Juror Discharged for Misconduct

Hoang v The Queen [2022] HCA 14 (13 April 2022)

The appellant was tried on an indictment charges for sexual offences against children.  However, the jury note disclosed that the juror had searched the internet for requirements of Working with Children Check which was prohibited.  The trial judge took verdicts which the jury indicated they had reached unanimous verdict on before discharging the juror.  The Court, in adjudicating this dispute, assessed whether the information about working with childrens checks is relevant to trial.

Facts:

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.

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.  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 foreperson notified the trial judge that the juror had previously been a teacher and did not have a check.

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. 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.  In the Court of Criminal Appeal, the Crown accepted that if the juror's conduct in conducting the search constituted misconduct within the meaning of s 53A(1)(c) of the Jury Act, the juror should have been discharged prior to taking the ten verdicts.  The appeal was dismissed.

Issues:

I. Whether or not the information subject of inquiry about the matter is relevant to trial.

II. Whether or not the inquiry is made for the purpose of obtaining information about that matter.

III. Whether or not a mandatory discharge of the juror is required.

Applicable law:

Crimes Act 1900 (NSW), s 61M(2) - pursuant to which 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.

Jury Act, s 73A(1) - provides that "if there is reason ... to suspect that the verdict of a jury in a trial of any criminal proceedings may be, or may have been, affected because of improper conduct by a member or members of the jury, the sheriff may, with the consent of or at the request of the Supreme Court or District Court, investigate the matter and report to the court on the outcome of the investigation".

Jury Act, s 75C(1) - relevantly provides that a juror who "has reasonable grounds to suspect any irregularity" – defined in sub-s (4)(a) to include "the commission ... of an offence under [the] Act" – "in relation to the performance of [another] juror's functions as a juror ... may disclose the suspicion and the grounds on which it is held to the court".

Brown v The Queen [1986] HCA 11; (1986) 160 CLR 171 at 197 - provides that the jury is "the fundamental institution in our traditional system of administering criminal justice". 

Maher v The Queen [1987] HCA 31 - provides that it is, in a criminal trial, the method by which laypeople selected by lot perform, under the guidance of a judge, the fact‑finding function of ascertaining guilt or innocence. 

Smith v The Queen [2010] NSWCCA 325 - where 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".

CTM v The Queen (2008) 236 CLR 440 at 446 - relied upon in holding that the appellant's contention is contrary to the text of s 53A(2)(a), read in context, and the "general principles of criminal responsibility".

He Kaw Teh v The Queen [1985] HCA 43 - relied upon in holding that s 53A does not, in its terms, displace any element of any of the criminal offences referred to in the section, including s 68C(1).

Ratten v The Queen [1974] HCA 35 - provides that the trial judge must stay above the contest between the parties in a manner consistent with the judge's ultimate role of "ensuring the propriety and fairness of the trial and ... instructing the jury in the relevant law".

Smith v The Queen [2015] HCA 27 - provides that the jury process of deliberation is fluid, not static. 

HM v The Queen [2013] VSCA 100 - provides that the confidentiality of jury deliberations is a principle of the "highest significance in our justice system". 

R v K [2003] NSWCCA 406 - relied upon in holding that the question prescribed by s 68C(1) is whether the juror's inquiry was "for the purpose of obtaining information about ... any matters relevant to the trial", including information about matters of evidence given or addresses to the jury at trial. 

Zaburoni v The Queen (2016) 256 CLR 482 at 491 - where it was held 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.

Analysis:

The matter about which the juror made the inquiry was the Working with Children Check.  Evidence had been given about that at the trial, and defence counsel made submissions about that evidence, which the trial judge then referred to in her summing up.  One purpose of the juror making the inquiry was to obtain information that was relevant to the trial.  As the note from the foreperson records, the juror Googled "the requirements for a working with children check" and "discovered the legislation, which was only introduced in 2013".  That is prohibited.  That information obtained by the juror by making the inquiry was not in evidence before the Court, and consideration of it by the juror was contrary to the oath or affirmation that they took when they were sworn in as a juror – to "give a true verdict according to the evidence".

The Crown contended that the evidence did not establish that the juror's conduct constituted misconduct and contended that the trial judge was in error in finding to the contrary.  In particular, the Crown submitted that the juror did not make the inquiry "for the purpose" of obtaining information about a matter relevant to the trial but did so for her own personal purpose.  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.  The Working with Children Check evidence was obviously on the mind of the juror who decided to make the inquiry, first, when they made the inquiry which was recorded in the note from the foreperson, and second, when they decided "to share the results of that inquiry and the reasons for making it with the rest of the jury" the following morning.

Conclusion:

The appeal in each matter be allowed in part.  The Court will set aside the order of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 3 August 2018 and, in its place, order that:

(a) the appeal be allowed in part;

(b) the appellant's convictions on Counts 4 and 6 to 12 be set aside; and

(c) a new trial be had on Counts 4 and 6 to 12.

In relation to Counts 1 and 5, the Court will remit the matter to the Court of Criminal Appeal of the Supreme Court of New South Wales to consider whether:

(a) to affirm or vary the appellant's sentence under s 7(1) of the Criminal Appeal Act 1912 (NSW);

(b) to remit the matter to the District Court of New South Wales under s 12(2) of the Criminal Appeal Act 1912 (NSW); or

(c) to await the outcome of any new trial on Counts 4 and 6 to 12.