Disobedience to the judge’s instructions by both a juror and the jury were the basis for the appeal in HCF v The Queen [2023] HCA 35.
The instructions were to not use the internet, and to inform the judge if the jury became aware that any of their number had contravened that instruction. A juror had investigated the meaning of the alleged offences and the relevant sentencing levels, and had then told his fellow jurors what he had found out. The jury had not informed the judge of this.
These irregularities were only discovered well after the verdicts had been returned and the defendant (appellant) had been convicted of some of the charges.
Had these irregularities constituted a miscarriage of justice? If they had, what should the result of the appeal be?
The Court divided 3 -2.
The minority justices, Edelman and Steward JJ, decided that there had been a miscarriage of justice and that the issue of whether this had been “substantial” in terms of the proviso (allowing the appeal to be dismissed if the miscarriage was not substantial) should be remitted to the lower appeal court as it had not been argued on this appeal.
The majority, Gageler CJ, Gleeson and Jagot JJ, held, after close examination of the circumstances of the trial, that there had been no miscarriage of justice and therefore that the appeal should be dismissed.
The decision criterion for whether jury or juror misconduct amounts to a miscarriage of justice is set out in the majority judgment. Significantly, the majority held that if this sort of error had occurred it would of itself, without further inquiry, require that the appeal against conviction be allowed [7]. The test for identifying this sort of error is described as a “double might” test [6]:
“ … 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. …”
Descriptions of the consequences of this test being met are set out at 11:
“… 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". [footnotes omitted]
The inquiry is not as to what might reasonably have been the effect of the misconduct on the actual jury that convicted the appellant ([12], referring to Weiss v The Queen (2005) 224 CLR 300 at 313-315 [34]-[38]). Rather, the inquiry is (my terminology here) objective. The perspective is that of a fair-minded and informed member of the public [13]. The facts that “inform” this fair-minded person are facts that are determined on the balance of probabilities [14]:
“On the facts to be found on the balance of probabilities, might a fair-minded and informed member of the public reasonably apprehend that the jury or a juror might not have discharged the function of deciding the appellant's guilt according to law, on the evidence, and in accordance with the directions of the judge?”
Mere disobedience by a juror or jury to a judge’s instruction is not in and of itself sufficient to give rise to a miscarriage of justice [48]. On close inspection of the facts here it could not be concluded that the disobedience was wilful [49]-[57], rather it was properly described as misconduct and irregular [59]. Further considerations, including the verdicts, took the issue no further. Speculation would not amount to a reasonable apprehension that the jury might not have discharged its function according to law and in accordance with the directions of the judge [69].
One can see that this fair-minded and reasonable observer is very well informed about the trial, and is not just some casual visitor to the public gallery in the courtroom. Really, I suggest, this person is an appeal judge, but in any event the focus is on the objectively assessed effect of the irregularity on the actual jury in the trial (the ‘this jury’ test [12]). Here, on the majority analysis, the convictions had not been demonstrated to have involved a miscarriage of justice, and therefore there was no occasion to consider the application of the proviso.
By what course of reasoning did the minority conclude that there had been a miscarriage of justice? Following Weiss, the occurrence of “any departure from trial according to law, regardless of the nature or importance of that departure” is a miscarriage of justice ([75], citing Weiss at [52] with emphasis in the original). The only qualification on this should be that the departure must be capable of affecting the result of the trial [78]. Other qualifications have been stated, as reviewed at [76]-[77], but reconciliation of them did not need to be attempted in the present case [79], as here a failure to ensure that the rules of procedure and evidence were strictly followed amounted to a miscarriage of justice [82]. While there is a range of irregular behaviour, from the trivial and inconsequential to the serious kind that will always constitute a substantial miscarriage of justice (such as proof of apprehended bias), the present case is one of the many where irregular behaviour or misbehaviour will have the capacity to prejudice the jury’s consideration of the defendant’s case and where the Crown therefore has the burden of satisfying the appellate court that there was no substantial miscarriage of justice [84].
Here, on the minority view, there was capacity for the misconduct to affect the jury’s consideration of the defendant’s case [113]-[123]: the acts of disobedience could not be described as merely trivial or of no moment, their effect on the jury’s reasoning could not be known, the Crown had correctly conceded that if the misconduct had been known before the verdicts were returned the judge would almost inevitably have discharged the whole jury (but see the majority judgment at [45]-[46]), the disobedience of the jury was capable of casting a shadow of injustice over the whole verdict, and the discussion of the potential sentences for the alleged offending was a denial of procedural fairness to both the defendant and the Crown. Consequently, in the judgment of the minority, the existence of the miscarriage required consideration of the application of the proviso, and the matter should have been remitted to the Court of Appeal for determination of that issue.
The minority’s need, upon concluding that there had been a miscarriage of justice, to consider the application of the proviso (that is, to decide whether the miscarriage of justice had been substantial) is in contrast to the majority’s view of the consequence if it had found that there had been a material miscarriage of justice. The majority would have regarded the misbehaviour, had it had an objectively perceived effect on the verdicts of guilty, as of itself requiring the convictions to be quashed. The difference emerges from differing treatments of Weiss.
