Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Agelakis v R [2020] NSWCCA 72 Hearing dates: 2 October 2019 Date of orders: 02 October 2019 Decision date: 17 April 2020 Before: Bathurst CJ at [1]; Johnson J at [42]; Fullerton J at [43] Decision: 1. Grant the applicant leave to appeal. 2. Allow the appeal. 3. Quash the conviction and sentence imposed in the District Court. 4. Order a retrial of the applicant. 5. Remit the matter for mention in the District Court in Sydney on 11 October 2019 at 9:30 AM. Catchwords: CRIME – Appeals – Appeal against conviction – Miscarriage of justice – Investigation by the Sheriff pursuant to s 73A of the Jury Act 1977 (NSW) – Admissibility of investigation material – Whether the evidence did not fall within the exclusionary rule – Whether a retrial should be ordered or a verdict of acquittal entered. Legislation Cited: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Jury Act 1977 (NSW) ss 68A, 68B, 68C, 73A Jury Amendment Act 2004 (NSW) Cases Cited: Agelakis v R [2019] NSWCCA 71 Attorney General for New South Wales v Melco Resorts & Entertainment Limited [2020] NSWCA 40 Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 Ellis v Deheer [1922] 2 KB 113 Higgins v R [2018] NSWCCA 258 Jiminez v The Queen (1992) 173 CLR 572 at 590; [1992] HCA 14 Lane v R [2017] NSWCCA 46 Petroulias v The Hon Justice McClellan [2013] NSWCA 434; (2013) 246 A Crim R 6 R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3 Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30 Texts Cited: Nil Category: Principal judgment Parties: Miki Agelakis (Appellant) The Crown (Respondent) Representation: Counsel: J Paingakulam (Appellant) D Patch (Respondent) Solicitors: Legal Aid NSW (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/300450 Publication restriction: Retrial ordered Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 22 February 2017 Before: Charteris DCJ File Number(s): 2014/300450 HEADNOTE [This headnote is not to be read as part of the judgment] The appellant, Miki Agelakis, was convicted in February 2017 of having sexual intercourse with a person with a cognitive impairment, with the intention of taking advantage of that person's cognitive impairment, contrary to s 66F(3) of the Crimes Act 1900 (NSW). He sought leave to appeal against his conviction. On 2 October 2019, the Court of Criminal Appeal allowed the appeal, quashed the appellant's conviction and ordered a retrial. This judgment provides the reasons for those orders. Prior and subsequently to the subject trial, the appellant had been charged with other sexual offences. The prior charges had been dismissed, and the appellant had been found not guilty of the subsequent counts. On 29 March 2019, following a complaint by the appellant, the Court of Criminal Appeal ordered an investigation by the Sheriff of New South Wales, pursuant to s 73A of the Jury Act 1977 (NSW). The Sheriff's report, alongside a statement made by a juror, and a record of interview with another juror, was admitted into evidence in this appeal. This evidence suggested that one or more jurors had knowledge of other charges against the appellant at the time of the jury deliberations. There was also evidence that another juror had shared a Facebook post the day before the jury deliberated, which expressed a view that sex offenders should receive the death penalty. The juror confirmed that this was her personal view. It was common ground between the parties that there had been a miscarriage of justice, based on the knowledge of one or more jurors of the other charges, and because of a reasonable apprehension of bias on the part of the juror who shared the Facebook post. One issue on appeal related to the basis for the admissibility of the Sheriff's report, the statement and the record of interview. Another issue was whether a retrial should be ordered or a verdict of acquittal entered. Basis of admissibility of the material (a) The material was admissible, as it did not fall within the exclusionary rule. Evidence that a juror had knowledge of matters which should not have been taken into account in deliberations falls outside the rationale of the rule. Similarly, evidence of a juror's views, which might lead a fair minded observer to conclude that the juror might not bring an impartial mind to deliberations, also falls outside the rationale of the rule: [19]-[24] (Bathurst CJ), [42] (Johnson J), [43] (Fullerton J). Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3, considered. (b) It was unnecessary to decide whether, regardless of the exclusionary rule, s 73A of the Jury Act renders material obtained as a result of a report of the Sheriff admissible on an appeal against conviction. However, it may be arguable that it is a necessary implication from the terms of s 73A that use could be made of material obtained by the Sheriff for prosecutions for contraventions of ss 68B and 68C of the Jury Act: [25]-[31] (Bathurst CJ), [42] (Johnson J), [43] (Fullerton J). Petroulias v The Hon Justice McClellan [2013] NSWCA 434; (2013) 246 A Crim R 6, considered. Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56; Attorney General for New South Wales v Melco Resorts & Entertainment Limited [2020] NSWCA 40, referred to. Whether there was a miscarriage of justice (a) There was a miscarriage of justice. The evidence might lead a fair minded and informed member of the public to conclude that the jurors had not discharged their task impartially. [32]-[37] (Bathurst CJ), [42] (Johnson J), [43] (Fullerton J). Webb v The Queen (1994) 181 CLR 41 at 53; [1994] HCA 30, followed. Whether a retrial should be ordered or a verdict of acquittal entered (a) Notwithstanding that the appellant had served a significant portion of his sentence and was on parole, a retrial should be ordered. The charge was serious, and an order for acquittal would conflict with the desirability of having the guilt or innocence of the appellant determined by a jury. The Crown would not seek to bring a different case at a retrial. Further, it was a matter for the prosecution to determine whether a further indictment should be presented: [38]-[40] (Bathurst CJ), [42] (Johnson J), [43] (Fullerton J). Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14; R v Taufahema (2007) 228 CLR 232; [2007] HCA 11, referred to. Judgment 1. BATHURST CJ: Mr Miki Agelakis (the appellant) was charged on indictment with the following offences: "1 On or about the 19th day of November 2006, at Broken Hill in the State of New South Wales, did have sexual intercourse with [the complainant] without the consent of [the complainant] knowing he was not consenting in circumstances of aggravation, namely that at the time of the offence [the complainant] had a serious intellectual disability. S 61J(1) Crimes Act 1900 Law part code 275 … 2 On or about 19 November 2006 at Broken Hill in the State of New South Wales had sexual intercourse with [the complainant] a person with an intellectual disability, knowing that [the complainant] was a person with an intellectual disability, and with the intention of taking advantage of his vulnerability to sexual exploitation. S 66F(3) Crimes Act 1900 Law part code 67743" 1. Following a trial by a jury, the appellant was acquitted of the first charge on the indictment but convicted of the second charge. The second charge was brought in the alternative to the first charge. 2. On 22 February 2017, the appellant was sentenced to a term of 4 years imprisonment with a non-parole period of 2 years and 6 months, to date from 13 December 2016. The appellant's non-parole period expired on 12 June 2019. The sentence will expire on 12 December 2020. 3. It should be noted that following his conviction at the subject trial, the appellant was tried in August 2017 and found not guilty of two counts of aggravated sexual assault involving another complainant, the aggravating factor being that the alleged victim was a person under 16 years of age. The appellant had also been previously charged in July 2016 with another sexual offence in relation to another complainant, which was dismissed in the Broken Hill Local Court. 4. The appellant appealed against his conviction on the following grounds: "Ground 1 The trial miscarried by reason of: a) Knowledge by one or more jury members that the applicant had been charged with the subsequent charges; and b) A reasonable apprehension of bias on the part of [Juror 1]." 1. Following a hearing on the appeal on 2 October 2019, the Court made the following orders: "1. Grant the applicant leave to appeal. 2. Allow the appeal. 3. Quash the conviction and sentence imposed in the District Court. 4. Order a retrial of the applicant. 5. Remit the matter for mention in the District Court in Sydney on 11 October 2019 at 9:30 am." 1. These are my reasons for joining in those orders. The Crown case 1. Because of the concession made by the Crown at the hearing of the appeal that the grounds of appeal were made out and that it was appropriate the conviction be quashed, it is only necessary to set out the Crown case briefly. 2. The Crown case was that the complainant was an intellectually disabled man who, at the time of the offence, lived with his sick mother and two similarly disabled brothers. He stated that he knew the appellant who worked at the Barrier Social Democratic Club (the Demo Club) and that the appellant had stated that he looked up the complainant's address on the computer at work. 3. The complainant alleged that on or about 19 November 2006 the appellant came to the door at his home and asked him for a "blow job". The complainant declined. The appellant then hurdled the fence and went down a passageway at the side of the complainant's house to an external laundry. The appellant took down his pants and lay on a table in the laundry and told the complainant to suck his penis. The complainant, who had walked through the house and out the back door to the laundry, complied because he was terrified of the appellant. When the complainant's brother came to hang out washing on the line, the complainant told the appellant to go. The appellant dressed himself, ran out of the