Evidence: other evidence

These notes are drawn from Francine Feld, Theo Alexander and Mirko Bagaric, Uniform Evidence Law: Principles and Practice (CCH, 2nd ed, 2015) ch 4 [4.3]–[4.3.4].

  • ‘Real’ or ‘other’ evidence is evidence that which is neither testimonial nor documentary.
  • ‘Other evidence’ refers to things brought into court (such as weapons, clothing) and to the examination of things (such as land) that cannot be brought into the courtroom.
  • The common law term for this was a ‘view’.
    • The UEL uses ‘view’ to refer collectively to things such as inspections, demonstrations, experiments and reconstructions.
  • UEL pt 2.3 deals with evidence that is neither testimonial nor documentary.
    • The legislation calls this ‘other evidence’; other terms may be used.
    • UEL pt 2.3 deals with the way such evidence may be adduced, not its admissibility.
  • The legislation does not affect the operation of any Australian law or rule of practice so far as it permits evidence to be adduced in a way other than by witnesses giving evidence or documents being tendered in evidence: UEL s 52.
    • This provision preserves the common law in relation to non-verbal, non-documentary evidence, except evidence of views, demonstrations, experiments and inspections.

The nature of ‘other evidence’

  • In testimonial and documentary evidence, the trier of fact is receiving another person’s account of what happened.
  • By contrast, other evidence may be defined as evidence that the trier of fact perceives for themselves: Evans v The Queen [2007] HCA 59 [20] (Gummow and Hayne JJ).
  • The trier of fact may perceive the evidence directly in a number of ways:
    • Physical objects may be brought into court (such as a murder weapon).
      • These are often called ‘exhibits’ and may be taken into the jury room for jury inspection once tendered.
      • Physical evidence may also be inspected in the courtroom (such as animals, people).
      • The demeanour of witnesses may also be perceived directly.
    • Where the physical object is of a nature that prevents it being transported into court, the trier of fact can go to it (such as the scene of a crime).
      • This is traditionally called a ‘view’.
  • Inspection of physical evidence and views allow the judge and jury to directly access the evidence itself.
  • Evidence can also be adduced by demonstration.
    • This involves reproduction or reconstruction of the original event (for example, a witness might show how a fight took place by demonstrating the position of parts of the body).
    • These demonstrations may take place inside or outside the Court as part of a view.
    • This allows closer access to the original event than an oral description.
  • Experiments involve the generation of ‘new’ evidence inside or outside court:
    • An expert might conduct an experiment to test the properties of particular things.
    • The results of the experiment could be used to draw an inference.
    • The ‘new’ evidence generated answers a particular question, the answer to which was not previously known.
    • Experiments allow direct access to the evidence if conducted in the presence of the trier of fact.
    • In the United States case of OJ Simpson, the prosecution alleged that a glove that was claimed to be found at the scene belonged to Simpson; this was disproved by an experiment by the defence, who had Simpson try on the glove to see if it would fit.
      • This is an experiment rather than a demonstration, because the defence was not trying to reconstruct part of the crime but to answer a question relevant to the case.
  • DNA, ballistics and similar types of evidence are often talked about as if they were ‘real’ evidence due to being real phenomena, but in reality these are ordinarily proved through oral or documentary evidence; they are rarely brought into the Court for a jury to perceive them directly.
    • There is little point in bringing certain kinds of physical evidence into court, especially if the jury requires expertise to understand or interpret them.
    • Where the evidence is presented in oral or documentary form, it will not be ‘other evidence’.

