R v Crowther-Wilkinson

[2004] NSWCCA 249

Court of Criminal Appeal (NSW)|2004-07-27|Before: Wood CJ, Dowd J, Kirby J, Hidden J

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Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2004-07-27

Before

Wood CJ, Dowd J, Kirby J, Hidden J

Source

Original judgment source is linked above.

Judgment (174 paragraphs)

[1]

CITATION : R v Crowther-Wilkinson [2004] NSWCCA 249 HEARING DATE(S) : 12/7/04 JUDGMENT DATE : 27 July 2004

[2]

JUDGMENT OF : Wood CJ at CL at 1; Dowd J at 232; Kirby J at 233 DECISION : 1. Appeal Dismissed; 2. Conviction and Sentence below confirmed.

[3]

CATCHWORDS : CRIMINAL LAW - appeal against conviction - murder - plea of not guilty - co accused jointly indicted - whether verdict of the jury was unreasonable and cannot be supported having regard to the evidence - whether a miscarriage of justice occurred as a result of the failure of the trial judge to direct the jury that they could not convict the appellant unless they were satisfied beyond reasonable doubt that he had planned the murder of the deceased - whether the trial miscarried by reason of the publication on the Internet, both before and during the trial, of two interlocutory judgments. LEGISLATION CITED : Crimes Act 1900 Criminal Procedure Act 1986 - s 108, Crofts v The Queen (1986) 186 CLR 427 at 432 Glennon v The Queen (1992) 173 CLR 592 at 603 Hinch v Attorney General (Vic) (No. 2) (1998) 164 CLR 15 M v The Queen (1994) 181 CLR 487 at 497 Murphy v The Queen (1989) 167 CLR 94 at 99 R v Bell NSWCCA 8 October 1998 CASES CITED : R v Crowther-Wilkinson and Cowie [2003] NSWSC 44 R v Crowther-Wilkinson and Cowie [2003] NSWSC 226 R v Crowther-Wilkinson and Cowie [2002] NSWSC 1207 R v Loguancio (2000) 1 VR 235 R v Yuill (1993) 69 A Crim R 450 R v Zaiter [2004] NSWCCA 35 Shepherd v The Queen (1990) 170 CLR 573 PARTIES : Regina Simon Crowther-Wilkinson FILE NUMBER(S) : CCA 60129/04 COUNSEL : M C Grogan (Crown) P Byrne SC with H Dhanj (Applicant) SOLICITORS : S Kavanagh (Crown) S E O'Connor (Legal Aid)

[103]

101 There was some evidence from Mr Donachie that Mr Cowie had, on occasions, driven with the deceased for insurance surveillance activities. However there had not been an occasion when they had driven into the Chatswood area for this purpose. (c) The Existence of a Motive 102 In addition to the material previously noted concerning the expressed wish of the appellant to have a greater involvement in Excell, and his attempts to gain access to its financial records, there was some evidence which went to the question whether the appellant was concealing aspects of its business from him, or was otherwise operating the business to his disadvantage. 103 This had a relevance, additionally, in the light of the financial difficulties which the deceased was having at the time, which provided a reason for him to seek some greater involvement in, and return from, the company. 104 In this regard there was independent evidence of the appellant having been in financial difficulties, as well as having been involved in a marital dispute with his former wife Suzanne Rose, who claimed that he owed moneys to her. The documents recovered from his home included letters of demand and overdue accounts, and there was some evidence to suggest that he had become depressed to the point of receiving psychiatric assistance. 105 In addition there was evidence in relation to the collapse of the Blue Falcon Security business, and to the fact that the deceased had become liable for its debts. He had mentioned these problems to his solicitor Christopher Finn, to whom he also owed some moneys. Further, he made arrangements, on 4 June 2000 to borrow $4000 from Mr Skinner to pay for the registration of his car, which had lapsed in January, and to move house, pending the receipt of some moneys from his father. 106 There were, upon the evidence, several possible areas for contention, between the deceased and the appellant at the meeting, relating to the deceased's express wish to have a greater interest in the business and more information concerning it, the moneys which he was owed in relation to Blue Falcon and needed, because of his financial problems, the request for a guarantee to be signed at a time when the appellant needed assistance for the Olympic contract which he had wished to keep for himself, and his desire to bring the Workwatch business into Excell. Some of these aspects require further amplification. Access to Financial Information

