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[2008] NSWSC 817
Supreme Court of NSW
2008-08-06
Barr J
Original judgment source is linked above.
CATCHWORDS : CRIMINAL LAW - Jury misconduct - directions given to a jury - examination of jurors on oath - contravention of s68C of the Jury Act - discretion to discharge a jury
LEGISLATION CITED : Jury Act 1977, s68B, s68C, s55DA Evidence Act 1995, s128
Winsor v R (1866) LR 1 QB 390 R v Boland [1974] VR 849 R v George, Harris and Hilton (1987) 9 NSWLR 527 CASES CITED : Crofts v R (1996) 186 CLR 427 Webb and Hay v R (1994) 181 CLR 41 Bartle and Ors [2003] NSWCCA 329 Qing An v R [2007] NSWCCA 53
PARTIES : Regina Gordon Eric Wood
COUNSEL : M Tedeschi QC and K McKay (Crown) W Terracini SC and S Hughes (Defendant)
SOLICITORS : Solicitor for Public Prosecutions (Crown) Michael Bowe (Defendant)
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
JUDGMENT ON A REPORT OF JURY MISCONDUCT 1 HIS HONOUR: This judgment concerns competing applications made by the parties as a result of a report made to the Court and evidence adduced under the provisions of the Jury Act. The accused, Gordon Eric Wood, is charged with having murdered the deceased, Caroline Byrne, by throwing her from the top of the cliff at The Gap, Watsons Bay, one night in 1995. The Crown Prosecutor began his opening late on the first day of the trial and concluded it on the second day. By the conclusion of the opening the jury had a reasonably detailed knowledge of evidence the Crown expected to call and what assertions it would make relying on that evidence. On Wednesday 30 July, the third day of the trial, the jury were taken for an inspection of certain features at Watsons Bay. They were shown the place from which the Crown would be submitting that the accused had thrown Ms Byrne to her death and the place where the Crown would be saying that she landed at the foot of the cliff, meeting her death. Several other features were pointed out as well. It was obvious to the jury that the acts of the accused relied on would be said to have taken place on a dark night when visibility was limited. The Crown mentioned in opening that there was a sea mist on the same night which further interfered with visibility. 2 The evidence began on the fourth day of the trial, Thursday 31 July. At the conclusion of the evidence in chief of the first witness the Court adjourned. Later the same afternoon there was received in my chambers a report, the effect of which was that a person claiming to be a member of the jury had had a telephone conversation with a journalist and had disclosed that some members of the jury were intending to return to The Gap that night for a private inspection. That would have been contrary to explicit directions I had given the jury. I arranged for an officer of the Sheriff's Department to retrieve confidential particulars about each juror and to telephone each juror and tell that juror three things namely, first, that the Court had been led to believe that some members of the jury were intending to return to The Gap that night to have a private inspection, secondly, that on no account should such an inspection be held and thirdly that the jury would be asked about this on the next sitting day, namely Monday 4 August. The officer concerned managed to do so by about 6:40pm on Thursday 31 July. 3 On Friday 1 August I invited counsel and their solicitors to my chambers. The accused was not present. I told counsel the substance of the report that I had received, what I had done in response and my understanding of the action the Sheriff's officer had been able to take. The court reporter attended that conference and made an official transcript of everything that was said. 4 The Court sat on Monday 4 August. The accused was present. I repeated for the benefit of the accused and everybody else present the substance of what had happened on Thursday, 31 July. At my request Mr Jason Morrison attended. He gave evidence on oath. I asked all the questions myself, having given counsel an opportunity to suggest things that I should ask. Mr Morrison is a broadcaster at radio station 2GB. He said that he received a telephone call at 9:20am on the morning of Thursday 31 July. This evidence followed - Q. And did you speak to the person on the other end of the phone? A. I did, yes. Will gender help you at all?
Q. Did it seem to be a man or a woman? A. It was a woman.
Q. Did you know that woman? A. No. That woman, though, said to me that she was calling me because we had had contact some time in the past and that she knew - words to the effect that I knew a little bit about the legal system, which was a bit humorous, actually, but that's what she said.
Q. What did the woman say? A. She told me first up that she was a juror in the case of Mr Wood. And I immediately interrupted her and I said, "Well, I doubt that, because, if you were, you would have been told you're not allowed to speak to the media." And she said, "Oh, I'm not calling you to ask about the case, I'm calling you for some advice." And I interrupted her and told her that she could get me into a lot of trouble if this conversation went any further. And I said, "I ask that you hang the phone up now and talk to the judge. The judge is the only person that can help you out." Before I could get - almost get - end the call, she then asked me, she said to me, "Well, I think you've got to know that there is a plan by some people on the jury to go out and" - words to the effect of - "check out the crime scene at night." And I said to her, "Look, you've told me too much. I'm going to have to end the call." And she said, "Well" - and she continued on. I - she said again words to the effect of, "We were taken out there during the day the other day and it's pretty clear that they don't want us to see it at night." And, at that point, I said, "Look, I'm going to have to hang up. This has gone too far. You've got to talk to the judge." And she then said again, words to the effect, "I'm only after advice." And I said, "Well, I'm sorry, I don't want to be rude, but I can't give you it. I can get into a lot of trouble if this phone call goes any more." And she said to me, "Well, I can't - there's a woman on the jury who is quite a bully and she's telling us we should do it." And then she told me something - and this is a little sensitive. Would you like me to tell you, because it goes to the effect of what this juror said?
