Gageler CJ
Gleeson J
Jagot J
6.
form of reconciliation by assimilation. The test as formulated in Webb and confirmed in Ebner must prevail.
Accordingly, in all cases of jury or juror misconduct, what is required to establish a miscarriage of justice, and what will also establish a substantial miscarriage of justice, is that a fair-minded and informed member of the public might reasonably apprehend that the jury (or juror) might not have discharged or might not discharge its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge. Although the terms have been used interchangeably in this context, the test is best expressed in terms of a reasonable "apprehension" rather than a reasonable "suspicion"[1]. A suspicion is "a state of conjecture or surmise where proof is lacking"; it is "more than a mere idle wondering"; "it is a positive feeling of actual apprehension or mistrust"[2]. To be reasonable, a suspicion or apprehension requires a positive feeling of actual apprehension or mistrust which has an objective basis in fact[3]. To apply the reasonable apprehension test therefore requires first that such relevant facts as can be inferred from the available evidence be found on the balance of probabilities[4]. In undertaking that necessary preliminary fact-finding, it is useful to record the truism that "[o]ne does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed"[5]; inference requires "something more than mere conjecture, guesswork or surmise"[6].
- ↑ Webb v The Queen (1994) 181 CLR 41 at 68; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 [6].
- ↑ George v Rockett (1990) 170 CLR 104 at 115, quoting Hussien v Chong Fook Kam [1970] AC 942 at 948 and Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303.
- ↑ Lordianto v Commissioner of the Australian Federal Police (2019) 266 CLR 273 at 308 [89], citing George v Rockett (1990) 170 CLR 104 at 115.
- ↑ eg, Smith v Western Australia [No 2] (2016) 263 A Crim R 449 at 462 [53], 471 [386].
- ↑ Jones v Dunkel (1959) 101 CLR 298 at 305.
- ↑ Cross on Evidence, 13th Aust ed (2021) at 416 [9055].
