Gageler CJ
Gleeson J
Jagot J
18.
of justice in fact occurred? This is the question now to be answered. It cannot be answered by a prospective, forward-looking, assessment of the risk that the trial realistically might miscarry. It is to be answered by a retrospective assessment of whether conduct found to have occurred in fact and on the balance of probabilities means that a fair-minded and informed member of the public might reasonably apprehend that the jury (or juror) might not have discharged its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge. This retrospective assessment must take into account all relevant facts as found on the balance of probabilities (if not subject to the common law exclusionary rule), including as to the nature and extent of the misconduct and any findings and warnings by the trial judge. Indeed, in applying the reasonable apprehension test following the "public ventilation" of an irregularity during the course of the trial it has been said that the fair-minded and informed member of the public "would give considerable weight" to a trial judge's warning about the matter and conclusions and findings[1].
There should be no quibbling about the terms of the trial judge's directions in this case. Taken as a whole, they were clear – the jury was directed not to look up anything about the case on the internet and that if any jury member told another juror that they had done so, that juror should inform the trial judge via the bailiff.
For the conduct of juror X (in conducting and informing the jury of his internet research) and of the jury as a whole (in not informing the trial judge about that conduct of juror X) to satisfy the reasonable apprehension test, however, more would be required than the undoubted fact that the conduct contravened directions of the trial judge. As Martin CJ noted in Mathews v Western Australia, apart from the dissenting judgment of Pullin JA in Hansen v Western Australia[2], it is not apparent that any case decides that mere disobedience by a jury or juror of a trial judge's directions, in and of itself, is sufficient to give rise to a miscarriage of justice. The cases in which juror misconduct has resulted in the setting aside of the verdict have included consideration of the potential effect of the misconduct on the jury's discharge of its function, with the most important considerations being the nature of the inquiries made and/or of the information obtained by the jury or juror[3]. These considerations also inform the assessment of the possible reasonable apprehension of the fair-minded and informed member of the public as to whether the jury (or juror) (after conviction) might not have discharged or (before conviction) might not discharge its function of deciding an accused's guilt
