Jury Misconduct – What Exactly Are They Getting Up To?

The jury system depends upon compliance by jurors with judicial commands. More than that, it depends upon widespread public understanding and confidence that jury verdicts are derived from the assiduous application of the judge’s instructions about the law to the facts of the case – uncontaminated by extraneous information that was not before the court at trial. In R v Panozzo,[1]Vincent JA put it this way:

The integrity and the perception of the integrity of [the jury] system is a matter of considerable importance. Only if the community can be entirely confident that the proper procedures have been followed will the reality and perception of integrity of the process be maintained.

It has long been assumed that jurors do comply. In Gilbert v The Queen,[2] Gleeson CJ and Gummow J said:

The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges.[3]

Later in the same case, McHugh J put it bluntly:

…unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.

But is that assumption correct? According to some, the internet represents an existential threat to the jury system. One former Lord Chief Justice of England and Wales reportedly went as far as to suggest that the sending of text messages from within a courthouse should be banned.[4]  

Whilst recognising the absolute importance of the assumption, this paper queries whether it is matched by reality. In Australia, there is a dearth of statistical data about the extent to which jurors break the rules. But we know from judgments and news articles that misbehaviour occurs sufficiently frequently to raise questions about what, if anything, still needs to be done – either by way of research, the provision of juror information, judicial direction, or legislative amendments. This paper will also address the approach that the High Court has recently decided should be taken by, respectively, a trial judge or Court of Appeal when juror misconduct is identified.

A 2010 study by the University College of London’s Jury Project showed that:

a small minority of jurors do not follow the rules on juror internet use; most jurors feel they need more information about how they should be conducting deliberations; and many jurors are uncertain or do not know what to do if something improper happens during the trial.[5]

Although there is an absence of hard data in Queensland, evidence from other jurisdictions suggests that some jurors find the urge to undertake their own research to be irresistible. The Tasmania Law Reform Institute described the rate of jurors turning to the internet as “high,” albeit that this conclusion was not based on any sort of statistical analysis,[6] whilst a NSW author observed that “juror misconduct looms increasingly large in the law reports.”[7]

The ubiquity of the internet, indeed its criticality to our daily existence, is part of the problem. It is second nature to look at your phone to find out what bus to catch or when the game starts. Who has not sat on the couch in front of the TV and found themselves undertaking a deep dive into some obscure topic?

The proliferation of TV shows about crime, criminal investigations and criminal trials tells us a lot about how interesting these topics are to the general public. Is it any surprise, then, that when confronted for the first time with engrossing concepts such as DNA,  motor vehicle crash analysis, or even accessorial liability, the first thing a juror wants to do when they have access to a computer or – more likely – their phone on the train home, is to look it up. Examples of this sort of thing include researching the meaning of “prudent,” “retinal detachment,” “livor mortis,” “rape trauma syndrome,” and “the feminist position on rape.”[8]

Jurors’ curiosity is not limited to those things, however, and the cases and news reports tell us that they google:

• The defendant;
• The complainant and witnesses;
• The judge and the lawyers;
• The scene;
• The law, including offences, defences, sentencing and “reasonable doubt.”

They also do extraordinary things. One juror conducted an online poll on Facebook in which she invited her friends to help her decide on her verdicts. [9] Another, on the first morning of a murder trial and whilst in front of the defendants and a full public gallery, posted “At court. Guilty!” on Facebook.[10] In the days before the internet was really a thing, one jury in a murder case decided to consult a Ouija board that was smuggled into their overnight accommodation.[11]

As far as can be ascertained, there has been no study in Australia that has attempted to determine the nature and extent of jury misconduct. Here in Queensland, whilst there are statistics kept on aborted trials, the reasons for why those trials “bombed” are not recorded. Accordingly, to try to get some idea of what might be going on that does not just involve googling for news articles, this paper looks to the UK, where a lot of work has been done in this area. To a limited extent, it also considers the position in the USA, where jurors seem to behave very similarly.

In Queensland, with proper approval, such a study would be lawful. Whilst section 70 of the Jury Act 1995 provides that jury deliberations are confidential, subsection 70(9) provides that, on application by the Attorney-General, the Supreme Court can authorise the conduct of a research project involving the questioning of jurors and the publication of results. No such study has ever been undertaken.

Apart from section 70, the only provision of the Act which specifically regulates juror conduct is section 69A, which provides that:

A person who has been sworn as a juror in a criminal trial must not inquire about the defendant in the trial until the jury of which the person is a member has given its verdict, or the person has been discharged by the judge.

