Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hoang v R [2018] NSWCCA 166 Hearing dates: 2 March 2018 Decision date: 03 August 2018 Before: Hoeben CJ at CL at [1]; Campbell J at [3]; N Adams J at [24] Decision: Appeal against conviction is dismissed. Catchwords: CRIMINAL LAW – Conviction appeal – A juror conducted an internet search about a matter relevant to the trial – The trial judge took 10 verdicts that had already been reached prior to examining and discharging the juror for misconduct – Two further guilty verdicts were reached following the juror's discharge by the remaining jury members – Whether the juror engaged in misconduct for the purposes of the mandatory discharge provision under s 53A(1)(c) of the Jury Act 1977 (NSW) by making an inquiry contrary to s 68C of the Jury Act or by engaging in conduct that gave rise to the risk of a substantial miscarriage of justice in the trial – Whether the trial judge's erroneous discharge of the juror was a breach of mandatory provisions of the Jury Act going to the constitution and authority of the jury such that the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) could not apply with respect to the final two verdicts reached following the juror's discharge Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW), Pt 3 Crimes Act 1900 (NSW), ss 61M, 61O, 66A Criminal Appeal Act 1912 (NSW), ss 5, 5F, 6 Evidence Act 1995 (NSW), s 75 Jury Act 1977 (NSW), ss 22, 53A, 53C, 55DA, 68C, 73, 73A Jury Amendment Act 2004 (NSW) Jury Amendment Act 2008 (NSW) Cases Cited: AK v State of Western Australia (2008) 232 CLR 438; [2008] HCA 8 Bahrami v R [2017] NSWCCA 8 Benbrika v The Queen (2010) 29 VR 593; [2010] VSCA 281 Carr v R [2015] NSWCCA 186 Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52 Crofts v R (1996) 186 CLR 427; [1996] HCA 22 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Folbigg v R [2007] NSWCCA 371 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kalbasi v The State of Western Australia (2018) 352 ALR 1; [2018] HCA 7 Katsuno v The Queen (1999) 199 CLR 40; [1999] HCA 50 Li v R (2010) 265 ALR 445; [2010] NSWCCA 40 Maher v The Queen (1987) 163 CLR 221; [1987] HCA 31 Petroulias v R (2007) 73 NSWLR 134; [2007] NSWCCA 134 R v Brown & Tran (2004) 148 A Crim R 268; [2004] NSWCCA 324 R v JP (No 1) [2013] NSWSC 1678 R v K (2003) 59 NSWLR 431; [2003] NSWCCA 406 R v Lamb [2016] NSWCCA 135 R v McCormack (1996) 85 A Crim R 445 R v Sio (No 3) [2013] NSWSC 1414 R v Skaf (2004) 60 NSWLR 86; [2004] NSWCCA 37 R v Tantram [2001] EWCA Crim 1364 R v Wood (2008) 186 A Crim R 454; [2008] NSWSC 817 Smith v R (2010) 79 NSWLR 675; [2010] NSWCCA 325 Smith v Western Australia (2014) 250 CLR 437; [2014] HCA 3 Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30 Weiss v R (2005) 224 CLR 300; [2005] HCA 81 Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 27 October 2004 at 12096) Category: Principal judgment Parties: Quy Huy Hoang (Applicant) Regina (Respondent) Representation: Counsel: D Carroll/PD Swaine (Applicant) B Baker (Respondent) Solicitors: AA Criminal Lawyer (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2014/228167, 2014/258304, 2014/280837 2014/322309 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 15 April 2016 Before: Traill DCJ File Number(s): 2014/228167, 2014/258304, 2014/280837 2014/322309 Judgment 1. Hoeben CJ at CL: I agree with the analysis of N Adams J and with her conclusion that there was no juror misconduct on the part of Juror A. 2. I also agree with her Honour's analysis leading to the conclusion that the removal of Juror A, as a result of an error in the evaluative assessment of the trial judge in this case, did not constitute a fundamental defect in the trial process. It follows, therefore, that I agree with her Honour's conclusion that the appeal should be dismissed. 3. Campbell J: I have had the considerable advantage of reading the comprehensive judgment of N Adams J in draft. While I agree with a great deal of what her Honour has written, I am of the view that there was no error involved in the learned trial judge's finding that Juror A had engaged in misconduct "albeit [of an] extremely minor [kind]". It follows for the reasons expressed below that I have concluded that the appellant has made Ground 1 good. What I have written assumes a familiarity with the judgment of N Adams J. I have not repeated factual matters except where necessary to explain my thinking. I have not set out the relevant legislation in full. This can be found in her Honour's judgment. 4. I have concluded contrary to the majority that Juror A's internet inquiry involved misconduct because the question of clearances under the Child Protection (Working with Children) Act 2012 (NSW) was a matter relevant to the trial within the meaning of s 68C of the Jury Act 1977 (NSW) ("Jury Act"). I agree with N Adams J that the relevance of that matter was in truth at best obscure. Nonetheless evidence about that topic, in particular that the appellant had not obtained those clearances, was led by the Crown Prosecutor without objection in the presence of the jury at the trial. Even though counsel for the accused at trial did not find it necessary to cross-examine the police officer through whom the evidence was introduced on that topic, he felt constrained to counter it with other evidence. If the Crown Prosecutor felt it unnecessary to refer to the matter during his closing address, defence counsel, who must be taken to have a better feel for the potential significance of the evidence lead at the trial than this Court, thought it pertinent to remind the jury of the evidence on this topic lead from the witness he had called during his closing. 5. Moreover, the evidence was obviously on the mind of Juror A when the juror decided to make internet inquiries about the topic on the evening of 5 November 2015 and to share the results of that inquiry and the reasons for making it with the rest of the jury on the morning of 6 November 2015. 6. That Juror A might have undertaken the inquiry for the juror's own purposes does not of itself establish, to my mind anyway, that the inquiry was not made for the purpose of obtaining information about a matter relevant to the trial. A person's motivation may well be complex. That one motive is dominant does not necessarily exclude another. 7. As counsel below, and in this Court, all agree, in my view correctly, in accordance with the decision of this Court in Smith v The Queen (2010) 79 NSWLR 675; [2010] NSWCCA 325 ("Smith"), the combined effect of s 68C and s 53A of the Jury Act is that once the "…trial judge is satisfied that a juror has "engaged in misconduct in relation to the trial", there is no course available other than to discharge the juror" (Smith at [26], RA Hulme J; McClellan CJ at CL and McCallum J agreeing). 8. In the unusual circumstances of the present case, it was clear that the learned trial judge was so satisfied upon reading the note from the jury foreperson (MFI 99) received at 12:30 pm on 6 November 2005. Her Honour formed that view without the need to conduct any enquiry or examination under s 55DA of the Jury Act. In reserved reasons published on 27 November 2015 (at page 5) her Honour said: "Prior to making specific inquiries in relation to the jury note, MFI 99, I heard submissions from both counsel. Both counsel submitted that an inquiry into the juror who had made inquiries on the internet should take place before any steps were taken to take the eight verdicts. I declined to conduct the inquiry with the juror before taking the verdicts as I was of the opinion that I had sufficient information in jury note MFI 99 that a breach had occurred. It was therefore mandatory that that juror had to be dismissed." 1. Her Honour had earlier said (at page 4): "After [MFI 99] was received, I indicated I would take the eight verdicts the jury had informed the Court that the evening before they had reached unanimously. I am of the view that these verdicts were unaffected by the internet search of the juror." 1. Although the jury had indicated that they had "reached an agreement on eight counts" (MFI 97) in the afternoon of 5 November 2015, no verdict had been taken as in the same note the jury asked for a redirection about certain matters, some of which at least were relevant to the counts upon which agreement had then been reached: R v McCormack (1996) 85 A Crim R 445. Moreover, it is trite to say each juror is entitled to change his or her mind at any time prior to the announcement of the verdict in open court. It cannot be taken for granted that an agreement will hold overnight. 2. It follows from my reasons so far that her Honour fell into error of law by taking (in the event) the ten verdicts on 6 November 2012 (eight guilty and two not guilty) before dealing with the question of Juror A's misconduct, including conducting any inquiry she considered necessary. It follows that the appellant has made good Ground 1 of his appeal and subject to the application of the proviso, the eight convictions flowing from the jury's verdicts on 6 November 2005 must be set aside. 3. As N Adams J has pointed out, the Crown conceded that if Ground 1 is established, that error involved a breach of provisions of the Jury Act governing the constitution and authority of the jury as the tribunal of fact which are mandatory: Katsuno v The Queen (1999) 199 CLR 40; [1999] HCA 50 at [32] – [35], Gaudron, Gummow and Callinan JJ; Maher v the Queen (1987) 163 CLR 221 at 233 – 234; [1987] HCA 31 ("Maher"). Such a matter negates the availability of the proviso to preserve the convictions because a failure to comply with such mandatory legislative provisions constitutes the "failure to observe the requirements of the criminal process in a fundamental respect": Maher at 234. 4. In my judgment the Crown's concession in this regard was properly made. 5. Turning then to Ground 2. I am not satisfied that the learned trial judge erred in not discharging the whole jury after discharging Juror A. 6. Strictly speaking the question for her Honour was whether to continue the trial with the remaining jurors which arises under s 53C (subject to s 22 of the Jury Act). The decision to continue is a separate question which depends upon the trial judge's evaluation of the question whether continuing the trial "would give rise to the risk of a substantial miscarriage of justice": cf Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52. After taking the ten verdicts there were two counts remaining on the indictment, being Counts 1 and 5. 7. The appellant's arguments seems to be: having found misconduct on the part of Juror A by making inquiries overnight on 5 November 2015, the learned trial judge failed to inquire of that juror whether there had been misconduct at some earlier point in time; although the foreperson, both in MFI 99 and in oral evidence, assured the trial judge in substance there had been no previous discussion of the issue of working with children clearances and it was not further discussed after Juror A's disclosure, the foreperson could only speak for herself and not the other jurors; the trial judge's inquiry of the remaining jurors about their ability to continue impartially notwithstanding the disclosure of Juror A's inquiry related solely to the future and said nothing about the past; and in particular in relation to the ten verdicts they had already delivered. 8. The Crown argued that there was no error in the learned trial judge's decision to continue after the discharge of Juror A and that her Honour properly identified the statutory test arising from s 53C of the Jury Act. Her Honour was entitled to seek, and take into account, the self-assessment of the remaining jurors about whether they could remain impartial: Bahrami v R [2017] NSWCCA 8. 9. In determining whether a substantial miscarriage of justice has occurred, reference may be had to the test enunciated in Webb v The Queen (1994) 181 CLR 41 at 53; [1994] HCA 30, as applied in Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3 at [54] – [55]. Adapting that test to the circumstances of the present case it may be expressed in this way: if MFI 99 was capable of giving rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the remaining jurors would not discharge their task according to their oath or affirmation because of the disclosure to them of Juror A's unlawful inquiry, the jury should be discharged unless other evidence puts the integrity of any further verdict beyond question. As N Adams J has pointed out the focus at trial, in contradistinction to an appeal, is on the risk of a substantial miscarriage of justice. This calls for a prospective assessment by the trial judge. 10. Her Honour gave her reasons for continuing with the remaining jurors over pages 12 to 14 of her judgment of 27 November 2014. I will not set them out in full, however, she concluded by summarising her earlier more detailed reasoning in this way (pp 13 – 14): "I am of the view that the misconduct by the juror was minor. It did not involve visits to the scene. It did not involve research of the accused. It was an inquiry primarily for the juror's own personal circumstances. The evidence of the foreperson and the jury notes* also indicated that there was no consequential risk of a substantial miscarriage of justice." (* jury notes in response to questions asked by the judge). 