District Court New South Wales

• Medium Neutral Citation: R v David Michael WILLS, Caroll Anne HENDERSON, Peter James HENDERSON [2012] NSWDC 285
• Hearing dates: 15 May 2012 to 7 September 2012
• Decision date: 17 July 2012
• Before: Judge Haesler SC

Decision

JUDGMENT - on application for examination of jurors

• Catchwords: Examination of Jurors, facebook, Jury integrity
• Legislation Cited: Jury Act 1977
• Category: Procedural and other rulings
• Parties: Regina (Crown); David Michael WILLS (Accused); Caroll Anne HENDERSON (Accused); Peter James HENDERSON (Accused)
• Representation: Mr S de Silva (Crown); Mr G Brady (for David Wills); Mr A Conwell (for Caroll Henderson); Mr F Coyne (for Peter Henderson); Mr D Robinson (DPP); Mr R Hudson (for David Wills); Ms K Anderson (for Caroll Henderson); Mr D Humphries (for Peter Henderson)
• File Number(s): 2009/80902; 2008/77194; 2008/177894

Judgment

1 HIS HONOUR: This morning the senior DPP solicitor instructing the Crown brought to my attention material set out in voir dire Exhibit 37. It concerned a report that a fraud trial was "all over Facebook." I had enquiries made by officers of the Court who confirmed that the juror referred to in the note was in fact one of the jurors in the trial. During the luncheon adjournment I had a court officer make enquiries of that juror.

2 The court officer, Ms Dimitrakopoulos, gave evidence this afternoon about those enquiries. She was given free access to the juror's Facebook page and she asked certain questions of the juror. Those questions elicited these responses:

(1) that the juror had fellow jurors as Facebook friends;

(2) that the juror had not discussed with those fellow jurors or others, matters pertaining to the evidence in the trial, and

(3) any comments about the trial related to matters general to a criminal trial and not specific to the evidence.

3 Mr Brady for Mr Wills submits that it is appropriate in this case that I examine the juror and those jurors nominated as Facebook friends, pursuant to s 55D and 55DA Jury Act 1977 and that I direct, so far as I am able, that a court officer seek access to the Facebook sites of the specific juror and each juror nominated as a Facebook friend.

4 It is clear in a modern world where there are social media sites that the opportunity for discussing matters pertaining to a trial has been increased beyond that which occurred before there was ready access to the Internet and such sites. It is also clear to me that such sites allow for interaction by others in conversations that might occur between jurors or between the juror and those who respond to such comments. An example here is of a 'friend' posting on the Facebook page of the juror, a photo-shopped photograph of the juror in a wig and gown.

5 I am satisfied by the responses reported by Ms Dimitrakopoulos that the open access to the Facebook site given to her by the juror indicates that nothing was, or is, intended to be hidden. The material seen and disclosed on the site is no more than one would expect a juror in a long trial to engage in by way of conversation, electronic or otherwise, with friends and family. For example: notifying them of; the type of the proceedings; the unusual nature of the proceedings, e.g.: people in wigs and gowns; the length of the proceedings; joy at having a weekend off; and concern at how long the trial might last.

6 They are all perfectly permissible comments. The juror's responses to the court officer, indicated they were well aware of the directions given by "the judge not to discuss the case and the evidence", satisfy me, even if second-hand, that there is nothing on a prima facie level to indicate that the juror has been influenced by any extraneous material or, even on a prima facie level, potentially breached any of the provisions of s 68C Jury Act 1977. In those circumstances I do not believe it is necessary at this stage to either examine the juror on oath or examine other jurors nominated as Facebook friends or to request of jurors that they open their Facebook pages for inspection.

7 In answer to the possible question why do I not just make the enquiry? I am not satisfied even on a prima face level that there has been anything untoward. I am concerned that jurors, all of whom have been conscientiously following and engaged in the trial, might somehow read into such questioning a suspicion by the Court of them and an attack on their integrity as jurors. That might then cause them to act in a way prejudicial to a party, whether it be the Crown or otherwise. I am also concerned that the possibility jurors might develop such feelings might of itself require their almost mandatory discharge. The treatment envisaged would then be worse than the problem sought to be cured.

8 For those reasons, and because I do not believe that the requirements of ss 55D and 55DA Jury Act 1977 have been met, it is not necessary for me to examine the jurors on oath at this stage.

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Decision last updated: 02 May 2013