Regrettably, jurors do not always follow the that judges give them at the start of trials.
Generally speaking, the failure to follow these rules is a criminal offence. The question for the court to answer is whether a very expensive, long running jury trial (potentially with a defendant refused bail) should be abandoned when such rule breaking occurs.
The court has a power under the Jury Act to question some or even all of the jurors (R v Wood  NSWSC 817), or to discharge just the juror in question.
In Hoang v The Queen  HCA 14, the High Court made emphasized that discharge a juror who has engaged in misconduct is mandatory even where, as occurred in that case, the searches were for an innocent purpose, and the jury had already indicated that they had reached verdicts.
Of course, juror bias is a different matter. It is entirely possible for a juror to bring about an apprehension of bias without an act of misconduct. The test, as set out in Webb & Hay v R  HCA 30, is the same as for a judicial officer.
Webb & Hay v R  HCA 30
“In our opinion, the test that his Honour should have applied was whether, despite the warning that he proposed to give to the jury, the circumstances of the incident would still give a fair-minded and informed observer a reasonable apprehension of a lack of impartiality on the part of the juror.”
REGINA v Bilal SKAF, REGINA v Mohammed SKAF  NSWCCA 37
“In our view there must, regrettably, be a new trial because of this ground. The Court cannot 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.”
R v Wood  NSWSC 817
“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.”
Smith v R  NSWCCA 325
“For the Crown it was submitted that before a judge is required by s 53A to discharge a juror for misconduct, the information available must be sufficient for the judge to be satisfied beyond reasonable doubt that an offence against s 68C had been committed. I do not accept that submission. There is nothing in s 53A, or elsewhere in the Act, that requires the criminal standard of proof to apply. Certainly it would in a prosecution of a juror for an offence against s 68C but that is a different matter.”
R v Sio (No 3)  NSWSC 1414
“In my view, s 55DA also authorises the examination of members of the jury who are not suspected of having engaged in any conduct that may constitute a contravention of s 68C. The use of the indefinite article before the word "juror" where it appears for the second time in s 68C(1) indicates that Parliament intended to authorise the examination of a juror who was not "the" juror who was suspected of engaging in the prohibited conduct.”
Carr v R  NSWCCA 186
“Nor should the statutory language be given a meaning which would encompass conduct involved in reading newspaper reports of the trial and bringing a newspaper (or a clipping from the paper) into the jury room. Something more would be required. Of course, there is a risk that a journalist may have made a mistake, which is a good reason for a juror not to make reference to a press clipping. On the other hand, unless the article revealed extraneous information, that is information not the subject of evidence in the trial, reading the article would not constitute making an inquiry in the sense in which that phrase is used in s 68C. That is because the focus of the prohibition is upon obtaining, or attempting to obtain, extraneous information about the accused or some other matter relevant to the trial.”
R v Azari (No 9)  NSWSC 1678
“When Court resumed at 2:00pm, the Crown Prosecutor indicated the following in relation to Mr Hussain:
“He’s reported, your Honour, that he thinks he might know someone on the jury…”
“Whichever aspect of the definition is applicable, certain conduct must be found to have occurred. It is only if that conduct constitutes an offence or, in the opinion of the court, gives rise to the risk of a substantial miscarriage of justice that it will amount to misconduct. The key point, for present purposes, is that s 53A(1)(c) involves a two stage process: (i) a finding that certain conduct has occurred; and (ii) an analysis of its character, whether that be as amounting to an offence against the Act or as giving rise to the risk of a substantial miscarriage of justice.”
“It is a serious matter for a juror to be discharged. This is why, in undertaking an inquiry whether there has been misconduct for the purposes of s 53A(1)(c), it is appropriate in my opinion to apply the observations of Dixon J in Briginshaw at 360–361. (The expression “the observations in Briginshaw” is, in my opinion, preferable to the expression “the Briginshaw standard” as that expression is apt to suggest, wrongly, some intermediate standard of proof).”
Hoang v The Queen  HCA 14
“It is for the same reasons that the mental element – making the inquiry for the purpose of obtaining information about a matter relevant to the trial – is not concerned with the juror's motive for making the inquiry. It is the fact of the inquiry, and that the purpose of the inquiry was to obtain information about a particular matter relevant to the trial, which is the subject of the prohibition. That a juror might have undertaken such an inquiry for their own purposes does not mean that, consistently with the terms of s 68C(1), the inquiry was not also made for the purpose of obtaining information about a matter relevant to the trial.”
“As we have seen, prior to the juror engaging in the misconduct, the jury told the trial judge that they had reached a unanimous decision on the verdicts on eight counts (the following day confirmed to be counts 4 and 6 to 12). Those 11 jurors included the juror who subsequently engaged in the misconduct. However, the next day, despite being told of the juror's inquiry, the trial judge proceeded to take the eight verdicts, as well as two further verdicts which the jury that day indicated that they had reached a unanimous verdict on. The trial judge did so before discharging the juror, so that those verdicts included the verdicts of that juror. The question is whether the trial judge was correct to take those verdicts at the time she did. The answer is no.”
