At least seven of the 12 jurors have admitted knowing the man had faced an earlier murder charge, leading Justice John Dunford to say “there may be a real suspicion that they may have been influenced”.
Justice James Wood even suggested that NSW should adopt a Queensland law that specifically forbids jurors making inquiries about a defendant.
The hearing on Friday came only a week after the Chief Justice, Jim Spigelman, warned that developments in internet technology “pose new challenges to the ability to ensure a fair trial”.
The man, known as K, has faced two separate charges of murder. He was found not guilty on the first charge, but on the second he was sentenced to 24 years’ jail. His conviction was quashed on appeal and a retrial ordered because the judge misdirected the jury on DNA evidence. At the retrial he was found guilty and sentenced to 22 years’ jail.
The lawyer for the defendant said the jury would have been discharged if the judge had known that jurors had defied his order to consider only evidence before the court.
He said the information was “capable of unconsciously affecting their deliberations” and that some might have believed K had a tendency to that type of crime.
The NSW Solicitor-General, Michael Sexton, said the verdict should stand because the Crown case was overwhelming.
But Justice Dunford said the affidavits showed two jurors knew K had received a lengthy jail term at his first trial.
He said jurors one, four, five and six had accessed information about the trial and knew there was an error in the summing up that led to a new trial. Jurors three, seven and eight knew he had been accused and jailed. One had even gone to the alleged crime scene and made comments that K was a double murderer.
Asked whether it was possible to say the information did not affect any juror, Mr Sexton proposed a test based on the significance of the material.
“That is where I have big problems,” Justice Grove said, adding there was the fundamental issue of affording the defendant a fair trial.
Justice Wood seemed only too aware of the difficulties posed by not knowing exactly what went on in the jury room. “It is plain enough if a jury comes clean and and says I took this into account,” he said.