Other evidence outside the courtroom

  • The UEL uses the term ‘view’ as a general term for demonstrations, experiments and inspections.
  • The UEL has significantly modified the common law:
    • Under UEL s 54, the court (including a jury if there is one) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection.
    • Under the common law, whatever the judge or jury saw on a view (as distinct from a demonstration) could only be used as a memory aid, not as evidence.
      • A memory aid (‘aide memoire’) is not evidence itself, but merely a device for assisting the comprehension of admitted evidence: Butera v DPP (Vic) (1987) 164 CLR 180.
  • The rationale underpinning UEL s 54 is that distinguishing evidence from facts that assist in understanding the evidence is artificial and involves mental gymnastics probably beyond human capacity.
  • Under UEL s 53, a judge may order, on application, that a demonstration, experiment or inspection be held.
    • The judge may not make the order unless satisfied that:
      • the parties will be given a reasonable opportunity to be present; and
      • the judge and jury will be present.
    • There is a non-exhaustive list of matters that the judge must take into account:
      • whether the parties will be present;
      • whether the view will assist the Court in resolving issues of fact or understanding the evidence;
      • the danger that the view might be unfairly prejudicial, misleading, confusing, or cause or result in undue inefficiency;
      • in the case of a demonstration, the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated; and
      • in the case of an inspection, the extent to which the place or thing to be inspected has materially altered.
    • The Court is not to conduct an experiment in the course of deliberations.
    • UEL s 53 does not apply to the inspection of an exhibit by the judge or jury.
  • The legislation does not define ‘demonstration’, ‘experiment’ or ‘inspection’.
    • As explained in Evans v The Queen [2007] HCA 59 (Heydon J) [189]–[194], the terms are understood to mean those that take place outside the courtroom in the presence of the judge or jury:
      • The starting point in construing UEL s 53 must be the common law.
      • At common law, a ‘view’ was an out of court examination of land or chattels too large to be taken into court and tendered as exhibits.
      • The common law draws a distinction between views, demonstrations and reconstructions:
        • a view is an inspection of a scene or object without seeing it in operation or witnesses providing further explanation;
        • a demonstration is a view incorporating an explanation by a witness of the incident in question or a demonstration of the thing in operation; and
        • a reconstruction is an attempt to recreate in full or in part an incident with witnesses and testimony.
      • UEL s 53 incorporates the common law ‘view’ as an ‘inspection’, adds the other categories of ‘demonstration’ and ‘experiment’, and suggests a reconstruction would fall within the expression ‘demonstration’.
    • According to Evans v The Queen [2007] HCA 59 [216], the Australian Law Reform Commission was seeking to overcome five problems:
      • The propriety of judges visiting scenes relevant to litigation without notice to the parties, dealt with by UEL s 53(1)–(2);
      • Whether an out-of-court view could be ordered without the consent of the parties, also dealt with by UEL s 53(1)–(2);
      • That guidance was needed on the factors relevant to making an order for out of court inspections, including appropriate experiments and demonstrations, dealt with by UEL s 53(3).
      • What was seen outside the courtroom could only be used to assist understanding, not as evidence in its own right, dealt with by UEL s 54.
      • The need for the jury to examine exhibits but to also prohibit jury experiments with exhibits, preserved by UEL s 53(5).
    • None of these problems related to conduct in the courtroom.
    • No problems have arisen in relation to conduct in the courtroom comparable with the above problems, and that was not the focus of the Australian Law Reform Commission.
  • R v Milat (Unreported, Supreme Court of New South Wales, Hunt J, 12 April 1996) included and example of a s 53 inspection:
    • During the course of the trial, the Court travelled to inspect the location where bodies had been found in the Belanglo State Forest.
    • The accused declined to be present during the inspection.
    • In applying UEL s 53, Hunt J held that the accused’s refusal to attend did not prevent the order that a view be held, because the accused had the opportunity to be present.
  • Jamal v The Queen [2012] NSWCCA 198 outlined issues arising where the accused is subject to security measures and their presence at a view can run the risk of unfairly prejudicing the jury:
    • The appellant was convicted in respect of a drive-by shooting at a Sydney police station.