Q. Right. Please? A. She said, "This woman has already decided that he's guilty and that we should go out and see why." I said, "Look, bye-bye, I cannot talk to you any more. You have got to tell the judge. I am going to tell the judge." And I put the phone down, and that was it. 5 Mr Morrison went on to say that he was so concerned that he spoke about it to an in-house lawyer. That led to the report being made in due course to my chambers. Although the caller told Mr Morrison that they had had contact at some time in the past, nothing she said enabled him to identify her. Nothing that she said enabled him to identify any juror that might have been intending to go to The Gap. There was this evidence - Q. Did she say anything that might enable any identification of any of the jurors who were intending to go to The Gap? A. No. No. The only thing she said about another juror was the woman, who I described as being a bit of a bully, who'd made her mind up, and that was it.
Q. Was she one of the ones who were intending to go to The Gap? A. I'm not clear about that. I don't know.
Q. Can you remember anything else about the conversation, do you think? A. I can tell you about - I mean, only the characteristics of the lady's voice. Actually, I can tell you that there was - it sounded like it was being made in a noisy street environment. I said to my lawyer this morning when we were out the front here, "It sounded like it was out here somewhere", outside the Court building, it was that kind of ambience. And she had a voice that suggested to me that she could be of middle age, but it's a guess, your Honour. 6 Mr Morrison said that no sound record was made of the telephone call. 7 I asked Mr Morrison to remain while I examined jurors. 8 Section 68B of the Jury Act is as follows - (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.
9 Section 68C is as follows - (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.
10 Section 55DA is as follows - (1) A judge may examine a juror on oath to determine whether a juror has engaged in any conduct that may constitute a contravention of section 68C.
(2) A juror is not excused from a requirement to give evidence on such an examination on the ground that the evidence may tend to prove that the juror has committed an offence against section 68C.
(3) However, if the judge is satisfied, after the evidence has been given, that the evidence may tend to prove that the juror has committed an offence against section 68C, the judge is to cause the juror to be given a certificate under this section in respect of the evidence.
(4) In any proceedings for an offence against section 68C, evidence given by a person in respect of which a certificate under this section has been given cannot be used against the person.
11 It seemed to me that if the person who had spoken to Mr Morrison was indeed a member of the jury some things might have been said in contravention of the provisions of s68B. If the caller was telling the truth those jurors contemplating a private view at Watsons Bay were contemplating an act contravening the provisions of s68C. If they had already conspired to do that act they might already, without ever going to Watsons Bay, have committed an offence under s68C. 12 I took the view that s55DA gave express power to me to question any juror on oath or affirmation about any plan to visit Watsons Bay. I took the view that my inherent right to control the trial process included power to question any juror about any possible infringement of s68B. Having in mind the provisions of s55DA Jury Act and s128 Evidence Act I questioned each juror in turn, first informing the juror that there was nothing to fear from telling the truth and that any truthful answer that tended to incriminate would be unable to be used afterwards in a prosecution for any offence. I said that I would give a certificate accordingly if necessary. 13 Having first told the jury as a whole the substance of what had been reported to me and my intention to try to ascertain by examination of them answers to questions thereby raised, I invited the jury to retire. I invited any juror who had telephoned a journalist during the currency of the trial to send me a note to that effect. No note was forthcoming. I questioned each juror individually in the absence of all other jurors. In that way I asked each juror three questions -
Q. I want to put to you a conversation-- A. (Witness nodded).
Q. --and ask you whether that conversation took place? A. (Witness nodded).
Q. First of all, Mr Murray introduced himself and got you to identify yourself - I want to get through that? A. Yep.
Q. Did he then say these words, or some words close to them, "The judge at the trial has asked me to contact all jurors this evening because the court has been led to believe that one or more jurors are going to visit The Gap tonight to make a private inspection of the site"? A. Yes.
Q. Did he say something like that to you? A. Yep. From what I recall, yes.
Q. Did you respond to him? A. Uh-huh.
Q. What did you say? A. I think initially I went, "What?" And then I said, "Really? They kind of joked about that, but not seriously."