Mason CJ and McHugh J (would dismiss the appeal)
The discharge of the jury - the flower incident
"Sift and weigh each of the witnesses, all of the witnesses including Ms Hay without any feelings of emotion, any feelings of sympathy. Just look at it, coldly, dispassionately and above all, objectively and using your common sense."
Brennan J (would allow the appeal)
It was not practically open to counsel for either accused to cross-examine the juror as to her state of mind. Once Debelle J had refused their application to discharge the jury, an accused's only hope of an impartial consideration of his or her case depended on the juror's disregard of the sympathy with Mrs Patrick that the juror had so recently demonstrated.
Per Deane J (would dismiss the appeal)
Per Toohey J (would dismiss the appeal)
"I plead guilty. I had beautiful daffodils in my garden. There was a lady I did not know at the door, I said, 'I cannot talk to you, those are for Mrs. Patrick', that is all I said.
I humbly apologise to you (his Honour) and the court."
The jury then retired while submissions were made. After they had returned, his Honour asked the juror whether the other jurors had known of her actions. She answered:
"No one knew ... The jury have just said, why did I not tell them yesterday and they could have told you yesterday."
22. I would dismiss Webb's appeal.
23. The appellant, Hay, relied upon the "flower incident" as justification for the argument that the trial judge should have discharged the jury. To that extent her appeal must fail. But she relied also upon some other matters which, together with that incident, were said to warrant discharge.
Mason P, Wood CJ at CL and Sully J
The admissibility of the juror’s statement
10 We spent about 15 to 20 minutes there. We got back into the car and went back to my place. We arrived back about 8.45-9pm. The other juror left soon after we arrived back.
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…
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.
McClennan CJ at CL
1. I agree with R A Hulme J.
2. I agree with R A Hulme J.
R A Hulme J
3. On 27 April 2009 the appellant was arraigned before his Honour Judge Nield and a jury and pleaded not guilty to charges of detaining for advantage (s 86(1) Crimes Act 1900), doing an act with intent to influence a witness to withhold evidence (s 323(a)) and indecent assault (s 61L). The second charge was in the alternative to the first.
7. It is unnecessary to say much about the respective cases presented at trial as the appeal against conviction is brought in relation to a discrete procedural aspect. It relates to what might be termed a jury irregularity.
Grounds of appeal
11. There are three grounds of appeal against conviction:
1. His Honour erred in not discharging the jury once it had become apparent that one of the jurors had conducted an independent inquiry in respect to a part of the evidence.
2. His Honour erred in not conducting an examination pursuant to section 55BA (sic – 55DA) of the Jury Act to determine what, if any, prejudice was caused to the Accused by one of the jurors conducting an independent inquiry, in respect to one part of the evidence.
3. His Honour failed to direct, or adequately direct, the jury in respect to any information that may have been obtained from the Internet in respect to the independent inquiry of one of the jurors.
Events relevant to the grounds
12. The grounds of appeal relate to evidence that the appellant was an adherent to the Falun Gong (or Falun Dafa) system of beliefs and practices.
13. The topic first arose in the course of the complainant’s evidence chief. She was describing the various events that occurred in the course of the incident. At one point she said that she was sitting on a lounge and the appellant was sitting on a coffee table facing her with a knife presented at her chest. She said:
He had it at my chest, the point of it he was – he went into some tangent about religion and all this stuff I didn’t understand and he was running the knife up and down my chest telling me it only takes three centimetres, three centimetres is all it takes. (28.4.09 T38.15)
14. A little later she was asked what the appellant had said about religion and she replied:
He was into some Falun Gong or Buddhism type of religion and we often had a lot of conversations about it with my religion being parallel to just the same sort of beliefs, but different ways of doing things and we often used to talk about it. (28.4.09 T38.45)
15. Nothing more was said on the subject until it was raised in cross-examination by the appellant’s counsel. Reference was made to discussions she agreed had occurred in which the appellant had told her that the Chinese government did not like Falun Gong and that people involved with it had been the subject of persecution in that country. The complainant confirmed that the appellant had told her that he had experienced some (unspecified) problems with Chinese government agents. She said that he had told her of his involvement in protecting a dignitary in China and she understood that this had lead to him changing his name. She was not clear as to whether this had anything to do with Falun Gong. (29.4.09 T21-22).
16. On the morning of the fourth day of the trial the judge informed counsel that a juror was ill and he was inclined to discharge her. He then proceeded to say:
The second thing is this: In a passing comment this morning by a juror to the court officer in control of the jury, mentioned having accessed the internet about Fa-Long Gong. It is my error, I failed to tell the jury, as I ought to have told them, not to access, among other things, the internet about anything.