    • The appellant wished to be present at the view but would be wearing orange prison overalls and shackles, and be held in a cage in a corrective services vehicle, visible by the jury on close viewing.
    • The trial judge noted that the accused would be represented by counsel at the view and determined it was not necessary for the accused to be present, ordering the view to be held in the accused’s absence.
    • On appeal, the NSW Court of Criminal Appeal found that this was in breach of the statutory requirement to provide the accused with a reasonable opportunity to be present under UEL s 53(2)(a).
    • Their Honours consider the breach a fundamental flaw in the trial process, making reference to longstanding authority that the accused should generally be present at every stage of a criminal trial: see, eg, Lawrence v The King [1933] AC 699, 708 (Lord Atkin).
  • According to Hornsby Shire Council v Valuer General (NSW) [2013] NSWSC 1183 [7]–[8], in addition to the criteria of s 53(3) two further criteria should be satisfied before a view occurs:
    • There needs to be clear identification of what matters of fact a view will assist in resolving and the purpose and scope of the view; these should be identified in advance so that the parties have the opportunity in open court to make it clear what they content should be observed by the judicial officer when the view is undertaken.
    • There needs to be a clearly articulated protocol for how the view will be conducted, who will communicate to the judicial officer, and on what topic(s); unless these matters are clarified with precision in advance there is potential for the integrity of the proceedings to be compromised via innocent communications with the judge.
  • NM Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2011] NSWSC 106 provides guidance for determining whether a view will actually assist the court in understanding the evidence:
    • The issue was whether agricultural chemical spray could have travelled from one property to another, and, if so, in what quantities.
    • The view would require the judge and counsel travelling by plane and then by car to Moree in Northern NSW.
    • The Court considered that the estimated cost of $45,000 and the late stage of the proceedings were relevant.
    • The Court determined that the view was not warranted on the basis that it would amount to an undue waste of time:
      • It had not been demonstrated that the benefit that inspection might produce would warrant the delay or costs incurred.
      • An inspection would be unlikely to reveal anything that had not already been revealed through the extensive expert opinions already provided.
      • The assistance and understanding referred to in UEL s 53(3)(b) contemplates assistance going beyond that which almost any inspection might generally be expected to provide.
  • Chotiputhsilpa v Waterhouse (2005) 44 MVR 456 (New South Wales Court of Appeal) provides authority for principles to be applied where the site of a view has significantly changed:
    • An application for a view was refused on the basis that the site to be inspected had significantly changed: UEL s 53(3)(e).
    • The issue was whether signage indicating a pedestrian crossing under the Anzac Bridge was adequate; the plaintiff had been struck by a car while attempting to cross.
    • The parties had agreed, and there was evidence, that the site had changed radically since the time of the accident.
    • As the layout of the site had changed so substantially, a view would serve no purpose and would likely be prejudicial to one or other of the parties.
    • The evidence already admitted was sufficient to understand the layout.
  • UEL s 53 does not apply to inspections, experiments or reconstructions that are conducted outside the Court and not in the presence of the judge or jury (such as an experiment conducted by an expert before coming to court).
    • The principles in UEL s 53 can provide guidance with respect to the admissibility of such evidence, and in particular the circumstances of the experiment must be similar to those at the time of the event in issue: DPP (Vic) v Farquharson (No 2) (Ruling No 4) [2010] VSC 210.
  • The court, including the jury, is prohibited from conducting experiments in the course of deliberations: UEL s 53(4).
    • The legislation on this regard is a restatement of the common law: Kozul v The Queen (1981) 147 CLR 221.
      • The case concerned the ways in which a jury may use real evidence once tendered as evidence.
      • The jury room is considered ‘out of court’, as it is not part of an open court.
      • The principle that emerged is that appropriate testing of evidence is to be distinguished from the generation of new evidence.
        • This is consistent with the fundamental principle in an adversarial trial that only the parties investigate and present evidence.