laundry, jumped the back fence and left. 4. There was evidence supportive of the complainant's account of events, particularly that of a neighbour who saw the appellant jumping over the fence. However, because of the nature of the appeal, it is unnecessary to outline the further evidence. The circumstances giving rise to the appeal 1. On 29 March 2019, following a complaint by the appellant, the Court of Criminal Appeal in Agelakis v R [2019] NSWCCA 71 ordered an investigation by the Sheriff of New South Wales pursuant to s 73A of the Jury Act 1977 (NSW). This was in respect of the following matters as set out in the appellant's submissions: "a) Juror [1] was related through marriage to [AT], who had been the complainant in relation to a charge (a sexual offence) against the applicant which was dismissed in the Broken Hill Local Court in July 2016. Further Facebook posts by [Juror 1] (shortly before the verdicts) and [AT] (shortly after the verdicts) left open a reasonable inference that the pair had been in communication with each other during the trial; and b) Juror [2] was a regular drinking partner of Crown witness [BM] at the Demo Club." [names anonymised] 1. On 21 May 2019, a report made by the Sheriff was provided to the Court. That report, along with a statement made by a juror (Juror 3) to the Sheriff on 8 May 2019, and a transcript of an interview with Juror 1, was admitted into evidence at the appeal without objection. 2. Juror 3's statement referred to a conversation with another juror in the following terms: "Sometime during the trial, I cannot recall which day it was but it was possibly during deliberation, I heard a juror say something to the effect of that even with the lesser charge (the secondary charge) he (the accused) has to face other things in the future. Something to do with young kids in his family. This conversation took place in the presence of other jurors, however some of the smokers may have been outside. It was during a discussion about how long it took for the matter to come to court." 1. Juror 3 said that the conversation did not affect Juror 3's decision. 2. Juror 1 was referred in her interview to a Facebook post which said, "When a dog attacks a child it is put down. Shouldn't we do the same with sex predators?" with a picture of an electric chair. Juror 1 agreed that she shared that Facebook page the day before she and the other jurors deliberated. She said, "Yeah I probably did because not thinking about the court, […] not thinking at all about the court because if that comes up even now, I will share because why should people touch old people or young people, your children, my children". She agreed that her personal view was what was contained in the Facebook post, but said it had nothing to do with the court. She agreed she probably shared it again the following year, and stated that if she saw the post again, she would probably share it again. The admissibility of the material 1. At the hearing, both counsel for the appellant and the Crown agreed that the Sheriff's report, the statement, and the record of interview obtained during the course of the investigation were admissible on the appeal. However, they disagreed on the basis of that admissibility. The appellant submitted that the evidence did not fall within what has been described as the exclusionary rule, namely, that the Court does not admit evidence of a person on a jury as to what took place in the jury room, either by way of explanation of the grounds upon which the verdict was given, or by way of a statement as to what he or she believed its effect to be: see Ellis v Deheer [1922] 2 KB 113 at 121; Smith v Western Australia (2014) 250 CLR 473; [2014] HCA 3 at [10]. Counsel for the appellant submitted that the evidence was "extrinsic to the jury deliberations" and thus did not fall within the rule. 2. By contrast the Crown, whilst not submitting that the exclusionary rule would otherwise apply, said the evidence was admissible in any event, by virtue of the operation of s 73A of the Jury Act. Whether the evidence was admissible irrespective of s 73A 1. In Smith, a person was convicted of two counts of indecently dealing with a child under the age of 13 years. After the jury had been discharged, an anonymous note was found in the jury room which claimed a fellow juror had physically coerced the writer to change his or her vote on the verdict. The High Court, reversing the decision of the Court of Appeal of Western Australia, held that the note was admissible evidence to impugn the conviction, and that it was capable of creating a reasonable suspicion that criminal conduct had influenced the vote of a juror contrary to s 123 of the Criminal Code (WA). The Court held that the matter should be remitted to the Court of Appeal to assess whether an inquiry should be conducted by the Sheriff of the juror who made the note, to resolve any doubt or ambiguity as to its true meaning. 