Juror misconduct leads to quashed conviction and retrial

4th Feb 2021

Jurors who play detective are the scourge of the courtroom. In 2019, an Adelaide court quashed a man’s child sex abuse conviction and ordered a retrial due to juror misconduct. The judge was informed that one of the jurors had visited and photographed the crime scene, and had shown these pictures to three fellow jurors.

Prior to this, a District Court jury had found the accused guilty of one count of communicating with the intention of making a child amenable to sexual activity, and three counts of indecent assault against a child.

Owing to the juror’s improper behaviour of conducting a private investigation the juror not only caused unnecessary cost and burden to the court, but also meant that the victim had to go through the trauma of giving evidence all over again.

A jury can only consider its verdict based on what is presented before it in court, and jurors are not permitted to play detective and conduct their own investigations outside of the court.

While this juror may have acted with good intentions, it was not their responsibility to gather evidence. That is the task of the prosecution. Visiting the scene of the crime by an individual juror to get a better idea of where the crime occurred amounts to juror misconduct.

Under s68C of the Jury Act 1977 (NSW), the maximum penalty for jury misconduct is two years’ jail or a $5,500 fine, or potentially both.

To help decide their verdict, jurors may think it is helpful to do an internet search on the case, on the accused, or even on the finer points of jury service.

In another case, a Canberra jury in a sexual assault trial was recently discharged and a mistrial declared when it was discovered that a juror had searched online to find out what happens when a jury is split 11 to one. The juror should have instead sought instructions from the judge.

At the beginning of every trial by jury, the judge warns the members of the jury not to conduct their own investigations or research. Jurors are also obliged to inform the court if any external information about the case comes to their attention.

A helpful resource on jury service can be found at the Service NSW or NSW Government Communities and Justice website.

An edited version of this article was first published on Stacks Law.

Peter Schmidt practises principally in family law and criminal law at Stacks Law Firm in Tamworth. He enjoys the dynamic, spirited nature of criminal law and values the opportunity to help people navigate the legal process in criminal and family law matters.

Peter appears regularly in the Local and District Courts on behalf of clients in criminal and traffic matters and the Federal Circuit Court of Australia in family law matters. He has represented clients in the Land and Environment Court and has appeared in the NSW Supreme Court of Criminal Appeal, where he has instructed Queen’s Counsel.

Peter’s legal experience includes appearing as instructing solicitor to Counsel in the District Court of NSW, the NSW Supreme Court of Appeal and ultimately in the High Court of Australia, representing a rural producer who was prosecuted by the RSPCA in an animal cruelty matter.

Peter was a self-employed rural operator for 40 years so he is keenly interested in agriculture and very knowledgeable in this area.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Criminal justice Jury