    • Gibbs CJ (Mason J agreeing):
      • The critical issue contested at the trial, and as pointed out by the Court of Criminal Appeal, was whether the firearm involved in the trial had been discharged deliberately or whether it had gone off accidentally during the struggle.
      • The applicant submitted that in relation to this issue the trial judge had misdirected the jury.
      • The detailed instructions of the trial judge invited the jury to test the evidence.
      • Counsel for the applicant submitted that it was incorrect to invite the jury to conduct an experiment, the object of which was to discover whether the finger of a person holding a revolver will clench when a blow is struck to the hand.
        • It was submitted that this would be objectionable because:
          • it would be conducted in the absence of the applicant, who would be prevented from revealing any weaknesses in the manner in which it was carried out; and
          • it would proceed on a false basis given the person holding the weapon would not be in the same state of emotional stress and would anticipate the blow.
      • The jury is entitled to examine and have regard to the weapon as it was an exhibit in the case and as much part of the evidence as the oral testimony.
      • The jury may, if necessary, touch and handle exhibits, and may engage is a limited amount of simple experimentation with them, such as:
        • fitting two pieces of a torn letter together;
        • determining whether one container held less than another by pouring water from one to the other; or
        • lifting an object to determine its weight.
      • It is perfectly proper for the members of the jury to pull the trigger of the revolver, cocked and uncocked, to judge for themselves how much pressure was necessary to cause it to discharge; the jury are doing no more than using their own senses to assess the weight and value of the evidence.
      • When the experiments conducted by the jury go beyond mere examination and testing of the evidence, and become a means of supplying new evidence, they become impermissible: citing Hodge v Williams (1947) 47 SR (NSW) 493.
      • If the judge invited the jury to do no more than test the mechanical properties of the weapon, the direction would be proper; however the applicant argued that the invitation went further and invited the jury to conduct an experiment.
      • It was proper for the jury to determine the sensitivity of the weapon to see how much pressure was required and how likely accidental discharge was.
      • The trial judge erred by suggesting that the jury should conduct an experiment; it would have gone beyond an examination and evaluation and would have had the purpose of gathering additional evidence.
      • There had been, however, no miscarriage of justice and special leave to appeal was not warranted.
    • Wilson J found that the trial judge’s error caused a miscarriage of justice.
    • Stephen J (Murphy J concurring):
      • It was proper for the jury to have the revolver with them in the jury room.
      • For the past two hundred years all exhibits have gone with the jury into the jury room when the jury considers its verdict: citing R v Bradshaw (1978) 18 SASR 83, 93–94.
      • The jury can properly be directed by the judge to examine and handle the weapon, so as to better understand the evidence (expert or otherwise) heard during the trial; perception of real evidence is not limited to sight, but touch may be used to ascertain sharpness or weight: citing G D Nokes, ‘Real Evidence’ (1949) 65 Law Quarterly Review 57, 64.
      • It was proper for the trial judge to tell the jury that they might experience for themselves trigger pressures of twelve and four pounds by pressing the trigger.
      • It is wrong to regard the trial judge’s directions as an invitation to the jury to create new evidence in the jury room; it is a proper direction calculated to assist the jury in its task of evaluating the evidence presented.
      • In the circumstances of the case (determining whether a blow could cause accidental discharge of the firearm) it is permissible and prudent to tell the jury to handle the revolver, experience the respective trigger pressures and the sensation of a blow to the hand holding the revolver.
        • Without such experience the jury would largely be left to decide the matter by mere speculation; with it they could apply common sense and common experience.
        • The explicit warning that no accurate re-enactment was possible provided a necessary safeguard.
      • Juries must be free to use the qualities of judgement and common sense that they bring into the jury room, but must not substitute what they suppose to be their own special knowledge in place of expert evidence given in court.
