The Full Bench the New South Wales Court of Appeal has ordered an investigation into allegations that a juror in a sexual assault trial published a Facebook post calling for ‘sex predators’ to be ‘put down like dogs’, just a day before returning a verdict of guilty.
The defendant stood trial in Broken Hill District Court on 6 December 2016 charged with sexual intercourse taking advantage of cognitive impairment, in contravention of section 66F(3) of the Crimes Act 1900 (NSW).
A unanimous verdict of guilty was returned on 13 December 2016, and the defendant was subsequently sentenced to a full term of four years’ imprisonment, with a minimum term of two years and six months.
Notice of motion
In October 2018, the defendant’s lawyers filed a Notice of Motion and Affidavit in support seeking orders under section 73A of the Jury Act 1977 (NSW) for the Sheriff of NSW to investigate information to the effect that, a day before delivering verdict, a jury posted to Facebook:
“When a dog attacks a child it is put down. Shouldn’t we do the same with sex predators?”.
The post was accompanied by a photograph of rooms and implements by which executions are undertaken.
The Affidavit further submitted that the same juror was related by marriage to a complainant who had previously alleged that the same defendant had sexually assaulted her. That allegation had been disposed of by way of a verdict of not guilty in the same court six months earlier.
It was additionally alleged that another juror in the same trial “was often seen socialising with one of the key witnesses who was called to evidence”.
In that regard, a witness provided information that:
“I’m well aware they know each other well as I have seen them drinking together at the club many times”.
Investigations by Sheriffs
Section 72A(1) of the Jury Act is titled ‘Investigation by sheriff of jury irregularities’ and provides that:
“(1) 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.”
In the District Court
District Court Judge Charteris ultimately refused the application on the basis that the Court of Appeal would be the more appropriate forum to make such a determination.
In that regard, his Honour stated:
“I have indicated to the parties my view that, prima facie, there appears to be substantial grounds on the material that has been put before me to make the order. It is my view that the appropriate court deal with it is the Court of Criminal Appeal … In my view, the Court of Criminal Appeal will be able to control the process far more efficiently than having the intervention of this Court.”
Court of Appeal
The matter came before the NSW Court of Appeal on 29 March 2018.
On 19 October 2018, after carefully considering of the matters raised in the Notice of Motion and Affidavit in support, Chief Justice Hoeben and Justices Garling and Hoeben found that it is in the interests of justice “the applicant, by means of the proposed investigation, [have] an opportunity to explore more fully the factual matters raised” and that “Section 73A of the Jury Act provides a ready mechanism for that to occur”.
It therefore ordered that:
“the Sheriff… investigate whether one or more members of the jury which convicted the applicant of a charge under the Crimes Act 1900 in December 2016, may have engaged in improper conduct or else whether any irregularity or improper conduct occurred.”