[160]

(xxi) the close relationship between the appellant and Mr Cowie, and the need for two people to have been involved in moving and dumping a body wrapped in plastic and tied up with chains; 155 In my view, this combination of circumstances was compelling, and supported no reasonable inference other than that the appellant planned and organised the killing of the deceased on the night of 6 June. 156 He had a motive and he had the means to commit the crime, including the disposal of the body, and there was evidence which was consistent with him having been in the area of the Hawkesbury River, where the body was dumped. 157 Further, there was evidence of him having lied in relation to material matters, and to have acquired chains and a boat shortly prior to the disappearance. 158 It may be accepted that the request for a provision of .22 subsonic ammunition had initially been made at a time that was sufficiently remote from 6 June, as to be, at best, equivocal, in relation to the existence of any long term planning. However, the same cannot be said of the purchase of the chains and D-shackles or the hire of the aluminium boat. 159 A question admittedly arises as to the length of chain wrapped around the body, which was in excess of the 15 metres, which the appellant had ordered. That was a matter for the jury, which, upon the evidence, was well entitled to conclude that the measuring system used by Mr Weinecke was somewhat generous, and that his recollection was imprecise. 160 There was evidence that the meeting had been organised several days, at least, before 6 June, and that it was not something that had been arranged at the last moment, that is, in circumstances where there would have been no occasion for the pre-planning of a murder. 161 Counsel for the appellant, who addressed each of the forty strands in the Crown case, in his address to the jury, focussed before us on four particular areas of the evidence that, in his submission, mitigated against the appellant's involvement in the killing, or in its pre-planning. 162 The first was the request of Mr Cowie to be taken to the railway station, which it was contended would not have occurred had the killing been planned, since Mr Cowie's assistance was needed to remove the body. The second was the placing of the call to the deceased's mobile service at 10:51 PM which, it was contended, suggested that he was unaware of his death. The third related to the attendance at the Lane Cove service station, and the purchases that were made, it being contended that had the killing been pre-planned, then those items would have been procured in advance. The fourth related to the fact that the evidence, concerning the Olympic contract and motive, did not always go in the same way in support of the Crown case theory that details of the contract and of Excell's business were being withheld, or that relations between the appellant and the deceased were seriously strained. 163 These were properly matters for the jury to weigh, but none of them was, in my view, such as to require this Court, or the jury, to have entertained a reasonable doubt. The first two matters and particularly the second, were entirely consistent with having been ruses to deflect suspicion, or in the case of the 10:51 PM call, to check whether the deceased's mobile to which the appellant had made earlier calls that day, was still on his body. No other reason for such a late call was apparent, particularly if the meeting had ended amicably, as the appellant said to police and to others. 164 The third pre-supposes that criminal activity will be meticulously planned in every aspect. Trial experience shows that such an assumption is dubious, otherwise conviction rates would undoubtedly be much lower. In any event, there was no particular necessity for the body to have been moved immediately, particularly as there was a more urgent need to move the deceased's motor vehicle from the area outside the Excell office. It had to be moved quickly since there was a risk of the deceased's girlfriend, or other persons, coming to the office looking for him. 165 It is the case that the appellant also challenged the Crown case theory concerning the steps that were taken after the killing, upon the basis that to have left the body at the premises unattended, even for a short time, risked its discovery, in view of Mr Milner's likely presence. That is a fair comment, but it was a matter for the jury to consider in the light of the possibility that the body may well have already been placed in the boat which was on a trailer and concealed from vision. 166 The most positive evidence to suggest that the appellant had indicated an intention to reserve the Olympic contract for himself, and to keep the deceased in the dark both about it, and about the business, came from Mr Thompson. So far as there was evidence to the contrary, in particular from Mr Douglas and Ms Kristeller, that was an issue which the jury were in a better position to judge, since it involved an assessment of the credibility, and apparent certainty of recollection, of those witnesses. 167 In any event the Olympic contract was not the only matter in issue, or likely to be the subject of the potential confrontation, of which the deceased had said that he expected would occur at the meeting. 168 Similarly, Counsel pointed to what he asserted was the prepondence of the evidence that the relationship between the appellant and the deceased was cordial. That depended largely upon the observations of other employees of Excell or associates of the appellant, who also acknowledged that the deceased was rarely seen at the office. In those circumstances the evidence of the witnesses who were close to the deceased and privy to the concerns, which he had expressed to them, had greater weight. Again, however, this was a factual question in respect of which the jury were in a better position to judge. 169 While disavowing any submission that the deceased's former partners in Blue Falcon, or the former partner of Ms Johnson had been involved in the killing, Counsel did submit that the evidence concerning the sighting of a tall blond man at the Shell service station on Willoughby Road, on the night of 6 June, who used the public phone at that location, left open a reasonable possibility that this person was the deceased, giving rise to the further possibility that he was killed after leaving the appellant and dumped by someone else in the Hawkesbury River. 170 The evidence concerning this sighting was vague in the extreme, and an examination of the call charge records for the phone did not turn up any call to a person known to the deceased. No other person came forward to report having received a call from the deceased and the one person who might have expected a call, Ms Johnson, said that she had not heard from him. 171 The jury were properly entitled to consider this aspect of the case to have been a false trail of the kind that commonly emerges in a murder investigation, particularly in the light of the evidence pointing to the presence of the appellant and of Mr Cowie, later that night, in the area where the body was later recovered. 172 Another matter put by counsel for the appellant at trial, and on the appeal, was that had the killing been pre-planned, or had the appellant been responsible, then the forensic trails concerning the chains, the boat hire the purchases at the Lane Cove service station, and so on, would not have been left behind. The Crown response, which similarly was a matter for the jury to assess, was that there never was any expectation that the body would be found, and hence no concern in relation to those forensic trails. 173 Finally it was submitted by the appellant that the reasonable possibility of Mr Cowie spontaneously, without any warning or preconcert, shooting the deceased, could not be excluded. There was no evidence, in my view, that would have left this open as a reasonable possibility. In particular there was no motive for him to have committed such an act, the prior argument having, on the evidence, been a passing incident followed by an amicable meeting at a hotel some weeks later. 174 The matters which counsel identified were all before the jury and they are properly to be taken into account by us in determining whether a reasonable doubt should be entertained of the kind referred to in M v The Queen. I am not persuaded that this case is one where that test has been established. On the contrary, it appears to me that the combination of circumstances relied upon by the Crown, taking into account all of the criticisms identified by counsel for the appellant, remains compelling. 175 The acquittal of the co-accused, Cowie, does not, of itself, involve an inconsistent verdict, or give rise to a reasonable doubt in relation to the appellant. The jury may have had a reasonable doubt, in the context of the Crown case, which depended upon the appellant having been the shooter, or the person who had pre-planned the killing, as to whether Cowie's involvement had been other than that of an accessory after the fact.

