Page:HCF v The Queen.pdf/38

Edelman J Steward J

The issue of jury misbehaviour was considered in Smith v Western Australia, where, following the discharge of a jury, a note was found on a table in the jury room which was in the following terms :

"I have been physically coerced by a fellow juror to change my plea to be aligned with the majority vote. This has made my ability to perform my duty as a juror on this panel [sic]."

The note raised a concern about the partiality of the allegedly affected juror. This Court applied a test for apprehended bias which had been formulated by Mason CJ and McHugh J in Webb v The Queen. The test, described as the "proper approach", was as follows :

"[T]he test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially."

The test of "reasonable apprehension or suspicion" that a juror has not, or the jury has not, discharged its task impartially is entirely apt where the nature of the misbehaviour or irregularity is that it might give rise to a reasonable apprehension of bias or partiality. But no conclusion could be reached on the point by this Court in Smith because the note had been prepared by an unidentified person and it was not known whether it was true that a juror had been physically coerced. A reasonable suspicion would mean that there was something with a capacity to prejudice the jury's consideration of the defendant's case. Accordingly, this Court remitted the matter to the Court of Appeal of the Supreme Court of Western Australia for further hearing and determination. The Court of Appeal conducted an inquiry into what had occurred and found that there had in fact been