Having said that, the persecution of the Fa-Long Gong followers by the Chinese authority is something well known. Indeed, one of my close friends, a former solicitor, uses the Fa-Long Gong technique in meditation and indeed it’s been mentioned in this trial by the accused’s counsel. I do not see any problem with the jury accessing the internet about the Fa-Long Gong movement. Indeed, it might assist the accused. I leave that for your consideration also. (Emphasis added).
17. After a short adjournment to permit counsel to consider the matter, the court reconvened and the appellant’s counsel applied for a discharge of the jury. The application was put on a dual basis. It was contended that there should be a discharge of the entire jury because of the need to discharge the ill juror on the basis that the jury would be reduced in number at a stage when only the evidence of two witnesses had been taken. The second basis was that it was not known what information the other juror had accessed and that “there is a real risk that highly prejudicial material may have at least come to one member of the jury in relation to that aspect”. The Crown Prosecutor had made an internet inquiry during the short adjournment and the judge was told that he had found a reference to Falun Gong as “an evil cult”. The appellant’s counsel also alluded to the possibility that the information may have passed from that juror to other jurors.
18. The trial judge announced his decision to discharge the ill juror and then said:
Frankly, I do not see any problem with the matter proceeding with a jury of eleven. We’ve proceeded for three days, today is the fourth day. The principal witness has given her evidence. Unfortunately, it was not video recorded. If the trial proceeded in front of another jury with the audio recording they would not see the complainant and it is clear this is a case in which the complainants should be seen by the jury and the reference to the Fa-Long Gong movement, it is unfortunate that I failed to tell the jury about not accessing the internet. I failed to do so, that is my fault, but nonetheless it was raised by Mr O’Connor in his cross-examination of the witness and I cannot see, in the circumstance in which it was raised, any prejudice to the accused in a juror or indeed every one of them accessing the internet in relation to the Fa-Long Gong movement.
I do not propose to discharge the jury. (Emphasis added).
19. When the jury returned to the court room the judge told them of his decision to discharge the ill juror. He then gave them a direction that they should refrain from making inquiries for themselves about anything to do with the trial. He said…
23. The information relayed to counsel as to what the juror had said to the court officer was not in a satisfactory form. There is no suggestion of the judge receiving a note from the juror. It is unknown whether the judge was given a verbatim account of precisely what the juror said. As best as can be gleaned from the transcript, the judge does not appear to have been providing to counsel a verbatim account of what the court officer had said. Further, it is not clear whether the court officer passed the information directly to the judge or via the judge’s associate. What was relayed to counsel was either second or third hand hearsay.
24. Despite these difficulties, it can at least be said that the judge was on notice that there may have been a transgression by a juror of the terms of s 68C. I hasten to add that without the judge having informed the jury in his opening remarks of the substance of the provision, the juror’s actions were most likely unwitting. Nevertheless, the possibility of such a transgression should have given rise to consideration of some further provisions of the Act.
26. It is clear enough that if a trial judge is satisfied that a juror has “engaged in misconduct in relation to the trial”, there is no course available other than to discharge that juror. The terms of the section do not appear to permit a consideration of whether anything in the conduct of the juror could work to the disadvantage of the prosecution or defence.
27. A question was raised in the present case as to whether the trial judge was, or could have been, satisfied that such misconduct had occurred.
28. For the Crown it was submitted that before a judge is required by s 53A to discharge a juror for misconduct, the information available must be sufficient for the judge to be satisfied beyond reasonable doubt that an offence against s 68C had been committed. I do not accept that submission. There is nothing in s 53A, or elsewhere in the Act, that requires the criminal standard of proof to apply. Certainly it would in a prosecution of a juror for an offence against s 68C but that is a different matter.
31. For there to have been misconduct, as defined in s 53A, requiring mandatory discharge of the juror, there must not only have been an inquiry made by the juror but one that was “for the purpose of obtaining information about ... (a matter) relevant to the trial”: s 68C(1). There is nothing in what the judge conveyed to counsel about the juror’s “passing comment” to indicate what the juror’s purpose was. The correct construction and scope of this part of s 68C(1) may raise questions but they do not need to be resolved here. It can either be assumed that the juror’s “purpose” was of the type the provision is concerned with, or there was error in not inquiring as to what it was.
40. In the present case, it can at least be said that there was a distinct possibility that there was a person serving as a member of the jury and involved in the return of its verdicts who should not have been. If, as seems likely, the juror had made an inquiry that was prohibited by s 68C, mandatory discharge of that juror was required. A failure to discharge the juror would amount to “a failure to comply with a mandatory provision relating to the constitution and authority of the jury”.
