Regina v JP

The Evidence 12The evidence given by the foreperson was as follows: "Q. You are the foreperson of the jury? A. Yes. Q. I am going to ask you some questions to clarify matters. I want to make it very clear that I do not wish you to disclose in answering any of my questions anything to do with the jury deliberations; you understand? A. Yes. Q. I don't wish you to disclose in any way what the subject matter of the discussions have been in the course of the deliberations of the jury A. Yes. Q. Just focus if you would on the specific matters to which my questions will be directed, thank you. Would you have a look at MFI 68 (handed to witness). Firstly, is MFI 68 the jury note which has been written in your hand? A. Yes. Q. You are the author of the note on behalf of the jury? A. Yes. Q. You have referred in the jury note to one juror on the second line? A. Yes. Q. It's to that person I direct this question. Did the one juror to which references made disclose to you or in your presence the question of having made inquiries as referred to in this note? A. In my presence, yes. Q. And are you able to a say approximately when that occurred? A. I believe that it happened overnight that the first inquiries was made, and then on their actual phone they brought it in with the page open. Q. Just a moment. So this occurred today? A. Yes. Q. And at approximately what point in the morning did this occur? A. At the start of the morning when we were still waiting for one of our jurors to arrive she they had it open on their phone, and they kept on referring like after we took the phones away they were referring back to it and discussing what they had read on the Internet page. Q. Was this outside the jury room or inside the jury room? A. Inside the jury room. Q. At that time there were do I understand you to say 11 jurors present, including yourself or? A. Yes. Q. Or were all jurors present? A. Yes. Q. Sorry, was it? A. Both. They began when they were still 11, and they continued to referenced it during the day when there was 12. Q. Could I just, so that I understand you clearly, as to the first occasion in which anything was said by the juror referred to in the second line of your note, were all jurors present at that time or not? A. No. Q. And how many were present? A. 11. Q. That included yourself? A. Yes. Q. And as best you are able to recall, what at that point did the juror to whom you refer on the second line of MFI 68 say, and/or do? A. They had the phone on the table, and mostly speaking to one juror in particular that sat next to them, and said that they had been looking at this page to try and better understand how the law differentiates between murder and manslaughter. Q. And did you recall anything else said at that point? A. Nothing at that time because I made the direction that we should put our phones away. Q. The phone to which you refer, at that time was it switched on or activated? A. Yes. Q. And was it held by that juror? A. They had it in their hand. They placed it on the table. Q. What, in front of that person placed it in front of themselves? A. Well in between themselves and the juror sitting next to them. Q. And from what you could see, you say the phone was turned on? A. Yes. Q. Could you see what was being shown on the phone or not? A. It appeared to be a web page with text on it. Q. And do you know whether anybody at the point of time you are now talking about was looking at the phone? A. I believe that the person whose phone it was, and the juror sitting next to them saw it, but I am not sure whether or not they read it other than that juror. Q. Could you tell me how long did this particular episode you've just described continue for? A. Possibly between one and two minutes. Q. And was the phone then switched off or taken away? A. Yes. Q. Was there anything said at this point in time that you've just been addressing as to the contents of any research that the juror had undertaken? A. They said they were looking at it, and they were looking at the difference between murder and manslaughter. Q. Just tell me if you can best recall what was said by that person who had the phone in your presence? A. Well I did say it before, but it was something to the effect of: "I've been looking at this overnight, and I'm having trouble determining the difference between murder and manslaughter, this is what it says"; and then looking at the phone. Q. Did that juror then articulate what it said or A. Not at that time, no. Q. Was there anything else said about the question of research at the end of the episode you've just described? A. Later on, after the phone had been Q. We will come to that now. Before we get to the next, what I will call episode about this, do you recall whether there was any other discussion amongst any other members of the jury as to what you have just described in terms of the content of any research that had been undertaken, or was there no discussion? A. There was discussion later on, but it involved all 12 with that particular juror raising it, but apart from that nothing. Q. Perhaps we will come to that now then. Before I do, just to be clear, do the questions I have put and your answers to effectively