Page:HCF v The Queen.pdf/21

Gageler CJ Gleeson J Jagot J

ameliorate any risk of a reasonable apprehension that the jury might not discharge its function according to law, on the evidence, and in accordance with the directions of the judge.

The respondent acknowledged in argument on the appeal that it was "almost inevitable" that the trial judge would have discharged the whole jury had the conduct come to his attention before verdicts were entered in order to avoid a potential miscarriage of justice. The respondent's acknowledgement led the appellant's senior counsel to ask rhetorically "if it is reasonable at that stage of the trial to infer that this jury … might not comply with judicial directions, then why is it unreasonable to infer now that we know that [the jury] did not comply with those directions?". The answer is that to reason in that way would conflate two separate questions, the first of which is now hypothetical and the second of which is the one to be answered.

The first question is: the evidence of the conduct remaining as it is, but the verdicts not yet having been entered, would the trial judge have discharged the jury? Answering this first, hypothetical, question would have involved making a prospective – that is, forward-looking – assessment of the risk of the occurrence of a miscarriage of justice by reason of the reasonable apprehension test. In the case of juror misconduct, the reasonable apprehension test, that a fair-minded and informed member of the public might reasonably apprehend that the jury (or juror) might not discharge its function as required, must be applied to the facts as then known and with due recognition of the difficulty of a trial judge in eliciting all relevant evidence from questioning of the juror or jury. A proper exercise of power in such a prospective assessment would generally result in discharge of the jury if, by reason of the nature and extent of the misconduct, there was any real risk of a miscarriage of justice occurring (that is, any risk of satisfaction of the "double might" test for the requisite reasonable apprehension) that could not be ameliorated by further directions. The focus would be whether, despite any further direction, it was appropriate to discharge the jury or a juror because otherwise the trial realistically might miscarry.

The second question is: the verdicts having been entered, and forming part of the available material, and all directions having been given, has a miscarriage