Blog » Bruce Lehrmann Juror Misconduct: Is This Unusal?

Bruce Lehrmann Juror Misconduct: Is This Unusal?

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The whole country watched this sensational rape trial unfold in Canberra, and there have been many interesting aspects, not the least of which was that the setting for the alleged rape was our nation’s parliament house.

Arguably, though, one of the most discussed developments was the discharge of the jury on 27th October 2022 whilst in deliberation after one of the sheriffs informed the trial judge that a juror brought two academic articles on the topic of sexual assault into the jury room. 

This, of course, contravened the specific trial directions the judge (as would be given by any judge in any trial) gave prior to the commencement of any evidence being given.

In fact, it turns out that the trial judge apparently told the jurors “ least 17 times..” that they should not conduct outside research. So, let’s explore this issue a little.

Does juror misconduct occur in QLD & NSW?

Of course, it does. 

New South Wales has even sought to specifically legislate against it.  That State criminalises a juryman making inquiries about the accused and also any other matter relevant to the trial.

The phrase “..any other matter relevant to the trial..” has been interpreted to include this kind of conduct.  And if you are caught, you face a maximum fine of $5,500 and/or imprisonment for 2 years.

Alternatively, in QLD, the law only criminalises a juryman making inquiries about an accused.  But the maximum period of imprisonment available for that offence is the same as in New South Wales.

Under QLD law if a juror disobeys a judge’s direction and, for example, brings outside material into the jury room, they would be susceptible to a charge of contempt of court, and they are warned as such – see the case of R v HCF [2021] QCA 189.

Contempt is a more serious offence than those already mentioned and regularly attracts a period of imprisonment for those convicted of it.  The question is, are jurors prosecuted for this?

How can this misconduct happen?

Sadly, the blame for this must lay squarely at the feet of the jury themselves.  It is standard practice for all trial judges in criminal trials in both States to warn jurors against this practice well before any evidence is given in a trial, but it still happens, and regularly.

A recent high-profile example of it in NSW is the case of R v Watson [2022] NSWSC 1243.  In this case, a juror in a murder trial had undertaken a Google search about matters from the trial whilst in the jury room.  When exposed, this conduct caused the entire jury to be discharged after 6 days of hearing and without a verdict being rendered.  Regrettably, there are many more examples of this.

The case of R v Sio (No. 3) [2013] NSWSC 1414 is another example where a juror had been conducting internet research on matters of law in connection with the trial that juror was deciding.  Yet again, this was in flagrant disregard for the oral direction given to the contrary by the trial judge at the commencement of the trial.  It resulted in her being discharged from the jury.

In the case of R v JH (No 3) [2014] NSWSC 1966 a juror had searched for a photo of a deceased on the internet whilst hearing a murder trial.  Unsurprisingly, this occurred despite the trial judge having given the standard warning to the jury panel against doing that on the first day of trial.  That juror was also discharged.

A review of the cases shows that jury misconduct takes all forms and occurs all the time, despite judges strongly and repeatedly warning them not to, and in spite of the very significant consequences of their conduct.

What are the costs?

First of all, there are the obvious financial costs.  A more current costing hasn’t occurred but in 2013 it was estimated that running a trial in any superior court in Australia costs around $10,000 per day. (insert the article)

On top of that, though, there is a cost to the system.  Already ballooning court lists are further extended because the trials that are aborted must be relisted, in some cases after them being litigated in an appeal court first.

And finally, those accused of crimes are simply left to flail in a world of uncertainty because their trial is derailed and adjourned.  This is a particularly vicious consequence of juror misconduct if the accused is remanded in custody and not on bail.

What is the solution?

It seems fairly straightforward to suggest that jurors could be deterred from doing this through prosecution and severe punishment for being caught doing so.  But the absence of statistics demonstrating that anyone is even charged with such offending quickly disposes of that approach.

Canberra doesn’t even criminalise conduct of that type.  Anecdotally, it is thought that prosecuting jurors who engage in this type of conduct might further erode the numbers of those willing to participate in the jury process today.

Others, like me, think that the jury system is antiquated and long for it to be scrapped in favour of professional fact finders: judges.  They already sit without juries in civil trials and decide the financial fate and otherwise of hundreds of thousands of litigants each year.