exhaust what happened in relation to that first episode we have just discussed? A. Yes. Q. Thank you. We will move to the second. Approximately when did the second occasion arise when anything was said about research having been undertaken? A. I can't be 100 percent accurate, but between one and two hours later, so approximately 12 o'clock. Q. Were all jurors present at that time? A. Yes. Q. And firstly, taking it a step at a time, again in going to the juror referred to on the second line of your-- A. Yes. Q. --note, MFI 68, did you hear that person say anything about research, or having undertaken research? A. Yes. Q. And doing the best you can, using the words as best you can, recall what was said on that topic by that person? A. They said that Q. You say "they", are you talking about a person, are you? A. Yes this particular jury, that Q. That person said A. Yes Q. Said what? A. That person said that based on the research that they had read, that the difference between murder and manslaughter involved malice; and I can't recall anything beyond that. Q. When you use the word "they", you are referring to the single person? A. Yes. Q. Did that person have the phone? A. No. Q. Not at that time? A. No. Q. Do you recall that person saying anything more than what you've just said? A. No. Q. Was there any discussion in response to what that person said in what you've just referred to as the second episode on this question of research undertaken by the juror? A. Yes. Q. I want you then to focus on that. Trying to identify, without disclosing the identity of anyone, what was said by a person, or if there is more than one, persons in response to this topic, or on the topic of research that the juror said he or she had undertaken? A. The majority of the conversation was centred on that particular juror speaking, and when I realised that that was the context of what they were talking about I immediately said to, you know, stop talking about it, that based on your legal direction we should be making no outside inquiries. Q. Just going back over that. What I need to have from you, if you are able to, recall, what the juror referred to in MFI 68 actually said by way of words on the topic, if said anything at all, can you recall what was said at that point by that person? A. Just as I said before, that based on what they had been looking at, they said that the difference between murder and manslaughter involved malice, and that there was no malice involved in this particular case. Q. Is that the extent of your recollection as to what that person said? A. Yes. Q. That is the same juror referred to in your-- A. Yes. Q. --note, MFI 68? A. Yes. Q. Do you recall whether anything was said in response to that statement by the jury you've just referred to or not? A. Several jurors spoke at the same time. I can't remember exactly what anyone said in particular, but that's when I said to stop talking about it. Q. You recall the effect of what any other juror or jurors said in response or reaction to what the juror referred to in MFI 68 had said or not? A. No. Q. Can I approach it this way: Whatever was said in response by one or more jurors to what the juror, referred to in MFI 68 said, was it a discussion that dealt with what might be referred to as the subject matter or contents of what the legal research was, or was it not? A. No, they purely referred to malice, and manslaughter and murder, and legal definition. Q. Again you use the word "they" to indicate one person? A. The one juror mentioned in line 2 of MFI 68. Q. You have already given the evidence as to what that juror said? A. Yes. Q. I suppose to make myself plain: After that person had said that, and before you closed down any discussion about it, as you said, do you recall whether any other juror or jurors said anything about the contents of any legal research or information that the juror had said he or she had obtained through undertaking Internet research? A. I can't recall if anyone said anything with regard to that. Q. Had any person or persons other than the juror in question said very much in response before you, as it were, closed down the discussion? A. No. Q. But you say there was more than one who started to respond? A. Yes. Q. How many? A. Four perhaps. Q. And are you able to say from your recollection as to whether anything said by any one of those four was on the subject of the contents of the legal research that the juror said he or she had undertaken? A. No, I couldn't say. Q. Is that because you do not have a recollection of A. No because they were all speaking at the same time. I don't remember what. Q. They were more or less talking over each other? A. Yes. Q. In a manner which may, are you saying, impossible to really say who was saying what at that time? A. Correct. Q. So as a person in the room, are you saying that by reason of the fact that more than one person was talking at the same time, it was really not possible to discern whatever words they uttered? A. Yes. Q. Meant or referred to? A. Yes. Q. And approximately how long, what interval existed between the other four, if there were four, starting to respond and talking over each other and you closing down