Hoang v R

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…"
4. 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."
5. 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."
6. 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".
7. 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".
8. 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."
9. 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…"
10. 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."
3. 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."

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."
4. 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.
5. 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."
6. 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."

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).

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.

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)."
2. 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.

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.

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.

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)
5. 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."

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