By Paul Gregoire and Ugur Nedim
The trial into whether Paul Anthony Watson murdered William Chaplin sometime between 31 March and 30 May 2010 in the southwestern NSW town of Gerogery commenced on 5 September this year in the NSW Supreme Court, with three weeks set aside for it.
The Crown had closed its case on the fifth day of trial, which was 9 September. And the defence was not to present any evidence on behalf of the accused.
However, on 13 September, a court officer brought it to the attention of Justice Michael Walton that a juror had approached them on the afternoon of the 9th to raise issue about their own conduct and that of other jury members during the week’s proceedings.
On the day following, his Honour then received a note from the same juror setting out that he’d had a relapse in a mental condition, and he and another juror had disclosed fairly general details about the trial to people not uninvolved with it.
Further, the note set out that on one occasion, a number of jurors had laughed about an undisclosed Crown witness, that prior to directions from the court, one juror had searched Gerogery on the internet and at a later point, another juror had citied the population of the rural town.
The trial judge then quizzed the jury foreperson, who asserted the matters regarding internet searches or talk of populations had not been major occurrences.
But the Crown went on to call for the entire jury to be dismissed, whilst the defence recommended the one juror in question be discharged. And on 15 September 2022, Justice Walton determined to dismiss the entire jury and order a new trial take place.
Dismissing the jury
Part 7A of the Jury Act 1977 (NSW) contains protocols on dismissing jurors. Section 53B permits the discretionary discharge of a juror if it is found the individual has become incapacitated in terms of performing jury duties, if they’re found not to be impartial or they refuse to partake in the process.
While section 53C of the Act provides a number of reasons for the discretionary dismissal of an entire jury, with Justice Walton invoking subsection 53C(1)(a) in this case, which suggests that to continue with said jury risked “a substantial miscarriage of justice”.
In providing reasons for the discharging of the individual juror, Justice Walton stated that his mental health issues were being exacerbated by the trial and that to return him to the rest of the jury would be “untenable”.
In regard to going on to find that the whole jury should be dismissed, his Honour pointed to the understanding that both parties had by this stage, involving a number of jurors having laughed about one witness, as they believed them to be lying excessively in giving their testimony.
The trial judge argued that for the remainder of the case this could see counsel for the accused “consciously or unconsciously” tailoring their submissions in a manner that corresponded to this understanding that the Crown witness had proved somewhat suspect how they presented.
The second reason given for dismissing the entire jury was that issues raised by the juror in his note, including the laughing, the sharing of details and discussion of the town of Gerogery revealed that the jury were disregarding the directions of the court regarding juror behaviour.
The judge added that it was not necessarily the admission that jurors thought a witness was lying, but rather that “the sanctity of the jury room”, being an essential part of the criminal justice system, had been corrupted, which is “significantly corrosive to the proper administration of justice”.
Appealing the dismissal
Watson’s legal team appealed the decision to dismiss the whole jury to the NSW Court of Criminal Appeal (NSWCCA) on 21 September.
Grounds raised included that there was an error in finding a risk of substantial miscarriage of justice if the jury wasn’t dismissed, that the trial judge was wrong to consider it would tailor its case to revelations about a Crown witness, and that it was found that jurors were disregarding directions.
It was further put that the judge did not consider the authority, the High Court’s 1996 decision in Crofts versus the Queen, in which it was found there must be a “high degree of necessity before discharging the jury”: a proposition that dates back to the 1866 UK case Windsor versus R.
Considerations on appeal
In considering the appeal, NSWCCA Justices Andrew Bell, Derek Price and Dina Yehia initially looked at the evidence that the trial judge had cited as reason to come to the determination that a number of jurors were disregarding court directions, besides the juror individually dismissed.
Their Honours found that the internet search of Gerogery happened before directions had been given, there was no evidence that the town’s population having been cited showed any breaking of court protocol but rather that a juror knew that information.
Further the dismissed juror suggested another had shared with a non-juror that the case was a murder trial, but there was no proof of this, and besides the suggestion did not involve this juror having discussed the matter beyond that point.
While the fact that the remaining jurors put questions to the justice, whilst the dismissed juror was separated, was not proof that they had been disregarding the court direction to only discuss the case when all jurors were present, as these questions could have been formulated earlier.
So, their Honours found this ground was made out.
In terms of there being a risk of a miscarriage of justice if the jury were allowed to continue with the case, the NSWCCA justices found that none of the material that had been divulged could possibly be the cause of any injustice, except perhaps the admission that jurors laughed about a witness.
“An inquiry into a substantial miscarriage of justice focuses principally upon the impact of the irregularity on an accused person’s ability to obtain a fair trial,” their Honours noted, adding that the “accused evidently perceived no unfairness or risk of unfairness to him in the jury continuing”.
Therefore, this ground of appeal was upheld as well.
Jury reinstated
The three NSWCCA justices ordered on 23 September that the decision of Justice Walton to dismiss the entire jury and order a retrial be overturned, adding that after they’d reconsidered the evidence, they did not consider there was any risk of a miscarriage of justice.
The appeals court justices found that there was no real proof that the jurors had been disregarding directions and to the extent that any breaches had occurred, the evidence before the court showed that they would hold no bearing on the outcome of the trial.
“It will be a rare case that a jury will be discharged on the basis of a risk of a substantial miscarriage of justice where, in circumstances such as the present case, the accused, represented by senior counsel of vast experience, strongly opposes the discharge,” their Honours concluded.