discussion? A. Ten seconds. Q. Repeat if you would what did you say in trying to close down the discussion? A. I said I felt it was inappropriate to talk about it, that based on the facts of the case presented to us, and the judge's direction that we weren't to make outside inquiries as to the law. Q. Was that the end of this particular matter then? A. Yes. Well we continued to talk about it when I raised when I felt that I needed to write this letter. Q. In that last reference, was there any discussion as to the contents of any inquiry that the juror had made? A. No. Q. Yes thank you, would you hand the MFI 68 document please back to the Court officer? A. (Witness complied) 13The juror in question was sworn and gave answers to questions put to her in the examination as follows: Q. Just before I ask you the matters that I want to inquire into, I just want to make clear that in answer to any of my questions please do not disclose any deliberations that have been going on in the jury room. In fact you must not disclose. I do not want to know, and I must not know anything about the jury deliberations. So if in answering these questions you could just focus on the point of my question, and just deal with those questions which are not concerned with the jury deliberations in terms of the matters and the issues that jury has to consider. The first matter I wanted to ask you about is your own inquiries, or researches, if any, undertaken by you, and firstly my question is: Have you undertaken some inquiry, whether it be matters of law or otherwise? A. Yes. Q. And would you just tell me the nature of the inquiry so that I understand? A. Can I show you that? Q. Yes (document handed to his Honour). Could you identify what it is so that everyone knows? A. It's just a thing that I looked on the Internet about manslaughter and murder, The differentiation, so I could understand it, that's all. Q. You have written on the back of one of the documents, on I think the witness list? A. Yes. Q. Could I understand, what do these words capture, is it something you have copied it off? Is it copied from the Internet? A. It is a copy from the Internet. Q. Is it the A. From the New South Wales Law Society. I just needed to clarify manslaughter murder, murder manslaughter. I'm lost, and I just wanted to sort of Q. That's alright, I don't need to enquire into your reasons for it? A. That's all. Q. I see, so your notes here are notes taken from the website A. Yes. Q. The Law Society did you say? A. Yes. New South Wales. Q. And that deals with the distinction between manslaughter and murder? A. Mmm mmm. Q. Could I ask you when you A. Last night. Q. undertook that inquiry? A. Last night. Q. And is the web page on computer, your computer or A. Yes. Q. mobile phone? A. My computer. Q. Still there? A. It would be at home, yes. HIS HONOUR: Just pardon me while I read the note... Yes thank you. I will have that marked on the voir dire. EXHIBIT #1 ON THE VOIR DIRE Q. I take it that you first brought the notes, I will now call it Exhibit 1, to court this morning? A. Yes. Q. And A. I didn't do any I'm sorry if I did you something that I shouldn't. Q. I am simply enquiring into facts, nobody is you don't have any anything to fear about in terms of personal liability, I just want to put you at ease. This document, Exhibit 1, which have handwritten notes you have made from a website page, have you shown this to anyone? A. It was on my sort, of top of the table, and I think the lady somebody next to me glanced and said, "What's that?" I said, "Just something". I don't even think she saw what it was about. Q. This is in the jury room today? A. Yes. And then things progressed. Q. What do you mean by that, in terms of the matter? A. The foreman said, "What are you doing?" I said, "I'm just looking at this, I'm just confirming something in my own mind", and... to put it politely, him and me clash. Q. It's alright, you don't have to go there. Was anything said about the substance or the contents A. No. Q. of your Internet search in the jury room this morning? A. I didn't discuss it with anybody. The only person that discussed it with me was the foreman who said, "You shouldn't be doing that". Q. What happened when he said that? A. What happened, they turned around, and they they all sort of asked, "What have you done?" I said, "I just looked up something on the Internet", and he said, "I'm going to tell the judge", and I said, "Do what you have to do". And the others turned around and said, "She's done nothing. All she did was confirm something to herself. She hasn't pushed it on any of us what it said". Q. Is that the end of the discussion? A. As far as I was concerned, yes. Q. Was that early in the morning? Could you say approximately what time? A. That would have taken place I'd say about quarter to 10, 10 o'clock that I had it on my table. Q. Quarter to 10? A. Quarter to 10, 10 o'clock it was on the table. Q. This was in the jury room? A. Yes. Q. Were all jurors then in attendance, or A. No. There was a couple of missing. Q. Two missing. And could you say how long did any discussion concerning what I will call your Internet research took between quarter to 10 and 10 o'clock, in