Gageler CJ
Gleeson J
Jagot J
7.
In the circumstances of the present case, where the issue has arisen only after conviction, the question of miscarriage of justice may therefore be expressed in these terms:
"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?"
The evidence available for the purpose of fact-finding is affected by the common law rule excluding evidence of the jury's deliberations. However, the limits of that common law rule are informed by its underlying policy to "maintain the integrity and finality of a formally expressed verdict"[1]. The rule does not apply to evidence extrinsic to the deliberations of the jury[2] and may, of course, be modified by statute[3]. It was common ground in the appeal that a report of the Sheriff under's 70(7) of the Jury Act 1995 (Qld) was properly admitted into evidence. This appeal, accordingly, provides no opportunity to decide questions relating to the scope of the exclusionary rule in the light of the reasoning in Smith[4].
Evaluation of the available evidence from the perspective of a fair-minded and informed member of the public must take account of the requirement of's 50 of the Jury Act that "[t]he members of the jury must be sworn to give a true verdict, according to the evidence, on the issues to be tried". Apprehension of a violation of that oath is not lightly to be inferred.
We will turn now to the background to the appeal, to the course of the trial, and to the circumstances which subsequently revealed the undisputed irregularity in the conduct of the jury.
- ↑ Minarowska (1995) 83 A Crim R 78 at 87, quoted in Smith v Western Australia (2014) 250 CLR 473 at 481 [30]. See also Smith v Western Australia (2014) 250 CLR 473 at 481 [29], 481-482 [33], 485 [48]; NH v Director of Public Prosecutions (SA) (2016) 260 CLR 546 at 590–591 [105].
- ↑ Smith v Western Australia (2014) 250 CLR 473 at 480 [27].
- ↑ eg, Agelakis v The Queen [2020] NSWCCA 72 at [25]-[31].
- ↑ (2014) 250 CLR 473. See, eg, Mathews v Western Australia (2015) 257 A Crim R 55 at 60 [104].
