The jury in the ACT trial of Bruce Lehrmann has been discharged and the trial aborted after a juror brought in a research paper that attempted to quantify false complaints and explore the reasons for making false complaints. A new trial has been set down for February 2023.
Given the serious consequences for the parties and justice system, it is worth revisiting the law in this area, particularly as the juror apparently failed to heed at least 17 directions from the trial judge to jurors directing the jurors not to conduct their own research or inquiries. If such a jury member had been empaneled in a New South Wales jury trial, a criminal offence would have been committed.
In her judgment, McCallum CJ, said:
- she had no choice but to discharge one of the 12 jurors and that meant she had to discharge all jurors;
- the juror had told the Court that the document had not been used or relied upon by the jury in its deliberations, but in the circumstances it is appropriate to regard that evidence with some scepticism.
In New South Wales, under section 68C of the Jury Act 1977 (NSW) (Act), it is a criminal offence punishable by a maximum of 2 years imprisonment for a juror to make any inquiry during the course of a trial for the purpose of obtaining information about the accused or any matters relevant to the trial. “Make 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;
- causing another person to make an inquiry.
In New South Wales, in addition to written directions that detail the offence above, typical oral instructions to the jury at commencement of trial include the following:
“… you are not here to determine where the truth lies. … You are not investigating the incident giving rise to the charge(s). You are being asked to make a judgment or decision based upon the evidence placed before you. Jurors might in a particular case feel frustrated by what they see as a lack of evidence or information about some particular aspect of the case before them. In some rare cases this has led jurors to make inquiries themselves to try and fill in the gaps that they perceive in the evidence. But that is not your function, nor is it mine. If you or I did our own investigations that would result in a miscarriage of justice. … You must understand that it is absolutely forbidden that you make any inquiries on any subject matter arising in the trial outside the courtroom. To do so would be a breach of your oath or affirmation, it would be unfair to both the Crown and the defence and you would have committed a criminal offence. If you felt there was some evidence or information missing, then you simply take that fact into account in deciding whether on the evidence that is before you the Crown has proved the guilt of the accused beyond reasonable doubt.
In New South Wales, under section 53A(1)(c) of the Act, the court must discharge a juror if it is found that the juror has engaged in misconduct in relation to the trial (which includes contravention of section 68C of the Act). Where one juror is discharged, the court must discharge the jury if it is of the opinion that to continue the trial with the remaining jurors would give rise to the risk of a substantial miscarriage of justice. If the court is not of that opinion, it must order that the trial continue provided there remain three jurors from a jury of four, or at least eight jurors from a jury of 12: sections 53C(1) & 22(b) of the Act.
In the Bruce Lehrmann trial, McCallum CJ plainly and properly formed the view that to continue with the balance of the jury risked a substantial miscarriage of justice.
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