Supreme Court New South Wales Medium Neutral Citation: R v Fitzpatrick (No 7) [2019] NSWSC 983 Hearing dates: 1; 2; 3; 4; 5; 8; 9; 10; 11; 12; 15; 16; 17; 18; 19; 22; 23; 24; 25; 26; 29 July 2019 Date of orders: 29 July 2019 Decision date: 29 July 2019 Jurisdiction: Common Law Before: Campbell J Decision: See paragraph [10] Catchwords: CRIMINAL PROCEDURE – jury trial – approach to juror at social function – whether juror's impartiality impugned – whether individual juror should be discharged – whether occasion had arisen for discharge of whole jury Legislation Cited: Nil Cases Cited: Nil Category: Procedural and other rulings Parties: Regina (Crown) Paul John Fitzpatrick (Accused) Representation: Counsel: J. Tunks (Crown) D. Price (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Conaghan Lawyers (Accused) File Number(s): 2017/376874 Publication restriction: Yes - publication restriction until the completion of the matter. Judgment 1. My own view is, having heard the evidence of the juror and having heard the evidence of the foreperson, I am satisfied, subject to hearing from Mr Price following his conference with the accused, that although, in his own words, the juror felt violated by the approach, I accept his evidence on oath that it did not affect his thinking about the case and in particular has not affected his thinking about the accused, Mr Fitzpatrick. 2. I also accept the evidence of the foreperson that the matter has not been discussed in the juryroom and that the jury did not otherwise know about the matter from an extraneous source. And although there is something in jury note 15, which I discussed with counsel in chambers, and need not repeat in open court, which did cause me to think there were grounds to revisit the issue which I had provided a direction about to the jury earlier today, I am satisfied that my concern about the potential impartiality of the juror concerned, and whether the jury as a whole might have been tainted, has not been borne out by the evidence that I have heard upon the enquiry I have conducted in open court. 3. Subject to hearing further from Mr Price, I am of the view that I should receive the jury's verdict. SHORT ADJOURNMENT HIS HONOUR: Mr Price, have you any application? PRICE: Thank you, your Honour for the time. In relation to the examination of the juror, I agree with the observations of the learned Crown and I have heard your Honour's remarks in relation to it. I have nothing further to add. 1. HIS HONOUR: Thank you very much, Mr Price. I think I should simply say this before I ask the jury to return to court. As the transcript will show I received a report this morning about an approach by a person to a juror on the weekend at a social event. As I said to the jury when they came into court just after half-past 11, on the information that I had received from the sheriff's officers, relaying to me the report of the juror to them, I was satisfied that there had been no suggestion of any misconduct of any kind on the part of the juror concerned. It seemed to me on the report I had received that the juror had behaved entirely properly and had adhered to the direction I gave to the whole jury at the close of each sitting day which I refer to as "my daily admonition". 2. The juror, at the request of the sheriff's officers, wrote me a note setting out in detail what had transpired. It seemed to me upon reading the note, which I marked as jury note 15, that the account given by the juror was comprehensive and had about it, if I may put it this way, "the ring of truth". There was a matter that he raised in the note which was a detail which had not been conveyed to the officers and therefore not conveyed to me earlier, which caused some concern. The concern was not about the juror's conduct but about something that had been said by the person who made the approach. It seemed to me at least possible that a person in the position of the juror might be resentful of the approach and of the statement that was made, given that it clearly was designed to have an influence upon the juror's thinking. 3. For that reason, after discussing the matter with counsel in chambers, I decided to conduct an enquiry of both the juror and the foreperson of the jury. I decided to consult counsel in chambers because it seemed to me that the nature of the matter was sensitive and did not bear a full airing in open court. The note is with the jury notes and at the conclusion of proceedings I will direct that a copy of it be made available to the sheriff to make such further enquiries, and take such further action as the sheriff thinks appropriate, having regard to its contents. 4. Having said that, my concern was that a natural human response on the part of the juror might be resentment about the nature of the approach and the comment made. It seemed to me at least possible in those circumstances that it might affect adversely the juror's thinking about the accused and his thinking about the proper result in the case. 5. Having conducted the enquiry and having examined the juror under oath I am satisfied first that he has not discussed the matter with his colleagues; and that although he resented the approach, quite properly so I might interpolate, he behaved, as I've said, entirely appropriately, having regard to the directions of law I have given to him and the whole jury. 6. I am also satisfied on his oath that it did not affect and does not affect his thinking about the matter, his feelings in any way towards Mr Fitzpatrick, or his decision making process in coming to the verdict that the jury have informed me they have now reached. Moreover, I am satisfied from my examination of the foreperson, also on oath, that, as the juror told me, he did not discuss the matter with his colleagues on the jury in the jury room, and that there is no occasion to be concerned about whether the jury itself could be affected in its impartiality by what happened on Saturday. 7. In those circumstances I formed the view that there was no occasion to discharge the individual juror concerned and it naturally follows, that no question whatsoever arises about whether the whole jury should be discharged prior to bringing in the verdict which, as I have said, they have informed me they have now reached. ********** 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: 02 August 2019