Maximum penalty—2 years imprisonment.

It is curious as to why the prohibition is limited to inquiries about the defendant. Otherwise, the source of power to punish for disobedience to judicial direction is found in the law with respect to contempt.

Reference will be made to UK provisions which contain wider prohibitions, but other states also have similar provisions. In NSW it is an offence to make an inquiry for the purpose of obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise the juror’s functions.[12] A trial judge who discovers that a juror has engaged in such misconduct must discharge that juror.[13]

Section 78A of the Juries Act 2000 (Vic) similarly prohibits the making of inquiries about a party to the trial or any matter relevant to it. None of the other States or Territories appear to have specific provisions dealing with the issue.

Obviously, we are never going to stop a determined juror from getting on the internet and searching for whatever they want. But in respect of those who are not wickedly disobedient, we should probably be asking why they are doing it?

• Are they being properly informed about their obligations as jurors in respect of the internet, that is to say, in a way that they, as people unfamiliar with the process, can understand?
• Are they worried about asking “dumb” questions?
• Do they respect judges as authoritative sources when it comes to the law?
• Do they properly understand their role, that is, to decide the case on the evidence the parties present rather than work out what actually happened?
• Are judicial directions readily comprehensible?

No discussion of juries in the modern age would be complete without consideration of artificial intelligence. Whilst no case has been identified where a juror was found to be consulting AI, the day when that happens cannot be far off. The dangers of AI are particularly acute. Whilst AI imagery is becoming increasingly convincing, and video is not far behind it, the real danger lies in answers to questions posed to AI chatbots. We know that self-represented litigants are resorting to AI – largely because of an increase in the number of requests made of the Supreme Court Library for the provision of non-existent cases. But chatbots also readily spew forth misinformation with a level of calm assurance that belies what can be wild inaccuracy.

For example, when asked to explain section 272 of the Queensland Criminal Code,[14] a section that has caused a division of opinion in the Court of Appeal and which is now the subject of an appeal to the High Court,[15] ChatGPT confidently asserted that:

Protection of Property: Section 272 also extends to the protection of property. A person is justified in using force to prevent the unlawful entry into, or occupation of, any land or premises or to prevent any unlawful interference with property in their possession.

Similarly, an enquiry of ChatGPT to explain section 23 of the Code resulted in the alarming advice that:

Overall, Section 23 of the Criminal Code Queensland provides for the defense of provocation in cases of murder, allowing for the mitigation of the charge to manslaughter under certain circumstances. It balances subjective considerations, such as the accused’s state of mind, with objective assessments of reasonableness in determining whether the defense applies.

When the error was pointed out to the bot, it “corrected” itself and started to tell me about accident, but it still got it terribly wrong:

No Negligence: In addition to lacking criminal intent, the accused must also show that they were not negligent in their actions. Negligence refers to a failure to exercise reasonable care or foresight, which leads to harm or injury. If the act was caused by the accused’s negligence, the defense of accident may not apply.

The United Kingdom Experience

UK research seems to confirm that intuitive propositions about jurors giving in to temptation are largely correct. The 2010 study[16] involving over 600 jurors revealed that:

• 26% of jurors in high profile cases admitted to seeing information about their trial on the internet. 12% of them admitted to actively seeking that information;
• 13% of jurors in standard cases also saw information on the internet, whilst 5% had gone looking for it;
• These numbers were likely to be conservative, given that those who had actively researched the case had done so in defiance of judicial direction and were arguably less likely to admit to it;
• Access to the internet for information was not confined to the young. Most jurors who did so were over 30 years of age.

Like in Queensland, the UK adopts a system of collective juror responsibility, in that the misconduct of an individual juror is required to be immediately reported by another to the trial judge.[17] However 48% of jurors in the 2010 study said that they either did not know or were uncertain of what to do if something went wrong during their time serving on a jury.[18]

A follow-up study in 2012-2013[19] showed that whilst 73% of jurors understood the rules with respect to internet use and contempt, the remainder of those who responded were confused in startlingly different ways. 16% thought that they could not use the internet for any purpose during the trial, 5% thought that there was no restriction at all, and 2% thought that they could research the case being tried as long as they did not permit it to affect their judgment! This was despite what was thought to be clear instruction in the form of:    

• An introductory video shown to all new jurors;
• A speech given by the “jury manager;” and
• Specific directions by the trial judge in accordance with a Bench Book.

