Page:HCF v The Queen.pdf/43

Edelman J Steward J

First, the nature and quality of the acts of disobedience could not be characterised as merely trivial or of no moment. The jury was emphatically directed not to undertake independent research on the internet concerning the law. Juror X violated that direction. The jurors were, in the clearest of terms, told to report this type of disobedience to the court. None did so until after the appellant was convicted. Instead, some of the jurors engaged in discussion with juror X on the subject of his research and conclusions were reached following those discussions. According to the Sheriff's report, some jurors were conscious of their acts of disobedience, but formed their own excuse for ignoring the trial judge. For example, juror B thought that juror X's conduct "seemed inconsequential". These circumstances alone establish not only that there was a capacity for prejudice to the jury's consideration of the appellant's case by a failure of the jury strictly to follow the rules of procedure and evidence in accordance with the directions of the trial judge but that there was actual prejudice.

Secondly, the conduct of juror X cannot be disregarded on the basis that it seemingly favoured the position of the appellant. One cannot be sure that it did in fact have that effect. It is true that the appellant was not ultimately convicted on any of the charges of rape (which was the subject of the prohibited research and the improper position taken in discussions by juror X). But as Fullagar J said in Mraz v The Queen, just as "'too favourable' directions can only too often be veritable gifts from the Greeks", so too prohibited conduct that appears favourable to an accused person might also be a Trojan horse. It is impossible to know whether an agreement to acquit on some charges, reached following unreported discussions concerning material that was expressly prohibited and was important to at least one juror, had any effect on the agreement of the jurors to convict of other charges.

The conduct of juror X, and the discussions of the jury on the subject matter researched, may, for example, have encouraged the jury to convict the appellant on what it might have perceived as an offence with a similar sentence to rape. Nor, given the serious departure from the directions on the part of all of the jurors, can we be confident that there were no other acts of disobedience which were never disclosed. The need to maintain the integrity of the jury system cannot justify any speculation about this matter or the making of hopeful assumptions. The foregoing is supported by the fact that the majority of jurors (eight in total) simply did not respond in any way to the Sheriff's letter seeking information. We have no idea what they thought about juror X's conduct and we have no insight into what they discussed with him. All we know is that, like other jurors, they may also have participated in discussion concerning the prohibited issues, and they also disobeyed the trial judge's directions by failing to report the conduct of juror X.