Page:HCF v The Queen.pdf/7

Gageler CJ Gleeson J Jagot J

been a miscarriage of justice which is inherently substantial and there is accordingly no scope for the application of the proviso.

While the irregularity in Webb involved conduct of a juror that called into question the juror's impartiality, and in Smith involved alleged coercion by one juror of another juror, the "double might" test 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 impartially ("the reasonable apprehension test") is not to be confined to any particular class of irregularity of juror conduct; the "double might" test is sufficiently liberal to subsume the range of potential miscarriages of justice by reason of jury (or juror) misconduct or irregularity irrespective of the legal label that might otherwise apply to that misconduct or irregularity.

In Smith, reference had been made in the decision under appeal to the test in R v Marsland as applied in R v Rudkowsky and R v K. In K, Wood CJ at CL distinguished Webb on the basis that it concerned possible juror bias whereas in K the irregularity was that several jurors had conducted internet searches from which they ascertained that the accused had previously been charged with the murder of his second wife, the proceeding being a retrial of the accused on the charge of the murder of his first wife. Wood CJ at CL said the circumstances of the internet searches and information obtained as a result of them were analogous to cases of documents other than evidence being in a jury room. On this basis, his Honour characterised the irregularity as "procedural" and applied the test derived from Marsland as applied in Rudkowsky that for a procedural irregularity not to give rise to a miscarriage of justice the court must be satisfied that "the