other words A. No I was just sitting there writing, and then it was pointed out to me I shouldn't have done it, and I said "fair enough" and I folded it up and put it in my book and just left it at that. He said, "I have to report it". I said, "Okay, report it, if I've done wrong, I've done wrong". Q. Before the foreperson said that to you, was anything said about what you had found on the website about your or following upon your research, by you? A. I think I turned around and I said, one word, I said which means whatever that word is Q. Just use your language. If you can recall what did you say? A. I turned around and said "malice" is the same as "malice" the same as what we've written up there. And he said, "No it isn't". I said, "Well to me it is". So that was my interpretation of it. Q. Did you refer him or did you refer at all to what you understood from your Internet research about the matter? A. No, not after that, I just used the one word, "malice", and that's all I used. Q. Did you have your A. My phone was there. Q. It's on your phone. And was your phone on the table? A. My phone was on the table, but it was in front of me like that, and I was writing it, because they take the phone off me, and I was just writing there, so I had it there for me, not for anybody else. Q. Do I understand you to say you had the phone on with the website page A. Yeah. Q. activated, and then you were taking notes from it at that time? A. No it wasn't activated on the Internet, it was something that I had written from the Internet onto my phone. Q. Onto your what? A. On to my iPhone, in the notes. It wasn't actually on the net. Q. So again, just to fully understand what you are saying, between quarter to 10 and 10 clock A. I had written this last night on my iPhone. Q. You had written out Exhibit 1, handwritten notes? A. Yes. Q. Then in that interval, between quarter to 10 and 10 o'clock, you had your phone on, the phone having A. Showing that page. Q. Showing what page? A. The page that I was writing onto the paper. But it was only a note page, it wasn't an Internet page. Q. I just want to understand. If I was looking at your phone at that time, what would I have seen? A. You would have seen that. What I've just written. Would you like me to go and get my phone and show you. Q. No it's alright. What I would have seen, you say, is the words that are appearing in Exhibit 1 in your handwriting? A. That's right. Q. And can I ask you, did any of your jurors look on to see either your handwritten notes, Exhibit 1, or A. The person next to me Q. Let me finish A. Sorry. Q. What was appearing on your phone at that time, or both? A. There was one person that looked at the phone and said "What's that?" I said, "It's nothing, just something I looked up". Q. Did you tell the person what that was that you looked up? A. No I did not. I did not tell the person. Q. That juror was sitting next to you? A. Yes. Q. And did you say anything to that person about anything recorded on the web page that you had consulted overnight? A. I just turned she said, "What is it?", I said, "Something I was looking at on the Internet". Q. Did you tell what it was? A. The she said, "What?" I said, "Just something to do with manslaughter and murder". That was it. I didn't say anything else. Maybe I should have come back to you, sorry, and asked for more confirmation. Q. That's alright. Were all jurors in attendance by about 10 o'clock? A. No. Q. By 10 o'clock? A. No. Q. When did all jurors, all 12 A. I'd say about 5 past 10. And my phone had already been taken off me by then. Q. Taken off you? A. By the foreman. As soon as he saw it he took the phone off me. Q. By the foreman, or the court officer are you A. No, the foreman. The foreman took it off me before all the jurors had arrived. When he saw my phone, he looked at it, and he took it off me and he said, "You're not supposed to be doing that". Q. Now can I move on, so we have got the clear understanding: After all jurors were present in attendance at or about 5 past 10, through to lunchtime today, was there any other discussion about the information that you had obtained from the Internet search? A. I'd say about an hour, hour and a half into the morning. Q. And doing the best you can, I know it's difficult to recall exactly what was said, but doing the best you can, what did you say at about that time, if anything, on this matter? A. I didn't actually say anything. He turned around and said, "I have to report it". I said, "Go ahead and report it". And the other jurors said, "What's he reporting?" I said, "Whatever I did on my iPhone and wrote on a piece of paper". And the other jurors said well that's, you know, it's not relevant, she hasn't done anything wrong. Q. I suppose what I am really asking you, if you would just listen to this carefully: At this time, which was about what time? A. I'd say about an hour and a half after 10 o'clock, 11, 11.30ish. Q. So between 11 and 11.30. Between 11 and 11.30, when you say this subject came up again, what, if anything, did you say about the Internet research that you had undertaken, however brief, or however long, what did you say? A. I don't actually remember saying anything except