. Yesterday morning my Associate received an email from junior counsel for the Crown, the relevant part of which was in the following terms: "A friend of a Crown Prosecutor not related to this trial advised that Crown Prosecutor this week that their spouse was on the Medich jury. The Crown Prosecutor advised the friend that they should say nothing further to them about the trial. Unsolicited, the friend later told the Crown Prosecutor that the juror had made comment on the different cross-examination styles of counsel in the trial." 1. In response to receiving that email I advised the parties that I would hear any submission or application when the proceedings resumed this morning. In so advising the parties, I indicated that the Crown Prosecutor in question should be present at court in the event that he or she was required to give evidence. 2. When the proceedings resumed this morning, the Crown indicated to me that there may be more to the matter than was initially envisaged. The collective view of counsel, with which I agreed, was that the Crown Prosecutor to whom the juror's spouse spoke should give evidence on oath as to what occurred, so as to clarify the nature and extent of the conversations which had apparently taken place. 3. The following evidence was then given by that Crown Prosecutor in response to questions asked by me (commencing at T2080 L12): Q. … I just want to read to you, to put what I am going to ask you into context, the contents of an email that my associate received yesterday from the Crown Prosecutor's junior counsel in this case. Omitting, as it were the formal parts, the email says this: "A friend of a Crown Prosecutor, not related to this trial, advised that Crown Prosecutor this week that their spouse was on the Medich jury. The Crown Prosecutor advised the friend that they should say nothing further to them about the trial. Unsolicited, the friend later told the Crown Prosecutor that the juror had made comment on the different cross‑examination styles of counsel in the trial." Now I understand that you are the Crown Prosecutor to whom reference is made in that correspondence? A. I am, your Honour. Q. Would you just articulate please the nature and extent of the contact that has been made with you, to which reference is made in that email, and if you could just do so slowly so everything can be taken down? A. I was actually told last week by the person that the person's spouse was on this jury and told the person not to speak any more about it. I received an email or text, I think, from that person saying: "No, no, we don't talk about it. In fact we don't speak". And we subsequently arranged to have lunch, which was on Tuesday of this week, and, unsolicited, the friend said words to the effect of, that the "Crown Prosecutor's cross‑examination was even firier than that of Mr Terracini". That evening ‑ and I said "don't speak any more about it" ‑ that evening I received a text, thanking me for lunch and indicating that a common friend of ours had been in the courtroom that day, which the person had been told by the person's spouse. I have not spoken to that person since then. Q. And was the ‑ I don't want you to disclose the name of the common friend ‑ but is that a member of the legal profession? A. Yes. Q. Is it a member of the legal profession who, to your knowledge, has any connection with this trial? A. No. Q. So is this the case, that there have been, as it were, three contacts: The first was last week when your friend informed you that their spouse was on the jury; the second was the comment at lunch earlier this week; and the third was an SMS message from your friend in which you were informed that another friend had been recognised in Court? A. Yes, your Honour. Q. And when I say "recognised", by the person on the jury? A. Yes, your Honour. May I just say, your Honour? Q. Yes? A. Not connected at all with this case, but the person is employed by the Director of Public Prosecutions. Q. So it is a solicitor from the DPP? A. Yes. Q. But not somebody who has a role in this case? A. No. Q. And that person was recognised as somebody, as you understand it, as somebody known to the member of the jury? A. Because that ‑ yes, because that person was known to both myself and the friend. HIS HONOUR: Madam Crown, do you want to say anything? CROWN PROSECUTOR O'ROURKE: No. HIS HONOUR: Mr Terracini, do you want to raise anything? TERRACINI: Just one matter, your Honour. Does your Honour want to ask the question? HIS HONOUR: No, you can ask the question. Q. … Is the friend that you had lunch with, is that person a member of the legal profession? A. Yes. 1. The original communication made to the Crown Prosecutor by her friend, who I emphasise is a Solicitor of this Court, concerned an ongoing trial. Such a communication was entirely inappropriate. It reflects poorly on the Solicitor in question (who has not been identified). The subsequent comment made by the Solicitor to the Crown Prosecutor during the course of that lunch concerning aspects of this trial was even more inappropriate. Indeed, the arrangements which were made between the two practitioners to meet for lunch were, to say the least, both unfortunate and ill-advised in all of the circumstances. 2. On the basis of the Crown Prosecutor's evidence, it appeared that a member of the jury was the source of the statements made by the Solicitor. Accepting that to be the case, it followed that such information had been imparted by the member of the jury in defiance of my repeated direction to the jury that they not discuss the evidence, or the case, with any person other than their fellow jury members. 