Q. Would you mind repeating that answer please? A. I said, "What? Really? They kind of joked about that, but I don't think so." But the joke was more about going back. I never thought that they were doing it on their own. It was more of a - "We should go back", you know, but, no, I didn't think they were doing it on their own, no.
Q. Did you say these words, or something close to them, "Oh, yes, I heard something - I heard some of them mentioning that in the jury room"? A. Ah, I think I said more along the lines of, "I thought they were joking". But I don't think it was ever regarding a private visit, no.
Q. Are you now telling us what you were saying to Mr Murray, or are you giving us your-- A. No, my opinion of what they said.
Q. Just let me ask the question. If we both speak at once we will never know what was said. I will start again. I gained the impression from your last answer that you had stopped telling us about what you had said to Mr Murray and were giving the court your own impression of the meaning of conversations in the jury room? A. (Witness nodded).
Q. Is that right? A. That's correct.
Q. All right. So you told Mr Murray that you thought they were joking? A. Yep.
Q. Yesterday I asked you this question-- A. Uh-huh?
Q. --"Are you aware of any plan by any members to return to The Gap at Watsons Bay to have a private inspection?" A. (Witness nodded).
Q. You answered "No"? A. (Witness nodded).
Q. Do you stand by that answer? A. Yes. 20 At my request Mr Murray returned to the witness box and there was this evidence -
Q I want to go back to the conversation that you had with the juror whose number you gave us, (and then I repeated the number) . Do you remember anything else the juror said about things she had heard said in the jury room? A. No, your Honour. As soon as I - to the best of my recollection, as soon as she had mentioned anything about a conversation in the jury room, I ceased the conversation in the jury room and not to say anything more on that matter.
Q. Did she say anything to you to the effect that she thought they were joking when they said what they said in the jury room? A. No, your Honour.
CROWN: Your Honour, would your Honour ask Mr Murray, if possible, that the juror said, "I heard some of them joking - oh, yes, I heard some of them joking in the jury room."
Q. Did she say some such words to you, in your recollection? A. That is not my recollection, your Honour. 21 The evidence having been received, counsel made their submissions. The principal question arising was whether the woman who telephoned Mr Morrison was a member of the jury. The Crown Prosecutor submitted that she was not and that she was a "malevolent member of the public" whose intention was to interfere with the proper processes of the Court. He submitted that the Court should accept at face value the denials of each member of the jury as to the making of any telephone call and as to any knowledge of any plan to have a private inspection at Watsons Bay. Mr Terracini QC pointed to similarities in what the caller said to Mr Morrison and what the juror said to Mr Murray. He invited the Court to prefer Mr Murray's evidence to that of the juror. He submitted that the Court could not be satisfied that the telephone call to Mr Morrison was a hoax. He submitted that the evidence was sufficient to cause grave feelings of disquiet if the trial should proceed. 22 Mr Murray's evidence is important. It was not suggested that I should not accept it, though I accept that he did not record the juror's answer and that he may not have used precisely the words said to him by the juror. Even so, this was no casual conversation. Mr Murray is a senior officer of his department. He was called out in an emergency. He had to unlock the courthouse at Darlinghurst and gain access to the safe in order to telephone each juror. He knew that the conversations he was going to have with those jurors were important and more than casual. He is likely in those circumstances, I think, to have an accurate recollection of anything significant said to him by any juror. I listened carefully to his evidence and was impressed by it. 23 I am satisfied that the juror told him that she had heard in the jury room some conversation about jurors having a private visit to Watsons Bay. The Crown invited me to conclude that whatever the juror said to Mr Murray must have referred only to a later inspection by the whole jury, a matter I had foreshadowed to all the jury during the view at Watsons Bay. I do not accept that submission. I accept that the words spoken to each juror by Mr Murray, including this juror, made it clear that he was asking about any intended private visit. The context makes that inescapable because he was telling each juror that that was not to take place on that night. It would not have been possible for all 12 jurors to go to Watsons Bay as a jury under the auspices of the Court on the night of Thursday 31 July. 24 This evidence satisfies me that things were said in the jury room about jurors returning privately to Watsons Bay. Moreover, there are two reasons why I think that the juror was not being frank with the Court when she added to the answer relaid by Mr Murray that she thought it was a joke. First, she did not say so to Mr Murray. I accept his evidence that she did not, and I reject her evidence that she did. Secondly, there is an internal inconsistency in a portion of the juror's evidence. I will extract a small portion of it again, viz - Q Did you respond to him? A. Uh-huh.
Q. What did you say? A. I think initially I went, "What?" And then I said, "Really? They kind of joked about that, but not seriously."
Q. Would you mind repeating that answer please? A. I said, "What? Really? They kind of joked about that, but I don't think so." But the joke was more about going back. I never thought that they were doing it on their own. It was more of a - "We should go back", you know, but, no, I didn't think they were doing it on their own, no.
