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Gageler CJ Gleeson J Jagot J in the sense that it involved asking whether there was a "real chance" that the irregularity impacted on the jury's verdict. If such prejudice was established, the respondent sought to invoke the proviso.

Smith v Western Australia establishes that the question whether a miscarriage of justice occurred because of an irregularity in the conduct of a jury or juror is to be determined by applying the test stated by Mason CJ and McHugh J in Webb v The Queen. That test was stated in terms of whether the irregularity "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". However, it is apparent from the assimilation in Webb of the test for reasonable apprehension of bias on the part of a judge with the test for reasonable apprehension of bias on the part of a juror ; the reference in Smith to the other members of the Court in Webb agreeing with Mason CJ and McHugh J ; and the extension in Smith of that test to all forms of juror misconduct or irregularity, that the test should be understood in terms of whether a fair-minded lay observer might reasonably apprehend that the jury (or juror) might not have discharged or might not discharge its function of deciding an accused's guilt according to law (which includes but is not limited to the requirement of impartiality), on the evidence, and in accordance with the directions of the judge. The "double might" test was confirmed as the test for reasonable apprehension of bias (including on the part of a jury or juror) in Ebner v Official Trustee in Bankruptcy.

If the irregularity gives rise to such a reasonable apprehension, then there has been a "failure to observe the requirements of the criminal process in a fundamental respect", in that "the integrity of the trial process" has been undermined. In such event, regardless of any potential effect on the trial, there has