42.
have any confidence that all members of the jury cast aside, or ignored entirely, their knowledge of the possible sentencing outcomes. On this matter alone, it must therefore follow that the jury's misbehaviour was capable of prejudicing its consideration of the appellant's case.
The fact that some of the jurors who responded to the Sheriff did not seem to think that what had occurred would have made a difference to the outcome of the trial justifies no contrary conclusion. Thus, juror A thought that it "most probably ... would not have affected the totality of [the] decisions". Further, as already mentioned, juror B thought that what had happened "seemed inconsequential". Another juror recalled no "bias, fraud or offence" and another did not "think she was in breach of her obligations as a member of the jury". The foregoing represents no more than untested opinions held by only six jurors, some of whom did not acknowledge the wrongful nature of their disobedience of the trial judge's directions. It in no way removes the inference arising from the three serious acts of disobedience that there was, at the very least, a capacity of the impugned conduct to prejudice the jury's consideration of the appellant's case.
Outcome
The appeal must be allowed. There has been a miscarriage of justice for the purposes of s 668E(1) of the Criminal Code. The Crown made very few submissions to support the application of the proviso in s 668E(1A) of the Criminal Code. Although the Court of Appeal referred to the absence of any "substantial" miscarriage of justice, the Crown was rightly, if tentatively, of the view that the reference to "substantial" was a slip and the Court of Appeal had dismissed the appeal on the basis that there was no miscarriage for the purposes of s 668E(1); there was thus no need to consider the proviso and it was not considered.
The Crown nonetheless, but faintly, invited this Court to consider the application of the proviso in s 668E(1A). In the absence of any independent assessment of the evidence by the Court of Appeal below, and in the absence of any serious submissions being made about this issue in this appeal, this Court should not itself consider the proviso. The proper course of action is for that issue to be remitted to the Court of Appeal for its consideration.
The orders should be:
- The appeal be allowed.
- Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 3 September 2021.
- Remit the matter to the Court of Appeal for further hearing and disposition in accordance with the reasons of this Court.