1. I can see no error in her Honour's approach. I am of the view that notwithstanding the introduction of (barely relevant) extraneous material to the jury room by Juror A, the matters referred to by the learned trial judge demonstrated there was no relevant risk. It was certainly open to her Honour to make that decision. 2. Had there been error, this is not a ground where it can be said that in continuing with the remaining jurors there has been a serious breach of the presuppositions underpinning a fair trial: Weiss v The Queen (2005) 224 CLR 300; [2005] 224 CLR 300 at [43] – [46]. 3. Given my opinion about Ground 1, Ground 3 does not arise for my consideration. 4. Were mine not a minority view, it would have been necessary to allow the appeal, quash the convictions on Counts 4, 5, 6, 7, 8, 9, 10, 11 and 12 and order a new trial on those counts. As her Honour imposed an aggregate sentence on 15 April 2016, it would also have been necessary to set aside the sentence and remit the matter of the convictions on Counts 1 and 5 to the District Court for resentence. Whether that task ought to await the outcome of the retrial is a matter which could be determined by the District Court. 5. N Adams J: The appellant, Quy Huy Hoang, appeals pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) against his convictions on 10 child sexual assault counts. The appellant initially relied upon two grounds of appeal but leave was granted to rely upon a third ground at the hearing of this appeal. All three grounds turn on one discrete issue, namely, whether the appellant's trial miscarried because of the failure of the trial judge to comply with the Jury Act 1977 (NSW). The three grounds of appeal are as follows: Ground 1: The learned trial judge erred in not immediately discharging a juror upon her Honour being satisfied that the jury had conducted an independent enquiry in respect to a part of the evidence; Ground 2: The learned trial judge erred in not discharging the jury upon her Honour being satisfied that a juror had conducted an independent enquiry in respect to a part of the evidence; and Ground 3: The learned trial judge failed to comply with the Jury Act 1977 (NSW) by deferring the issue of mandatory discharge of a juror for misconduct. 1. On 9 September 2015, the appellant pleaded not guilty to 12 counts on an indictment before her Honour Judge Traill in the District Court at Sydney. The charges pertained to alleged assaults against five separate children. Five counts (counts 1, 6, 8, 9 and 10) were charges of aggravated indecent assault on a person under the age of 10 years contrary to s 61M(1) Crimes Act 1900 (NSW) alleged to have been committed against TN, SN, JT1 and JT2; two counts (counts 2 and 3) were charges of aggravated acts of indecency with a person under the age of 16 years contrary to s 61O(1) of the Crimes Act alleged to have been committed against TN; and the remaining five counts (counts 4, 5, 7, 11 and 12) were charges of aggravated sexual intercourse with a child under the age of 10 contrary to s 66A(2) of the Crimes Act alleged to have been committed against SN, JT1 and TP. The trial proceeded before a jury on 9 September 2015 and concluded on 11 November 2015. The appellant was found guilty of all counts except for counts 2 and 3. 2. On 15 April 2016, the appellant received an aggregate sentence of 24 years imprisonment to commence on 19 October 2015 and to expire on 18 October 2039 with an aggregate non-parole period of 18 years imprisonment to expire on 18 October 2033. There is no application for leave to appeal against the severity of the sentence imposed. Background 1. The appellant is a 70 year old man who was engaged in casual maths tutoring to young children. The offences were all alleged to have been committed whilst the appellant was alone with each child tutoring him or her in maths during the period from 1 January 2007 to 31 July 2014. 2. Given the issues raised in this appeal, I do not propose to set out the evidence in support of each of the specific offences. It is necessary, however, to set out those parts of her Honour's directions, the evidence and counsel's addresses relevant to the grounds of appeal. 3. The trial commenced on 9 September 2015. After the jury of 12 was empanelled, her Honour gave her opening remarks to the jury during which she warned them about making certain inquiries. She directed them in these terms: "The third thing about deciding the case solely on the evidence that you hear in court is, this is an important direction that I have to give you, it is a direction that really is so significant it takes the form of a warning. This is a warning not to make inquiries of your own. In these days of Facebook and the internet it can be very tempting just to go home and type into Google the name of the accused or some witness and see what comes up. Don't do it. No matter how tempting it is I must warn you do not make inquiries about anything to do with the case on the internet. Don't, also, make inquiries about the law. You have heard the learned Crown Prosecutor talk to you a little bit about the law. For example what a charge might be, indecent assault for example. And you may go well, I might found out just exactly that is. And you might Google a piece of legislation in England, for example, that is not the same as here. I will give you the directions of the law. You can take it that I will get them right and you must abide by them. But do not make your own enquiries about the law. Don't also type in the name of any of the witnesses or somebody else you might hear. There is an absolute prohibition on you doing that and it is a prohibition which arises in law and it is a law that says you may not, as jurors, make any inquiries of your own. Were you to make those inquiries, it is actually a criminal offence. It carries a penalty. So that is why it is very important that you listen to me in relation to those prohibition and those warnings. And it is very, very important that, notwithstanding any temptation to hop on to Facebook, Google anything, you do not do that. Because you will be committing a criminal offence. … So you are not to make any inquiries on Google or any other search engine. You are not to look up legal directions and you are not to go and look at any places of interest that might arise. It is such an important rule that I have to ask you as jurors that if it comes to your attention that any one of your fellow jurors has done what I have asked you not to do, you must let me know. … I know that that sounds quite stern for me to be telling you these things at this stage but they are that important that I have to and I will remind you every day not to go home and Google, not to look up the law…" 1. Her Honour also provided written directions to the jury which were marked MFI 1. Those written directions included the following direction: "Criminal Conduct By a Juror During and After the Trial It is a criminal offence for a juror to make any enquiry during the course of the trial for the purpose of obtaining information about the accused or any matters relevant to the trial. The offence is punishable by a maximum of two years imprisonment. For this offence, 'making any enquiry' includes asking a question of any person, conducting any research, including the use of the internet, viewing or inspecting any place or object, conducting an experiment, causing another person to make an inquiry." 1. After reading these directions to the jury, her Honour reiterated the importance of not making inquiries and said "[d]on't think you can get around it by saying, 'Can you just Google this person's name and tell me about it?' That is making an inquiry." 2. On 14 October 2015, which was day 23 of the trial, Detective Senior Constable Darren Paul gave evidence that he had made an enquiry with the State Office of the Children's Guardian to ascertain whether the appellant had had a "Working with Children Check" conducted. He explained in his evidence that "if you are a teacher or if you work on the grounds around the school or if you are a police officer and you are working with children, you have to get clearance pursuant to [the] Children and Young Persons Protection Act… that you are cleared and licensed to work with children". Detective Paul gave evidence that there was no record of the appellant having ever obtained such a certificate. That is, there was no record of his name and date of birth held by that office. The correspondence from the State Office of the Children's Guardian was not tendered in the trial; it was simply marked for identification. Detective Paul was not cross-examined about this evidence. It is noted that the legislation referred to by the officer was the Child Protection (Working with Children) Act 2012 (NSW) which commenced on 15 June 2013. Part 3 of this Act provides for "working with children check clearances". 3. On 16 October 2015, David Nguyen gave character evidence on behalf of the appellant. The appellant and Mr Nguyen's father were prisoners of war in Vietnam after the Vietnam War. He gave evidence that he is a tutor in English and that the appellant referred work to him as a private tutor. In fact, Mr Nguyen tutored two of the appellant's students. He gave evidence that he had no formal qualifications to do private tutoring and did not have a "Working with Children Certificate". He stated that at least 90 per cent of undergraduate students have tutored at some point. A lot of his friends were tutors and none of them had a "Working with Children Certificate". 4. This evidence concerning the "Working with Children Certificate" was not referred to in the Crown Prosecutor's closing address. The appellant's trial counsel referred to it in these terms in his closing address: "You remember the evidence late in the trial again from Detective Paul in relation to the enquiries that were made with the State Office of the Children's Guardian as to whether the accused had a working with children certificate. He didn't. It sounded bad at the time. Then we found out from David Nguyen, a capable young man, he is studying to be a doctor and working as a private tutor, he tells us that 90 per cent of undergraduate students have tutored at some point and lots of his friends are tutors and none of them have that qualification." 1. In the summing up her Honour briefly referred to this evidence when summarising the closing address of the appellant's counsel in these terms: "David Nguyen, he said, would have impressed you as an intelligent young man. He was an impartial witness, honestly answering questions. He said things like the accused not having a Working with Children's Certificate was not unusual, that most tutors in particular students do not have that…" 1. The above extracts constitute the entirety of any reference being made throughout the trial to the fact that the appellant did not have a Working with Children Check. I note in passing that the relevance of this evidence was somewhat unclear. There was no evidence before the jury to suggest that the appellant had deliberately avoided obtaining such a Check nor that he would not have been approved in any event. He relied upon good character evidence at his trial. The evidence was thus of dubious relevance and did not appear to remain as a live issue in the trial by the time of counsel's closing addresses. Relevant Provisions of the Jury Act 1. Before turning to consider the alleged jury misconduct in this matter, it is necessary to extract a number of provisions of the Jury Act. 2. Section 68C of the Jury Act commenced on 15 December 2004. It was inserted by the Jury Amendment Act 2004 (NSW) and made it a criminal offence for jurors to make certain inquiries during a trial. Section 68C is in these terms: "(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. In his second reading speech introducing the bill on 27 October 2004, the Hon Tony Stewart explained the history to what is now s 68C of the Jury Act as follows: "The Government is pleased to introduce the Jury Amendment Bill 2004. One of the central attributes of trial by jury is that juries bring the conscience of the community to bear on issues in a trial in a way that a single judge cannot. However, recent cases have demonstrated the danger in a jury's verdict being determined not by the evidence and the relevant law, but by external factors, such as personal experiments or inquiries or prejudicial material bearing on the case. It is a fundamental principle of our criminal law system that an accused is given a fair trial and is judged on the evidence given in court. In the past 12 months the New South Wales Court of Criminal Appeal has overturned two major Supreme Court criminal convictions. One was a murder conviction—R v K [2003] NSWCCA 406—and the other was a conviction for sexual assault in company—R v Skaf and Skaf [2004] NSWCCA 37." 