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Edelman J Steward J

bailiff so that the trial judge could then examine the matter. To emphasise the criticality of these directions the jurors were told that non-compliance would be an "offence by way of contempt of court".

As already mentioned, "a person is entitled to a trial where rules of procedure and evidence are strictly followed". This proposition is derived from the reasons of Fullagar J in Mraz v The Queen, in which his Honour was discussing the application of the proviso following a misdirection by the trial judge. His Honour explained that a trial where the rules of procedure and evidence are strictly followed is an entitlement of an accused person consistent with the "long tradition of the English criminal law". Without such strict compliance justice will miscarry unless (under the proviso) the Crown can "make it clear that there is no real possibility that justice has miscarried".

Three further observations should be made. First, it does not follow that every failure to follow a judge's directions will constitute a miscarriage of justice for the purposes of s 668E(1) of the Criminal Code. There must be some impact upon justice for the failure to constitute a miscarriage of justice. A departure which is trivial or meaningless, or is of no real moment – such that it is incapable of causing prejudice to the jury's consideration of the defendant's case – would not be an irregularity that would constitute a miscarriage of justice.

Secondly, given the usual gravity of a judge's directions, it would be a rare case in which a juror's or jury's disobedience did not constitute a miscarriage of justice. Indeed, that should be the assumed starting point when considering jury recalcitrance. Whether, following an application of the proviso (contained, in Queensland, in s 668E(1A) of the Criminal Code), it might nonetheless be the case that no substantial miscarriage of justice had taken place because the Crown demonstrates that the disobedience could not have affected the result is another matter entirely.

Thirdly, there may also be cases where a juror's or jury's disobedience is so extremely serious or stark that it constitutes a serious departure from the prescribed