Gageler CJ
Gleeson J
Jagot J
19.
according to law, on the evidence, and in accordance with the directions of the judge.
The appellant's case of undisputed misconduct giving rise to a legitimate concern or apprehension of subsequent further misconduct in not applying the trial judge's directions depended on the appellant's contention that the conduct of juror X (in undertaking the internet research and informing the other members of the jury about it) and the other members of the jury (in not reporting juror X's conduct to the trial judge) was done in knowing and intentional disobedience of the trial judge's directions. The difficulty with this argument of the appellant is that a finding (on the balance of probabilities) of such wilful disobedience is not open for juror X, let alone the other members of the jury.
It will be recalled that the directions were given orally on Tuesday, 13 October 2020. Openings, evidence, legal discussions in the absence of the jury, closings, and the summing up then occurred up to the lunch adjournment of Friday, 16 October 2020. Juror X did the internet research over the weekend of 17 and 18 October 2020. The internet research did not concern the appellant or any witness. It concerned the definitions of and differences in sentencing between rape and unlawful carnal knowledge generally.
Juror X's conduct might have been in wilful disobedience of the trial judge's directions. Equally plausible, however, is that juror X did not appreciate that internet research – not about the appellant, any witness, or the particular case or the charges, but about the definitions of and sentences for rape as compared to unlawful carnal knowledge – was contrary to the trial judge's directions.
As to the state of mind of the other members of the jury, it is relevant that nothing in the Sheriff's report suggests that when juror X told the other jurors about his internet research on Monday, 19 October 2020, any of them took the view that the conduct of juror X needed to be reported in order not themselves to have been in contravention of the trial judge's directions.
Juror A said in his note to the trial judge on 21 October 2020 that juror X's "external actions" (meaning, we infer, the internet research) caused him "concern" and said in response to the Sheriff some months later that juror X's internet research had been in "blatant disregard" of the trial judge's directions. It could not be inferred that juror A was other than conscientious and intent on complying with his obligations as a juror. Juror A apparently considered that juror X had disobeyed the trial judge's directions but also apparently did not consider that juror X's disobedience of the trial judge's directions required juror A immediately to notify the trial judge about juror X's conduct if juror A was not himself to contravene the trial judge's directions. Juror A's note to the trial judge and response to the Sheriff contained strong criticism of juror X. They contained no hint of confession or