1. Last Friday afternoon, 20 September 2013, I acceded to the jury's request that they be permitted to leave early because the foreperson was indisposed and needed to attend a medical appointment. Soon afterwards the Sheriff's Officer informed me through my associate that members of the jury had raised a concern with him that a juror had been conducting Internet research on matters of law in connection with this trial.
2. I asked the Sheriff to ensure that the juror who was said to have made the enquiries was kept separate from the other jurors when she arrived for jury duty this morning, Monday 23 September 2013, so that I could investigate whether there was misconduct within the meaning of s 68C of the Jury Act 1977 (the Act) which would oblige me to discharge the juror pursuant to s 53A of the Act.
8. When I arrived at Court on Monday morning I was handed a jury note which I have marked MFI 22 which reads as follows:
"It has come to the attention of the jury late Friday afternoon that a member of the jury has taken 'the indictment' and 'written directions of law' home to study and make notes without discussion with the rest of the jury. Also let slip that research at home was made about obligations of law. This is the same juror who is not understanding the direction and approach in reaching a verdict based on evidence."
9. For the purposes of investigating whether there had been private enquiries made about trial matters, I first examined the juror in question on oath pursuant to s 55DA(1) of the Act, which provides:
Examination of juror-juror making private inquiries about trial matters
(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.
10. The relevant juror denied that she had conducted any Internet research to do with this trial and said that, although she had done some research at the time of first receiving a letter requiring her to serve on a jury last year, she had not conducted any more recent enquiries about legal matters to do with criminal trials.
11. In my view, s 55DA also authorises the examination of members of the jury who are not suspected of having engaged in any conduct that may constitute a contravention of s 68C. The use of the indefinite article before the word "juror" where it appears for the second time in s 68C(1) indicates that Parliament intended to authorise the examination of a juror who was not "the" juror who was suspected of engaging in the prohibited conduct.
12. Accordingly, I examined the foreperson on oath. The foreperson, who happened to be the juror who was indisposed and who was the reason for the early adjournment, said that, as he was leaving, the relevant juror gave him and other jurors to understand that she had taken her working copy of the indictment and the written directions of law home with her and had conducted some research on the Internet. The other jurors were shocked by her disclosure. One of the jurors told her "to cease and desist" and reminded her that such conduct was not allowed. The foreperson then left in order to attend a medical appointment. As far as he was aware she did not speak further about her research.
13. For abundance of caution I also asked the foreperson to nominate, after consultation with the other jurors and in the absence of the relevant juror, a person who would be best able to tell me what happened after the foreperson left. The second juror gave evidence of the exchange concerning the disclosure and the reaction of the jurors to that communication. He said that the contents of the Internet research were not disclosed and that there was no further conversation to which the relevant juror was a party. The only further conversation on the topic was that the remaining jurors approached the Sheriff's Officer with a view to informing me of the irregularity, as I had enjoined them to do in my opening remarks to the jury. Although I had directed the jurors in those opening remarks that any suspected misconduct be communicated to me by way of note, it was nonetheless appropriate in the circumstances that they contact the Sheriff's Officer in order that I could be made aware, as soon as practicable, of what had occurred.
14. I do not accept the relevant juror's evidence. I am satisfied on the basis of the evidence of the foreperson and the second juror that she conducted research of legal matters relating to this trial on the Internet. I find that she engaged in misconduct in beach of s 68C of the Act.
15. Having found that the relevant juror engaged in misconduct in relation to the trial, I am obliged to discharge her from the jury pursuant to section 53A of the Act.
(1) The trial judge erred by not discharging a juror (the foreperson) under s 53A(1)(c) of the Jury Act 1977.
(2) The trial judge erred by not discharging the jury under s 53C of the Jury Act 1977.
(3) The trial judge erred by limiting the examination of the foreperson and the jury to whether inquires had been made outside of the jury room, by way of accessing the internet and social media.
8. It was not submitted by counsel that reading newspaper accounts of the trial constituted misconduct on the part of any juror. However, someone had gone a step further and cut out the four items in the press and brought them into the jury room. It was difficult to make much of those two additional steps, particularly in circumstances where the trial judge, while giving detailed instructions as to what was and was not appropriate conduct (at the opening and during the course of the trial) had told the jury that they were not prohibited from reading newspapers.
10. The additional matter was that one of the articles referred to Mr Carr as having been charged with a specific offence for which he was not charged and had never been charged. So far as a juror was concerned, that would have been a simple (and understandable) error on the part of the journalist: nevertheless, there was some concern expressed by counsel for Mr Carr that the jury might speculate that there was more to it and that he had been charged at some stage, but that had not been disclosed to them. However, that issue was addressed directly and forcefully in directions, in terms accepted by counsel at the trial. It is not the subject of a separate ground of appeal.
