Jurors and the use of extraneous material during deliberations: comparing the issues raised by two recent cases from England and Wales and New South Wales

Abstract

This article explores the problem of jurors conducting their own research and using extraneous material during deliberations. While such cases are rarely reported, they do arise. This is despite efforts in many jurisdictions to deter jury misconduct through the use of jury notices, judicial warnings to jurors, and the creation of specific criminal offences of jury misconduct. This article explores the approaches taken by the courts in cases involving jurors conducting research. It then considers the themes raised in two recent cases in England and Wales and New South Wales, namely R v Smith (Jason) [2023] EWCA Crim 1256 and R v Tembeleski (No 2) [2024] NSWDC 504. These two cases demonstrate the contemporary relevance and cross-jurisdictional nature of this type of jury misconduct. Finally, this article proposes the creation of a new offence in England and Wales of failing to report jury misconduct and calls for further research into why jurors carry out their own research despite being warned not to