        • The jury is, however, free to inspect and experiment with exhibits that are sent into the jury room with them in any reasonable manner that occurs to them: citing R v Hamitov (1979) 21 SASR 596, 598.
      • Where the jury has expert evidence, it must not substitute its own inexpert view; when there is no expert evidence the jury must be instructed not to attempt a task requiring expert skills: citing R v O’Sullivan (1969) 1 WLR 497; (1969) 2 All ER 237.
        • The judge had warned the jury of this, and this case could be distinguished because the jury was merely experiencing the sensation of holding the revolver and receiving a blow to the hand.
    • The same principles arose in R v Skaf [2004] NSWCCA 37:
      • It concerned an appeal for conviction of sexual assault.
      • After trial it became known that two jurors had visited the scene of the assault during deliberations in order to view the lighting arrangements.
      • The appeal to the NSW Court of Criminal Appeal was successful on the ground of juror misconduct.
      • The purpose of the inspection and experiment of the lighting was to determine how clearly a person could be recognised at close quarters at night; this was relevant to determining the identity of the assailants.
      • The CCA felt it was unproductive to consider whether it was an experiment or an inspection (though thought it was both).
        • An experiment would have been a direct contravention of UEL s 53(4).
      • The incident was characterised as at least some of the jury having regard to information that was not evidence in the trial or otherwise properly put before them by the judge to the knowledge of the parties.
      • The information obtained was not evidence and was obtained in circumstances amounting to a want of procedural fairness (denial of natural justice) in that the accused persons were unable to test the material, comment upon it or call evidence to rebut or qualify it.
      • The Court needs to weigh the possible prejudicial impact of this extrinsic information upon the minds and deliberations of (at least) the two jurors directly involved.
  • The introductory direction contained in [1–510] of the Criminal Trial Courts Bench Book (Judicial Commission of NSW) directs jurors:
    • to place out of their minds any publicity regarding the case;
    • to decide the case solely by reference to the evidence presented in open court and to the directions of law given by the trial judge;
    • not to use any material or research tools (such as the Internet) to access legal databases, earlier decisions or any other matter relating to the trial;
    • not to bring computers or mobile phones into the jury room;
    • not to discuss the case with anyone other than fellow jurors, and to do that in the privacy of the jury room;
    • to avoid speaking to any person in the precincts of the court (except, presumably, the Sheriff’s Officers and fellow jurors); and
    • to direct any query about the evidence or procedure solely to the trial judge, via a note given to the Sheriff’s Officer.
  • These directions can be improved by adding a short explanation that:
    • the prohibition on undertaking further research also avoids the risk that a juror will be influenced by legal principles not applicable to NSW, or some commentary or statement that is inaccurate; and
    • the prohibition on discussing the case with outsiders exists because such persons will wish to make a contribution or observation, which is of no value since they will not have seen or hear the evidence, or received directions, or be subject to the oath or affirmation to which jurors are subject.
  • It is useful to add further instructions:
    • Jurors should not make a private visit to the scene of the alleged offence.
    • Jurors should not attempt private experiments concerning any aspect of the case.
    • Views and experiments are permitted only if they occur in the presence of all jurors, the legal representatives of the parties, and the judge.
    • Views and experiments must only take place in circumstances where safeguards are taken to replicate the conditions existing at the time of the relevant events and differences in conditions can be pointed out to the jury in the course of the evidence.
    • The prohibition on jurors making their own inquiries extends to prohibiting them from causing or requesting anyone else from making such inquiries.
    • If a juror becomes aware that a fellow juror has made some independent inquiry, this should be brought immediately to the attention of the presiding judge.
    • Similarly, if it becomes apparent to any juror that a matter not in evidence has found its way into the jury room, this should be brought to the judge’s attention.
  • It is an offence in New South Wales and Victoria for a juror to conduct enquiries about matters relevant to the trial: Jury Act 1977 (NSW) s 68C (penalty: two years imprisonment or 50 penalty units, or both); Juries Act 2000 (Vic) s 78A (penalty: 120 penalty units).