11. The judge took two specific steps by way of inquiry. First, he called the foreperson, had him sworn, and noting the fact that the newspaper clippings had been found in the jury room, asked a number of questions…
12. The second step taken by the judge was to have the jury return to the courtroom, at which stage he raised with the whole jury the fact that the copies of the newspaper articles had been found in the jury room and posed to all of them a question as to whether any of them had or were aware of anyone having made inquiries outside the jury room “including the use of the internet or similar social media in relation to this trial.” He invited any person who had undertaken or was aware of such events having happened to send him a note.
13. On being informed by the court officer that no one wished to pass a note to the judge, he then turned to deal with an application by counsel for Mr Carr that he discharge the jury. That application was made before the interrogation of the foreperson and jury members.
19. Nor should the statutory language be given a meaning which would encompass conduct involved in reading newspaper reports of the trial and bringing a newspaper (or a clipping from the paper) into the jury room. Something more would be required. Of course, there is a risk that a journalist may have made a mistake, which is a good reason for a juror not to make reference to a press clipping. On the other hand, unless the article revealed extraneous information, that is information not the subject of evidence in the trial, reading the article would not constitute making an inquiry in the sense in which that phrase is used in s 68C. That is because the focus of the prohibition is upon obtaining, or attempting to obtain, extraneous information about the accused or some other matter relevant to the trial.
24. I agree with Basten J
R A Hulme J
25. I also agree
N Adams J
1. On 11 October 2018, a jury was empanelled and the trial commenced against Omarjan Azari on one count that he did an act in planning or preparation of a terrorist act or acts. The Crown case is that the accused participated in a telephone conversation with Mohammad Ali Baryalei at about 9:00pm on 15 September 2014. Mr Baryalei was at that time associated with Islamic State and presumed to be in Syria.
3. A significant witness in the Crown case is a man known for the purpose of these proceedings as Ahmed Hussain. Mr Hussain has pleaded guilty in relation to a separate terrorism-related offence and is currently in custody. It has been foreshadowed that there will be a significant attack on his credibility in this trial.
5. The trial proceeded on Thursday and Friday of that week and Monday and Tuesday of this week. A number of documents were tendered during that time which included references to Mr Hussain’s real name. At approximately midday on Wednesday, 17 October 2018, Mr Hussain commenced giving his evidence. At 1:00pm, Court adjourned for the luncheon break. When Court resumed at 2:00pm, the Crown Prosecutor indicated the following in relation to Mr Hussain:
“He’s reported, your Honour, that he thinks he might know someone on the jury and it’s the person who’s the young female juror second in the front row. He said that when he was giving his evidence and looked over at one stage he had a flicker of recognition that that might be someone he knows...”
At the moment, your Honour, we’ve indicated we would raise it with your Honour. He knows the name of the person, at least her first name, and some other details about the person that he thinks that it is. What might be appropriate, your Honour, is that if that could be perhaps written down and communicated through your Honour, through the Sheriffs, to make an inquiry so that we can find out if is it or not.”
6. The brief description provided by the Crown Prosecutor was sufficient for me to identify the particular juror. On the application of Mr Hughes that juror was separated from the rest of the jury whilst further investigations were made. As foreshadowed, the Crown Prosecutor requested that Mr Hussain write down on a piece of paper the name of the juror and any other identifying information. Neither counsel saw that note - it was provided to me by the Court officer. The note provided only the first name of the juror and other identifying material as to her high school, area of residence and ethnicity. The first name of the juror was an unusual one and not a female name I was previously familiar with.
7. The note was marked as MFI 5. I provided MFI 5 to the Court officer and requested that the Sheriff investigate whether there was anyone on the jury with that first name. Shortly afterwards, the document MFI 5 was returned to me by the Court officer with the full name of a juror on it who had the same first name as that in the note written by Mr Hussain in MFI 5. I then requested that the Court officer compare the name on the note with the juror number of the female juror who had been separated from the rest of the jury. It was subsequently confirmed that the juror who had been separated was the juror with the first name provided in MFI 5.
9. Although I accepted that there was sufficient material already to discharge the juror without any questioning of her, the potential difficulty with that course was the second question as to whether the trial should proceed with eleven jurors. Counsel then agreed that the next course was to ask questions of the juror of a limited nature. The juror was then brought into Court and sat in the witness box. She provided her juror number and I asked her the following questions:
“HER HONOUR: Remember at the beginning of the trial when I was asking persons whether they knew anyone connected with the trial, it’s come to the attention of the Court that you may have some association with the trial. What I’m going to ask you is this; you know the last witness that’s given evidence, who’s still in the witness box?
HER HONOUR: Known by Ahmed Hussain, have you ever seen that witness before?
JUROR: No your Honour.
HER HONOUR: I know this question is going to sound unusual because you’ve just said that you don’t know him; but have you discussed that witness, not his evidence he’s given but him or any possible prior association you might’ve had of him, with the other jurors?
HER HONOUR: And that was before you were asked to be separated?
