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Gageler CJ Gleeson J Jagot J

irregularity has not affected the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred".

The distinction drawn in K, and the test derived from Marsland, have been applied to jury or juror misconduct in a number of intermediate appellate court decisions, with a range of variations of verbal formulae, as has the test in Smith. In Mathews v Western Australia, Martin CJ, in dealing with a juror who had sought and obtained information about the accused, considered that the circumstances could not be characterised as a case of either lack of juror impartiality or procedural irregularity. Rather, the circumstances involved aspects that fell within each of those categories. His Honour applied both tests and concluded that, on either test, the same result had to be reached–the facts would have given rise to a reasonable apprehension or suspicion on the part of a fair-minded lay observer that the juror did not discharge his function impartially and the court could not be satisfied that the procedural irregularity did not affect