Blue Haven: Jury discharged in Sergeant Matthew Kelly’s manslaughter trial after ‘experiment’

A jury has been discharged and one of its members referred for possible criminal action following a bombshell revelation in the manslaughter trial of a senior Central Coast police officer.

After four-weeks of evidence and five hours into its deliberation, a jury has been discharged in the manslaughter trial of a Tuggerah Lakes police after one of its members conducted an “experiment” a judge has deemed could have led to a “miscarriage of justice”.

Sergeant Matthew Kelly — who has pleaded not guilty to the manslaughter death of a trail bike rider — is facing a retrial after the jury in his manslaughter trial was discharged on Thursday.

It comes after two notes were handed to the presiding Judge Phillip Mahony, written by two different jurors, outlining suspicions one of the jurors had allegedly conducted an “experiment” while the other note urged the judge to allow the jury to continue “its duty”.

Sgt Kelly, 50, of Kariong, was on trial for the manslaughter death of Jack Roberts, 28, who he allegedly ran over and killed — by gross criminal negligence — in the early hours of April 16, 2020, following a pursuit at Blue Haven.

He also pleaded not guilty to an alternative count of dangerous driving occasioning death.

After a four-week trial the jury retired to deliberate on Tuesday before the first of two notes were handed to Judge Mahoney on Wednesday afternoon.

In handing down his judgment, Judge Mahony read the contents of both notes, which the court heard were written in different handwriting.

“Your Honour, as a whole, we feel obliged to bring to Your Honour’s attention that a juror may have unintentionally breached the written directions of law as to the duties and obligations of jurors, point in question is, conducting an experiment using a 30cm ruler whilst lying supine with book on chest to measure whether the book met the ruler in an attempt to recreate the height of the undercarriage of TL14 (Tuggerah Lakes car 14) based off given measurements,” Judge Mahony said the first note read.

“The same juror constructed a written argument in a notepad of evidence, [oblique] witness says, at home on basis of the evidence in the jury room. This notepad was brought in on multiple occasions to the jury room. No evidence was taken home from the jury room. The jury understands and agrees that we should suspend deliberation until your further guidance and we will not and have not taken, content of the juror’s actions, under consideration.”

Tuggerah Lakes Sergeant Matthew Kelly leaving Gosford Court after his first appearance charged with manslaughter in 2020. Picture: Richard Noone

Judge Mahony said shortly before 10am on Thursday he was handed another note, in different handwriting.

“Your Honour, this is not something we have discussed as a group. We would not like to see the jury dismissed as a result of one juror’s actions,” Judge Mahony read the second note.

“We do not hear his `arguments’ based on his experiment at home and stopped him from discussing his research [oblique] notes done at home. We would like you to consider dismissing this juror alone and the remaining jurors to continue to prevent further delays and stress on all bodies. In the event the above is not possible we ask that we stay and perform our duties.”

Judge Mahony said the alleged conduct was “not inadvertent” and was an alleged breach of the jury directions.

“It must give rise to some uncertainty as to whether the fact of the experiment and any conclusions driven from it were disseminated to any individual jurors,” he said.

“It also gave rise, as I have outlined above, to a procedural unfairness to the accused given that it goes to a central issue of the trial namely causation. Viewed objectively it must give a real rise to a miscarriage of justice if this trial were to continue, even if an appropriate direction was given (to the remaining jurors).”

The trial heard evidence Mr Roberts became trapped under the fully marked Kia Sorento police car which had a clearance of 26.5cm from the ground.

Sgt Kelly is facing a retrial after the jury was dismissed. Picture: Richard Noone

The Crown argued Mr Roberts died from “traumatic asphyxiation” after his chest became trapped under the car while Sgt Kelly’s lawyers argued the rider died as a result of a “lethal” amount of methylamphetamine found in his system.

Judge Mahony said the juror’s alleged experiment could not be tested or cross examined as part of the trial.

He said it was therefore with “great reluctance” the jury must be discharged.

Judge Mahony also ordered the juror be identified by their number “and the matter referred to the Sheriff for an inquiry as to whether the matter should be referred to the NSW Police” for any alleged breach of the Jury Act.