The right to Sudoku

The NSW Court of Criminal Appeal is happy, for now, for a judge to sleep through a jury trial (so long as he doesn’t make any wrong decisions while unconscious.) But jurors are another matter: reportedly, not only must they stay awake but they also have to be doing nothing else:

AFTER 105 witnesses and three months of evidence, a drug trial costing $1 million was aborted yesterday when it emerged that jurors had been playing Sudoku since the trial’s second week. In the District Court in Sydney, Judge Peter Zahra discharged the jury after hearing evidence from two accused men, one of their solicitors and the jury forewoman, who admitted that she and four other jurors had been diverting themselves in the jury box by playing the popular numbers game.

More than 20 police gave evidence in the case, in which the two accused faced a common charge of conspiracy to manufacture a commercial quantity of amphetamines. One faced further firearms and drug possession indictments. The prosecution and defence were due to deliver final addresses to the jury this week. But last week, as one of the accused was giving evidence, he saw the jury forewoman playing what he thought was Sudoku. His co-accused saw it too, and the defence counsel, Adam Morison and Michael Coroneos, made a joint application for a discharge.

Yesterday Judge Zahra took unsworn evidence from the forewoman in which she confirmed the accused men’s suspicions. She said four or five jurors had brought in the Sudoku sheets and photocopied them to play during the trial and then compare their results during meal breaks. She admitted to having spent more than half of her time in court playing the game. The trial, which started on March 4, has cost more than $1 million, including counsels’ fees, staff wages and court running costs for 60 days of hearings. Judge Zahra, who had previously commended the jury for its apparent diligence, told the forewoman that the Sudoku players had let down their fellow jurors and all involved in the trial.

Now, as I’ve previously covered, the Charter’s application to judges and juries in the midst of a criminal trial is complicated by Charter s. 4(1)(j), exempting courts (including jurors) ‘exception in their administrative functions’ from the conduct mandate and Charter s. 38(3) providing a defence for ‘acts of a private nature’.  On the other hand, Charter s. 24(1)’s right to a hearing before a ‘competent’ court may well affect the meaning of the statutory appeal ground of ‘miscarriage of justice’, overturning the NSWCCA’s view that the court’s conduct is irrelevant unless a wrong decision is made (assuming the High Court doesn’t overturn that view first.)

But the Sudoku question is a little different to the sleep question, as the jury’s forewoman explained

“Yes, it helps me keep my mind busy paying more attention. Some of the evidence is rather drawn out and I find it difficult to maintain my attention the whole time and that doesn’t distract me too much from proceedings,” she told the judge.

And that’s an interesting issue. Many jurors – schooled on countless TV dramas – are doubtless disappointed to learn how deeply dull many criminal trials are, especially drug trials, with their endless examination of unintelligible coded surveillance conversations. Common law trials eschew treating the transcripts of the conversations as evidence  – they are just aids – so jurors must not only listen to the tapes in open court but also endless expert testimony – the reports are also not evidence because of the hearsay rule – on what each word means. If Judge Dodd found it hard to stay awake, how will jurors cope?

So, Zahra DCJ’s decision to end the trial strikes me as a bit over-the-top. The crucial issue is whether or not playing Sudoku harmed or hurt the jury’s concentration. Surely, playing an intelligent game would be better than vaguing out or fantasising? I say this as someone who knitted his way through the later years of law school. Perhaps it shows. Interestingly, the Sudoku juries have prompted the following response:

There is no offence under the NSW Jury Act for playing games or being inattentive to a degree that causes a trial to be abandoned. Mr Morison said it was “extraordinary that 105 witnesses, including 20 police, had been in the witness box and not seen what was happening”. He called on the NSW Sheriff’s Office to update its guidelines to inform jurors that it was unacceptable to play games during a trial. 

If this was a Victorian trial, then the sheriff would, of course, be a public authority presumably engaging in an administrative function. Perhaps there’s an argument that barring games would infringe – rather than assist – the right of defendants to a trial before a competent court?

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