2. In the course of the judgment, the High Court made the following remarks concerning the limits of the admissibility rule: "[27] The exclusionary rule does not deny the admissibility of evidence 'extrinsic' to the jury's deliberations. What is 'extrinsic' for this purpose is somewhat unsettled in that the description has been used to refer, both to a source of evidence other than the jurors themselves, and to events extraneous to the deliberative process. Evidence of irregularity has been said to be admissible where the evidence comes from a source other than the members of the jury. Evidence has also been said to be extrinsic where it concerns events which occurred outside the jury room or the jury box. In this latter regard, in R v Mirza, Lord Hobhouse of Woodborough noted that statements in the cases which refer to the confidentiality of the 'jury box' were coloured by the experience that the jury was traditionally enclosed and segregated so that it was natural to regard the deliberations of the jurors as contained within the jury room. … [29] As Martin CJ rightly appreciated, it is preferable to seek an understanding of the limits of the exclusionary rule in an understanding of its rationale, rather than to focus upon the place where an irregular incident occurred (which may be quite fortuitous), or upon the fact that the source of evidence of the incident is a juror, given that in cases of the most egregious misconduct the only source of the evidence will often be the jurors themselves. [30] As to the rationale for the exclusionary rule, in R v Minarowska, Gleeson CJ said: '[T]he underlying policy [of the exclusionary rule] aims to preserve the secrecy of jury deliberations, and to maintain the integrity and finality of a formally expressed verdict.'" 1. In dealing with the need for free and frank deliberations, the Court pointed out (at [36]-[37]) that unlawful physical coercion exercised by one juror upon another cannot properly be regarded as part of the course of free and frank deliberation by the jury, and that jurors could not sensibly be said to have an expectation that they may, with impunity, commit a crime in the jury room, secure in the knowledge that the authorities will turn a deaf ear to any complaint. So far as questions of the finality of a jury verdict were concerned, the Court stated (at [45]) that if public confidence in the system of criminal justice is to be deserved, criminal misconduct calculated to prevent free and frank deliberation by a jury must not be kept secret lest it become endemic. They stated that in such cases, the application of the exclusionary rule to preserve finality would be contrary to the first duty of the courts to preserve the integrity of the system of criminal justice which they administer. 2. In those circumstances, the Court concluded (at [48]) that it was consistent with the rationale for the exclusionary rule to conclude that evidence by a juror that unlawful pressure or influence has been applied to him or her by another juror in relation to his or her verdict falls outside the scope of the rule. 3. In the present case, the first complaint relates to the knowledge that one juror had of other charges against the appellant and that juror's communication of that knowledge to another juror, Juror 3 (see [14]). Whilst the fact that the communication may not have taken place whilst the jury was formally deliberating may not be of particular significance (see Smith at [28]), evidence that a juror had knowledge of matters which should not have been taken into account by the jury in their deliberations, and had communicated that knowledge to another juror, is something which in my opinion falls outside the rationale of the exclusionary rule. 4. The same may be said of the complaint concerning Juror 1. Her publicly expressed attitudes did not form part of the jury deliberations. The complaint in respect of Juror 1 is not that she expressed her views in an endeavour to improperly influence the jury, but rather that those views of themselves might lead a fair minded observer to conclude that she might not bring an impartial mind to her deliberations. Section 73A 1. In those circumstances, it is strictly unnecessary to deal with the question of whether, regardless of the exclusionary rule, s 73A of the Jury Act renders material obtained as a result of a report of the Sheriff admissible on an appeal against conviction, irrespective of whether the material falls within the terms of the exclusionary rule. However, I will make some brief comments on the issue. 2. Section 73A needs to be considered in conjunction with s 68A, s 68B and s 68C of the Jury Act. So far as is relevant, these sections are in the following terms: 68A Soliciting information from or harassing jurors or former jurors (1) A person must not solicit information from, or harass, a juror or former juror for the purpose of obtaining information about— (a) the deliberations of a jury, or (b) how a juror, or the jury, formed any opinion or conclusion in relation to an issue arising in a trial or coronial inquest. Maximum penalty on indictment: imprisonment for 7 years. (2) The deliberations of a jury include statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations. (3) Subsection (1) does not prohibit a person from soliciting information from a juror or former juror in accordance with an authority granted by the Attorney General for the conduct of a research project into matters relating to juries or jury service. 