Prior to the 2015 amendments to the Juries Act 1974 (UK), which will be discussed later, juror misconduct was dealt with as contempt.[20] In marked contrast to the Australian approach, the response of the UK courts to contempt by jurors has traditionally been unsparing.

In Attorney-General v Dallas,[21] a defendant was being tried on a charge of grievous bodily harm with intent. The prosecution was granted leave to adduce evidence of a previous conviction for assault occasioning bodily harm. The defendant had also been charged, but acquitted, of rape arising out of the same incident. Despite warning notices in the jury room and specific directions about the conduct of internet research, the juror searched for information about the defendant and discovered that his prior conviction “involved rape.” She then started to tell other jurors about it, however her conduct was reported to the trial judge who discharged the whole jury. The juror in question was charged with contempt. She was a mature woman with a master’s degree in health psychology who was in the process of completing her doctorate.

The juror was sentenced to six months imprisonment (with a requirement that she serve three). In imposing sentence, the Lord Chief Justice said:

[40] This species of contempt of court involves contempt of the jury, and of the jury system. The jury man or woman is vested with the heavy responsibility of doing justice according to law and returning a true verdict in accordance with the evidence produced in court. No more, and no less. We repeat what has already been said in R v Fraill [2011] EWCA Crim 1570:

“In every case the defendant and for that matter we add, the prosecution, is entitled as a matter of elementary justice not to be subject to a verdict reached on the basis of material or information known to the jury” (as we would add now for emphasis, or to any individual juror) “but which was not in evidence at the trial”.

[41] Jurors who perform their duties on the basis that they can pick and choose which principles governing trial by jury, and which orders made by the judge to ensure the proper process of jury trial they will obey, or who for whatever reason think that the principles do not apply to them, are in effect setting themselves up above the jury system and treating the principles that govern it with contempt. In the long run any system which allows itself to be treated with contempt faces extinction. That is a possibility we cannot countenance.

[42] Judges are perfectly well aware of the value of modern technology, and the use of the internet as a modern means of communication. Again, we repeat what was said in Fraill:

“We emphasise, even if we do so by way of repetition, that if jurors make their own enquiries into aspects of the trials with which they are concerned, the jury system as we know it, so precious to the administration of criminal justice in this country, will be seriously undermined, and what is more, the public confidence on which it depends will be shaken …. The revolution in methods of communication cannot change these essential principles. The problem therefore is not the internet; the potential problems arise from the activities of jurors who disregard the long-established principles which underpin the right of every citizen to a fair trial.”

[43] Misuse of the internet by a juror is always a most serious irregularity, and an effective custodial sentence is virtually inevitable. The objective of such a sentence is to ensure that the integrity of the process of trial by jury is sustained.

(emphasis added)

The juror later unsuccessfully complained to the European Court of Human Rights, arguing that she was found guilty of a criminal offence on the basis of an act that was not an offence at the relevant time. The court rejected her complaint as “manifestly ill-founded.”[22]

This has scarcely been the only prosecution of a juror for contempt. Several others met a similar fate, attracting significant publicity.[23] Despite this, the follow up study referred to above revealed that 62% of jurors were unaware of those cases – even though the courthouses where the study took place had news clippings concerning them posted in their jury lounges.[24]

The UK Jury Project led to the amendment of the Juries Act 1974 (UK). In 2015, three new offence provisions were inserted. Section 20A creates an offence of researching the case during the trial period, research being defined as meaning the intentional seeking of information in circumstances where the juror knows or ought reasonably to know that the information is or may be relevant to the case. Section 20B prohibits the sharing of the product of any such research. Section 20C is of broader application and criminalises a juror engaging in “prohibited conduct”, which is defined as meaning conduct from which it may reasonably be concluded that the person intends to try the issue otherwise than on the basis of the evidence presented in the proceedings on the issue. In each case, the maximum penalty is two years imprisonment.

Despite the introduction of the new provisions, new model judicial directions, pamphlets and an instructional video, some jurors remained confused, and others, undeterred. The Lord Chief Justice requested that the UCL Jury Project undertake further research to identify the true extent of the problem of juror misconduct and to then identify an effective solution.[25] 17 juries comprising 201 jurors were initially surveyed. Whilst 92% of jurors understood that they were not to discuss the case on social media, other findings were concerning:

• 37% thought that it was permissible to visit the crime scene;
• 27% thought that it was permissible to discuss the case with family and friends;
• 15% thought that they could look up information about the defendant;
• 24% thought that they could research other parties to the case;
• 11% thought that they could contact any person involved in the case; and
• 51% thought that they could look up information about legal terms in the case.