1. Section 55DA of the Jury Act commenced at the same time as s 68C and provides as follows: "(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. Section 53A of the Jury Act was inserted by the Jury Amendment Act 2008 (NSW). It commenced on 1 July 2008 and provides as follows: "(1) The court or coroner must discharge a juror if, in the course of any trial or coronial inquest: … (c) the juror has engaged in misconduct in relation to the trial or coronial inquest. (2) In this section: misconduct, in relation to a trial or coronial inquest, means: (a) conduct that constitutes an offence against this Act, or Note: For example, under section 68C it is an offence for a juror to make certain inquiries except in the proper exercise of his or her functions as a juror. (b) any other conduct that, in the opinion of the court or coroner, gives rise to the risk of a substantial miscarriage of justice in the trial or inquest." 1. Section 53C(1) of the Jury Act also commenced operation from 1 July 2008 and provides as follows: "(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. Section 22 of the Jury Act provides: "Where in the course of any trial or coronial inquest any member of the jury dies or is discharged by the court or coroner under Part 7A, the jury shall be considered as remaining for all the purposes of that trial or inquest properly constituted if: (a) in the case of criminal proceedings, the number of its members: (i) is not reduced below 10, (ii) is reduced below 10 but approval in writing is given to the reduced number of jurors by or on behalf of both the person prosecuting for the Crown and the accused or each of the accused, or (iii) is reduced below 10 but not below 8 and the trial has been in progress for at least 2 months, … and if the court or the coroner, as the case may be, orders that the trial or coronial inquest continue with a reduced number of jurors under Part 7A." The jury deliberations 1. On 7 October 2015, the trial judge discharged a juror for reasons of ill-health pursuant to s 53B of the Jury Act. Her Honour went on to order that the trial continue with the remaining 11 jurors pursuant to ss 53C(1)(b) and 22 of the Jury Act. No complaint is made about anything to do with this discharge. 2. On 23 October 2015, the jury of 11 retired to consider its verdicts. 3. In the afternoon of 5 November 2015, the jury provided a note confirming that verdicts had been reached with respect to eight counts (later revealed to be guilty verdicts in respect of counts 4, 6, 7, 8, 9, 10, 11 and 12). The jury also sought further directions on the meaning of "indecency" and "delay". The note, which became MFI 97, was in these terms: "Good afternoon, Providing an update on our deliberations, we have reached an agreement on 8 counts and there are varying degrees within the other 4 counts. Can we please have the definition of indecency again, and can we please have the directions for delay in making the complaint as well as evidence in chief and cross examination again. Thank you." 1. At 3:21pm on 5 November 2015, her Honour directed the jury in relation to the questions of "indecency" and "delay" and the jury continued to deliberate until 4:00pm at which time the jurors were sent home. 2. On 6 November 2015, the trial was not able to commence until 12:30pm due to a prior commitment of the trial judge. Prior to court convening at 12:30pm, her Honour was provided with a note written by the foreperson which became MFI 99. That note was in these terms: "Good morning This morning a juror disclosed that yesterday evening they google/looked up on the internet the requirements for a working with children check. The juror had previously been a teacher and was curious as to why they themselves did not have a check. They discovered the legislation, which was only introduced in 2013. I myself have completed a working with children course and so already know this information but it had not been discussed in the jury room. This information discovery of a juror making their own enquiry I do not feel has had an impact, however I understand my duty to notify you of this as per the written instructions at the commencement of this trial." 1. After her Honour read this note to counsel, she immediately stated the following: "Now what I do propose to do is take those eight verdicts that came in yesterday. The note that said yesterday we have reached unanimous agreement on eight verdicts. I will take those eight verdicts because that was prior, and I'll put that on the transcript, to this juror last night doing a Google search as to the legislation." 1. Her Honour then went on to raise a number of questions about how to best deal with the note. The Crown Prosecutor responded by observing that the jury note was reporting misconduct on the part of another juror which "enlivened" the Jury Act. He then drew her Honour's attention to s 53A of the Jury Act. It was submitted, inter alia, that it was "technically or not materially a breach" and there was no risk of it influencing the jurors. The trial judge responded to this by stating: "And in essence they were doing it for their own purposes but to see the juror [sic] had previously been a teacher and why hadn't they had to do it and then discovered that the date of the legislation." (emphasis added) 1. There was then further discussion as to the evidence on this issue adduced at trial, the materiality of that evidence and the relevance of the commencement date of the legislation. Her Honour observed: "It won't affect, you would think it wouldn't affect any count on the indictment but it did have something to do with the case and it was Google searched." 1. Further discussion ensued as to whether there had been misconduct within s 68C of the Jury Act. The section was read aloud by the Crown Prosecutor after which the following exchange took place: "CROWN PROSECUTOR: It is a breach. HER HONOUR: It's a breach. CROWN PROSECUTOR: It is a breach and that triggers the mechanism under the Act. HER HONOUR: That triggers mandatory." 1. There were then two short adjournments for counsel to read the relevant jury notes. The following exchange then took place: "HER HONOUR: Mr Pickering [counsel for the appellant], what do you want to put? PICKERING: On discussing it with my friend so I think we're agreed that the process first and foremost ought to involve an enquiry with the juror before any steps are taken to take any verdicts. HER HONOUR: You want me to make an enquiry with the juror before you take any verdicts. I'm going to take those verdicts first. CROWN PROSECUTOR: The difficulty - I'm instructed to agree with my learned friend, those verdicts will be taken from a jury that includes within their number presently one that is, if the evidence is made out, guilty of an offence under the Act and subject to the mandatory provisions of the Act for discharge. HER HONOUR: But it doesn't relate to those verdicts. I have to enquire first whether they have still reached verdicts on those eight and then I will ask them which eight and send a note and then I will take those verdicts and send them out because those verdicts on the information we currently have do not relate to any enquiry on the internet." 1. There was then an exchange between the trial judge and the Crown Prosecutor about the timing of the taking of the verdicts after which time the appellant's then counsel stated: "Sorry to interrupt but just on that point I just wanted to place on the record our objection to taking the verdicts on eight counts. Because of the nature of this case being involved with tendency and coincidence they're all being dealt with, that's the way the case has been run." 1. Her Honour confirmed that she proposed to take the verdicts before the jury inquiry. The Crown Prosecutor then pointed out that any matter going to the question of the constitution of the jury goes to the root of the trial and "no proviso is going to save it." He submitted that, if the juror was discharged, the trial could proceed with ten jurors. Her Honour responded: "Well, the reason I want to take those verdicts now and with the eleven jurors is because they are the verdicts of the eleven jurors. I don't want to bring the juror who has made the enquiry in and discharge that juror prior to taking the verdicts because then it will not be the verdict of the eleven jurors, it will be--". 1. The Crown Prosecutor again sought to persuade her Honour not to follow that course. He submitted that "one difficulty with that process is that it doesn't have regard to the technical nature of the constitution of the jury and how a proviso, that is, that ultimately there is no substantial miscarriage of justice, will not apply if an error is held to be going to the core or the root of the trial…" He submitted that it would be "safer" to discharge the juror first. Her Honour responded: "Well I hear what you say, Mr Crown, but I'm against you. I think the verdicts of the eight with the verdicts of the 11 yesterday, in hindsight I should have taken them straight away." 1. Following further legal discussion, her Honour brought the jury back to Court so that they could nominate which counts they had reached verdicts on so as to take those verdicts. She asked the jury to write a note indicating the relevant counts. The jury took a short adjournment and wrote the following note which became MFI 100: "Good afternoon, On the 5th November 2015 we the jury reached a decision on the following counts: 4 6 7 8 9 10 11 12. On today, 6 November 2015 we the jury reached a decision on counts: 2 3. We still undecided to varying degrees on counts: 1 5." 1. At 2:42pm on 6 November 2015, the jury returned verdicts consistent with the note referred to above. That is, they convicted the appellant on counts 4, 6, 7, 8, 9, 10, 11 and 12 and acquitted him on counts 2 and 3. 2. After the verdicts were taken there was a brief adjournment. The jury foreperson was then examined by the trial judge pursuant to s 55DA of the Jury Act in relation to MFI 99. The foreperson confirmed that one of the jurors had made an internet search in relation to legislation concerning Working with Children Checks and that the juror in question had notified the other jurors about the enquiry, which related to the date the legislation came into force. The exchange was as follows: "[Her Honour]: I understand that you are the author of a jury note which we received and had marked for identification 99, and that indicated that one of the jurors had made a Google search on the internet in relation to legislation about Working With Children Check, and then came back to the jury room and notified jurors that they'd made that enquiry and it related to the date the legislation came into force? [Foreperson]: That's correct. [Her Honour] And that was a matter that was raised with all members of the jury, is that correct? [Foreperson]: That's correct. [Her Honour]: First of all, I want to thank you very much for raising that with us. Unfortunately I am going to have to get you to nominate - not to me but to the court officer - who that juror is, and that juror will have to come in and speak to us. I just want to thank you very much for complying with your obligations under the Jury Act and in fact my directions that were at the very commencement of the trial. [Foreperson]: Certainly." 1. Her Honour then enquired of the foreperson whether it was her position that the information did not have any impact on the deliberations and verdicts. The foreperson replied in these terms: "Precisely. This morning it was in a general discussion which the juror disclosed that they had done that search. As I've also indicated in my letter, I myself already hold that qualification so I understand that legislation yet it hadn't been undiscussed. [sic] When it was mentioned no further discussion or circulation around that, and in fact that point of evidence was not weighed in any of our decisions thus far, nor has it been brought up in the continuation of our discussions." 1. The jury foreperson also confirmed that there had not been any discussions without all 11 jurors being present. 2. The trial judge then examined the relevant juror, who will be referred to herein as "Juror A." The exchange between Juror A and the trial judge was as follows: "[Her Honour]: I am not going to ask your name because under the Jury Act we are not required to ask that, and also I'm not going to ask you anything to do with deliberations in the jury room. However, it has come to our attention that you made a Google search last night in relation to the Working With Children Act. [Juror A]: Yes, your Honour. Yes, your Honour. [Her Honour] Thank you for that, and you told other members of the jury that you'd done that. [Juror A]: Yes. [Her Honour] Unfortunately because of the requirements of the Act - I gave you a direction very early on that you are not to make any enquiries on the internet, and because of that there's a mandatory provision in the Jury Act I have no discretion but I have to discharge you from sitting on the jury. So it's not something I have any discretion in, it's mandatory if a juror makes an enquiry in relation to a trial and that includes going onto the internet or looking up anything to do - conducting any research including the use of the internet. If it has something to do with the trial, then unfortunately I have to discharge you from any further deliberations on the jury. I'm very sorry. [Juror A]: May I comment on this? [Her Honour] I think probably not. The only reason is that we are not to know any of your deliberations, the jury, it's not whether or not it affected their deliberations or anything like that, and you may have been making it for your own purposes, but it's just the fact that you came to the jury and you told them that you had made that enquiry. So unfortunately I'm going to have to discharge you. [Juror A]: Okay, thank you, your Honour." 