10. I then asked counsel whether there were any other questions to be asked and both counsel indicated that there were not.
11. Following her evidence I formally discharged the juror under s 53B(b) of the Jury Act. That section relevantly provides…
12. As the transcript of yesterday’s proceedings records, I was not satisfied at that time that there was any actual bias on the part of the juror, rather, she was discharged on the basis of apprehension of bias; that is, the accused was aware that the witness Mr Hussain knew the juror even if the juror did not recall that fact. Moreover, as Mr Hughes noted, even if the juror did not currently remember the witness, there would always be the risk that she may later come to recognise him as his evidence continued. Having seen the juror answer the questions, I was not satisfied that she was being untruthful in that regard. Both the Crown Prosecutor and Mr Hughes agreed that the juror had to be discharged on the basis of apprehension of bias. Counsel agreed that there was no need to ask her any further questions for the purpose of discharging her.
13. I was satisfied that the fact that the witness had provided the first name of the juror, which was consistent with the juror’s name, was sufficient to conclude that the witness remembered the juror and the accused is aware of that fact. Although the juror did not remember him, the coincidence of the witness identifying her by her somewhat unusual first name is such that I have no basis to conclude that the witness is not telling the truth.
17. In circumstances where I have discharged a juror, I am required under s 53C of the Jury Act to make an order as to whether to discharge the jury or proceed with a jury of eleven. I am required to discharge the jury if I am of the opinion that continuing the trial with eleven jurors would give rise to the risk of a substantial miscarriage of justice. It is only if I am not of that opinion that I would order the trial continue with eleven jurors. The words “substantial miscarriage of justice” are not defined in the Jury Act. I have recently considered what these words mean in their particular statutory context in the Jury Act at - of the decision of Hoang v R  NSWCCA 166 (“Hoang”). As I noted in that decision, there has been very little judicial consideration of what this phrase means in the context of the Jury Act as opposed to s 6(1) of the Criminal Appeal Act 1912 (NSW). There has been considerable judicial consideration of what this phrase means in the context of the Criminal Appeal Act, most recently in the decision of the High Court in Kalbasi v Western Australia (2018) 352 ALR 1;  HCA 7.
19. Giving the words “risk of substantial miscarriage of justice” their ordinary meaning in the context of the Jury Act, and in particular s 53C, I propose to approach the question of potential discharge on the question of whether what has occurred could affect the outcome of the trial in any way.
29. Having had regard to the submissions of counsel and the terms of s 53C of the Jury Act, I am of the opinion that there is no substantial risk of miscarriage as a result of the discharge of the juror and the basis for that discharge.
2. On 5 February 2019, Messrs Sonny Zheng, Ji Li and Hoa Liang Pan (the Applicants) stood trial on an indictment containing 8 counts at the District Court of New South Wales before her Honour Judge Culver (the trial judge) and a jury of 12.
4, On 26 March 2019, following a lengthy trial, the jury came to a unanimous verdict on all counts. Mr Zheng was found not guilty in respect of count 1 and guilty in respect of counts 2 and 3. Mr Li was found guilty of counts 5, 6 and 7. Mr Pan was found guilty of counts 4, 5, 6, 7 and 8.
(i) failing to discharge Juror G2W; and
(ii) failing to discharge the jury.
15. In relation to the challenge to the verdicts on counts 5, 6 and 7, I have had the benefit of reading the reasons of Ierace J with which I agree and for those reasons consider that the grounds of appeal in relation to those counts should be rejected. In what follows, I deal with the failure to discharge grounds which are common to all applications.
“My court officer has also in that light reported to me something that again is not on a note from the jury but I feel that I am compelled to let the parties know, should it be relevant to any person. A juror - and I understand it perhaps to be a different juror, but I don't know - was overheard at some stage in the lift by my court officer to - and this is obviously very sensitive but I think it's appropriate my court officer raised it with me as extraneous material to the trial - to provide a translation of a word that came up during the course of the proceedings in Mandarin. In particular, the word was in respect of ‘lan drunk’.”
29. Although her Honour referred in this passage to what I will refer to as “the overheard conversation” occurring “at some stage”, it would appear from later parts of the transcript and her Honour’s judgment on the discharge applications that the conversation was overheard and reported to her Honour during the course of the luncheon adjournment on 8 March 2019, immediately prior to the resumption of the hearing when the trial judge made the disclosure to counsel as set out above.
30. After discussion with counsel, it was decided that the most appropriate way to deal with the exchange which the Court Officer had overheard and reported was to give a general direction to the jury (without expressly referring to what the Court Officer had reported or to the term “Ian drunk”). Accordingly, the following direction was given on 8 March 2019…
60. It is sufficient for present purposes to note that her Honour conscientiously worked through the various matters that had been raised by defence counsel and which had been the subject of detailed written submissions by the Crown before declining to exercise her discretion to discharge the jury.