if you have to report it, go ahead and report it. Q. Was there any discussion at this time that you are now referring to between about 11 and 11.30 as to the results of your Internet search by anyone? A. No. Only when he started writing the note, they all turned round and said, "What are you writing, because we haven't asked for anything?", and they all turned around and said, "Well why are you doing it?" Q. Did the foreperson say anything more on the subject of your Internet research? A. "I have to report it". I said, "Go ahead and report it. I know I've done wrong". Q. That is all he said on that subject? A. Yes. Q. Did any other member of the jury say anything at that time about your Internet research material? A. No. Q. Nothing? A. No. Q. By any other member? A. No. HIS HONOUR: I hand down Exhibit 1 to counsel (handed to counsel at the bar table) Q. Just one other question I want to ask you at this point: Was there any other discussion during the course of today on the subject of your Internet research other than what you have disclosed here this afternoon A. No."

Submissions 14Mr Young's submissions addressed the following matters: (1) The basis for the application was that it would give rise to the risk of a substantial miscarriage of justice; (2) This case could be factually distinguished from R v Sio (No. 4) [2013] NSWSC 1415. In that case, Adamson J determined that the potential communication had not reached the stage where any research had been passed on or given rise to discussion between other jurors; (3) In the present case, what the discharged juror undertook resulted in the involvement of other jurors in a way that distinguishes it from R v Sio (No 4); (4) The evidence on the examination established the following: (i) The night before the examination the discharged juror conducted research on the internet in relation to the distinction between murder and manslaughter and the result of those researches were transferred to an iPhone; (ii) That information was carried into the jury room the next morning on the iPhone and before all the jury had assembled, the discharged juror was in the process of transcribing the information onto paper. (iii) There was some recognition of the piece of paper by the juror sitting next to the discharged juror who proceeded to inquire what it was about to which the discharged juror responded along the lines of "it's got something to do with murder and manslaughter." (iv) What she was doing was then brought to an end when she was interrupted by the foreperson who reminded her that her conduct was inappropriate; (v) At some later stage, the discharged juror said something out loud about the significance of the word 'malice' in the context of her researches and that it was "the same as what we've written up there" and there was a response "no, it's not"; (vi) According to the foreperson, about four people at that stage involved themselves in the discussion but they were talking over the top of each other and it did not go on for a great period of time; (5) The researches including the publication of the word 'malice' and any discussion derived from it takes the present case beyond the level that applied in R v Sio (No. 4). The present matter is in the category of cases where there is potentially a problem based on the publication of the results of researches; (6) There are grave reservations about the effect this has had on the other jurors and what they perceived to be the relevance of 'malice' in terms of the directions that have already been given. 15The Crown in oral submissions noted the following: (1) The word 'malice' had not been mentioned in the trial. "The intention to kill has been significantly disavowed, and these things are obvious. They are obvious and transcend that note of what she purports to - by its terms persuade others of the view" (T156); (2) The foreperson's note expressed a graver situation than what had actually occurred. The examination of both jurors established that the foreperson shut down the discussion swiftly, he took the juror's iPhone away and his evidence was that he did not have enough time or the opportunity to see what was on the iPhone; (3) There is no risk of a substantial miscarriage of justice in the eleven jurors continuing their deliberations. Assuming the jury were true to their oath, they would recognise that any notion of malice were not in application in this trial. To the extent that the discharged juror proffered her opinion, it was in error; (4) There is no evidence that the remaining jurors listened to her advice on the law, or that she developed an argument or in any respect verbally applied it to the facts as the jury would consider them; (5) There appeared to be no realisation by the discharged juror that she engaged in misconduct and there was no reason to doubt her evidence that the matter was swiftly dealt with by the foreperson. 