Page:HCF v The Queen.pdf/9

Gageler CJ Gleeson J Jagot J

the verdict, in the sense that the jury would have returned the same verdict if theirregularity had not occurred.

Conceptual coherence requires that the test derived from Marsland, and the range of verbal variations on it, be reconciled with the test formulated in Webb, applied in Smith, and confirmed in Ebner. The reconciliation needs to be in favour of the test formulated in Webb. Irregular conduct by a jury or juror, whether described as procedural or otherwise, involves a miscarriage of justice if a fair-minded and informed member of the public might reasonably apprehend that the jury (or juror) might not discharge its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge. If the jury or juror misconduct would give rise to such a reasonable apprehension then, for that reason, the misconduct will involve a "failure to observe the requirements of the criminal process in a fundamental respect". In such a case, satisfaction of the reasonable apprehension test means that the "shadow of injustice over the verdict" cannot be dispelled, that the trial is "incurably flawed", that there has been a "serious breach of the presuppositions of the trial" , and that "the irregularity [is] so material that of itself it constitutes a miscarriage of justice without the need to consider its effect on the verdict".

There may be no practical difference between the test formulated in Webb and the test derived from Marsland were application of the common form proviso focused solely on the effect of an irregularity on the actual jury in the trial. If the reasonable apprehension test were satisfied, it may then be impossible to conclude that the irregularity did not affect the verdict and the proviso would not be available. However, this Court's rejection in Weiss v The Queen of the utility of considering the effect of an irregularity on the actual jury in the trial (referred to as the "this jury" test) in the application of the common form proviso negates that