Section 53A of the Jury Act
61. The arguments presented on appeal in relation to the mandatory discharge application made pursuant to s 53A of the Jury Act were, in essence, threefold. The first related to the proper construction of s 53A and the question of what needed to be established to engage that section. The second related to what the trial judge in fact found on Juror G2W’s (or Juror C’s) evidence and whether or not her Honour should have found that he had been deliberately lying to the Court when giving that evidence.
62. It was also put that if, on a proper understanding of the trial judge’s reasons, her Honour had made no finding one way or the other as to whether or not the juror was being honest or truthful in his evidence, her failure to do so was in itself an error which deprived the Applicants of the opportunity to argue that the jury should have been discharged.
63. It may be accepted that “misconduct” within the meaning of s 53A(1)(c) of the Jury Act is a term of broad ambit and need not constitute an offence. Whether or not there has been “misconduct” such as to engage s 53A involves a process of evaluation, a matter that has implications for the extent to which an appellate court may interfere with such an assessment: see Hoang v R (2018) 98 NSWLR 406;  NSWCCA 166 at  (Hoang). Furthermore, it has been held that “[t]he terms of s 53A are unequivocal: if the trial judge is satisfied that a juror has engaged in misconduct there is no other course available but to discharge the juror”: Hoang at  per N Adams J, Hoeben CJ at CL agreeing. Sometimes, depending on the nature of the misconduct and the extent, if any, to which it has infected other members of the jury, the discharge of a juror may lead to the discharge of the entire jury pursuant to s 53C(1) of the Jury Act.
64. Both Mr Lange for Mr Zheng and Ms Lewer for Mr Li submitted that s 53A(1)(c) would be satisfied and engaged if the Court formed the view that there was a “reasonable apprehension”, “reasonable possibility” or a “real risk” that the juror had given false evidence. This submission took as its foundation the reference in s 53A(2)(b) to “a risk of a substantial miscarriage of justice” in defining “misconduct” for the purposes of s 53A(1)(c).
65. No authority was cited in support of this suggested construction and it is not consistent with the plain language of the section which has been set out at  above. Section 53A(1)(c) will be engaged where the court finds that “the juror has engaged in misconduct” (emphasis added). The section’s directive to discharge a juror is dependent upon a finding to this effect. The section is not expressed in terms of “risk” or “possibility”. So, also, the definition of “misconduct” in s 53A(2) requires a finding that certain “conduct” has occurred. Section 53A(2)(b) is concerned with conduct that gives rise to a risk; it is not concerned with a risk that actual conduct has occurred.
Section 53B of the Jury Act
Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ
1. In New South Wales, a juror in a jury trial takes an oath, or makes an affirmation, that they will give a true verdict according to the evidence. From the time a juror is sworn in as a juror, and until they are discharged by the court, they must not make an inquiry for the purpose of obtaining information about any matters relevant to the trial. "[M]aking an inquiry" includes conducting any research, for example, by using the internet.
2. Section 53A of the Jury Act 1977 (NSW) relevantly provides that a court "must discharge a juror if, in the course of any trial ... the juror has engaged in misconduct in relation to the trial" (emphasis added). "[M]isconduct", in relation to a trial, relevantly means "conduct that constitutes an offence against [the Jury Act]". It is an offence against the Jury Act for a juror to make an inquiry for the purpose of obtaining information about a matter relevant to the trial.
3. The appellant, Mr Hoang, was tried in the District Court of New South Wales on an indictment charging him with 12 counts of sexual offences against children: five counts of aggravated indecent assault (counts 1, 6, 8, 9 and 10); two counts of aggravated acts of indecency (counts 2 and 3) and five counts of aggravated sexual intercourse (counts 4, 5, 7, 11 and 12). There were five complainants. The offences were alleged to have been committed whilst the appellant was a mathematics tutor between 1 January 2007 and 31 July 2014. The appellant pleaded not guilty to all charges.
4 The trial judge gave directions to the jury at the start of the trial, both orally and in writing, that jurors were not to search the internet for anything relevant to the trial. As part of its case, the Crown led evidence that the appellant did not hold a Working with Children Check. Character evidence was adduced by the appellant to counter that evidence, and his counsel made submissions about that evidence, which the trial judge then referred to in her summing up.
5 During the course of jury deliberations, the jury provided a note to the trial judge stating that they had reached agreement on eight of the 12 counts and had varying degrees of agreement about the other counts. The jury continued to deliberate until approximately 4pm that day, at which time they were sent home.
6 The jury returned the following morning. At approximately 12.30pm, the jury foreperson sent the trial judge a note which stated:
"This morning a juror disclosed that yesterday evening they google/looked up on the internet the requirements for a working with children check. The juror had previously been a teacher and was curious as to why they themselves did not have a check. They discovered the legislation, which was only introduced in 2013.