1. The trial judge then informed the remainder of the jury that she had no option but to discharge Juror A in circumstances where that juror had made an inquiry on the internet. Juror A was then discharged pursuant to s 53A of the Jury Act. Her Honour then asked the remaining 10 jurors the following two questions: "Now the questions I have for you are: Has the fact that that juror made the enquiry on the Internet affected you in any way that you feel you cannot remain impartial? And the second one is: Does the fact that I have discharged that juror affect you in any way that you feel you cannot remain impartial?" 1. All 10 jurors responded "no" in writing to both questions. That document became MFI 101. 2. The jury then continued to deliberate in respect to the remaining two counts (counts 1 and 5). At 3:54pm on 6 November 2015, the jury returned a unanimous verdict of guilty in respect to count 5. The jury did not sit again until 11 November 2015 on which day they returned a unanimous guilty verdict in respect of count 1. 3. Two weeks later her Honour provided written reasons for approaching the matter in the way her Honour did. Relevantly, for present purposes, her Honour noted the following in her reasons, after extracting s 68C of the Jury Act: "It was my view that [Juror A] did make an inquiry for the purposes of obtaining information about a matter relevant to the trial. That inquiry was specifically prohibited. Therefore, the provisions of s 53A, 'Mandatory Discharge of Juror', were enlivened and I had no option but to discharge that juror. Prior to making specific inquiries in relation to the jury note, MFI 99, I heard submissions from both counsel. Both counsel submitted that an inquiry into the juror who had made inquiries on the Internet should take place before any steps were taken to take the eight verdicts. I declined to conduct the inquiry with the juror before taking the verdicts as I was of the opinion that I had sufficient information in jury note MFI 99 that a breach had occurred. It was therefore mandatory that that juror be dismissed." 1. Her Honour then outlined the taking of the verdicts and the inquiries made of the foreperson and Juror A after taking the verdicts and then observed: "It was my view that [Juror A] had engaged in misconduct, albeit extremely minor, and therefore I had no option but to discharge her pursuant to s 53A of the Jury Act." 1. Later, when providing reasons as to why she continued the trial with 10 jurors, her Honour noted: "It would seem that the inquiry made by the juror was for her own personal circumstances. The foreperson on two occasions said that the information discovery of the juror making their inquiry, 'I do not feel had any impact.' She also said that the jury were all in attendance when the issue arose (T22). However, when it was mentioned, no further discussion or circulation around that issue was made, and in fact the point of evidence was not weighed in any of their decisions thus far, nor has been brought up in continuation of their discussions (T22.10)." 1. Her Honour later stated: "I am of the view that the conduct by the juror was minor, and there was no substantial miscarriage of justice. I made the order that the trial continue with ten jurors. In any event, the information was not prejudicial to the accused. I have had regard to the decisions of the Court of Criminal Appeal in Folbigg v R (2006/5504 21 December 2007) and the decisions set out therein as to whether a juror making an internet search would necessarily constitute a miscarriage of justice." 1. After citing a number of authorities her Honour noted: "I am of the view that the misconduct by the juror was minor. It did not involve visits to the scene. It did not involve research of the accused. It was an inquiry primarily for the juror's own personal circumstances. The evidence of the foreperson and the jury notes also indicated that there was no consequential risk of a substantial miscarriage of justice…" The issues raised on this appeal 1. It was conceded on behalf of the Crown that on a proper construction of the Jury Act and given the decision in Smith v R (2010) 79 NSWLR 675; [2010] NSWCCA 325 ("Smith v R"), her Honour was required to immediately discharge Juror A upon being satisfied that there had been misconduct. Despite this, the Crown did not concede that the appeal should be allowed. Rather, the position of the Crown was that the trial judge erred in concluding that there had been "misconduct" within s 53A(2)(a) of the Jury Act and thus there was no requirement for Juror A to be discharged. If this argument found favour then the appeal should be dismissed. If this argument did not find favour then the Crown submitted that the appeal should be allowed in relation to all counts except for counts 1 and 5. The appellant's submissions 1. It was submitted on behalf of the appellant that the conduct of Juror A was a breach of the trial judge's explicit oral and written directions and was thus a breach not only of s 68C(1) but also of s 68C(4) of the Jury Act. The primary position of the appellant was that it was irrelevant whether this Court is of the view that the internet search amounted to misconduct; the fact remains that the trial judge thought so and then failed to follow the proper procedure under the Jury Act. The alternate submission was that the conduct amounted to a substantial miscarriage in any event, such that the proviso would not be applied. 2. The appellant's counsel noted that both trial counsel had submitted to the trial judge that there should be an enquiry into Juror A before any steps were taken to take the verdicts but the trial judge declined to do so. It was submitted that once her Honour had sufficient information that a breach had occurred, she was required to apply s 53A of the Jury Act and discharge the individual juror. The terms of s 53A are unequivocal: if the trial judge is satisfied that a juror has engaged in misconduct there is no other course available but to discharge the juror. 3. As for the terms of s 68C(1), it was accepted that the research had to be "for the purpose of" obtaining information about a matter relevant to the trial. It was submitted that the fact that the content of the research was introduced into the jury room during deliberations is inconsistent with an argument that the enquiry was not made for the purpose of obtaining information about the trial as opposed to being solely for the juror's own edification. 4. Reliance was placed upon the decision of Smith v R. It was further submitted that, given the nature of the breach under the Jury Act, this was not a matter in relation to which the proviso could be applied. In Katsuno v The Queen (1999) 199 CLR 40; [1999] HCA 50 ("Katsuno v The Queen") the plurality observed that the failure to observe mandatory legislative provisions relating to the constitutional authority of the jury is an example of a failure to observe the requirements of the criminal process in a fundamental respect. 5. With reference to ground 2 of the appeal, it was further submitted that, after discharging Juror A, the entire jury should have been discharged. It was argued that the misconduct of Juror A gave rise to an apprehension that the entire jury could have been contaminated or their verdict cast into doubt by the events occasioning the discharge (referring to Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52 at [66] per Kirby J) ("Wu v The Queen"). It was submitted that this was a fundamental defect involving such a departure from the essential requirements of a fair trial that the operation of the proviso is excluded: AK v State of Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [23] (Gleeson CJ and Kiefel J). 6. It was submitted that the trial judge could not be aware of what point in time the verdicts on the counts became unanimous because of the directions sought as to the meaning of "delay" and "indecency". Thus, it is possible that the unanimity could have been after the provision of the information requested during directions on indecency and delay. Although the trial judge accepted that the foreperson can really only speak for herself, the other members of the jury were not examined as to whether the internet enquiry had any impact on their deliberations. The two questions the judge did ask the remaining jurors were prospective. That is, they related to the remaining counts whereas the jurors should have been asked whether the internet enquiry had any impact on the 10 verdicts already entered. 7. It was noted that, in her judgment of 27 November 2015, the trial judge provided an explicit reason as to why, notwithstanding her finding of misconduct, her Honour did not discharge or move to discharge the juror. In doing so, her Honour acknowledged that there had been a failure to apply a mandatory obligation relevant to the constitution of the jury. 8. During the hearing of the appeal, it was submitted that if this Court was to reconsider the question of whether there had been misconduct in this matter, it could not have regard to the content of the jury note because it was hearsay. That matter was raised for the first time during the hearing so the Crown was given leave to file supplementary submissions on this issue. In response to those submissions the appellant's position shifted. It was submitted that there had only been a very limited enquiry at first instance into the circumstances of the internet inquiry and no subsequent request to engage the sheriff to conduct any enquiry pursuant to s 73A of the Jury Act. The jury note contains a conclusion regarding the opinion of the foreperson based on unknown representations of the juror. Thus, there exists an evidentiary lacuna about the conduct of Juror A such that this Court could not be satisfied that there is no possibility that misconduct occurred. The Crown submissions 1. It was conceded on behalf of the Crown that if this Court is satisfied that Juror A's conduct in conducting the internet search constituted misconduct within the meaning of s 68C of the Jury Act, then Juror A should have been discharged prior to the entry of the 10 verdicts and thus the guilty verdicts in respect of counts 4 and 6-12 must be set aside with an order for a retrial in respect of those counts: Smith v R. Where a juror has engaged in misconduct, the juror must be discharged pursuant to s 53A(1)(c). A failure to discharge a juror who is engaged in misconduct within the meaning of s 68C of the Jury Act amounts to a failure to comply with a mandatory provision relating to the constitutional authority of the jury such that the proviso to s 6(1) of the Criminal Appeal Act cannot apply: (Smith v R at [38]-[40] citing Katsuno v The Queen). 2. It was the position of the Crown, however, that the evidence did not establish that the jury's conduct did in fact constitute misconduct within the meaning of the Jury Act. Reliance was placed on the fact that the enquiry must be made "for the purpose of" obtaining information about any matters relevant to the trial. It is apparent from the foreperson's note that Juror A did not make the enquiry "for the purpose of" obtaining information about a matter relevant to the trial. Rather, her purpose was to obtain information about why she had not been subject to a Working with Children Check in circumstances where she had been employed as a teacher. Accordingly, Juror A's conduct did not amount to misconduct within the meaning of s 68C of the Jury Act. 3. It was submitted that not only was there no misconduct within s 53A(2)(a) of the Jury Act, nor was it conduct that, in the opinion of the court, "gives rise to the risk of a substantial miscarriage of justice in the trial…" within s 53A(2)(b) of the Jury Act. It was not disputed that the appellant did not have a Working with Children Certificate. The evidence of Detective Paul on this issue was not the subject of cross-examination. The only information ascertained by the juror as a result of the search was that the legislation came into effect in 2013. This fact was already known to the jury foreperson through her own experience. Such information could not rationally affect the jury's assessment of any of the contested issues in the trial. 