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Edelman J Steward J

or a special verdict of not guilty on the ground of insanity. In our opinion, the judge is not bound to tell them … of the possible results of their verdict."

More recently, in Cheung v The Queen, Gleeson CJ, Gummow and Hayne JJ said :

"The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender's conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge. If, and in so far as, the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for decision by verdict. In such an event, the sentencing judge will be bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue. But the issues resolved by the jury's verdict may not include some matters of potential importance to an assessment of the offender's culpability. That is not unusual. It is commonplace."

The general rule applies to counsel as well. As King CJ said in a well-known passage from R v Costi :

"In the summing up the learned trial judge attributed to counsel for the defence a reference in his address to the jury to the maximum penalty for the offence charged. The text of counsel's address to the jury was not before this Court and I am therefore not in a position to verify the attribution. If counsel referred to the penalty, he was not entitled to do so. It is improper for counsel to refer in the presence of the jury to the maximum penalty prescribed by law for the offence charged or to make any other reference to penalty. This is a well-established rule of practice and observance of it must be insisted upon. If counsel improperly refers to penalty in the course of an address to the jury, it is the duty of the trial judge to intervene immediately in order to stop counsel and to remind the jury that they are not concerned with penalty."

Juror X and other jurors should not have discussed the penalties for rape and "carnal knowledge". That was an entirely extraneous consideration. It denied procedural fairness to both the appellant and the Crown. Moreover, the Court is in no position to know whether this, in any way, infected the pathway by which the jury reasoned to a conviction of guilt or a finding of acquittal in respect of each count. In the context of the other three matters set out above, it is not possible to