The authors of the Jury Project concluded that there was clearly a problem with the way in which information was being provided to jurors, with information overload on the first morning of jury duty being the most likely culprit. The result was an amended juror notice[26] which summarised jurors’ legal responsibilities (including by reference to the offences), urged them to take the time to read it and make sure that they understood it, and which explained what to do if they had any questions. It also included a rather striking image of a prison with an arrow pointing to the entrance, so as to bring home the serious risk of imprisonment in the event of a breach. After the introduction of this procedure between April and July 2017, a further 34 juries comprising 404 jurors were surveyed, with the result that jurors were found to have achieved close to a 100% understanding of the most critical categories of misconduct. Full implementation in all Crown Court jury trials followed, and subsequent studies revealed similarly high levels of juror understanding.

That did not, however, mean that jurors stopped googling. In March 2021, Carolyn Mitchell, a solicitor of more than 25 years’ standing,[27] was empanelled on a jury to try a historical sex case. During the course of the trial an issue arose as to the dimensions of a particular room in a dwelling. The jury were told that, due to the 40 years that had elapsed since the alleged offending, no independent evidence was available about that issue. In addition to the standard directions about research, the jury was told not to speculate about the size of the room. Ms Mitchell nonetheless used her iPad to access the UK equivalent of realestate.com.au, presumably to look at pictures of the room in question. She was observed by the clerk of the court as she did so, and also overheard discussing what she had found with her fellow jurors. The trial judge discharged the entire jury, with the result that the complainant and other witnesses had to give evidence again. In December 2021, Ms Mitchell pleaded guilty to disclosing information that she had obtained in breach of the Juries Act to other jurors. Despite the momentary nature of her breach and excellent antecedents, she was imprisoned for two months and ordered to serve four weeks of that term. On 13 December 2023, she was suspended from practice for eight years.[28]

As recently as April 2023, a former police officer caused a mistrial by carrying out research on a defendant and encouraging other jurors to do the same. He was jailed for six months.[29]

As far as is known, there have only been two cases in Australia where a juror or jurors have been dealt with by a court for misconduct.

The United States

The US authorities contain many statements of principle to the same effect as Gilbert. For example, in Patterson v Colorado,[30] (a case decided decades before the advent of the internet) Holmes J said:

The theory of our [legal] system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.

So prevalent was juror misconduct in the US that the term “Google mistrial” had been coined by at least 2010.[31] More recent examples are easy to find, although proved misconduct does not always result in appellate success. The approach in the US is that juror misconduct is presumptively prejudicial and the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that [it] was harmless to the defendant.[32] Surprisingly, there is a dearth of scholarly opinion on the subject post 2010, but articles up to that point make it clear that it has been a problem.[33]

Penalties in the US for jurors who disobey judicial instructions not to google seem to be less severe than in the UK. In 2016, California introduced laws permitting jurors to be fined USD$1,500 for social media or internet. But in 2021, a New Jersey man was fined USD$11,227 for undertaking internet research about a uniform patch and sharing the results with other jurors.[34] It was described as one of the most severe penalties to be visited upon a juror for this type of misconduct.

Australia

Whilst there is some academic literature in existence concerning this issue in Australia, this author has not found any recent study that attempts to identify the nature and extent of the problem, so we are forced to resort to such evidence as is afforded by, for example, appellate decisions and online news articles. Of course, these sources do not capture every event. Some misconduct is identified mid-trial, with the result that the trial is aborted or the juror discharged. Many cases probably do not make the news – particularly in regional centres. Others, like a recent trial in Canberra, attract widespread attention.

What follows is far from a detailed review of all of the examples of jury misconduct that Google and LexisNexis have revealed, but it does give some insight into the sorts of things that jurors get up to.

In R v Cant,[35] one juror informed others that the accused was facing further charges. When this was reported to the trial judge, his Honour refused to make any enquiries of the jury about what had happened or to discharge the juror in question, but rather gave firm directions about the necessity to decide the case on the evidence. On appeal, it was held that the trial judge had erred in both respects, and that the Webb test for bias[36] was made out because of a failure to comply with a direction to decide the case only on the evidence before the court.