Other evidence in the courtroom

  • UEL s 52 preserves the common law with respect to all other evidence other than that which is the subject of UEL s 53.
  • UEL s 53 does not apply to in-court demonstrations, experiments and inspections.
    • Consequently, the common law governs all in-court ‘other evidence’.
  • An example of an in-court demonstration is provided by Matthews v SPI Electricity Pty Ltd (Ruling No 34) [2014] VSC 40:
    • The plaintiff sought to use in court a scale model of a power pole to assist the Court in understanding the evidence of expert witnesses.
    • His Honour held that the model could only be used as an aid to provide a reference point for what the experts were speaking about when giving concurrent evidence.
    • The parties were not permitted to use the model to conduct any form of test or experiment, and could not rely on the model as an evidentiary base.
  • There are no rules governing the mode of proof for physical items brought into the courtroom.
    • The admissibility will depend on the party producing the evidence to show they are relevant to a fact in issue.
      • This usually involves calling a witness to demonstrate the item’s relevance (such as by showing that the item was found at a murder scene).
      • The requirement of relevance will limit the type of physical evidence that may be tendered.

The role of the jury

These notes are drawn from Francine Feld, Andrew Hemming and Thalia Anthony, Criminal Procedure in Australia (LexisNexis, 2014) [7.60]–[7.77].

  • The role of the jury is to:
    • determine the facts in accordance with the evidence; and
    • apply relevant principles of law to those facts when coming to a verdict.
  • Black v The Queen (1993) 179 CLR 44 provides an overview of the jury’s obligation:
    • The jury must give a true verdict according to the evidence.
    • The obligation is to be fulfilled to the best of each juror’s ability.
    • Each juror takes their individual experience and wisdom into the jury room.
    • The jury is expected to judge the evidence fairly and impartially.
    • Jurors must listen carefully and objectively to the views of their fellow jurors.
    • Jurors should calmly weigh up each other’s opinions about the evidence.
    • Opinions should be tested by discussion.
  • It is vital to the adversarial system that the jury takes into account only the evidence that has been presented by the parties.
  • Jurors today are passive and non-investigative (unlike in the 18th century).
    • A juror may ask a question to the trial judge via the sheriff’s officer.
    • Questions will typically concern:
      • an aspect of the evidence;
      • a procedural aspect of the trial; or
      • clarification of an item of evidence given in the trial.
    • The Court can put controls on the kind of information jurors seek in court.
      • It is difficult to control jury investigations within and outside the jury room.

Evidence in the jury room

  • The jury is not to go looking through exhibits for evidence that has not been brought out in the courtroom; nor are they to take into account any such evidence they may find: R v Allan (2002) 133 A Crim R 444 (NSW Court of Criminal Appeal).
  • Jurors may only take into account evidence presented by the parties and must not speculate on any additional matters they might find: R v Landsell (Unreported, New South Wales Court of Criminal Appeal, 22 May 1995).
  • The traditional approach to jury experimentation with or inspection of exhibits follows the principles in Butera v DPP (Vic) (1987) 164 CLR 180 that this can only be an aid to understanding or explaining evidence.
    • Only the parties have the right to determine what evidence goes before the court.
    • The judge and jury cannot generate evidence in a manner that excludes party control.
  • It is impermissible for the judge or jury to gather by extraneous evidence or experiments of their own anything in the nature of additional evidence and use it to determine the issue, unless the facts obtained are ventilated and submitted to the comment of the parties: Hodge v Williams (1947) 47 SR (NSW) 489 (Davidson J), quoted in Kozul v The Queen (1981) 34 ALR 429 (Gibbs CJ).
  • Barker v The Queen [2002] WASCA 127 considered circumstances where the jury discovered an attribute of exhibit not discovered or raised by either party:
    • Wallwork J outlined the facts and gave his opinion:
      • The defence counsel told the jury that there were no fibres on a piece of tape.
      • The jury noticed a blue fibre on the piece of tape.
      • The forensic report had not tested for fibres.
      • The jury asked whether they were to take the fibre the jurors had found on the tape into account; the trial judge advised to make of it what they will (in essence yes).
      • The answer to the question put was agreed with by the prosecution and defence.
      • The trial judge declined to give any additional warnings to the jury.
      • Every opportunity had been given for the defence to make further objection.
      • The defence did not make objection nor apply for an adjournment.
      • The instruction of the judge in the case was, overall, proper and favourable.
    • Anderson J gave his opinion:
      • Neither counsel nor the trial judge called to inspect the exhibit.
      • There seems to have been acceptance of the jury’s observations.
      • It can be assumed the defence deliberately declined an adjournment for testing.
      • Counsel for the appellant argued that the jury should have been discharged.
      • The jury was entitled to examine the exhibit and arrive at relevant conclusions.
      • The trial judge’s direction was accepted by prosecution and defence counsel.
      • The appeal was dismissed.
    • Leave to appeal to the High Court was refused; McHugh J observed that the trial judge’s approach was in accordance with Kozul v The Queen (1981) 34 ALR 429: Barker v The Queen [2003] HCATrans 440.