16In its written submissions the Crown referred to relevant case law authority and at [7] drew attention to the following matters: "The present case is one where there has been publicity and the loss of life of a youth in violent circumstances likely to excite sympathy and emotion. The jury has presented as a conscientious one in its application to the daily hearing of evidence during the trial, and recently its requests for the evidence since retiring. The present case involved a measure of publicity and media attention that was met by direction. The present position is not one brought about by a delinquent investigation of the facts by a juror or jurors, the visits to a scene of crime, the seeking of advice from extraneous sources, or the extraneous use of scientific literature or opinion from outside of the jury room weighing into the area of impartiality or the wilful disregard of the oath to deliver true verdicts. To discharge the jury would imply that the circumstances carry the substantial risk that jurors would ignore their oath to try the case on the evidence adduced and to ignore extraneous evidence. That does not represent the atmosphere of the trial. Jurors will bring their general experience of life to bear on their deliberations without breaching the oath under the Jury Act or risking an unfair trial. The "rogue juror" in the present was mounting an argument by impermissible means. Her proposed argument do not conform with the law and directions that before them, and in written form on the substantive law. Reasonable minds would recognise that she was departing from directions and plainly in error. The extraneous material was not authoritative in its terms by any measure likely to mislead or influence to act contrary to their duty. The issues was diffused quickly and did not approach the characterisation of "contamination" of the jury individually or collectively."

Exercise of the Relevant Discretion 17The provisions of s 53C(1)(a) are as follows: "(1) If ... the court ... discharges a juror in the course of a trial ... the court ... must: (a) discharge the jury if the court ... is of the opinion that to continue the trial ... with the remaining jurors would give rise to the risk of a substantial miscarriage of justice ..." 18The question then arising was whether the discharge of the single juror ought lead to the discharge of the whole jury, or whether I should order that the trial continue pursuant to s 53C of the Act. The question of the discharge of a single juror, and whether the whole jury ought be discharged, involves separate questions and issues and must be addressed distinctly: Wu v The Queen [1999] HCA 52; 199 CLR 99 at [6] per Gleeson CJ and Hayne J, [28]-[30] per McHugh J and [67] per Kirby J; R v Sio (No 4) [2013] NSWSC 1415 at [1]. 19On Thursday, 31 October, I made an order in the following terms: "I make an order pursuant to s 53C of the Jury Act that the trial continue with the remaining eleven jurors." 20I stated that I would publish my reasons at a later time.

Consideration 21The resolution of the application requires, inter alia, an assessment of the information elicited from the foreperson and from the relevant juror during the examinations conducted under s 55DA of the Act as material relevant to the opinion required as to whether the trial should or should not continue with the remaining eleven jurors. The issues for specific consideration are specified in the provisions of s 53C(1)(a) as emphasised below, namely whether to continue the trial with the remaining jurors "would give rise to the risk of a substantial miscarriage of justice". 22The Crown submitted that I should not discharge the whole jury and that I should order that the trial continue with the eleven jurors pursuant to the provisions of the Act. 23Mr Young submitted that I should make an order that the trial should not continue before the remaining eleven jurors as to do so would give rise to the risk of a substantial miscarriage of justice. 24The examinations of the foreperson and the discharged juror were directed to establishing the true facts in relation to the first and second episodes as to: (i) What was said by the discharged juror as to or related to material obtained by her in her Internet research; (ii) Whether any material stored in the discharged juror's iPhone was seen by any juror, and (iii) The response or responses of any other juror to what she said or disclosed to fellow jurors or revealed in her handwritten notes (Exhibit 1 on the voir dire). 25Counsel for the Crown and the accused both accepted that the discharged juror had endeavoured to give a full and frank account of what had taken place in the jury room as to the information she had downloaded from the Internet website. 26The relevant facts accordingly are established by the information that was given in the examinations by the foreperson and the relevant juror in the course of their respective examinations. 27The foreperson gave a very satisfactory account of what occurred in the jury room and much of what he said in his examination was confirmed in material respects by the discharged juror. 