R v K[37] was a case involving a man accused of murdering his first wife. It was discovered after the verdicts that several jurors had researched the matter and discovered that not only was this a retrial, but that the appellant had also been accused of murdering his second wife. That information had been shared with two other jurors. In allowing the appeal and ordering a retrial, Wood CJ at CL’s reasoning was that this was not a case of Webb bias, but rather procedural irregularity. Whilst knowledge of the fact of a retrial was insufficient to vitiate the conviction, it could not be said that the information regarding the murder of the second wife had not affected the verdict.

The case also raised an interesting question about the admissibility of affidavits from the jurors that is beyond the scope of this paper.

The opposite result occurred in the case of the unfortunate Kathleen Folbigg. In that case there were two separate acts of misconduct. The first involved a juror or jurors researching the fact that Ms Folbigg’s father had murdered her mother. The second was a juror enquiring of a friend who was a nurse about the length of time an infant’s body might remain warm to the touch after death. Applying the test in R v K, the court concluded that neither irregularity could have affected the verdicts, and the appeal was dismissed.[38]

During the 2014 Baden-Clay murder trial, a juror was discharged after it was discovered that he had downloaded a US guide to jury service. Other trials in this state have been aborted because a juror researched the victim and defendant on Facebook, where a juror used Google to try to break a deadlock, and where a juror circulated material concerning a defendant’s criminal history.[39]

In the Queensland case of R v Mazza,[40] it was discovered after the conclusion of the trial that the jury had brought into the jury room a document setting out a definition of “reasonable doubt” that was apparently based on United States jurisprudence. They also had brought in a two page document entitled “Traffic law” which had been sourced from a law firm’s website. Whilst the definition of reasonable doubt in the first document was essentially orthodox, the appellant contended, and the court accepted, that the information about traffic offences was deficient. Notwithstanding that, the court concluded that since the trial judge had given clear and correct directions both orally and in written form, the deficiencies in the internet information did not cause any measurable prejudice, and the appeal was dismissed.

In 2020, the NSW Court of Criminal Appeal quashed convictions and ordered a retrial after a juror was found to have shared a Facebook post the day before guilty verdicts were returned which said, “When a dog attacks a child it is put down. Shouldn’t we do the same with sex predators?” accompanied by a picture of an electric chair.[41]

In 2021 a perjury trial before the Brisbane District Court was aborted after a juror used their phone to look up the meaning of “intention”.[42]

In 2022, the High Court quashed convictions after a juror had undertaken online research for the requirements for a working with children check. Upon learning of this, the trial judge took verdicts on some counts where the jury said they were unanimous before  discharging the juror in question. Section 53A of the Jury Act 1977 (NSW) imposes a mandatory requirement to discharge a juror found to have engaged in misconduct constituting an offence against that Act. The High Court held that the judge ought to have immediately discharged the juror rather than taking verdicts.[43]

All of which is probably sufficient to demonstrate that jury misconduct remains a problem, but precisely how much of a problem involves speculation.

Penalties for contempt in Australia

Only two cases have been identified where jurors were dealt with for disobedience to judicial directions.

In Registrar of the Supreme Court of South Australia v S & C,[44] two jurors contravened a direction of the trial judge by conducting research on the internet about matters related to the trial. Those two jurors were members of the third jury that had been empanelled to try a charge of blackmail. On day four of the trial, having received information that jurors had conducted internet research, the judge enquired of the whole jury as to whether any of them had done so. S and C both identified themselves as the culprits and admitted communicating  what they had found to other jurors, resulting in the discharge of the whole jury.

Both S and C pleaded guilty on the first return of their respective summonses and expressed remorse. They explained that their searches were undertaken in order to confirm their own recollections of what they had earlier heard in media reports, and it was accepted that neither of them had any intention to sway other jurors.

Doyle J referred to the UK cases of Fraill and Dallas, but observed that the offending in those cases was more serious, and imposed a fine of $3,000 in each case. His Honour, however, emphasised the gravity of what the jurors had done:

[21] The widespread availability and usage of the internet, and search engines such as the one operated by Google, mean that information about accused people is often readily and widely accessible. However, this only serves to underscore the importance of directions, such as the one given by the judge in this case, being given, and being observed. For so long as criminal trials continue to be conducted on the premise that accused persons are tried solely on the evidence presented in court, it will continue to be fundamental to the achievement of a fair trial that jurors not conduct their own research on people or matters relevant to the trial.

[22] Such conduct by jurors also has the very real potential, which was realised in this case, to cause a mistrial and hence occasion delay, expense and inconvenience affecting not only the accused, but also the administration of justice more generally.

