Edelman J
Steward J
38.
demonstrate that "no substantial miscarriage of justice has actually occurred"[1]. There is no onus on the appellant once the appellant has demonstrated the existence of an irregularity that gives rise to practical injustice.
An illustration of the danger of imposing too difficult a task on an appellant can be seen from one of the cases in this line: Folbigg v The Queen[2]. In that case a juror obtained impermissible information from the internet showing that the appellant's father had killed her mother. The Court of Criminal Appeal did not ask whether the juror's intentional, and prohibited, research had led to the discovery of material that had the capacity to prejudice the jury's consideration of the defendant's case, irrespective of whether the material might, or was likely to, actually have been used in that way. Instead, applying the wrong test, the Court of Criminal Appeal placed itself in the position of the jury (but not the position of the juror who had deliberately disobeyed the directions) and considered whether the information would have actually influenced the jury's consideration of whether the appellant killed her own children[3]. That effectively reversed the usual onus and treated the requirement for a miscarriage of justice as though it were a requirement for a substantial miscarriage of justice. In summary, determining whether jury misbehaviour has resulted in practical injustice does not require an appellant to demonstrate that the irregularity in fact caused any actual prejudice[4]. The focus is on whether the incident was of such a character or nature that it gave rise to a capacity to prejudice the jury's consideration of the accused's case, thus casting a shadow of injustice over the verdict[5]. The presence of that capacity is sufficient to demonstrate that the irregularity constitutes a miscarriage of justice.
Practical injustice
The jury's disobedience here supports, at the very least, a conclusion that there was a capacity for prejudice to the jury's consideration of the appellant's case. This is so for four reasons.
- ↑ Criminal Code, s 668E(1A).
- ↑ [2007] NSWCCA 371.
- ↑ Folbigg v The Queen [2007] NSWCCA 371 at [52]–[55] per McClellan CJ at CL (with whom Simpson and Bell JJ agreed).
- ↑ R v Chaouk [1986] VR 707 at 712 per Kaye J; R v Emmett (1988) 14 NSWLR 327 at 339 per Enderby J; Smith v Western Australia (2014) 250 CLR 473 at 486 [55] footnote 51 per French CJ, Crennan, Kiefel, Gageler and Keane JJ.
- ↑ Smith v Western Australia (2014) 250 CLR 473 at 486 [54] per French CJ, Crennan, Kiefel, Gageler and Keane JJ.
