An alleged South Australian rapist will face a second trial after a District Court judge discharged the first jury for doing their own research, and then incorrectly delivered a verdict in the case.
The man – who cannot be named for legal reasons – was acquitted of rape and the lesser charge of indecent assault last year and the Director of Public Prosecutions (DPP) has successfully overturned that verdict.
The accused faced a jury trial in November 2021 and on the first day of deliberations, the judge was given a note to say one juror had viewed social media posts made by the alleged victim dating back 10 years.
"He had discussed his opinion that [the posts] were consistent with her 'overall persona' with other jurors," the appeal decision stated.
"The jury was discharged, and a mistrial declared."
The judgement stated lawyers for the accused applied to the court for the trial to continue without the jury and for the judge to reach a verdict given she had heard all the evidence.
The application was opposed by the DPP, but the trial judge allowed it and about a month later she returned a not guilty verdict on both counts.
The DPP appealed that decision on the grounds the trial judge "erred in delivering a verdict" because the trial was over the minute the mistrial was declared.
Justices Mark Livesey, Sam Doyle and Sophie David agreed, finding the judge had no power to continue with the trial and reach a verdict in the case.
"This case is unusual because the application [to continue the trial judge alone] was made only after a trial had already been before a jury in a conventional manner," Justice Livesey stated.
"Once the trial was discharged, the trial was at an end.
"Once the jury took the defendant into their charge to try the issues, it was for the jury, and for the jury alone, to deliver a verdict."
South Australia's Court of Appeal said all accused must decide whether they want to be tried by a jury or a judge at their first arraignment in the District or Supreme courts.
A second trial will be held at a later date.