[23] For these reasons, considerations of general deterrence weigh heavily in determining the appropriate penalty for contempt by a juror in conducting their own research. In some cases, such conduct will warrant a term of imprisonment.

Very recently, in Attorney General for Western Australia v Marijanich,[45] the Supreme Court of Western Australia was concerned with a rather more serious case of misconduct. In that case, a juror communicated via Facebook Messenger with a number of other persons about the issues in contention in the trial, including the allegations against the accused, the matters raised by both sides, and the evidence of the complainant. The messages included observations about the strength of the case at trial and an opinion about whether the accused was innocent. In later messages, as he was about to “head into deliberations” he communicated his opinions regarding the absence of expert evidence, the strength of the case and his view as to whether the accused was guilty. Later again, he disclosed the content of jury deliberations and the numerical split regarding the verdict. This was all done despite repeated directions prohibiting conduct of this sort.

One of the persons with whom the juror communicated, Turner, made his own inquiries about the identity of the complainant, however when asked, the juror confirmed the complainant’s name. Unbeknownst to the juror, Turner subsequently contacted the complainant via Instagram, sending messages to the effect that the prosecution case was weak, there was no forensic evidence, the complainant had made a false allegation and had wasted taxpayers’ money. In one message he asserted that he spoke “on behalf of the jury.” Turner was charged with stalking, pleaded guilty and was fined $8,000.

The juror was guilty of contempt in two ways. First, he had communicated with third parties in contravention of clear directions. Second, he had breached the confidentiality of jury deliberations. Whilst he did not intend or request that Turner communicate with the complainant, his disclosure ensured that Turner had the information to do so. McGrath J observed that Turner’s conduct showed “the potential adverse impact of the contemnor’s jury misconduct on the justice system and in particular, for complainants in criminal trials,”[46] and that, therefore, “a paramount consideration in this case is the need for general deterrence and for denunciation of the contemptuous conduct.”[47]

The juror was a 35 year old man with no prior convictions, a good employment record, and was the sole provider for his wife and two young children. At the relevant time, he was suffering from depression and PTSD, the latter stemming from a sexual assault, although the court determined that there was no nexus between those conditions and the contempt. The juror pleaded guilty and was remorseful for the impact that his conduct had on the complainant.

In assessing the gravity of the conduct, the court noted that it was not undertaken to elicit information for use in the deliberative process, nor with the intention of gaining a benefit or sharing the information with other jurors. At no time did the juror inform the others that he was sharing information with a third party. Nevertheless, the conduct involved deliberately and persistently ignoring the trial judge’s directions. The juror was fined $8,000 and ordered to pay costs of slightly less than $7,000.

HCF v The Queen

Which brings us to HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35. This was a case involving serious sexual offences that resulted unanimous verdicts and a sentence of nine years imprisonment. After conviction, but before sentence, a juror wrote a letter to the Acting Deputy Registrar in which she revealed that another juror had initially stated that due to some “personal experience” with a child, he would not convict. Later in the trial, that position softened because he had undertaken some research on sentencing for the offence of unlawful carnal knowledge and thought that penalties were lighter. Later again, it was said that “he and others” had worked out that sentencing was not much different than for the more serious offences and he restated his absolute opposition. Despite this, the verdicts were unanimous. The trial judge ordered an investigation by the Sheriff pursuant to section 70(7) of the Jury Act.

That investigation only resulted in responses from five of the twelve jurors who delivered the verdicts. The upshot was that one juror (who was the author of the letter) confirmed the original account and was quite critical of the juror in question. Another confirmed that the juror had undertaken research and had told other jurors of the results of that research. Two said that the juror had indicated an unwillingness to convict, but did not mention anything about internet research, whilst the fifth denied knowledge of any bias, fraud or other offence arising from the jury’s deliberations.

Of course, the jury had been told in no uncertain terms by the trial judge that they should not undertake any independent research and also that they should report any such behaviour by another juror.

The appellant argued that the juror’s research, and the other jurors’ failure to report it amounted to wilful disobedience of the trial judge’s directions. This, it was said, gave rise to a reasonable apprehension that this jury might not have approached its function in accordance with judicial directions. The respondent countered by arguing that the primary question was whether there had been a miscarriage of justice in the sense that there was a real chance that the irregularity impacted the verdict.

