Page:HCF v The Queen.pdf/44

Edelman J Steward J

Thirdly, as explained at the outset of these reasons, the Director of Public Prosecutions very properly conceded that even without the discussion of the prohibited internet research by some members of the jury, if the conduct of juror X had been disclosed to the trial judge, before the jury had given its verdicts, it was "almost inevitable" that the "whole jury would have been discharged". That concession was correctly made. This emphasises and reflects the seriousness of what had occurred. Of course, the issue posed by this appeal, set out above, is not directed at answering how the power to discharge a juror or the jury might have been exercised, had the note to the bailiff been given before the appellant's conviction. But once it is accepted that the trial judge would have had sufficient "proper reasons", to use the language of s 60(1) of the Jury Act, to discharge the jury, then (to say the least) it would be odd to conclude that what had happened did not otherwise have the capacity to prejudice the jury's consideration of the appellant's case.

In written submissions filed after the hearing, the Director of Public Prosecutions went further. He conceded, again properly, that the disobedience by the jury was capable of casting a "shadow of injustice over the verdict". The Director nonetheless submitted that it was possible to dispel this shadow by, amongst other things, the contents of the Sheriff's report. But, for the reasons explained above, the contents of the Sheriff's report only reinforce that shadow.

Fourthly, there is the subject matter of what was discussed following juror X's disclosure. Based on what juror A said to the Sheriff, those discussions included the range of sentences available for rape and "carnal knowledge". Unless otherwise obliged by statute, a judge should never tell the jury about possible sentencing outcomes. The question of sentencing is a matter for the judge and not the jury. As this Court said in Lucas v The Queen :

"[T]he jury are not concerned with the consequences which may follow upon their verdict whether it be a verdict of guilty of the offences charged