68B Disclosure of information by jurors etc (1) A juror must not, except with the consent of or at the request of the judge or coroner, wilfully disclose to any person during the trial or coronial inquest information about— (a) the deliberations of the jury, or (b) how a juror, or the jury, formed any opinion or conclusion in relation to an issue arising in the trial or coronial inquest. Maximum penalty—20 penalty units. (2) A person (including a juror or former juror) must not, for a fee, gain or reward, disclose or offer to disclose to any person information about— (a) the deliberations of a jury, or (b) how a juror, or a jury, formed any opinion or conclusion in relation to an issue arising in a trial or coronial inquest. Maximum penalty—50 penalty units. (3) The deliberations of a jury include statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations. (4) Subsection (1) does not prohibit a juror from disclosing information to another member of the jury during a trial or coronial inquest. 68C Inquiries by juror about trial matters prohibited (1) A juror for the trial of any criminal proceedings must not make an inquiry for the purpose of obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise of his or her functions as a juror. Maximum penalty—50 penalty units or imprisonment for 2 years, or both. (2) This section applies in respect of a juror from the time the juror is sworn in as a juror and until the juror, or the jury of which the juror is a member, is discharged by the court having conduct of the proceedings. (3) This section does not prohibit a juror— (a) from making an inquiry of the court, or of another member of the jury, in the proper exercise of his or her functions as a juror, or (b) from making an inquiry authorised by the court. (4) Anything done by a juror in contravention of a direction given to the jury by the judge in the criminal proceedings is not a proper exercise by the juror of his or her functions as a juror. (5) For the purpose of this section, making an inquiry includes the following— (a) asking a question of any person, (b) conducting any research, for example, by searching an electronic database for information (such as by using the Internet), (c) viewing or inspecting any place or object, (d) conducting an experiment, (e) causing someone else to make an inquiry. 73A Investigation by sheriff of jury irregularities (1) If there is reason (including a report under section 75C) to suspect that the verdict of a jury in a trial of any criminal proceedings may be, or may have been, affected because of improper conduct by a member or members of the jury, the sheriff may, with the consent of or at the request of the Supreme Court or District Court, investigate the matter and report to the court on the outcome of the investigation. (2) Section 68A (1) does not prohibit the sheriff from soliciting information from a juror or former juror for the purpose of conducting such an investigation. (3) Section 68B (1) does not prohibit a juror from disclosing information to the sheriff in connection with such an investigation. (4) Section 139 (2) of the Evidence Act 1995 applies in relation to any questioning conducted by the sheriff for the purpose of an investigation under this section (in the same way as it applies to official questioning by an investigating official). (5) The sheriff may, despite sections 29 and 68, include a juror's name or other matter that identifies a juror in a report to the court under this section. 1. Section 73A was introduced into the Jury Act by the Jury Amendment Act 2004 (NSW). In the Second Reading Speech to the introduction of the Bill, the following remarks were made: "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. In each case the Court of Criminal Appeal held that the jury's verdict had been tainted by the misconduct of jurors. … The Jury Amendment Bill seeks to reduce the incidence of retrials resulting from jury misconduct. The creation of a new offence of juror misconduct is accompanied by non-legislative changes, including stronger directions from judges to juries and improvements in juror education. The bill will discourage jury misconduct and improve the procedures for investigating jury misconduct without discouraging participation in this important civic duty. There will also be broader prohibitions on soliciting information from a juror. There are three main legislative provisions to these amendments. Firstly, the bill creates a new offence of jurors conducting their own inquiries. Secondly, the bill expands the scope of the current offences of soliciting information from a juror and jurors disclosing information. Thirdly, and importantly, the bill empowers the Office of the Sheriff to investigate jury irregularities and report back