4. It was noted that the conduct of the trial judge in taking account of the self-assessment of the remaining jurors in the written assurances that they could remain impartial was an appropriate course: Bahrami v R [2017] NSWCCA 8. No further questions were sought by the appellant's counsel at that time. 5. As a decision under s 53C of the Jury Act is discretionary, the Crown pointed out that it is necessary for the appellant to demonstrate error consistent with House v The King (1936) 55 CLR 499; [1936] HCA 40 ("House v The King") in relation to the trial judge's decision to continue the trial with ten jurors. It was submitted that no such error is established thus there is no basis upon which to conclude that continuing the trial with the remaining jurors would have given rise to the risk of a substantial miscarriage of justice. Supplementary submissions 1. After the Court reserved its decision in this matter a note was requested from the parties in the following terms: "In the event that the Court was satisfied that there had been no juror misconduct in this matter, what is the significance, if any, of the fact that the verdicts on counts 1 and 5 were reached by a jury of 10 when the accused was entitled to a jury of 11 (including Juror A)." 1. Supplementary submissions were subsequently received by both counsel for the appellant and counsel for the Crown. The appellants Supplementary Submissions 1. The appellant's position was that, if the Court was satisfied that there had been no juror misconduct, every direction which was provided to the balance of the jury in relation to the removal of Juror A and the information Juror A disseminated was erroneous. If that was the case, the remaining jurors were entitled to consider the information which Juror A brought forward. Furthermore, the jury and the author of the note should have been disabused of the notion that there had been any irregularity. 2. It was further submitted on behalf of the appellant that if the Court was satisfied that there had been no juror misconduct, the verdicts of guilty entered on counts 1 and 5 must be quashed. This is because the removal of a juror by virtue of an unreasonable misapplication of the Jury Act represents a fundamental defect in the trial process. The appellant relied upon the observations of Kirby J in Katsuno v The Queen at [132]-[134] in support of this position. 3. It was submitted that the Crown's contention that s 22 of the Jury Act operates to validate a verdict irrespective of an erroneous discharge of a jury is contrary to the general approach of all members of the High Court in Wu v The Queen. 4. It was further submitted that the analysis of this question must commence from the point in time that Juror A disclosed the product of the internet search. It was said that a jury is entitled to and has been known to change its position following an indication that it has reached a verdict: R v Tantram [2001] EWCA Crim 1364. Thus, it was not relevant to the question of whether there has been a miscarriage of justice that the jury appears to have reached their verdicts on the eight counts prior to the dissemination of the product of the internet search. The Crown's supplementary submissions 1. The Crown's position was that any error by the trial judge in discharging Juror A did not involve a failure to comply with a mandatory provision relating to the constitution and authority of the jury or a failure to observe the requirements of the criminal process in a fundamental respect. On behalf of the Crown it was accepted that if verdicts are returned by a jury that includes a juror who was prohibited from serving by virtue of s 68C of the Jury Act, the failure to discharge that delinquent juror "amounts to a failure to comply with the mandatory provision relating to the constitutional authority of the jury": Smith v R at [40]. But the converse does not follow. That is, if Juror A had been discharged despite having not engaged in misconduct there was no "failure to comply with the mandatory provision relating to the constitutional authority of the jury". Rather, the verdict of the remaining 10 jurors was authorised by s 22 of the Jury Act which relevantly provides that if a juror is discharged by the court in a criminal trial the jury shall be considered as remaining for all the purposes of that trial properly constituted if the numbers of its members is not reduced below 10 if the court orders that the trial continue with a reduced number of jurors under Part 7A. Consideration 1. The question to be resolved in this appeal is of narrow compass but raises an important question about the extent to which jurors should be permitted to access the internet during a criminal trial. 2. It was conceded on behalf of the Crown that a failure by a trial judge to immediately discharge a juror upon being satisfied of juror misconduct amounts to a failure to comply with a mandatory requirement under the Jury Act and is as such a fundament defect leaving no room for the application of the proviso in s 6(1) of the Criminal Appeal Act. This concession on behalf of the Crown only arose for consideration in the event that this Court was satisfied that what took place in this matter did in fact amount to misconduct within the meaning of s 53A(1) of the Jury Act. The result of such a finding would be that the eight guilty verdicts in respect of counts 4 and 6 to 12 must be set aside with an order for a retrial in respect of those counts. In the event that this court was not satisfied that there had been juror misconduct in this matter then the appeal should be dismissed. 3. Given the way this appeal proceeded, it seems to me that before I turn to consider whether the Crown concession should be accepted, it is necessary to first consider the question of whether what took place in this trial did in fact amount to "misconduct" for the purposes of s 53A(1) of the Jury Act. This question turns on the construction of ss 68C and 53A of the Jury Act and their application to the facts in this matter. 4. Section 53A(2) of the Jury Act defines "misconduct" as meaning either conduct that constitutes an offence against the Jury Act (relevantly in this case, an offence against s 68C) (s 53A(2)(a)), or "any other conduct that, in the opinion of the court… gives rise to the risk of a substantial miscarriage of justice in the trial" (s 53A(2)(b)). A finding in relation to either of these types of misconduct triggers the mandatory discharge requirement in s 53A(1). 5. I propose to consider whether the conduct fell within the terms of s 53A(2)(a) and/or 53A(2)(b) of the Jury Act in turn. Was there misconduct within s 53A(2)(a) of the Jury Act? 1. The first question is whether Juror A's conduct would fall within the terms of s 53A(2)(b) of the Jury Act, specifically, by constituting conduct that that would be an offence under s 68C(1). 2. In order for a juror's conduct to be in breach of s 68C(1) of the Jury Act, the relevant inquiry has to have been made, relevantly, "for the purpose of obtaining information about …any matters relevant to the trial." There was no evidence to suggest that the purpose of the juror's inquiry was other than to satisfy her own curiosity as to why she herself, a retired teacher, had never obtained a Working with Children Check. No other purpose was ever suggested. 3. Although there was no evidence of any other purpose for the inquiry beyond Juror A's personal curiosity, it was not conceded on behalf of the appellant that the inquiry was made other than for the purpose of obtaining information relevant to the trial. This was on the basis that the juror ultimately shared her finding with the other jurors. That is, she must not have made the inquiry just for her own interest. I am not satisfied that the fact that Juror A told her fellow jurors about her inquiry necessarily means that the inquiry was made for the purpose of obtaining material relevant to the trial. It could likewise suggest that Juror A did not believe that she had made any prohibited inquiry and mentioned it to the other jurors as a matter personal to her. 4. The phrase "for the purpose of" is one which commonly arises in other legislation but the relevant question is what it means in the context of s 68C(1) of the Jury Act. I am satisfied that the ordinary meaning of "for the purpose of" is "with the intention of". It was submitted on behalf of the Crown that the clear and ordinary meaning should apply as one might find in any dictionary, that being, "the reason why something is done". There was no issue taken with this construction on behalf of the appellant. 5. The relevant inquiry must be for the purpose of obtaining information "about the accused or any matters relevant to the trial." At first glance, these words are open to two different constructions. The construction advanced on behalf of the Crown, with which no issue was taken by the appellant, was that the inquiry must have been made with the intention of obtaining information about either the accused or any matter relevant to the trial to be used in some way in the trial. An alternate and stricter construction of the phrase is that it prohibits any inquiry being made for the purpose of obtaining any information about the accused or about any matter "relevant to the trial" even if there is no intention to use it in the trial in any way. This latter construction is consistent with the approach taken by the trial judge in this matter. 6. I have had regard to the fact that a breach of s 68C(1) of the Jury Act is a criminal offence which carries a maximum penalty of a fine of $5,500 and/or imprisonment for 2 years. I have also had regard to the second reading speech and the mischief that parliament intended to deal with in enacting s 68C. I accept that there are sound reasons for applying the terms of s 68C strictly for the purposes of ascertaining whether there has been misconduct within the meaning of s 53A of the Jury Act. The potential danger to a fair trial caused by an inappropriate search is obvious. It is clearly preferable that jurors not make any inquiries about the material in the trial at all, whether for their own purposes or otherwise, to avoid the risk of inappropriate searches. Despite this, the fact remains that s 68C creates a criminal offence the purpose of which is to act as a deterrent to jurors who wish to act as investigators in relation to trial issues. In order to be liable for the criminal sanction, a juror must have acted with this requisite intent. 7. It cannot be the case that every juror in a criminal trial who makes an inquiry about a factual matter which arises during a trial will necessarily have made that inquiry "for the purpose" of obtaining information about "the accused, or any matters relevant to the trial". During oral submissions, counsel for the Crown raised the following hypothetical example to establish this point. If a member of the jury was a medical practitioner who had recently prescribed a certain type of medication to a patient and during the trial heard uncontested evidence about the danger of that medication, it would not be a breach of s 68C(1) of the Jury Act to search medical databases to assess whether or not she should reconsider the prescription. The medical practitioner would not be making the inquiry for the purpose of obtaining information about "the accused, or any matters relevant to the trial" and thus the inquiry could not constitute an offence under the Jury Act. 8. A further example which arose during the hearing was as follows. Assume that at a criminal trial a witness gave evidence that she had witnessed the relevant offence, which occurred at a popular fast food chain, on a Tuesday night. In her evidence, the witness stated that she was sure that it was a Tuesday night because that particular franchise offered half-price deals every Tuesday night and the witness regularly availed herself of the bargain. Now assume that a particular juror, who was partial to that same brand of fast food, was not aware of this particular Tuesday night deal and made on online inquiry in relation to it. The juror was able to confirm that such a deal did in fact exist every Tuesday night. The juror was happy as she proposed to also avail herself of the opportunity of a half price meal on Tuesday nights. Again, in this scenario, the inquiry has not been made for the purpose of obtaining information about the accused, or any matters relevant to the trial. The purpose was solely to be in a position to take advantage of a deal. Accordingly, the inquiry would not constitute an offence under s 68C(1) of the Jury Act. 9. The mere fact that an inquiry has been made for a purpose other than to obtain information about the accused, or any matters relevant to the trial, does not, of course, mean that such an inquiry may not amount to misconduct within the meaning of s 53A(2)(b) of the Jury Act. For example, in the first of the above examples, if the result of the medical practitioner's inquiries in fact cast doubt on the evidence at trial and this information was relayed to the rest of the jury, there may have been misconduct under s 53C(2)(b) of the Jury Act if the trial judge was of the opinion that the conduct gave rise to the "risk of a substantial miscarriage of justice in the trial". 