Evidence outside the jury room

  • A true verdict according to the evidence means that jurors must not independently search for facts: see, eg, R v Skaf (2004) 60 NSWLR 86; R v K (2003) 59 NSWLR 431.
    • In those cases they became investigators rather than triers of fact.
  • The sanctity of the jury room and the secrecy of jury deliberations are necessary to ensure that jurors are not subject to pressure or harassment: R v Skaf (2004) 60 NSWLR 86; R v K (2003) 59 NSWLR 431.
  • R v K (2003) 59 NSWLR 431 concerned juror-conducted Internet searches about the defendant:
    • The appellant was indicted for murder of his first wife; he was appealing conviction.
    • The appellant had been acquitted previously of the murder of his second wife.
    • The trial judge instructed the jury to ignore any publicity with regard to the previous murder trial (of the first wife) and to take into consideration only the evidence that had been presented to the jurors by the party.
    • Following the trial, some members of the jury disclosed to the defence counsel that some jurors had conducted Internet searches and found information about the proceedings, including the reason why this was a retrial.
    • The jurors were already aware that a retrial had been ordered, but were instructed to ignore that fact and concentrate on the evidence being presented.
    • As a result of the disclosure, the sheriff obtained affidavits from nine of the 12 jurors confirming that Internet searches were conducted:
      • The first issue was whether affidavits could be received by the court; this was answered in the affirmative as the searches were external to jury deliberations.
      • Evidence concerning discussions between jurors and the effect of the Internet searches on their deliberations could not be admitted on the basis of public policy considerations and the established rule that courts will not hear such evidence.
    • It was held that the Court could not be satisfied that the irregularity had not affected the verdict:
      • This was in accordance with the Marsland test that the ‘question we must ask ourselves is whether we can be satisfied that the irregularity has not affected the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred’: R v Marsland (Unreported, NSW Court of Criminal Appeal, 17 July 1991), as applied in:
        • R v Rudkowsky (Unreported, NSW Court of Criminal Appeal, 15 December 1992);
        • R v HJS [2000] NSWCCA 205;
        • R v Allan [2002] 133 A Crim R 44; and
        • R v Lansdell (Unreported, NSW Court of Criminal Appeal, 22 May 1995).
    • The Court was unable to determine the nature of the information received.
    • The conviction was quashed and a new trial ordered.
  • The House of Lords has rejected the notion that it would be appropriate for a trial judge to question members of the jury about the contents of a letter sent by one juror concerning improper juror behaviour during deliberations (coercion, intimidation, speculation and consideration of irrelevant matters): R v Smith [2005] UKHL 12.
    • The trial judge, with whom counsel agreed, covered most points at issue in the letter, but failed to remind the jury to follow his directions on the law and to refrain from bargaining over verdicts, thus justifying the appeal.
  • The Tasmanian Court of Criminal Appeal has ruled that irregularities had been corrected by a direction of the trial judge to disregard information obtained from a site visit and telephone inquiry to the Weather Bureau (to determine the time of sunset in February): Farrell v The Queen (Unreported, Tasmanian Court of Criminal Appeal, 7 June 1996).
    • A similar outcome occurred in R v Myles (1995) 83 A Crim R 519 (Queensland Court of Appeal):
      • A jury foreman made telephone inquiries regarding background information which tested aspects of the defence case (eg, the price differential between meat in Mackay and Cairns, and the best way to transport refrigerated foods in Queensland).
      • Some jurors investigated a site relevant to the crime and determined (incorrectly) that the accused had not acted openly when loading a truck on which prohibited drugs were subsequently discovered.
      • The Court refused to consider the information relating to the telephone inquiries and determined that the information regarding the site visit did not justify granting an appeal.
    • This was also similar to the outcome in Domican v The Queen (No 3) (1990) 46 A Crim R 428 (NSW Court of Criminal Appeal):
      • A sheriff’s officer seized a folder containing six photographs of scenes discussed but not produced in the evidence from the jury room.
      • The photos were innocuous and the trial judge ordered their return without comment, making no reference to them when directing the jury.
      • Kirby ACJ (Campbell and Studdert JJ agreeing) said that it would have been preferable for the photographs to have been withdrawn from the jury room and for the trial judge to have given a specific instruction that the photographs were to be ignored.
      • However, the absence of these steps did not justify, in the circumstances, a quashing of the verdict.
  • In R v Young [1995] QB 324 the jury used a ouija board in deliberations:
    • The accused was convicted of two counts of murder.
    • A juror contacted the defence after the conviction, revealing that four jurors had used a ouija board to ‘contact’ the spirits of the murder victims.
    • Affidavits from all jurors and two bailiffs confirmed this had happened.
    • The affidavits were put before the court.
    • The Court of Appeal held that a breach of jury secrecy was warranted in the circumstances, given the allegation was quite serious.
    • The appeal was allowed on this basis (though the accused was convicted on retrial).
  • A judge may not direct a jury to find an accused guilty; the jury may acquit regardless of the evidence against an accused: R v Wang [2005] UKHL 9.