to the court. In relation to prohibiting jurors from conducting their own inquiries, an offence has been created in new section 68C that prohibits jurors from making an inquiry for the purpose of obtaining information about the accused or about any matter relevant to the trial. This prohibition applies to jurors in criminal trials and lasts until the jury has given its verdict or the judge has discharged the person. Prohibited inquiries are defined to include: asking a question of another person; conducting research, including use of the Internet; viewing or inspecting a place or object; and conducting experiments. It is also an offence to ask another person to conduct these inquiries. However, inquires authorised by the court, such as the handling of exhibits in the jury room, are not prohibited. It is also not an offence to make an inquiry of another juror. The maximum penalty for this offence will be two years imprisonment and a fine of 50 penalty units. … Section 68B prohibits the disclosure by the juror of any information about jury deliberations. Deliberations of a jury are defined to include statements made, opinions expressed, arguments advanced or votes cast in the course of jury deliberations. Items [2] and [4] of schedule 1 extend these prohibitions to encompass all aspects of the activities undertaken by the jury in discharge of their duties, and not simply the final deliberative process after retirement. This will extend the prohibition to include asking jurors whether they considered any extraneous material, and to question jurors about any part of their decision-making. The prohibitions against soliciting information from a juror and disclosing information by a jury do not extend to jurors making inquiries of fellow jurors. The final improvement proposed by the bill is to provide a power to the Office of the Sheriff to investigate jury irregularities. Item [7] inserts a new section 73A, which empowers the Office of the Sheriff, at the request of the court, to investigate and report back to the court on a matter where a serious irregularity is suspected to have occurred. This new section will formalise a process whereby the trial court or appeal court can ask the Sheriff to investigate a suspected irregularity. It is the function of the Sheriff to inform the court of the nature of an irregularity. The court will use this information to determine whether to discharge a jury, or whether to allow an appeal against a conviction." [Emphasis added] 1. In Petroulias v The Hon Justice McClellan [2013] NSWCA 434; (2013) 246 A Crim R 6, Basten JA, after reviewing the history of the section, made the following comments (at [44]-[45]). The other members of the Court agreed with his judgment: "[44] Section 68A was introduced in 1987, thus predating s 73A. So far as the present matter is concerned, the effect of s 73A(2) is to lift the prohibition on the Sheriff soliciting information from a former juror with respect to the deliberations of the jury. That raises two questions of immediate concern. First, was s 68A intended to codify or replace the general law prohibition, or was it intended to supplement the general law by imposing a severe penalty for contravention? Secondly, if the Sheriff has an unrestrained power to inquire into the deliberations of a jury, for the purpose of reporting to the court, does it follow that the court may (or should) take account of evidence as to the deliberations of the jury in determining an appeal in respect of which it is said that the jury has misconducted itself? [45] The statutory amendments do not in their terms suggest (nor is there any support for such a proposition in the Second Reading Speech to which the Court was taken) that the general law prohibition on revealing jury deliberations was to be cast aside when the court thought it appropriate to investigate improper conduct on the part of a juror or jurors: such a result should not be adopted absent a necessary implication. In Ellis v Deheer [1922] 2 KB 113, Bankes LJ stated (with the express agreement of Atkin LJ) at 117-118 that: '...The court will never admit evidence from jurymen of the discussion which they may have had between themselves when considering their verdict or of the reasons for their decision, whether the discussion took place in the jury room after retirement or in the jury box itself. It has for many years been a well accepted rule that when once a verdict has been given it ought not be open to an individual juryman to challenge it, or attempt to support it if challenged. I have spoken of this as a rule of law but it has also been generally accepted by the public as a rule of conduct, that what passes in the jury room during the discussion by the jury of what their verdict should be ought to be treated as private and confidential.'" 