R v Wood

R v Wood - [2008] NSWSC 817 - NSWSC 2008 case summary — Zoe

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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?

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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 -

Whether the juror had made a telephone call to a journalist during the course of the trial, speaking about the jury;
Whether that juror was aware of anybody else having made such a call; and
Whether the juror was aware of any plan by any members of the jury to return to The Gap at Watsons Bay to have a private inspection. 14 Each juror answered each question in the negative. One added to his answer to the third question something about a discussion the jurors had at Watsons Bay to the effect that they should perhaps have a further view, but that did not mean a private view. That portion of the answer was of no concern to me. 15 Mr Morrison heard the jurors give their evidence. He wrote down the number of one whose voice, he said, was similar to that of the caller. However, he made it clear that he was not positively identifying that juror as the caller. 16 I had been given some idea of things that had been said to the Sheriff's officer during his conversations with members of the jury on the evening of Thursday 31 July. I asked the officer to attend. He is Mr Brian David Alexander Murray, Acting Assistant Sheriff, Acting Manager Court Administration. He gave evidence. He confirmed that he had received a request from the Registrar of the Court asking him to telephone each juror and say these three things, namely that the Court had been led to believe that one or more jurors were going to The Gap that night to make their own inspection, that on no account should anyone make such an inspection and that the jury would be asked about it on Monday at Court. 17 Mr Murray said that he had not been asked to gather information from jurors. He confirmed that by 6:40pm on Thursday 31 July he had spoken to all 12 jurors. I asked him whether any juror's response had enabled him to know whether that juror had some knowledge of an intention by members of the jury to return to The Gap for a private inspection. He said that the response of one juror made him think so. He identified a female juror and repeated her jury number. He said that she had said that she had heard the conversation, something like that, in the jury room. Mr Murray was asked to state as precisely as possible what he had said to the juror and the response she had given. The evidence was as follows - Murray My name is Brian Murray from the Sheriff's Office in Sydney. I am ringing on behalf of the court. The judge in 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 their own private inspection of the site. Juror Oh, yes. I - I heard some of them mentioning that in the jury room. 18 Mr Murray said that although he had kept a note of what he had said to the jurors he had not recorded any answer any juror had given. 19 I called into court the juror identified by Mr Murray and there was this evidence - Q Did you receive a telephone call on Thursday evening from Mr Murray of the Sheriff's Office? A. Yes.

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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.

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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.

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