3. In all of these circumstances, it was the collective view of the parties (with which I agreed) that the member of the jury should be identified, and that he or she should be questioned pursuant to the power contained in s. 55DA of the Act which is in the following terms: 55DA Examination of juror-juror making private inquiries about trial matters (1) A judge may examine a juror on oath to determine whether a juror has engaged in any conduct that may constitute a contravention of section 68C. (2) A juror is not excused from a requirement to give evidence on such an examination on the ground that the evidence may tend to prove that the juror has committed an offence against section 68C. (3) However, if the judge is satisfied, after the evidence has been given, that the evidence may tend to prove that the juror has committed an offence against section 68C, the judge is to cause the juror to be given a certificate under this section in respect of the evidence. (4) In any proceedings for an offence against section 68C, evidence given by a person in respect of which a certificate under this section has been given cannot be used against the person. 1. Relevant to the provisions of that section are those of s. 68C which are in the following terms: 68C Inquiries by juror about trial matters prohibited (1) A juror for the trial of any criminal proceedings must not make an inquiry for the purpose of obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions as a juror. Maximum penalty: 50 penalty units or imprisonment for 2 years, or both. (2) This section applies in respect of a juror from the time the juror is sworn in as a juror and until the juror, or the jury of which the juror is a member, is discharged by the court having conduct of the proceedings. (3) This section does not prohibit a juror: (a) from making an inquiry of the court, or of another member of the jury, in the proper exercise of his or her functions as a juror, or (b) from making an inquiry authorised by the court. (4) Anything done by a juror in contravention of a direction given to the jury by the judge in the criminal proceedings is not a proper exercise by the juror of his or her functions as a juror. (5) For the purpose of this section, "making an inquiry" includes the following: (a) asking a question of any person, (b) conducting any research, for example, by searching an electronic database for information (such as by using the Internet), (c) viewing or inspecting any place or object, (d) conducting an experiment, (e) causing someone else to make an inquiry. 1. The member of the jury was identified, his name having been provided to me confidentially by the Crown with the consent of senior counsel for the accused. He then gave evidence. To preserve his anonymity, I directed that his evidence be given in closed Court. That evidence was as follows (commencing at T2087 L36): Q. Sir, can I ask you this: Have you had any discussions whatsoever with any person about any aspect of this trial? A. No. Q. Have you discussed with your partner any aspect of this trial? A. No. Q. Have you discussed with your partner aspects of the cross‑examination of any of the witnesses? A. No. Q. Have you discussed with your partner or made comment about the differing styles of cross‑examination between the Crown Prosecutor, on the one hand, and Mr Terracini on the other? A. No. No. Q. Have you said to your partner anything like words to the effect "the cross‑examination of the Crown Prosecutor was even more fiery than that of Mr Terracini"? A. No. Q. Am I to understand that you recognised in Court yesterday a person who was known to you as a solicitor? A. I did. Q. Did you communicate that fact to your partner? A. I did. Q. Have you discussed any aspect of the case with that solicitor that you recognised? A. No. I haven't seen her for more than ten years. HIS HONOUR: Madam Crown, do you wish me to ask anything further? CROWN PROSECUTOR O'ROURKE: No, your Honour. HIS HONOUR: Mr Terracini? TERRACINI: No, your Honour. HIS HONOUR: Thank you, sir. I will ask you to return to the jury room but you should not, under any circumstances, discuss the questions that I have just asked you and the answers that you have given; do you understand that? JUROR: Yes. 1. In light of all of the evidence which has been given before me in relation to this matter, I found the juror's denials, to say the least, difficult to accept. I have grave misgivings about whether that evidence is truthful. There is, at the very least, a concern that he has failed, perhaps on more than one occasion, to act in accordance with directions that I have given, and has in fact acted in complete defiance of them. That is not, by definition, a proper exercise of his functions as a member of the jury. 2. In all of those circumstances, I am satisfied that he should not continue to act as a juror in these proceedings and I propose, in due course, to make an order discharging him. Needless to say, I do not propose to articulate the reasons for doing so to the remaining 13 members of the jury. I will caution them against speculating as to why this action has been taken and I will direct them that they are to have no contact with the jury member who has been discharged so long as the trial continues. I will also have the jury member brought back into court for the purposes of informing him of my decision, and cautioning him against having any contact with any of the remaining members of the jury. 3. For these reasons, I make the following orders: 1. Juror number 01737387 is discharged. 2. The trial is to continue with the 13 members of the jury who will remain.