Page:HCF v The Queen.pdf/20

Gageler CJ Gleeson J Jagot J

all contrary to the directions of the trial judge. As noted, the appellant's case was not that this combination of conduct, in and of itself, involved a miscarriage of justice. Rather, the appellant contended that a miscarriage of justice was to be inferred from the combination of conduct giving rise to a legitimate, non-speculative, concern about the willingness of the jury to obey judicial directions generally.

Because the conduct in the present case did not come to the notice of the trial judge until after the jury delivered its verdicts, no occasion arose for the trial judge to consider discharging juror X (who conducted and informed other members of the jury of his internet research) or the jury as a whole (who did not inform the trial judge about those matters).

The power to discharge juror X or the jury before the entry of a verdict would have involved ss 56 and 60 of the Jury Act. Section 56(1)(a) provides that a judge may, without discharging the whole jury, discharge a juror, after the juror has been sworn, if "it appears to the judge (from the juror's own statements or from evidence before the judge) that the juror is not impartial or ought not, for other reasons, be allowed or required to act as a juror at the trial". Section 60(1) provides that if "a jury can not agree on a verdict, or the judge considers there are other proper reasons for discharging the jury without giving a verdict, the judge may discharge the jury without giving a verdict".

If the trial judge had been aware of the conduct before the verdicts were entered, the trial judge would have had a power of discharge under both ss 56(1)(a) and 60(1), the criterion for the exercise of which would have been whether discharge of the juror or the jury as a whole was necessary to maintain the fairness of the trial, having regard to all relevant circumstances, including "the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact". If the trial judge had been called on to decide whether to exercise the power, the trial judge could have questioned juror X and other members of the jury, if appropriate, to assist in deciding if each member remained capable of discharging their function in accordance with their oath or affirmation as a juror to "give a true verdict, according to the evidence, on the issues to be tried, and not to disclose anything about the jury's deliberations except as allowed or required by law". The trial judge also could have assessed whether giving further directions to the jury would