Q. Did you say these words, or something close to them, "Oh, yes, I heard something - I heard some of them mentioning that in the jury room"? A. Ah, I think I said more along the lines of, "I thought they were joking". But I don't think it was ever regarding a private visit, no.
25 It makes no sense to me that the juror should have thought that her fellow jurors were having a joke but not about a private visit. If it were not a private visit they were talking about, where would the joke lie? What would be the joke in having all members of the jury travel as a Court to The Gap for a further inspection in the manner I had foreshadowed? 26 I conclude from this evidence that there was talk in the jury room about a private visit to Watsons Bay. I do not believe that such discussions were had only as a joke. 27 It would be an enormous coincidence if a stranger to the jury room happened, in concocting a story to tell Mr Morrison, to invent a conversation that actually took place. I am far from satisfied that the caller was an impostor who had the mischievous intent of trying to stop the trial. I think that the caller was a member of the jury. 28 The evidence does not enable me to say who the caller was. The evidence does not enable me to say which jurors spoke about having a private visit to Watsons Bay. The evidence does not establish, nor did I enquire, whether any juror actually went to Watsons Bay on a private visit after the commencement of the trial. 29 I listened carefully to the evidence of Mr Morrison. It was not attacked. I accept his evidence of what the caller said to him. The statement that there was a woman on the jury who was quite a bully, had already decided that the accused was guilty and was telling members of the jury that they should have a private visit to Watsons Bay against my express instructions concerns me. I doubt whether the accused could receive a fair trial at the hands of a jury which had such a person as a member. 30 The evidence shows that one or more jurors probably misconducted themselves but, as I have explained, I am unable to identify any such juror. I have no reason to believe that all the members of the jury misconducted themselves, although I have found that one of the jurors was less than frank in answering the Court's questions. Although I believe that one or more others were less than frank I have no way of knowing how many. My judgment should not be taken as implying that all the members of the jury have given less than completely truthful answers. This has the unfortunate result that I am unable publicly to vindicate those jurors who have throughout acted properly. They know who they are. The Court thanks them for their service. 31 The exercise of a trial judge's discretion to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends upon the principle of necessity stated in Winsor v R (1866) LR 1 QB 390. There must be evident "a high degree of need for such discharge … such as in the wider sense of the word might be denoted by necessity" per Erle CJ at 394. This principle was adopted by the Victorian Supreme Court in R v Boland [1974] VR 849 at 866-867; the New South Wales Court of Criminal Appeal in R v George, Harris and Hilton (1987) 9 NSWLR 527 at 533 and the High Court in Crofts v R (1996) 186 CLR 427.
32 The test to be applied for determining whether any irregular incident involving a juror warrants the discharge of the juror or the jury as a whole is whether or not the incident is such that, notwithstanding any proposed direction 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 a juror or jury will not discharge its tasks impartially. Webb and Hay v R (1994) 181 CLR 41 at 46-47.
33 One of the overriding factors to keep in mind is that the appearance as well as the fact of impartiality is necessary to retain confidence in the administration of justice. Both the parties to the case and the general public must be satisfied that justice has not only been done but that it has been seen to be done. Webb and Hay v R at 50.
34 The High Court in Crofts v R (per Toohey, Gaudron, Gummow and Kirby JJ at 440) held that no rigid rule can be adopted to govern decisions on an application to discharge a jury, however factors to be considered include the seriousness of the incident in the context of the contested issues; the stage at which the incident occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome any apprehended impact. Much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial.
35 Mason P and I emphasised the criterion of fairness in Bartle and Ors [2003] NSWCCA 329 and indicated that in exercising the discretion, the trial judge could take into account all that had happened and all that was likely thereafter to happen (at [80]-[81]).
36 In Qing An v R [2007] NSWCCA 53, Beazley JA (Hislop J agreeing) found that when an irregularity has occurred in the course of the jury's deliberations a court must ask itself whether it can be satisfied that the irregularity has not affected the verdicts, and that the jury would have returned the same verdict if the irregularity had not occurred. This question is to be answered in light of the direction which the trial judge gave when the irregularity came to the judge's attention. Hulme J referred to the notion which criminal appeal courts have developed, namely that in exceptional cases, no direction to the jury could have cured the damage. Implicit in this is the recognition that there are occasions when the legal system accepts that a jury will not, or cannot, be expected to comply with the directions of the trial judge. 37 I apply these principles. Ordinarily a trial judge is entitled to expect that jurors will obey the Court's directions. There is evidence before me that at least one member of this jury is not prepared to do so. There is evidence to suggest that one member of the jury may be prepared to decide the case without regard to the evidence. That person cannot be identified and therefore cannot be removed from the jury. It becomes necessary for the whole jury to be discharged and for the trial to begin before a jury selected from a panel which does not contain any of the present jurors. 38 The jury is discharged. The accused is remanded for trial on a date to be fixed.
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R
Wood