[161]

Ground 2 - A miscarriage of justice occurred as a result of the failure of the trial judge to direct the jury that they could not convict the appellant unless they were satisfied beyond reasonable doubt that he had planned the murder of the deceased 176 Senior Counsel who appeared for the appellant at the trial, and on the appeal, did not seek the direction, which, it is now contended, should have been given. In fact, in the course of the discussion which was held prior to the addresses, a positive indication was given (T 1390/1) by Counsel that it was not required, it being accepted that the Crown circumstantial case fell into the strands in a cable category, rather than the links in a chain category. 177 The circumstances where a direction should be given, as to the proof of an essential intermediate fact beyond reasonable doubt, were identified in Shepherd v The Queen (1990) 170 CLR 573 and R v Zaiter [2004] NSWCCA 35 at paras 10 to 13. 178 The Crown here pursued its case, throughout, upon the basis that it was the appellant who had been the instigator of the killing, who had planned it, and who had been party to a joint criminal enterprise. It was accepted, and the jury were directed, that unless he was found guilty, Cowie must be acquitted. 179 In these circumstances, it was obvious to the jury that they had to be satisfied, beyond reasonable doubt, before convicting him, that he had either personally shot the deceased, or that he had organised and planned the killing. 180 The proof of that degree of participation depended upon the strands in the circumstantial case, previously identified, which were in my view overwhelming. The fact that he planned and organised the killing arose by inference from those circumstances. 181 The jury were appropriately instructed that the Crown case had to be proved beyond reasonable doubt. Having regard to the way that the case was conducted, and to the acceptance by experienced Senior Counsel, at trial, that a Shepherd direction was not required, leave under rule 4 of the Criminal Appeal Rules, to raise this ground, should be refused.