10. Similarly, in the second hypothetical example, if the date of the offence was an issue in dispute in the trial then the witness's credit may have been bolstered in the eyes of that juror by confirmation of the deal being offered on a Tuesday. Alternatively, if the internet search revealed that the half price deal was in fact on a Wednesday, then the search would be material to issues in the trial. If the juror then revealed the result of this search to his fellow jurors, then, again, there may have been misconduct under s 53C(2)(b) of the Jury Act. 11. It does not appear that there has been any judicial consideration of the relevant intent necessary to establish a breach of s 68C(1) of the Jury Act. In the second reading speech introducing the relevant bill extracted above, it was noted that s 68C was enacted following two high profile cases in which new trials were ordered due to juror misconduct: R v K (2003) 59 NSWLR 431; [2003] NSWCCA 406 ("R v K") and R v Skaf (2004) 60 NSWLR 86; [2004] NSWCCA 37 ("R v Skaf"). I have had regard to these and a number of other decisions concerning juror misconduct. Although some of these decisions relate to trials conducted before the enactment of s 68C, I have nonetheless found these decisions to be helpful in a limited respect in that they show the type of misconduct which led Parliament to enact s 68C in the first place. 12. The relevant misconduct in R v K arose in circumstances where the appellant had been convicted of the murder of his first wife. He had previously been tried for the murder of his second wife and was acquitted. It became apparent that a number of jurors had acquired knowledge about the history of the matter, including that the appellant had been accused of murdering his second wife and that the current trial was a re-trial in relation to the alleged murder of his first wife. The Court held that the internet searches revealing information about the alleged murder of the second wife, which was not in evidence, was potentially prejudicial as there was a real risk of the jury applying tendency or coincidence reasoning or otherwise drawing bad character inferences. 13. The relevant misconduct in R v Skaf arose in the context of a sexual assault trial. At the start of the trial, the jury had been instructed not to "go and do your own research". On the day before the verdict was delivered, the foreman and another juror visited the scene of the crime, which was a public park. One of the issues in the trial was whether there was sufficient lighting to identify Bilal Skaf as an offender. The jurors arrived at the park at about 8:15pm and spent about 15-20 minutes there. When they walked through the park the foreman noticed the lighting and said he could see the other juror at all times. The foreman later said that he only went to the park to "clarify something for my own mind. I felt I had a duty to the court to be right. I wanted to be sure my decision was not in any doubt before the verdict. I did not tell anyone else in the jury about this visit. The only juror who knew about the visit was the one who was with me." The park visit by the two jurors was not revealed until after the verdicts were handed down. The Court was satisfied that the misconduct of the jurors caused the trial to miscarry. 14. In addition to these two cases there was also juror misconduct alleged in Folbigg v R [2007] NSWCCA 371, which also occurred prior to the enactment of s 68C. The Court granted leave to re-open an appeal against conviction on the ground that a juror or jurors had obtained information from the internet which revealed the appellant's father had killed her mother and concerned research as to the time an infant's body is likely to remain warm to touch after death. This came to light as a result of an inquiry by the Sheriff. The Court held that the knowledge obtained by the juror as to the accused's father killing her mother was unlike R v K as it did not go to any tendency of the accused. With respect to the inquiry about the time that an infant is likely to remain warm post-death, it was held that the information discovered would only have assisted the accused. The Court held that there was no material irregularity or miscarriage of justice. 15. R v Wood (2008) 186 A Crim R 454; [2008] NSWSC 817 concerned a trial which took place after s 68C(1) was enacted. There was evidence before the trial judge that at least one member of the jury was not prepared to obey the Court's direction and because it could not be decided which juror(s) were involved, they were all discharged. An issue in the trial was whether the deceased had jumped off the Gap at Watsons Bay or had been thrown. A person purporting to be a juror telephoned a person at a radio station and told him that members of the jury had planned to go to the Gap for a private viewing at night, having already undertaken a court-mandated viewing during the day. Barr J observed at [11]: "If the caller was telling the truth those jurors contemplating a private view at Watsons Bay were contemplating an act contravening the provisions of s 68C(1). If they had already conspired to do that act they might already, without ever going to Watsons Bay, have committed an offence under s 68C". The jury was discharged. 16. In R v Sio (No 3) [2013] NSWSC 1414, the presiding trial judge, Adamson J, instructed the jury not to conduct inquiries and provided written directions to the jury outlining conduct that would contravene s 68C and the punishment for breaching this requirement. Despite this, a juror conducted internet research on legal matters relevant to the trial. When this fact was discovered, that juror was kept separate to the others so that her Honour could investigate whether there was a potential breach of s 68C of the Jury Act which would oblige the juror's discharge under s 53A(1). Although when examined on oath the juror denied doing any internet research, her Honour did not accept this evidence given the other evidence from the foreperson. The juror was found to have breached s 68C(1) of the Act and was discharged as required by s 53A(1). Similarly, in R v JP (No 1) [2013] NSWSC 1678, a juror in a murder trial was discharged under s 53A of the Jury Act for researching the meaning of "murder" and "manslaughter". The juror stated that she was having difficulty differentiating between them. 17. In Carr v R [2015] NSWCCA 186, four brief newspaper publications concerning evidence that had been presented at the trial were found in the jury room. The trial judge had expressly told the jury that they were not prohibited from reading newspapers. It was held that there was no misconduct on the part of the foreperson in reading the articles and bringing them into the jury room. Nor was the trial judge satisfied that there had been an irregular incident warranting the discharge of the jury: Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30. 18. On appeal, the Court of Criminal Appeal (Basten JA with whom McCallum and RA Hulme agreed) held that reading a newspaper and bringing it into the jury room alone is not misconduct and that something more would be required. Although there is always a risk that a journalist may make a mistake, unless the article revealed extraneous information (that is, information not the subject of evidence in the trial), reading the article would not constitute the making of an inquiry in the sense in terms of s 68C. That is because "the focus of the prohibition is upon obtaining, or attempting to obtain, extraneous information about the accused or some other matter relevant to the trial" (see Carr v R at [19] per Basten JA). The Court held that neither s 53A(2)(a) nor s53A(2)(b) were satisfied in that matter. 19. The interplay between ss 66C and 53A(1) was considered by this Court in Smith v R. In that decision, the Court (RA Hulme J, with whom McClellan CJ at CL and McCallum J agreed) considered an appeal in circumstances where the trial judge had been told informally by the court officer that a juror had made an inquiry about subject matter which arose during the hearing and had, without making any reference to the terms of the Jury Act, determined that no problem arose. RA Hulme J noted the following at [26]: "It is clear enough that if a trial judge is satisfied that a juror has 'engaged in misconduct in relation to the trial', there is no course available other than to discharge that juror. The terms of the section do not appear to permit a consideration of whether anything in the conduct of the juror could work to the disadvantage of the prosecution or defence." 1. His Honour went on to observe at [28] that: "For the Crown it was submitted that before a judge is required by s 53A to discharge a juror for misconduct, the information available must be sufficient for the judge to be satisfied beyond reasonable doubt that an offence against s 68C had been committed. I do not accept that submission. There is nothing in s 53A, or elsewhere in the Act, that requires the criminal standard of proof to apply. Certainly, it would in a prosecution of a juror for an offence against s 68C but that is a different matter." 1. His Honour also said at [31]: "For there to have been misconduct, as defined in s 53A, requiring mandatory discharge of the juror, there must not only have been an inquiry made by the juror but one that was "for the purpose of obtaining information about … (a matter) relevant to the trial": s 68C(1). There is nothing in what the judge conveyed to counsel about the juror's "passing comment" to indicate what the juror's purpose was. The correct construction and scope of this part of s 68C(1) may raise questions but they do not need to be resolved here. It can either be assumed that the juror's "purpose" was of the type the provision is concerned with, or there was error in not inquiring as to what it was." 1. In Smith v R, there had been evidence given that the accused had referred to the Falun Gong (followers of a particular Chinese practice) during the commission of the offence. The jury inquiry relayed to the judge was said to be in relation to the Falun Gong. Although the subject matter of the search was one that arose in evidence, no inquiry was made by the trial judge as to the purpose of the search. Thus, although it was accepted by the Court in Smith v R that the purpose of the search is relevant, the absence of any inquiry as to the juror's purpose in Smith v R was sufficient to lead to error in that case. 2. I have extracted the facts in these matters in some detail in order to provide examples of the type of behaviour which has been held to amount to juror misconduct since s 68C was enacted and which was held to have led to a miscarriage of justice prior to the enactment of s 68C. In addition to these decisions, it is well established that any failure to observe mandatory provisions relating to the constitution and authority of the jury is a departure from the requirements of the criminal process and a conviction cannot stand if the trial process is flawed in a fundamental respect: Katsuno v The Queen at [35] (see also Maher v The Queen (1987) 163 CLR 221; [1987] HCA 31) ("Maher v The Queen"). 3. The purpose of s 68C(1) of the Jury Act is to prevent jurors from discovering information extraneous to the trial unbeknownst to counsel and which may influence jury deliberations. As the cases referred to above make clear, jurors may well be tempted to act as investigators if one or more of them feel that there is an inadequacy of evidence on a particular issue. The potential for such an inquiry to create unfairness to an accused person is obvious. It is in these circumstances that the Jury Act now provides that any juror who makes such an inquiry, after being directed not to do so, is to be discharged with a remaining discretion to then discharge the whole jury if there is any risk of a substantial miscarriage of justice. 4. The trial judge was satisfied that the inquiry was for the purpose of the juror's own curiosity about her personal situation but nonetheless found that there had been a potential breach of s 68C. It is to be accepted that there was no need for the trial judge to be satisfied that there had been a breach of s 68C by Juror A to the criminal standard, as was held by this Court in Smith v R at [28]. But the offence must be capable of being able to be established. The consideration of the conduct of Juror A by the trial judge failed to take into account the need for the purpose of the inquiry to be the obtaining of information relevant to the trial rather than for personal reasons. The information obtained was why Juror A was not required to have a Working with Children Check. That was not a matter relevant to the trial. In circumstances where it is clear that Juror A conducted the search for the express purpose of satisfying herself as to why she did not require a Working with Children Check, I am not satisfied that the offence could be established. 5. As for the status of the jury note and evidence of the foreperson on the question of assessing the question of misconduct in this Court, I accept that a decision to discharge a juror is an interlocutory decision which can be the subject of an appeal under s 5F of the Criminal Appeal Act: see Petroulias v R (2007) 73 NSWLR 134; [2007] NSWCCA 134. Section 75 of the Evidence Act 1995 (NSW) provides that the hearsay rule does not apply to interlocutory decisions. Accordingly, I have had regard to the jury note (MFI 99) in my determination. I do not accept, as was submitted on behalf of the appellant, that there exists an evidentiary lacuna about the conduct of Juror A such that this Court could not be satisfied that there had been no misconduct. 