Page:HCF v The Queen.pdf/25

Gageler CJ Gleeson J Jagot J

inference of wilfulness can be drawn. In the process of fact-finding required before the application of the reasonable apprehension test, it cannot be reasoned that there is a reasonable apprehension that juror X was wilfully disobedient; added to a reasonable apprehension that the other jurors were wilfully disobedient; added to a reasonable apprehension that this jury was unwilling to follow the trial judge's directions in some other respect, leading to a reasonable apprehension that juror X and other members of the jury were not faithful to their sworn function of rendering a true verdict according to law, on the evidence, and in accordance with the directions of the judge.

This is not to suggest juror X and other members of the jury did not contravene the trial judge's directions. They did. Juror X should not have conducted the internet research. When juror X disclosed he had conducted the internet research, the other members of the jury, to the extent they did discuss the substance of the research, should not have done so. Instead, they should have informed the trial judge in accordance with the trial judge's directions. Therefore, the jury's conduct is properly described as misconduct and irregular.

Once the element of wilfulness is put to one side, what is left is the facts of disobedience of the trial judge's directions. What other inference can be drawn from those facts on the balance of probabilities? The direction the trial judge gave to the jury on Friday, 16 October 2020, before the jury started its deliberations to the effect that it should "ensure that no external inference" played a part in its deliberations should not be overlooked. The conduct which occurred in the jury room on Monday, 19 October 2020, provides no foundation for inferring that the jury, and even ultimately juror X, did not comply with that direction. The more likely explanation for the jury's failure then to report the conduct of juror X to the trial judge is that the jury failed fully to appreciate the true import of the trial judge's earlier directions about internet research extending to the definition of the offences or sentencing unconnected to the facts of the immediate case.

What follows, as a matter of inferential reasoning, is that the jury's failure fully to appreciate the true import of the trial judge's directions about internet research enabled the jury to discuss the sentencing issue without realising that doing so also contravened the trial judge's directions and to not report juror X's internet research to the trial judge, again without realising that doing so also contravened the trial judge's directions.

What does not follow, as a matter of inferential reasoning, is that juror X or other members of the jury failed to understand or failed to apply, still less were unwilling to apply, the trial judge's other directions. Failure of a jury or juror to fully appreciate and therefore apply a procedural direction about what is to occur in the course of a hearing does not, without more, provide a foundation for a positive feeling of actual apprehension or mistrust on the part of a fair-minded and