The appeal was dismissed by a 3:2 majority. The majority rejected the approach adopted by the NSW Court of Criminal Appeal in R v K (and also Folbigg), which was to approach jury misbehaviour as a procedural error and to then enquire as to whether there was a possibility that it might have affected the verdicts. The majority in HCF concluded that the correct test is that posited in Webb v The Queen:

[11]…Irregular conduct by a jury or juror, whether described as procedural or otherwise, involves a miscarriage of justice if a fair‑minded and informed member of the public might reasonably apprehend that the jury (or juror) might not discharge its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge. If the jury or juror misconduct would give rise to such a reasonable apprehension then, for that reason, the misconduct will involve a “failure to observe the requirements of the criminal process in a fundamental respect”. In such a case, satisfaction of the reasonable apprehension test means that the “shadow of injustice over the verdict” cannot be dispelled, that the trial is “incurably flawed”, that there has been a “serious breach of the presuppositions of the trial”, and that “the irregularity [is] so material that of itself it constitutes a miscarriage of justice without the need to consider its effect on the verdict”.

(citations omitted, emphasis added)

The majority went on to make it clear that where the issue arises after conviction, the test is as follows:

[14]…“On the facts to be found on the balance of probabilities, might a fair‑minded and informed member of the public reasonably apprehend that the jury or a juror might not have discharged the function of deciding the appellant’s guilt according to law, on the evidence, and in accordance with the directions of the judge?”

But what about when misconduct is discovered mid-trial? In that case, what is required is a “prospective…assessment of the risk of the occurrence of a miscarriage of justice by reason of the reasonable apprehension test.”  Thus:

A proper exercise of power in such a prospective assessment would generally result in discharge of the jury if, by reason of the nature and extent of the misconduct, there was any real risk of a miscarriage of justice occurring (that is, any risk of satisfaction of the “double might” test for the requisite reasonable apprehension) that could not be ameliorated by further directions. The focus would be whether, despite any further direction, it was appropriate to discharge the jury or a juror because otherwise the trial realistically might miscarry.[48]

Trial judges can therefore be expected to take a fairly cautious approach in determining what to do when misconduct is identified. That is because any risk of satisfaction of the ”double might” test should now trigger the discharge of either a juror or the entire panel.

Applying the post-conviction test, however, the majority concluded that no miscarriage of justice had occurred. They noted that there was no case that stood as authority for the proposition “that mere disobedience by a jury or juror of a trial judge’s directions, in and of itself, is sufficient to give rise to a miscarriage of justice,” and that “the cases in which juror misconduct has resulted in the setting aside of the verdict have included consideration of the potential effect of the misconduct on the jury’s discharge of its function, with the most important considerations being the nature of the inquiries made and/or of the information obtained by the jury or juror.”[49]

Because of the divergence of accounts from the jurors, the court concluded that any finding on the balance of probabilities that there had been “wilful disobedience” of judicial directions was not available; rather, the more likely explanation was that there had been a “contravention” of the directions because “the jury failed fully to appreciate the true import of the trial judge’s earlier directions about internet research extending to the definition of the offences or sentencing unconnected to the facts of the immediate case.”[50] The evidence did not provide a basis for any more than speculation about whether the jury might not have discharged its function as required, but that would not satisfy the Webb test for bias.

Conclusion

This paper does not suggest any particular solutions to what may be an intractable problem. Jury duty is supposedly mandatory, but given the fairly narrow pool of people who end up being, in a practical sense, required to undertake jury duty, the idea of imprisoning those who engage in misconduct might be troubling to some. Having said that, the UK approach perhaps underscores the fundamental importance of the jury in the administration of criminal justice. And it is perhaps surprising that, despite offence provisions existing in three states, and the law of contempt applying more generally, on only two occasions have jurors been subject to criminal punishment. The usual sanction consists of no more than a stern talking-to.

It is impossible to prevent outrageous behaviour, some examples of which have been given, but experience tells us that most jurors actually do take their role as jurors extremely seriously. The UK study has shown that modification of how we convey information to jurors can have a significant effect on their level of understanding, and that this could reduce instances of the less malign misconduct. This paper suggests that any changes to how we instruct juries on the performance of their function should be based on a proper understanding of:

• What exactly it is that they are doing; and
• Why they are doing it.

Reactive responses to the behaviour revealed in individual cases are unlikely to get it right. It is argued that any changes ought to be based on data, whether it be a more granular version of that which is already maintained by the courts or derived from a study properly authorised under the Act.