Adverse pre-trial publicity

  • The potential prejudice that can be caused by pre-trial publicity can be so extreme as to warrant a permanent stay of proceedings: Tuckiar v The King (1935) 52 CLR 335.
  • Despite an increase in availability of information (such as through social media), there has not been a corresponding increase in stays of proceedings.
  • To reduce or negate the effect of pre-trial publicity, proceedings may delayed, the venue or jury directions changed, or, if permissible, a judge-only trial may occur: see generally R v Glennon (1992) 173 CLR 592; R v Sheikh [2004] NSWCCA 38; Skaf v The Queen [2008] NSWCCA 303; R v Jamal (2008) 72 NSLR 258; Dupas v The Queen (2010) 241 CLR 237.
  • R v Abrahams [2013] NSWSC 729 is an example of handling adverse pre-trial publicity:
    • The accused and her partner were charged with the murder of her daughter.
    • The disappearance of the child and discovery of her remains received enormous media attention.
    • The publicity included the dissemination of material on Facebook and on discussion forums.
    • The trial judge acknowledged the vast quantity of ‘highly derogatory’ material published online, but refused the application for a judge-only trial.
    • Harrison J cited observations in R v Glennon (1992) 173 CLR 592, 603 (Mason CJ and Toohey J) that:
      • the possibility of a juror acquiring irrelevant and prejudicial information is inherent in a criminal trial;
      • the law acknowledges this and proceeds on the presumption that a properly-instructed jury will render a true verdict; and
      • in the past too little weight has been given to the capacity of jurors to assess critically the evidence presented: citing Hinch v Attorney-General (Vic) (1987) 164 CLR 74.
    • An important consideration for Harrison J in refusing a judge-only trial was that the trial would involve a question of community standards for which the jury was a superior trier of fact.
  • It is misleading to think that because a juror has heard something of the circumstances giving rise to the trial the accused has lost the opportunity of an indifferent jury: Murphy v The Queen (1989) 167 CLR 94, 99. See also R v Von Einem (1990) 55 SASR 199, 211.
  • R v Hubbert (1975) 11 OR (2d) 464 (Ontario Court of Appeal), quoted in Murphy v The Queen (1989) 167 CLR 94, 99:

    In this era of rapid dissemination of news by the various media, it would be naive to think that in the case of a crime involving considerable notoriety, it would be possible to select 12 jurors who had not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence.

  • In a New South Wales study, jurors reported that they had adhered to trial judges’ instructions and resisted the impact of prejudicial publicity in high-profile criminal trials, more so than generally estimated by lawyers: M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales (Law & Justice Foundation of New South Wales, 2001).
    • Jurors acknowledged memory of media reporting of the commission of an offence, but indicated they were less likely to recall media reports of the arrest, committal hearing or pre-trial processes.
    • It was common for some jurors to follow newspaper coverage of the trial in which they were sitting during its progress.