[162]

Ground 3 - The trial miscarried by reason of the publication on the Internet, both before and during the trial, of two interlocutory judgments 182 This ground related to the publication, on the Court's website (www.lawlink.nsw.gov.au/sc) during the trial, of two interlocutory judgments delivered by Hidden J on 17 December 2002, and 13 February 2003 respectively. 183 The first of these (R v Crowther-Wilkinson and Cowie [2002] NSWSC 1207) concerned the application of Cowie for a separate trial. In the course of the reasons that were given for refusing the application, his Honour set out the outline of the Crown case as follows: "(a) Wilkinson and Cowie were close associates and, as I have said, Cowie was employed in the business at the relevant time. (b) The two accused had been in regular telephone contact up to and just after the disappearance of the deceased. (c) The deceased was last seen alive a little after 7 pm on 6 June, 2000, when he attended a meeting with Wilkinson and Cowie at the business premises at Chatswood. (d) On 12 July, 2000 the deceased was found floating in the Hawkesbury River near Brooklyn. He was dressed in the same clothes he had been wearing at the Chatswood meeting. The cause of death was a single gunshot wound, believed to be of low velocity, to the back of the head. (e) Wilkinson had attended a course in terminal ballistics, where he was instructed about the effectiveness of shooting a person in the lower brain stem. (f) As I have said, the body was weighed down with chains. Equipment of that kind had been purchased by Wilkinson about nine days prior to the deceased's disappearance. (g) The deceased was a tall man, who weighed 135 kilograms with the chains around him. It would need two people to dispose of his body. (h) The deceased's motor vehicle was found abandoned at Chatswood, but at a location different from that of the business premises. (i) Cowie's fingerprint was found on the Chatswood page of a street directory in the car. (j) In a statement, Wilkinson said that after the meeting at Chatswood he joined the deceased for dinner at a pizzeria in Willoughby and they parted at 10 pm. The owner and an employee of the pizzeria did not recognise either the deceased or the accused being present that night. (k) Wilkinson also stated that, after the meal with the deceased, he returned to work and checked his emails. A forensic examination shows that his emails were not checked on that occasion. (l) Wilkinson purchased a tank of petrol at a service station at Lane Cove at 9.25 pm on 6 June, 2000. Confectionary and cigarettes, including the brand smoked by Cowie, were also purchased. (m) Telephone records and other evidence, the detail of which I need not recite, suggest that Cowie's mobile phone was in the Brooklyn area in the early hours of 7 June, 2000 and that Wilkinson used it to make a call. (n) When interviewed, Wilkinson denied having been in the Brooklyn area. (o) Wilkinson denied owning or having access to a boat. An Excell employee had observed a twelve foot aluminium boat at the business premises. Wilkinson said that he had borrowed it. (p) According to the same employee, Wilkinson asked him after 6 June, 2000 if he knew of a dealer who could alter firearms, so that it could not be ascertained if they had been fired. (q) The deceased had expressed concern at not receiving accurate information about the business profits. He had told a friend that he intended to confront Wilkinson on 6 June, 2000. (r) Wilkinson was in the process of obtaining a contract to supply security staff for the Olympics. He had said that he did not intend to share this venture with the deceased. (s) There is evidence from a witness that, after the disappearance of the deceased, Cowie said that Wilkinson owed him "big time." (t) Cowie's statement to the police was exculpatory. He said that after the meeting at Chatswood he went home and surfed the internet. Police evidence would show that he did not do so. (u) There is evidence from another witness of a physical confrontation between Cowie and the deceased in 1999, creating ill-will between them." 184 An observation was made to the effect that: "It may well be that the case against Mr Cowie is not as strong as that against Mr Wilkinson"; however that was tempered by a later observation that "this is not a case in which the evidence against one accused is significantly stronger than, and different from that against the other." 185 There was evidence to show that this judgment had been available on the Court's website from 5 February 2003. 186 The second judgment (R v Crowther-Wilkinson and Cowie [2003] NSWSC 44) concerned the admissibility of an exculpatory statement that was made by Mr Cowie to the police on 4 August 2000 but which the Crown wished to tender, upon the basis that it contained a lie as to a material circumstance. It was held to be inadmissible by reason of non-compliance with s 108 of the Criminal Procedure Act, since it had not been the subject of a tape recording. Relevantly the reasons for judgment noted: "6 Much of the statement deals with background which, the Crown prosecutor told me, is uncontroversial and able to be proved by other evidence. However, the later part of the statement deals with the events of 6 June 2000 and contains material which is, of course, important. It was that night that the deceased disappeared and it was then, on the Crown case, that he was killed. Mr Cowie was an employee of a security company, of which Mr Wilkinson and the deceased were the proprietors. Mr Cowie's statement records his activities that afternoon and the arrival of the deceased at the business premises in the early evening for a meeting with Mr Wilkinson. He goes on to say that Mr Wilkinson and the deceased decided to go out and have a meal, that all three left the premises, that he was driven by Mr Wilkinson to a suburban railway station and dropped off, and that the deceased followed them in his own car. When he alighted from Mr Wilkinson's car, the deceased blew his horn or flashed his lights and he waved back. The effect of his statement is that that is the last he saw of the deceased and that he had nothing to do with his death." 