Postscript

On 13 September 2024 – being the day of publication of Hearsay Issue 97 – the Queensland Court of Appeal handed down its decision in R v NAH [2024] QCA 170. In it the Court considers, inter alia, an allegation of jury misconduct relating to an alleged google search made by a juror or jurors involving hung juries during deliberations.

Dalton JA (with whom Mullins P and Burns J agreed on that ground) considers the jury irregularity issue at [104] – [116], with reference being made in some detail to HCF v The Queen. The appeal was dismissed.    

A link to this decision is here.

[1] (2003) 8 VR 548

[2] (2000) 201 CLR 414

[3]  At [13]

[4] BBC, 19 November 2010, “Top judge says internet ‘could kill jury system’”

[5] Prof Cheryl Thomas, Avoiding the Perfect Storm of Juror Contempt [2013] Crim LR 6, p 484

[6] Tas Law Reform Institute, Jurors, Social Media and the Right of an Accused to a Fair Trial, Issues Paper No 30, August 2019

[7] Professor Jill Hunter, Jury Deliberations and the Secrecy Rule. The Tail that Wags the Dog?, (2014) 35 Sydney LR 809

[8] Jurors, Social Media and the Right of an Accused to a Fair Trial, supra

[9] The Guardian, Juror shares trial details on Facebook, 24 November 2008

[10] WA Today, Calls to overhaul WA jury system after juror dismissed for Facebook post, 13 October 2016

[11] R v Young [1995] QB 324

[12] Jury Act 1977, s 68C

[13] Section 53A

[14] Self defence to a provoked assault

[15] See R v Dayney [2022] 10 QR 638; R v Dayney [2023] QCA 62

[16] Professor Cheryl Thomas, Are Juries Fair?  Ministry of Justice Research Series 1/10, February 2010

[17] Thompson [2011] 1 WLR 200

[18] Are Juries Fair, supra

[19] Professor Cheryl Thomas, Avoiding the Perfect Storm of Juror Contempt, [2013] Crim LR Issue 6, p 483

[20] The power to punish for contempt was then found in Order 52 RSC at Schedule 1 of the Civil Procedure Rules. It relevantly required, in connection with criminal proceedings “disobedience to an order of the court.”

[21] [2012] 1 WLR 991; [2012] EWHC 156

[22] Dallas v United Kingdom, No 38395/12, 6 June 2016

[23] See, for example, Attorney-General v Davey & Beard [2013] EWHC 2317 (Admin)

[24] Avoiding the Perfect Storm of Juror Contempt, pp 489-490

[25] Professor Cheryl Thomas, The 21st Century Jury: Contempt, Bias and the Impact of Jury Service[2020] Criminal Law Review (11) 987

[26] https://assets.publishing.service.gov.uk/media/5fbe9ee0e90e077ed7351b0a/j001-eng.pdf

[27] Solicitors can be jurors in the UK.

[28] Solicitors Regulation Authority v Mitchell, Case no 12473-2023, 13 December 2023

[29] Juror jailed for causing rape trial to collapse by researching defendant, The Guardian, 25 May 2023:

[30] 205 U.S. 454, 462 (1907)

[31] Paula Hannaford-Agor, Jury News, The Court Manager, Volume 24 Issue 2

[32] Remmer v United States, 347 US 227 (1954)

[33] Amanda McGee, Juror Misconduct in The Twenty-First Century: The Prevalence of

The Internet and Its Effect on American Courtrooms: The Internet and Its Effect on American Courtrooms, 30 Loy. L.A. Ent. L. Rev. 301 (2010

[34] United States Attorney’s Office press release: Juror Fined $11,000 for Conducting Outside Research During Criminal Trial and Causing Mistrial

[35] [2002] NTCCA 8

[36] (1994) 181 CLR 41, ie “a fair‑minded and informed member of the public might reasonably apprehend that the jury (or juror) might not have discharged or might not discharge its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge.”

[37] (2003) 59 NSWLR 431

[38] R v Folbigg [2007] NSWCCA 371

[39] Leighton-Jackson, Journlaw “Contempt”

[40] [2017] QCA 136

[41] Agelakis v R [2020] NSWCCA 72

[42] ABC, Jury dismissed in senior police officer’s perjury trial after juror ‘disobeyed’ judge’s directions, 9 June 2021

[43] Hoang v The Queen (2022) 399 ALR 631

[44] (2016) 125 SASR 207

[45] [2024] WASC 312

[46] At [52]

[47] At [53]

[48] At [45]

[49] At [48]

[50] At [60]