1. It is arguable that it is a necessary implication from the terms of s 73A, considered in context, that use could be made of material obtained by the Sheriff, at least for prosecutions for contraventions of s 68B and s 68C of the Jury Act. Further, contrary to what was said by Basten JA, the Second Reading Speech does seem to contemplate that a Court could use the information obtained by the Sheriff in considering whether to allow an appeal against a conviction (bearing in mind the limitations that can be made on the use of extrinsic material, see Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 at [25]; Attorney General for New South Wales v Melco Resorts & Entertainment Limited [2020] NSWCA 40 at [110]). 2. The cases which have subsequently considered the operation of s 73A (Lane v R [2017] NSWCCA 46; Higgins v R [2018] NSWCCA 258 and Agelakis v R [2019] NSWCCA 71) did not deal with this issue. 3. In the present case, no direct challenge was made to Petroulias, which was a unanimous decision of the Court of Appeal sitting also as the Court of Criminal Appeal. Having regard to the facts of the present case, it is unnecessary to reach a final view on the admissibility of material that is obtained as a result of an investigation pursuant to s 73A. Whether there was a miscarriage of justice 1. As each of the parties agreed that a miscarriage of justice occurred as a result of the matters complained of, this matter can be dealt with shortly. 2. In Webb v The Queen (1994) 181 CLR 41 at 53; [1994] HCA 30, Mason CJ and McHugh J stated that the test to be applied for determining whether an irregular incident involving a juror warrants a discharge of the juror or jury is as follows: "… whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially." 1. So far as Juror 3 was concerned, the fact that this juror had some knowledge about other charges at the time of the jury deliberations might lead a fair minded and informed member of the public to conclude that Juror 3 and the person who communicated the information would not discharge their task having regard only to the evidence admitted at the trial, but also taking into account the fact that there were other charges against the appellant. Had the matter been raised at the trial it may have been possible to deal with the problem by a warning to the jury. However, as it did not emerge until after the trial, it was impossible to take that course. 2. So far as Juror 1 is concerned, whilst it is true that jurors will always have their own particular views and opinions about matters including matters the subject of the trial, which are generally dealt with by a warning to the jurors to act only on the evidence, in the present case, the views of Juror 1 were not only extreme but apparently persistently held over a lengthy period. In these circumstances, a fair minded observer might reasonably apprehend that the juror in question might not discharge her task impartially. 3. In these circumstances, the matters the subject of the Sheriff's report would have warranted the discharge of the jury. It follows that there was a miscarriage of justice and the conviction should be quashed. 4. The parties agreed that this was not an appropriate case for the operation of the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW). Whether a retrial should be ordered or a verdict of acquittal entered 1. Counsel for the appellants submitted that it was appropriate in the circumstances of the present case to enter a verdict of acquittal rather than order a retrial. 2. Particular reliance was placed on the fact that at the time of the hearing of the appeal, the appellant was on parole and his sentence was due to expire on 12 December 2020. It was submitted that in those circumstances the appellant should not be put to the expense and stress of a new trial where a significant portion of the sentence had been served and where the appellant has already been released from custody: see Jiminez v The Queen (1992) 173 CLR 572 at 590; [1992] HCA 14; R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 at [55]. 3. However, there were countervailing considerations. First, the charge is a serious one and an order for acquittal conflicts with the desirability of having the guilt or innocence of the accused determined by a jury: see Taufahema at [51]. Second, unlike many of the authorities reviewed in Taufahema (at [61]-[66]), this is not a case where the Crown would seek to bring a case different to the one which it had advanced at the trial. Third, it is generally a matter for the prosecution to determine in all the circumstances whether a further indictment should be presented. These considerations made it appropriate to order a new trial rather than to enter a verdict of acquittal. It will of course be a matter for the prosecuting authorities to determine whether or not to present a fresh indictment on count 2. 4. For those reasons I joined in the orders made on 2 October 2019. 5. JOHNSON J: The reasons of the Chief Justice reflect my own reasons for joining in the orders made on 2 October 2019. 6. FULLERTON J: The reasons of the Chief Justice also reflect my reasons for joining in the orders made on 2 October 2019. ********** Amendments 13 October 2020 - Retrial concluded 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: 13 October 2020