Page:HCF v The Queen.pdf/28

Edelman J Steward J

EDELMAN AND STEWARD JJ. When many or all members of a jury disobey the clear directions of the trial judge on an important matter is it possible to say that the accused person has received a trial "where rules of procedure and evidence are strictly followed"? The disobedience by the jury in this case involved:

1. internet research by one juror, in contravention of the trial judge's directions, concerning sentences for offences with which the appellant was charged;

2. the juror sharing that research with other jurors and, despite at least one juror recognising it to be in "blatant disregard" of the trial judge's directions, the jury nevertheless discussing the sentencing practices, with at least some members reaching conclusions on the sentencing practices; and

3. every member of the jury disobeying the trial judge's direction to report any internet research in a note to the bailiff.

Neither counsel had any opportunity to make submissions to the trial judge about directions on the issues of sentencing that the jury had discussed. Nor did the trial judge have the opportunity to address or inquire of the jury about the issue. The behaviour of the jury members was not merely misconduct which cast a pall over their deliberations. It also involved a serious denial of procedural fairness to both the appellant and the Crown. As senior counsel for the appellant rightly said, if the trial judge had found out about the behaviour of one juror engaging in internet research and the failure of the jury to report it, it is likely that the whole trial would have been aborted. The Director of Public Prosecutions also rightly accepted that this was "almost inevitable". Any remaining doubt would be removed if the trial judge had also discovered that the sentencing matters researched had been discussed by the whole jury, with at least two members of the jury believing that the juror who had engaged in the prohibited research had engaged in discussions with other jurors about sentencing practices and had reached a conclusion that the sentences for two of the offences were not significantly different.

The trial judge did not discover these matters and the trial was not aborted. There is not merely a real chance that the jury did not decide the appellant's guilt or innocence by strictly following the rules of procedure and evidence in accordance with the directions of the trial judge. It is known that the jury did not.

By reason of the behaviour of the jury, a miscarriage of justice took place. Whether or not that miscarriage of justice was "substantial", so as to invite the application of the proviso to the common form criminal appeal statute, is a matter that is appropriate to be considered on remitter to the Court of Appeal of the