Page:HCF v The Queen.pdf/17

Gageler CJ Gleeson J Jagot J

in which the verdicts should be given if the jury wanted to acquit on a rape charge but convict on an alternative unlawful carnal knowledge charge. The jury again retired. The jury returned shortly afterwards to deliver its verdicts.

The subsequent revelation of the irregularity

On Wednesday, 21 October 2020, a juror hand delivered a note to the Acting Deputy Registrar. The note read:

"Issue for the Judge – Jury Issue – (Keep or throw away)

1. At the beginning of the trial – one juror adamantly stated that he would not convict, as he had a legal dealing regarding his interactions with a 13 yr. old child when he was young. He openly and honestly disclosed that to us.

2. On Monday this week, during deliberations, he discussed some willingness to a verdict of carnal knowledge – AND that this was based on his internet research on the weekend – w.r.t lighter sentencing for such.

3. After he and others realized from their discussions sentencing was not significantly different – he restated his absolute opposition to either.

4. Based on jury polling, his vote would not alter the ability to obtain a unanimous decision – but both his background & his external actions gives me concern."

As noted, the trial judge directed an investigation under s 70(7) of the Jury Act. The Sheriff's report of the investigation, dated 18 March 2021, recorded that the Sheriff sent a letter to each juror. The letter referred to the trial in which the person served as a juror between 13 and 20 October 2020 and said that s 70(7) "provides that if there are grounds to suspect that a person may have been guilty of bias, fraud or an offence related to the person's membership of a jury or the performance of functions as a member of a jury, the court before which the trial was conducted may authorise" (a) an investigation of the suspected bias, fraud or offence; and (b) the seeking of disclosure of jury information for the purposes of the investigation. The Sheriff's letter continued in these terms:

"I am writing to you to ascertain whether you wish to formally advise me of any information concerning whether any person may have demonstrated bias, fraud or an offence related to the person's membership of a jury or the performance of functions as a member of a jury."