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Edelman J Steward J

that it was, without more, a substantial miscarriage of justice. In so concluding, Kaye J followed this passage from the judgment of Porter LJ in R v Taylor :

"An accused person might justly ask how was he to test whether or not the jury had heard anything outside which might influence them in their deliberations when the only persons who could give evidence on the matter were persons who themselves – albeit quite unconsciously – were involved in the irregularities. Nor, indeed, is the matter one which concerns the individual prisoner alone. That the due and orderly administration of justice should be maintained is a concern of the whole community. We take it that the duty of a Court is not only to ensure, as far as possible, the due administration of justice in the individual case, but also to preserve the due course of the procedure generally."

Contrary to the approach in Smith and Chaouk there is a line of decisions from the Court of Criminal Appeal of New South Wales which apply a different test to determine whether the misbehaviour of a juror or jury constitutes a miscarriage of justice. That test requires the appellant to satisfy the court that the irregularity has affected the verdict so that the jury would not have returned the same verdict if the irregularity had not occurred. Although some of those cases might have been decided the same way by reference to the correct test, the test for a miscarriage of justice that was applied was one that is, itself, capable of producing miscarriages of justice. It is the wrong test precisely because it obliges an appellant to do the very work which the Crown must do when applying the proviso. When applying the proviso the onus is on the Crown or the State to