6. For these reasons, I am not satisfied that what occurred in this trial amounted to misconduct for the purposes of s 53A(2)(a) of the Jury Act. Was there misconduct within s 53A(2)(b) of the Jury Act? 1. I propose to also consider whether there was misconduct within s 53A(2)(b) of the Jury Act. That is, was it conduct which "in the opinion of the court", "gives rise to the risk of a substantial miscarriage of justice in the trial". The trial judge did not consider s 53A(2)(b) because she was satisfied that there had been misconduct under s 53A(2)(a). Despite this, for completeness, I consider it appropriate in the circumstances to assess this question retrospectively. 2. The question of whether there had been misconduct within s 53A(2)(b) of the Jury Act was considered in Li v R (2010) 265 ALR 445; [2010] NSWCCA 40 ("Li v R"). In that matter, there was evidence that one or more jurors were playing a word game called "Target" whilst sitting through evidence during court proceedings. On appeal, the Court (Howie and Hall JJ with whom MacFarlan JA agreed) held that the conduct was not a breach of the Act (including s 68C) and hence was not "misconduct" in the terms of s 53A(2)(a). The question was thus whether it was conduct such that it would give rise to the risk of a substantial miscarriage of justice in the trial under s 53A(2)(b). The Court held that there was no evidence that the jury had been distracted to such an extent that a miscarriage of justice occurred ([157]). It was said that this was a lengthy trial and undivided attention at all times by each and every jury member was not necessary. After citing the decision of the High Court in Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52, it was noted that nobody in the court room (including the legal representatives, the judge and the court officer) noticed any distracted jury members. 3. The Court in Li v R did not state the test for what is meant by a "substantial miscarriage of justice" in the context of s 53A(2)(b) of the Jury Act beyond the words of the statute. In response to a question from the bench during the hearing of this appeal as to whether the meaning of "substantial miscarriage of justice" in s 53A(2)(b) is the same as in s 6(1) of the Criminal Appeal Act, it was submitted by the Crown that it arises in a slightly different context, "and in a forward looking context rather than a backward looking context." It was accepted that the test under the proviso could inform the Court's consideration as to whether or not s 53A(2)(b) of the Jury Act has been established. 4. It was further submitted by counsel for the Crown that the relevant test for "substantial miscarriage of justice" in s 6(1) of the Criminal Appeal Act was as described by the High Court in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [15], namely, whether the appellant had been denied "a chance of acquittal which was fairly open to him or her". It was not suggested by counsel for the appellant that any different test applied. 5. Since this appeal was heard, the High Court has delivered two decisions concerning the meaning of "substantial miscarriage of justice" in s 6(1) of the Criminal Appeal Act. In Kalbasi v The State of Western Australia (2018) 352 ALR 1; [2018] HCA 7 the High Court cited Weiss v R (2005) 224 CLR 300; [2005] HCA 81 at [44] in support of the relevant test requiring the appellate court to review the whole of the record of the trial and make an independent assessment of the evidence to determine whether the charge(s) was proved beyond reasonable doubt. In doing so, due allowance must be made for the natural limitations that exist where an appellate court proceeds wholly or substantially on the record. The High Court in Kalbasi v The State of Western Australia declined to "return to a test for the determination of a substantial miscarriage of justice which asks whether the accused has lost a chance of acquittal fairly open or whether there has been some substantial departure from a trial according to law" (at [8]). Rather, the majority (Kiefel CJ, Bell, Keane and Gordon JJ) held that: "Weiss is a unanimous decision and the appellant's careful argument does not provide a principled reason to depart from it. In light of the argument, it is as well to recall the notorious difficulties associated with the 'lost chance of acquittal' formulation when applied as the criterion of a substantial miscarriage of justice. Chief among these was the question of how the appellate court is to assess the lost chance…" (footnotes omitted) 1. The majority did however state that the concepts of "lost chance of acquittal" or inevitability of conviction did have utility in some cases: see at [15]. In Lane v The Queen [2018] HCA 28, the High Court again confirmed the test in Weiss v R whilst observing that the negative proposition "states a necessary but not sufficient condition for applying the proviso" (at [38]). 2. 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)) is to be assessed prior to verdict (rather than retrospectively at the time of an appeal). In addition to this contextual difference, there is an important textual difference as well. In s 53A(2)(a) (and also in s 53C(1)(a)), the question is whether there has been 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". There has been surprisingly little judicial consideration of the test of "risk of substantial miscarriage of justice" in ss 53A(2)(b) and 53C(1)(a) of the Jury Act. 3. In R v Lamb [2016] NSWCCA 135, the Court (Bathurst CJ, Harrison and Button JJ) noted at [27] the Crown's submission that the well-known test for the discharge of a jury enunciated by the plurality in Crofts v R (1996) 186 CLR 427; [1996] HCA 22 had a role to play; namely, whether there was "a high degree of necessity for the jury's discharge". It was submitted that that test could inform the meaning of the phrase a "substantial miscarriage of justice" contained in s 53C(1)(a) of the Jury Act. The Court ultimately did not consider it necessary to resolve the question of whether the statutory test contained in s 53C(1)(a) of the Jury Act is to be considered on its own, "or whether it can be informed by the seemingly higher test contained in Crofts v R." 4. Giving the words "risk of substantial miscarriage of justice" their ordinary meaning in the context of the Jury Act, and in particular s 53A(2)(b), I propose to approach the question of whether there was misconduct within s 53A(2)(b) by considering whether the inquiry by Juror A and the introduction of the results of that inquiry into the jury room could have affected the outcome of the trial in any way. Unlike an appellate court applying the proviso, I do not consider that a trial judge with a jury waiting is required to review the whole of the record of the trial in order to determine whether there is a "risk of a substantial miscarriage of justice." 5. The evidence before the trial judge was as follows. The juror had previously been a teacher and was curious as to why she did not have a Working with Children Check. She did an internet search and found that the relevant legislation was only introduced in 2013. The foreperson was a teacher and was already aware of this information. The foreperson did not believe that the inquiry "had an impact". The foreperson only informed the trial judge because she understood her duty to notify "as per the written instructions." The search was conducted during the evening of the day the jury reached guilty verdicts in relation to eight counts (counts 4 and 6-12). The exchange between the trial judge and the foreperson indicated that the inquiry was limited to the date the legislation came into force. The other jurors were informed by Juror A as to the date the legislation came into force. When Juror A's inquiry was mentioned to the other jury members, there was then no further discussion of it. The foreperson said that the "evidence was not weighed in any of our decisions thus far." 6. The appellant did not concede that there was no risk of a substantial miscarriage of justice in the trial caused by the jurors knowing that the legislation was introduced in 2013. This was on the basis that Juror A had not only conducted an inquiry against the Jury Act and the directions of the trial judge, but had also brought the information obtained into the jury room creating possible contamination of the jury deliberations and subsequent verdicts. The appellant further argued that the trial judge had failed to re-affirm to the jury the importance of following her Honour's directions following the discharge of Juror A. 7. I am satisfied that the actions of the juror did not give rise to the risk of a substantial miscarriage of justice in the trial within the meaning of s 53A(2)(b) of the Jury Act. The evidence of the absence of a Working with Children Check adduced from Detective Paul was of very limited relevance in the Crown case. It does not seem to have been relied upon to suggest that the appellant would not have been approved to work with children if he had applied for a Check nor that he deliberately chose not to obtain one. In any event, any negative inference arising in the Crown case from the lack of this certificate was neutralised by the evidence of Mr Nguyen such that the Crown Prosecutor did not even refer to the evidence in his closing address. The inquiry only went to the issue of why Juror A did not have such a Check, which was not an issue in the trial. Conclusion: no juror misconduct – does this mean the appeal should be dismissed? 1. Having concluded both that the trial judge erred in finding that there had been misconduct within the meaning of s 53A(2)(a) of the Jury Act in this matter, and that the conduct did not give rise to the risk of a substantial miscarriage of justice in the trial within s 53A(2)(b) of the Jury Act, the question is what that means for the disposition of this appeal. The appellant's position was that any ex post facto finding by this Court that there was in fact no misconduct was irrelevant because the trial judge's finding triggered a mandatory procedure which was not complied with. The Crown's response to this is that her Honour did not in fact make any such finding until after she took the verdicts and therefore it is open to this Court to make an assessment of this question for the purpose of determining this appeal. 2. I have considered the respective submissions by the parties. Although the trial judge tentatively formed the view that there had been misconduct prior to taking the eight verdicts, the decision that later discharged the juror was made after the point in time at which it is alleged that the obligation to discharge was enlivened. There is no decision at the earlier point in time that the juror was guilty of misconduct. Rather, the judge delayed the question as to what to do with the juror until after the verdicts were taken. 3. Further, I am satisfied that the finding as to whether there had been "misconduct" to a level of satisfaction such as to warrant the application of s 53A(1) of the Jury Act requires an evaluative process in relation to which judicial minds may differ. Thus, it would only be open to this Court to make a different finding as to whether there had in fact been misconduct if House v The King error could be established. In this case, I am satisfied that there was error in the finding of misconduct by her Honour on the basis of a failure to have regard to the purpose of making the relevant inquiry as is required by s 68C(1) of the Jury Act in determining whether the offence could be made out. 4. I am satisfied that Juror A made an inquiry about a matter relevant to herself which was triggered by something she became aware of during the trial. Although the evidence of the Working with Children certificate was before the jury and thus is presumed to have been relevant to the trial, (although for my part its relevance remains somewhat obscure), the reason why it did not apply to Juror A was not relevant to the trial. I am not satisfied that the requisite intent for s 68C(1) could be established for the reasons I have already given. 5. I am further satisfied that, as a matter of general principle, if a trial judge errs in finding misconduct when no such misconduct could be established, the failure by the trial judge to comply with a procedure which is only mandatory if misconduct has in fact been found does not mean that the trial is flawed in a fundamental respect. 