What is Juror Misconduct?
If jurors engage in behaviour that violates their duties, such as independent investigation, inappropriate communication, or exposure to prejudicial information, a mistrial may be warranted. Recent figures indicate that running a trial in NSW costs approximately A$8,000 per day. The Sheriff’s Office estimates that two to three mistrials occur each month due to jurors being discharged, which causes significant delays and places substantial financial burdens on all parties.
It is a criminal offence for a juror to make any inquiry during a trial to obtain information about the accused or any matters relevant to the trial. The offence is punishable by a maximum of 2 years imprisonment. For this offence, “making any inquiry” includes:
- Asking a question of any person;
- Conducting any research, including the use of the Internet;
- Viewing or inspecting any place or object;
- Conducting an experiment; and/or
- Causing another person to make an inquiry.
It is also a criminal offence for a juror to disclose, for reward or otherwise, to persons other than fellow jury members any information about the jury’s deliberations or how a juror or the jury formed any opinion or conclusion in relation to an issue arising in the trial, including any statements made, opinions expressed, arguments advanced or votes cast during the course of the jury’s deliberations. This offence is punishable by a fine.
Juror misconduct can also include any irregularity concerning another juror’s membership of the jury or in relation to the performance of another juror’s functions, which can be a basis upon which the jury is discharged and a mistrial ordered. For example:
- The refusal of a juror to take part in the jury’s deliberations;
- A juror’s lack of capacity to take part in the trial (including an inability to speak or comprehend English);
- A juror’s inability to be impartial because of the juror’s familiarity with the witnesses or legal representatives in the trial and/or
- A juror becoming disqualified from serving, or being ineligible to serve, as a juror.
Part 7A of the Jury Act 1977 (NSW) contains provisions concerning juror discharge. Section 53A requires the mandatory discharge of a juror who was mistakenly or irregularly empanelled, excluded from jury service, or engaged in misconduct relating to the trial.
Finding misconduct involves a two-stage process. The court must see on the balance of probabilities that the juror has, in fact, engaged in misconduct and that conduct amounts to an offence against the Act or gives rise to the risk of a substantial miscarriage of justice. Section 53A(2)(b) concerns actual conduct giving rise to a risk — not a risk that actual conduct has occurred. The relationship to be examined is between the established conduct and whether it is potentially a risk causative of a miscarriage of justice.
In R v Rogerson (No 27) [2016] NSWSC 152, a juror was observed sleeping during the evidence and was found to have engaged in misconduct. However, bringing a newspaper or clippings from the paper into the jury room (Carr v R [2015] NSWCCA 186) or playing a word game in the jury room during breaks in the proceedings (Li v R [2010] NSWCCA 40) were both held not to be misconduct giving rise to a miscarriage of justice.
The Skaf brothers were involved in a series of gang rapes in 2000. Their trials faced numerous issues, including intense media scrutiny and juror misconduct. In one instance, a juror conducted independent research and shared it with the jury, leading to the declaration of a mistrial. The case underscored the impact of jury behaviour on the integrity of the judicial process.
Once a judge is affirmatively satisfied with the misconduct of a juror, that juror must immediately be discharged. In Hoang v The Queen [2022] HCA 14, the juror’s internet inquiry about the Working with Children Check, which was evidence given at the trial and the subject of defence submissions and the judge’s summing up, amounted to misconduct. The fact that the search was conducted out of curiosity was irrelevant.
Section 53B concerns the discretionary discharge of a juror for reasons such as illness, infirmity or incapacitation. The power under s 53B(d) is engaged only where the “reason” is specific to a particular juror or jurors, as opposed to circumstances where the relevant reason compromises every juror’s ability to perform the functions of a juror.
Section 53C provides that where a juror dies or is discharged during the trial, the court must discharge the whole jury if a trial with the remaining jurors would result in the risk of a substantial miscarriage of justice or otherwise proceed under s 22. Section 22 permits the balance of the jury to continue after the discharge of a juror.
There is no rigid rule governing whether to discharge a whole jury for an inadvertent and potentially prejudicial event during the trial. It depends on the seriousness of the event in the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct, and the likely effectiveness of a judicial direction to overcome its apprehended impact.
However, the trial judge must be satisfied with a high degree of necessity before discharging the jury. The discretion is “to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice”: Watson v R [2022] NSWCCA 208; Crofts v The Queen (1996) 186 CLR 427. An inquiry into a substantial miscarriage of justice focuses principally upon the impact of the irregularity on an accused person’s ability to obtain a fair trial.
Juror misconduct poses a significant threat to the fairness and efficiency of the judicial process. As seen in various cases, such behaviour can lead to mistrials, resulting in costly delays and jeopardising the pursuit of justice. The laws surrounding juror conduct, including the strict prohibitions on independent investigations and the disclosure of jury deliberations, are designed to protect the integrity of the trial process. It’s crucial for jurors to fully understand their responsibilities and the potential consequences of their actions.
Key Takeaways:
- Juror misconduct can lead to a mistrial, significantly delaying justice and increasing costs.
- Specific actions, such as conducting independent research or discussing the case outside the jury, are criminal offences.
- The courts take a two-stage approach to determining misconduct, assessing both the conduct and its impact on the trial’s fairness.
- Protecting the integrity of the judicial process requires strict adherence to rules governing juror behaviour, underscoring the vital role jurors play in ensuring justice is served.
The information provided in this article is for informational purposes only and should not be construed as legal advice. It is intended to give a general understanding of juror misconduct and its implications within the judicial system. For specific legal advice or guidance related to juror misconduct or any other legal matter, please consult a qualified legal professional.