187 After noting that, to this point, Mr Cowie had not said anything about the evening which could amount to an admission, his Honour continued: "8 It is what follows that the Crown relies upon as an admission. The statement goes on to recount that Mr Cowie then proceeded to his home where, as he put it, "I surfed the Internet and caught up on my emails." The Crown can produce expert evidence that his computer was not used for that purpose that night, and it was to be the Crown case that that part of his statement is a lie designed to mislead the police about his whereabouts at a crucial time." 188 His Honour then went on to note that the police officers concerned had said that it was not until they had compared this statement with the statement that had earlier been taken from the appellant, and had noticed an inconsistency in their accounts as to the events following the meeting, that Mr Cowie had come under suspicion. 189 There was evidence that this judgment was available on the Court's website from 7 March 2003. 190 An additional judgment (R v Crowther-Wilkinson and Cowie [2003] NSWSC 226 dated 28 March 2003) was also published on the Court's website, granting the Crown leave to cross-examine Mr Weinecke. No point was taken in relation to this judgment, no doubt upon the basis that the witness was later cross-examined in the presence of the jury. 191 Evidence was placed before us to show that the Supreme Court site is easily accessed, either directly, if the address is known, or via common search engines such as Google, Yahoo, Alta Vista, Ninemsn and so on, without charge. No barriers exist to access, passwords are not required and there is no need to register access to the site. Inquiry using the case name is sufficient. 192 There was also evidence to show that internet access via a recognized search engine, under the name of an accused, will return articles posted on the websites of the newspapers circulating in the Sydney region. By way of example, a current inquiry using the name of the present appellant threw up an article posted on the Sydney Morning Herald website of 9 May 2002 reporting on the first trial. 193 As at April 2003 other articles on the websites of the Daily Telegraph and regional and interstate newspapers, referring to the earlier trial of the appellant in the Supreme Court, were available, although they have since been deleted. 194 The evidence additionally showed that at the relevant time the judgments in question were freely available without the need to subscribe, or to enter via a password, on the Lexis and AustLII sites. Additionally it showed that an inquiry using the appellant's name, via a search engine, would have located the Daily Court List of 6 June 2002, showing his first trial to have been part heard before Bell J, and that one click on the Lawlink tab, on that page, would have facilitated a search for any judgments that had been delivered. 195 No additional complaint is made in relation to any material that may have been available on the internet beyond the two specific judgments which I have mentioned. 196 In order to deal with this ground, it is necessary to recall that a jury was empanelled on Monday 10 February 2003. However, that jury was discharged on Wednesday 12 February 2003 due to the illness of a juror. 197 A further jury was empanelled on Thursday 13 February 2003. Although the transcript did not record his Honour's opening remarks to the jury that day in full, a summary was noted in, inter alia, the following terms: "(His Honour informed the jury of the following: The legal representatives and their function; normal sitting hours; function of his Honour; invariably argument discussed in the absence of the jury and the reason why; function of the jury, being judges of the facts; separate verdicts in respect of each accused; Crown had the burden of proving guilt beyond reasonable doubt; to consider the evidence impartially and rationally with a decision based only on the evidence ; to keep their own counsel in and about the course (sic) precincts, avoiding contact; not to discuss the case which (sic) any person except fellow jurors when all together in the jury room:…" (Emphasis added) 198 A direction to the jury to similar effect, namely that "you must decide the case only on the evidence you have heard and seen in this courtroom, and you must have regard to nothing else" was given by his Honour during the summing up (SU T p 4). 199 After the short adjournment, and before any evidence was led, it became necessary for his Honour to discharge a juror, and the trial thereafter proceeded with the remaining 11 jurors. Following the opening addresses, and at the end of the first day of the resumed trial, his Honour made some further observations to the jury, including a warning to keep their own counsel during the trial. 200 Before adjourning for the day, the transcript records the following exchange: "HIS HONOUR: we might talk over - remind me, it is probably a good idea these days to caution the jury about surfing the net about cases generally or in particular. I think that ought to be done, and I will do it first thing tomorrow, unless you want me to do it this afternoon. (All counsel - no your Honour)" 201 Whether or not the negative response of counsel was in fact an indication that they did not want the warning to be given at all, or whether it was an indication that they did not want it done that afternoon, is not entirely clear. Whatever be the case in that regard, the transcript for Friday 14 February, summarises the observations which his Honour made to the jury at the commencement of that day's hearing: "In respect of the general directions given yesterday his Honour stated he had emphasized the need to discuss the case and now added to that the following: Not to go surfing the net for information about cases or criminal trials, which may not be accurate. Especially to bear in mind they would hear the evidence first hand and in respect of the necessary legal matters these would be given by counsel and his Honour.)" (Emphasis added).