I myself have completed a working with children course and so already know this information but it had not been discussed in the jury room.
This information discovery of a juror making their own enquiry I do not feel has had an impact, however I understand my duty to notify you of this as per the written instructions at the commencement of this trial."
7 Upon the trial judge being informed of the inquiry, her Honour proceeded to take the eight verdicts referred to in the jury note from the previous day as well as two further verdicts which, that afternoon, the jury indicated they had reached a unanimous verdict on. The jury returned verdicts of not guilty in respect of counts 2 and 3 and guilty verdicts in respect of counts 4 and 6 to 12. The trial judge then discharged the juror for misconduct under s 53A(1)(c) of the Jury Act. The remaining jurors then continued to deliberate in respect of the remaining two counts (counts 1 and 5). Unanimous guilty verdicts were later delivered with respect to those counts. Two weeks after the last verdict was delivered, the trial judge delivered reasons for discharging the juror.
8 The appellant applied for leave to appeal against his convictions to the Court of Criminal Appeal of the Supreme Court of New South Wales. The three proposed appeal grounds relevantly related to the juror's conduct in conducting the search and whether that search constituted misconduct within the meaning of s 53A(1)(c) of the Jury Act and, if so, whether the juror should have been discharged prior to taking the first ten verdicts.
11 As will be explained, the appeals must be allowed. On the proper construction of s 68C(1), read with s 53A(1)(c), the juror had engaged in misconduct by making an inquiry for the purpose of obtaining information about a matter relevant to the trial and the trial judge was in error in taking the ten verdicts before discharging that juror.
16 Specific aspects of what transpired during the appellant's trial need to be addressed in some detail – in particular, the Working with Children Check evidence and how it was dealt with during the trial, and then what steps were taken by the trial judge in response to the note from the foreperson.
21 The next day, defence counsel addressed this issue squarely in his closing address. Counsel referred to and disparaged the Crown's reliance on the classified advertisements, characterising the Crown's submission as being that there was "some dark mystery, some fraud or ruse played out to get the accused into houses where he [could] tutor". Immediately following those submissions, defence counsel referred to the evidence of Mr Nguyen, describing him as an "intelligent young man" who would have "impressed you as an impartial witness". He made the following remarks in relation to the Working with Children Check evidence:
"You remember the evidence late in the trial again from Detective Paul in relation to the inquiries that were made with the State Office of the Children's Guardian as to whether the accused had a working with children certificate. He didn't. It sounded bad at the time. Then we found out from David Nguyen, a capable young man, he is studying to be a doctor and working as a private tutor, he tells us that 90 per cent of undergraduate students have tutored at some point and lots of his friends are tutors and none of them have that qualification." (emphasis added)
It is significant, as Campbell J said in the Court of Criminal Appeal, that defence counsel ("who must be taken to have a better feel for the potential significance of the evidence lead at the trial" than an appellate court) "thought it pertinent to remind the jury of the evidence on this topic".
Steps taken by the trial judge
24. On reading the note from the jury foreperson, the trial judge formed the view, without the need to conduct any inquiry or examination under s 55DA of the Jury Act, that she was satisfied that a juror had engaged in misconduct in relation to the trial. The majority in the Court of Criminal Appeal held that the trial judge was in error in determining that there was juror misconduct warranting mandatory discharge of that juror under s 53A(1)(c) of the Jury Act. That conclusion is the subject of ground 1 of these appeals. It turns on the proper construction of s 68C(1), read with s 53A(1)(c).
25 That leads to the second issue in these appeals. There was no dispute before the trial judge or in the Court of Criminal Appeal that the combined effect of ss 68C(1) and 53A(1)(c) is that once the trial judge is satisfied that a juror has engaged in misconduct, "there is no course available other than to discharge [the] juror". In the trial judge's reasons for her approach in discharging the juror, her Honour said:
"Prior to making specific inquiries in relation to the jury note, ... I heard submissions from both counsel. Both counsel submitted that an inquiry into the juror who had made inquiries on the Internet should take place before any steps were taken to take the eight verdicts. I declined to conduct the inquiry with the juror before taking the verdicts as I was of the opinion that I had sufficient information in [the] jury note ... that a breach had occurred. It was therefore mandatory that that juror had to be dismissed." (emphasis added)
26. However, as we have seen, the trial judge did not dismiss the juror, and proceeded to take verdicts on ten counts and only then discharged the juror. The majority of the Court of Criminal Appeal held that mandatory discharge was not required prior to the trial judge taking the verdicts even though the trial judge was satisfied that misconduct under s 53A(1)(c) had occurred. As will be seen, that was contrary to the "mandatory" terms of the statute "which govern the constitution and authority of the jury as the tribunal of fact in a criminal trial".
Construction of s 68C(1), read with s 53A
Inquiry was about a relevant matter and was for a prohibited purpose