6. In light of my finding that there was no misconduct in this matter, there is no need to consider whether the Crown's concession, which only became relevant if this Court was satisfied that there had in fact been misconduct, should otherwise be accepted in this matter. Determination of the status of the remaining two verdicts 1. I have been assisted by the supplementary submissions provided by counsel on the question of the status of counts 1 and 5 in the event that this Court found that there had been no misconduct in this matter. The question turns on the nature of the decision by the trial judge to discharge Juror A and whether a wrongful discharge of a juror amounts to a failure to observe a mandatory provision relating to the constitution and authority of the jury. 2. Both the appellant and the Crown rely upon different passages in the decision of the High Court in Katsuno v The Queen in support of their respective positions on this issue. 3. Katsuno v The Queen concerned an irregularity arising out of a longstanding practice in Victoria whereby the Commissioner of Police would provide the DPP with a list of the names and criminal history of jurors prior to trials (which would not be made available to the defence). The DPP in this case used that list to peremptorily challenge a juror on the basis of his criminal history. The relevant unlawfulness was that although s 21 of the Juries Act 1967 (Vic) permitted the Sheriff to provide a list of potential jurors to the Police (so as to receive information concerning their criminal history so that any mandatory disqualifications could be made prior to summoning the potential jurors), the purpose of doing so was limited to conducting the criminal history searches and providing the information back to the Sheriff alone rather than the DPP. Consequently, the Police had been acting unlawfully. 4. Gaudron, Gummow and Callinan JJ observed at [35] that: "At one level, the decisions in Maher and Johns are concerned with failure to comply with mandatory legislative provisions relating to the constitution and authority of the jury. At another, as is clear from the judgment of the Court in Maher, they are concerned with "failure to observe the requirements of the criminal process in a fundamental respect", of which the failure to observe mandatory provisions relating to the constitution and authority of the jury is but an example. A conviction simply cannot stand if the trial process is flawed in a fundamental respect." (citations omitted – emphasis added) 1. Their Honours continued at [41]: "The question in this case is whether there was a fundamental failure to observe the requirements of the criminal process. As Maher and Johns show, there will have been a failure of that kind if there was a failure to comply with a mandatory provision relating to "the constitution and authority of the jury". However, not every legislative provision is a mandatory one. In this context, it is convenient to return to the Act. For example, it hardly seems likely that a minor arithmetical error by the Sheriff in notifying the Electoral Commission of the number of persons required for jury service, or an error as to the exact location of a juror's residence within 32 km of a relevant court house pursuant to s 8, would invalidate the process for which that section makes provision. Nor would an omission to send a questionnaire as required by s 10(2) to every person recorded on a jury list be likely to render a nullity a verdict given by a jury selected from a panel which might have been a little more numerous had all questionnaires been sent as required." 1. The appeal in Katsuno v The Queen was ultimately dismissed on the basis that the illegality did not amount to a failure to observe a mandatory provision relating to the constitution and authority of the jury. Gleeson CJ and Gaudron, Gummow and Callinan JJ constituted the majority whereas McHugh and Kirby JJ delivered separate dissenting judgments. The Crown relies upon the decision of the majority and the observations of Gaudron, Gummow and Callinan JJ extracted above to submit that there has similarly been no failure to observe a mandatory provision relating to the constitution and authority of the jury in the present appeal. 2. The appellant relies upon the dissenting judgment of Kirby J at [132]-[134] in Katsuno v The Queen in support of the proposition that there will be a fundamental defect in a trial if there has been any departure from prescribed procedures of a jury trial "going to the root of the conduct of the trial." Kirby J observed at [132]: "…the proper approach to the issue raised by the appellant is not to look beyond his complaint to the suggested substance and other merits of his trial. It is not to indulge in the self-fulfilling and always unsatisfactory classification of requirements as "mandatory" or "directory". It is to ask whether the failure of which the prisoner complains amounts to a default in observing the requirements of the criminal process in a fundamental respect." 1. In Maher v The Queen (referred to by the Court in Katsuno v The Queen), the accused had pleaded not guilty to 19 counts and the jury was sworn. The prosecution then amended the indictment by adding two further counts. The trial judge then had the accused re-arraigned on the new indictment but failed to re-swear the jury with respect to the further two counts. As such, there was a failure to comply with mandatory provisions governing the constitution and authority of the jury. It was observed by the Court (Mason CJ, Wilson, Brennan, Dawson and Toohey JJ) at [28] that: "The provisions of the Jury Act and of the Code which govern the constitution and authority of the jury as the tribunal of fact in a criminal trial are mandatory, for the entitlement to trial by jury which s.604 of the Code confirms is trial by a jury constituted in accordance with the Jury Act and authorized by law to try the issues raised by the plea of not guilty. A failure to comply with those provisions may render a trial a nullity, at least in the sense that the conviction produced cannot withstand an appeal: see Crane v. Public Prosecutor (1921) 2 AC 299." 1. I am not satisfied that the removal of a juror by virtue of an error in the evaluative assessment of whether there had been a breach of s 68C(1) of the Jury Act represents a fundamental defect in the trial process. I am bound to follow the majority decision in Katsuno v The Queen rather than the approach taken by Kirby J in his dissenting judgment. 2. Section 22 of the Jury Act relevantly provides that if a juror is discharged under Part 7A, the jury shall be considered as remaining for all the purposes of a criminal trial if the number of its members is not reduced below 10 and the court directs that the trial proceed with the reduced number. The Jury Act provides for jurors to be discharged on a discretionary basis for a number of reasons. For example, s 53B(a) provides, inter alia, that a juror can be discharged for illness. By way of analogy, if a juror was discharged for illness under s 53B(a) and then made an unexpected recovery such that the juror need not have been discharged, the juror would have been wrongly discharged but this would not amount to a failure to comply with a mandatory provision relating to the constitutional authority of the jury. Section 53B(b), (c) and (d) also provide that a juror may be discharged on a number of other discretionary bases. I am satisfied that there is no textual or policy basis to construe s 22(1) so as to read the word "correctly" before the word "discharged" therein. 3. On behalf of the appellant, reliance was placed upon the terms of s 73 of the Jury Act to provide textual support for the rejection of the Crown's submission that s 22 can operate as a provision which saves a verdict where a juror has been erroneously discharged. Section 73 was considered in R v Brown & Tran (2004) 148 A Crim R 268; [2004] NSWCCA 324 ("R v Brown & Tran"). In that case, a juror was summonsed to attend to serve as a juror on 24 March 2003 but apparently inadvertently attended early on 26 February 2003 and was subsequently selected. Sperling J (with whom Mason P and Sully J agreed) relied upon the decisions in Maher v The Queen and Katsuno v The Queen to conclude that what occurred involved a failure of compliance with mandatory provisions of the Jury Act 1977. Accordingly, the trial was a nullity unless s 73 of the Jury Act, particularly s 73(b), applied. At the time of the hearing of the appeal, s 73 was in these terms: "The verdict of a jury shall not be affected or invalidated by reason only: (a) that any member of the jury was disqualified from serving as a juror or ineligible to serve as a juror, (b) of any omission, error or irregularity with respect to any supplementary jury roll, jury roll, card or summons prepared or issued for the purposes of this Act, (c) that any juror was misnamed or misdescribed (where there is no question as to the juror's identity)." 1. His Honour found that s 73(b) could not have been intended to mean that every omission connected with a document of the kind specified would be excused as such a wide construction "would mean that failures of compliance with mandatory provisions of the most fundamental kind would be excused." His Honour therefore construed s 73(b) as meaning an omission, error or irregularity in respect of a document of the kind specified, as a document, confining the exemption to the content of documents. Accordingly, the trial was a nullity and a new trial was ordered. As a result of that decision, s 73(a) was amended (s 73(b) and (c) remain the same). Section 73(a) now provides: "(a) that any juror was, after being required by summons to attend for jury service, mistakenly or irregularly empanelled, whether because the juror was excluded from jury service or was otherwise not returned and selected in accordance with this Act, or Note : For example, this paragraph prevents the verdict of a jury from being invalid if, as in R v Brown & Tran[2004] NSWCCA 324 , a juror who received a jury summons reported for service a day early and was mistakenly empannelled." 1. I do not accept the argument advanced on behalf of the appellant that s 73 of the Jury Act acts to limit the construction of s 22(1) of the Jury Act. Section 73 identifies specific circumstances where, but for that section, a breach of a provision of the Jury Act concerning the eligibility of a juror to serve would invalidate the verdict. The fact that s 73 does not also specifically include a situation such as the present does not, as a matter of construction, mean that the verdicts on counts 1 and 5 are invalidated. But for s 73, the circumstances therein would be mandatory matters affecting the constitution of the jury, as the Court held in R v Brown and Tran. What occurred in the present case is that the trial judge wrongly made an evaluative judgment (that s 68C(1) had been breached) which led her to believe that the juror had to be discharged pursuant to s 53A(1). That evaluative decision is not analogous to a failure to comply with a mandatory requirement under the Jury Act. 2. Similarly, in Petroulias v The Queen, it was discovered after empanelment that a juror had been disqualified from serving as a juror because of a conviction for a driving offence. In reliance upon the decision in Katsuno v The Queen, Simpson JA, with whom Hoeben CJ at CL agreed, held that the inclusion of the juror meant that the trial was flawed in a fundamental respect (at [69]). On this basis, it was not open for the trial judge to make any order under s 22. 3. The present case is distinguishable from both R v Brown & Tran and Petroulias v The Queen. An erroneous decision leading to the discharge of a juror does not constitute a failure to comply with a mandatory provision relating to the construction and authority of the jury. Nor do I accept the appellant's submission that a construction of s 22 of the Jury Act which does not read the word "correctly" or "properly" before the word "discharged" is contrary to the general approach of all members of the High Court in Wu v The Queen. That decision concerned a trial which took place before ss 68C and 53A were enacted and concerned s 22 of the Jury Act. The complaint made was that the trial judge had wrongly discharged a sick juror and proceeded with 11 jurors. At the hearing of the appeal in the High Court the appellant raised for the first time an argument that the trial judge also erred in not making a formal order under s 22 of the Jury Act to proceed with the remaining jurors. Leave was refused to argue this ground and the appeal was dismissed. I have not found that decision to be of any assistance. To the extent that the appellant relied upon the decision of Kirby J in Wu v The Queen, it is to be noted that his Honour was again in dissent in that matter. 4. I am not satisfied that there has been any breach of any mandatory provision relating to the constitution and authority of the jury in relation to the last two verdicts being determined by 10 rather than 11 jurors. 5. Given my conclusion that there was no jury misconduct by Juror A, I am satisfied that the appellant's trial did not miscarry. None of the three grounds of appeal have been established 6. For these reasons I am satisfied that the appeal should be dismissed. 7. Accordingly I would propose the following order: 1. Appeal against conviction is dismissed. Amendments 03 August 2018 - [19] - Formatting change to quotation 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: 03 August 2018