[163]

Counsel were apparently content with the terms of this direction, and did not request any greater specificity. 202 The concerns, which have arisen from time to time, in relation to the effects on jurors of adverse publicity, occurring either pre-trial or during the trial, do raise somewhat similar considerations. 203 There have obviously been cases where it has been considered necessary to halt a trial mid stream, where that kind of publicity has been particularly prejudicial. The principle which has been established in relation to this kind of event and other prejudicial happenings, is one of necessity; that is, there has to be a "high degree of need", in order to avoid a miscarriage of justice, before a discharge will be ordered: Crofts v The Queen (1986) 186 CLR 427 at 432. 204 In most instances, it has been accepted that sufficient directions can be given to overcome the problem, since it has been recognized that jurors can be trusted to obey the directions that they are given: R v Bell NSWCCA 8 October 1998, Glennon v The Queen (1992) 173 CLR 592 at 603, Hinch v Attorney General (Vic) (No. 2) (1998) 164 CLR 15 at 74, Murphy v The Queen (1989) 167 CLR 94 at 99, R v Yuill (1993) 69 A Crim R 450 at 453/4, and R v Loguancio (2000) 1 VR 235 at para 24. 205 This is an important assumption, which underpins the retention of jury trials (see R v Gilbert (2000) 201 CLR 414 per McHugh J at para 31). I do not believe that it has been fatally flawed by the experience in the two recent cases decided in this State to which I will later refer (R v K [2003] NSWCCA 401 and R v Skaf [2004] NSWCCA 37). 206 The authorities concerning prejudicial publicity tend to suggest moreover that the mere possibility of a juror having acquired prejudicial or extraneous knowledge, during a trial, is not normally a sufficient basis for concluding that the accused did not have a fair trial or that there was a miscarriage of justice. 207 For example, in Glennon, Mason CJ and Toohey J said at 603: "Likewise, the suggestion that there was a substantial risk that at least one juror would have acquired knowledge, before the verdict was given, of the respondent's prior conviction was again a matter of mere conjecture or speculation. The mere possibility that such knowledge may have been acquired by a juror during the trial is not a sufficient basis for concluding that the accused did not have a fair trial or that there was a miscarriage of justice. Something more must be shown. The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial." 208 In Murphy v The Queen (1989) 167 CLR 94, Mason CJ and Toohey J said at 99: "…it is misleading to think that, because a juror has heard something of the circumstances giving rise to the trial, the accused has lost the opportunity of an indifferent jury. The matter was put this way by the Ontario Court of Appeal in R v Hubbert (1975) 29 CCC (2d) 279 at 291: 'In this era of rapid dissemination of news by the various media, it would be naive to think that in the case of a crime involving considerable notoriety, it would be possible to select 12 jurors who had not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence.'"