28The information establishes: (1) That the juror brought into the jury room on her iPhone material that she had downloaded from an Internet website. (2) That prior to 10.00am on 30 October 2013 she was in the course of writing out the words appearing in Exhibit VD-1, and whilst doing so a juror sitting next to her asked what she was writing. (3) There then followed the events in the two episodes as described above. (4) The material brought to the jury room by the discharged juror involved material on matters of law not fact, namely, on the offences of murder and manslaughter. That material included reference to "malice" as a matter said to be relevant to the distinction between the offences of murder and manslaughter. The discharged juror then made a statement in relation to that particular aspect as indicated by her in the examination. (5) The foreperson within a matter of seconds closed down the discussion as to the above matters in both the first and second episodes, he observing at the close of the second episode to his fellow jurors that a trial direction had been given that the jury was not to consider any material from outside the trial proceedings. 29The central issue for consideration is the nature of the material brought into the jury room and what was said about it or by reference to it by the discharged juror and what if anything was said in response by any of the other jurors. 30I am satisfied, based on the foreperson's account as well as that of the discharged juror, that neither the juror sitting next to the discharged juror nor any other juror had sufficient opportunity to actually read the text appearing on the iPhone during the first episode. 31The downloaded material, the handwritten notes made by the discharged juror (Exhibit VD 1), and anything said about such material related to legal concepts concerning the offences of murder and manslaughter, in particular, in that context to "malice". There was no other material on any other matter disclosed or discussed. 32The foreperson spoke in the jury room in direct terms, as outlined above, that there was to be no discussion of such material for the reason he stated and quickly put an end to the first and second episodes. He made it known to his fellow jurors that he was going to disclose what had occurred in a Jury Note. 33I have closely considered the specific matters to which s 53C(1)(a) requires consideration. 34I have determined, and I am of the opinion that, in accordance with s 53C(1) that to continue the trial with the remaining eleven jurors would not give rise to the risk of a substantial miscarriage of justice. 35The material in question, what I shall for convenience refer to as the "impermissible material", was in its entirety related to one legal matter concerning the offences of murder and manslaughter, namely "malice". The offending juror on one occasion proffered a brief expression of opinion based on that material. In both the first and second episodes the foreperson acted quickly and decisively to close down any discussion making it clear that such material could not be considered by the jury. 36The impermissible material is also to be considered in the context of what the jury have been told by counsel in closing addresses and the directions, including in particular the directions of law, given in the summing up. 37Counsel for the Crown, and Senior Counsel for the accused, gave the jury a clear outline of the elements of the offence of murder and the bases upon which the Crown proceeded in relation to it and as to the alternative offence of manslaughter. 38I provided the jury with both oral and written directions on the offence of murder upon the bases relied upon by the Crown in relation to that offence and upon the elements for the alternative offence of manslaughter. 39I have advised the jury on more than one occasion that it is open to them to ask for any further directions if required in order to clarify any matters concerning the legal directions given in the summing up. I note that there had been no reference during the trial, in particular in opening or closing addresses, or in the summing up, including trial directions, to "malice". 40In respect of the question as to whether the jury has understood the directions given I make the general observation that the jurors have throughout the trial demonstrated conscientiousness and close attention to the proceedings. 41In all of the circumstances to which I have referred the impermissible material and the discussion of it would not in my assessment give rise to the risk of a substantial miscarriage of justice. I do not consider such material and the limited reference to it by the discharged juror carried a risk of contamination in the sense of it misleading or confusing the jury as to the elements of the offence of murder or the alternative offence of manslaughter or otherwise. In my assessment the members of the jury understood the legal framework within which they are required to consider the case brought by the Crown, in particular the elements as set out under the headings 1, 2, 3, 4 and 5 of the written directions. In that context relevant state of mind issues have been identified and discussed. I record in this context that in Jury Note MFI-58 the jury specifically sought clarification on aspects going to the accused's state of mind.

Order 42On 31 October 2013, I made an order in the following terms: Pursuant to s 53C of the Jury Act I order that the trial continue with the remaining eleven jurors.

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