Page:HCF v The Queen.pdf/37

Edelman J Steward J

processes for a criminal trial, thus inexorably giving rise to a substantial miscarriage of justice for the purposes of the proviso. This is not such a case. Three occasions of jury disobedience of directions

Based upon the note handed to the Acting Deputy Registrar on 21 October 2020 and upon the Sheriff's report, the jury or members of the jury disobeyed the trial judge on three separate occasions.

First, the person known as juror X researched the law concerning the offences of rape and what either juror X, or the jury more generally, described as "carnal knowledge", including the sentences for these offences.

Secondly, juror X disclosed this prohibited information to his fellow jurors and it was the subject of discussion by juror X and other members of the jury, who reached conclusions from their discussions about the sentencing considerations for the relevant offences. Juror A said that the "sentencing durations" were used by juror X to make an argument that a potential conviction "could have severe personal consequences [for the] defendant". Juror A also said that a "small minority number of jurors … supported [juror X's] views".

Thirdly, all of the members of the jury failed to bring to the attention of the trial judge what juror X had done, or that this prohibited information had, in some way and to some extent, been discussed by the jury with conclusions reached by some members of the jury.

Miscarriage of justice and jury misbehaviour

The misbehaviour by the jury in this case was plainly a departure from that strict application of the law to which an accused is entitled. The only issue is whether this conduct met the low threshold of practical injustice described above: an irregularity with the capacity to prejudice the jury's consideration of the defendant's case, irrespective of whether the result might, or might not, have been different.