[164]

209 Counsel for the appellant drew attention, however, to the decision of Hampel J in R v McLachlan [2000] VSC 215, in support of the proposition that the availability on an internet site, accessible to the public, of information concerning an accused that was not before the jury, did present an unacceptable risk of injustice. In that case there was material available on the Crime Net site which provided information in relation to the accused who was facing a retrial. The trial was a short one and the problem was compounded by a Radio National segment in relation to the Crime Net site that had been put to air during the trial. 210 A different result occurred in R v Cogley [2000] VSCA 231 where the Supreme Court of Victoria, Court of Appeal upheld the decision of the trial judge not to discharge the jury when it was discovered, during the jury deliberations, that similar information relating to an accused, who was being retried, was available on the Crime Net site. 211 In Cogley the appeal was dismissed upon the basis that the trial judge had properly taken into account the relevant circumstances, and that he had been best placed to determine whether a miscarriage might have occurred if the jury were not discharged. The relevant circumstances noted were three in number: first, that nearly all of the relevant information on the Crime Net was known to the jury from material led in the trial; secondly, that his Honour had assessed the jury to have been conscientious and attentive in the performance of their functions; and thirdly, they had been told by his Honour to disregard the fact of the first trial, and to decide the case on the evidence before them. 212 These decisions do point to the need to decide each case upon its own facts. They do not provide authority for any general proposition that the possibility of juror access to material concerning an accused, that is not before the jury, will lead to a miscarriage of justice. 213 The problem of internet access raised its head in the this state In R v K [2003] NSWCCA 406. In that case evidence emerged, after the trial had concluded, to show that there had been juror access to information that was available on the internet, which revealed that the accused had previously stood trial for the murder of his second wife. That disclosure was held, in the particular circumstances of a case, where the accused was on trial for the murder of his first wife, to have involved a sufficient risk of prejudice, amounting to a miscarriage of justice, such as to require the Court to set aside the conviction, and to order a new trial. The potential prejudice related to the risk of the jury applying tendency/coincidence reasoning, or of it regarding the material as having raised bad character, even though neither of those aspects had been relied upon by the Crown. 214 The relevant test was accepted to be that which had been stated in R v Marsland NSWCCA 17 July 1991, and applied in R v Rudkowsky NSWCCA 15 December 1992, where Gleeson CJ (with whom Cripps JA and McInerney J agreed) said: "The appellant was entitled to be tried and to have his guilt determined according to law. In determining whether there has been a miscarriage of justice in a case such as the present it is important to bear in mind that in this context the word "justice" means justice according to the law. It is not for this Court to decide for itself after perusing the evidence whether we agree with the jury's verdict. Nor is it for this Court to decide whether, even if the irregularity had not occurred, it is likely or even probable that the jury would have reached the same conclusion. We are not (sic) here to decide whether or not the appellant received a fair trial and whether or not his conviction was one entered in accordance with the legal rules that govern the trial of a person in a case such as the present. However, as has been pointed out by counsel for the Crown, the circumstances that there has been shown to have been an irregularity in the trial does not necessarily mean that the conviction must be quashed and there must be a new trial. It is common ground in this appeal that the test to be applied is that which was stated in the case of R v Marsland, that is to say, whether we can be satisfied that the irregularity has not affected the verdict and that the jury would have returned the same verdict if the irregularity had not occurred. That, it is accepted on both sides, is the test to determine whether in the events that have happened in a case like the present, there has been a miscarriage of justice"

