Smith v R [2010] NSWCCA 325

Smith v R [2010] NSWCCA 325

The trial judge was on notice that a juror may have made an internet inquiry about Falun Gong, a matter raised in the trial, and was at least satisfied that the juror had made an internet inquiry. If the inquiry was prohibited by s 68C of the Jury Act 1977, s 53A required mandatory discharge of that juror. The judge failed to use the power in s 55DA to examine the juror and determine whether misconduct had occurred. As a result, there remained a distinct possibility that a juror who should have been discharged participated in the verdicts, creating a possible miscarriage of justice that the Court could not exclude. The appeal against conviction was therefore allowed, the convictions...

Jurisdiction
Australia
Judgment Date
21 December 2010
Procedural Posture
Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Appeal in the New South Wales Court of Criminal Appeal From Convictions and Sentence in the District Court
Outcome
Appeal against conviction allowed; convictions quashed; new trial directed. The application for leave to appeal against sentence was not dealt with because of the outcome of the conviction appeal.
Legal Topics
['jury Misconduct' 'juror Internet Inquiry' 'mandatory Discharge of Juror' 'examination of Juror' 'miscarriage of Justice' 'appeal Against Conviction']
['criminal Law' 'criminal Procedure'] ['jury Misconduct' 'juror Internet Inquiry' 'mandatory Discharge of Juror' 'examination of Juror' 'miscarriage of Justice' 'appeal Against Conviction']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Appeal in the New South Wales Court of Criminal Appeal From Convictions and Sentence in the District Court

Legal Issues

  1. 1 ['Whether the trial judge erred in not discharging the jury once it became apparent that a juror had conducted an independent inquiry about a matter relevant to the trial.' 'Whether the trial judge erred in not examining the juror under s 55DA of the Jury Act 1977 to determine whether the juror had engaged in conduct that may constitute a contravention of s 68C.' "Whether the failure to investigate and address the juror's internet inquiry gave rise to a miscarriage of justice." 'Whether the trial judge failed to direct, or adequately direct, the jury about information that may have been obtained from the internet.' 'Whether the sentence was manifestly excessive.']

Ratio Decidendi

The trial judge was on notice that a juror may have made an internet inquiry about Falun Gong, a matter raised in the trial, and was at least satisfied that the juror had made an internet inquiry. If the inquiry was prohibited by s 68C of the Jury Act 1977, s 53A required mandatory discharge of that juror. The judge failed to use the power in s 55DA to examine the juror and determine whether misconduct had occurred. As a result, there remained a distinct possibility that a juror who should have been discharged participated in the verdicts, creating a possible miscarriage of justice that the Court could not exclude. The appeal against conviction was therefore allowed, the convictions...

Court Disposition

Appeal against conviction allowed; convictions quashed; new trial directed. The application for leave to appeal against sentence was not dealt with because of the outcome of the conviction appeal.

Orders

  • ['The appeal against conviction is allowed.' 'The convictions are quashed.' 'Direct that there be a new trial.']