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215 In my decision, with which Grove and Dunford JJ agreed, I identified the desirability, for the future, of judges directing juries, inter alia, to refrain from undertaking any independent research or inquiries, whether via the internet or otherwise, concerning the accused or the case before them. 216 I also made the following observations: "80 The case is one of potential ongoing importance, having regard to the extent of the information which is now available on the internet, concerning criminal investigations and trials, not only via online media reports and services, but also via legal databases and the judgment systems of the Courts. The problem is compounded by the greater familiarity which the current generation has with the use of information technology, and the ever reducing cost of acquiring and using that technology. 81 It may well become the case, as a matter of habit arising out of the way that ordinary affairs are conducted, that the inevitable reaction of any person who is summonsed as a juror, will be to undertake an online search in relation to the case, to ascertain what it may involve." 217 It was not my intention, in these passages, to suggest that the mere possibility of some independent research or inquiry being undertaken by a juror, or the absence of a direction of the kind suggested, should inevitably result in a retrial. Rather, I had in mind the pragmatic desirability of judges taking steps that might limit the possibility of extraneous and potentially prejudicial research being undertaken. 218 Similar problems have arisen in other cases, which were conveniently noted by this Court (Mason P, Wood CJ at CL, Sully J) in R v Skaf [2004] NSWCCA 37. That was a case where, despite a general warning by the trial judge, two jurors decided to undertake a private view at night, and to conduct an experiment, at the scene of an alleged sexual assault. Identification of the attacker in that case was very much in issue, and there could have been no certainty as to whether or not the view, and the experiment which the two jurors had undertaken, replicated the lighting and other conditions of the night of the attack, or were even undertaken, in the same location. Again, it was considered necessary, applying the same test as that applied in Marsland, Rudkowsky and K (at para 242), to order a new trial. 219 On this occasion, recommendations were made (at paras 278 to 286) to reinforce those which were made in R v K, not in terms leading to an automatic retrial if they were given, but for similar pragmatic considerations to those mentioned above. 220 It was submitted that the irregularity in Rudkowsky had been "potential" rather than "actual", since there was no direct evidence as to whether any of the jurors had in fact read the prejudicial document which, by mistake, had been included in the material placed before them. 221 Consistently with the line of authority examined in R v Skaf, the exclusionary rule in relation to jury deliberations must be preserved, such that evidence cannot be received as to what jurors did in the course of their deliberations, or as to what bearing some irregular event or piece of information had for their verdict. 222 The risk of prejudice must be weighed independently of those considerations. Rudkowsky is clearly distinguishable in that it was there known that the offending material had been in the jury room, having been included with the exhibits which it was their task to examine. Rudowsky was argued, and decided, upon the assumption that the jurors had accessed the material. The present case is far removed from it. 223 As I have observed, there is no evidence in this case to show that any juror accessed the judgments, or either of them, so that the case is not on all fours with Marsland, Rudkowski, K, or Skaf where there was a proven irregularity. Rather, it is concerned with the existence of a source of information concerning the case, which a juror might possibly have accessed. Whether that occurred or not is a matter for speculation. 224 It follows that the Marsland/Rudkowsky test is not directly applicable, although I consider that some guidance can be gained from it and from the decisions concerning the existence of adverse publicity. So viewed, the question becomes one as to whether the presence of the material on the internet posed an unacceptably high risk of prejudice to the appellant, thereby occasioning a miscarriage of justice. 225 In my view, that question should be answered in the negative, for the following reasons:

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(g) The case against the appellant was absolutely compelling, such that his conviction would have been inevitable, whether or not the judgments were accessed by one or more members of the jury. 226 It may be observed that a similar view was taken by the Supreme Court of Queensland Court of Appeal in R v Long (2003) 138 A Crim R 103, where the availability of pre trial and internet publicity concerning the appellant, who had been charged with murder arising out of the notorious Childers Backpackers fire, was held not to give rise to a sufficient risk of prejudice so as to constitute a miscarriage of justice. 227 Before parting from this ground, I accept that there can be a significant difference between publication of material concerning an accused on populist sites or in those that are maintained by newspapers and media outlets, and those which are official sites maintained by courts or by recognised law publishers, in that greater weight and credence will attach to the latter. That may be an important, or even decisive, consideration in a case where actual access by a juror is shown. 228 However, the observations made in the decisions concerning prejudicial publicity remain very pertinent where it is not known whether there has been any access, and particularly where a direction has been given early in the trial to jurors to decide the case on the evidence and not to search the internet, as occurred here. 229 These observations should not be taken as undermining the importance of the appearance of justice being maintained. Rather they reflect the circumstance that not every event that may have conceivably affected a criminal trial will necessarily lead to a new trial. On the contrary, appellate review depends upon the precise circumstances of the case, and upon a realistic appraisal of whether, in the light of those circumstances, there was an unacceptably high risk of prejudice to the accused. 230 I would dismiss this ground of appeal. 231 I would propose the following orders: