GAGELER CJ, GLEESON AND JAGOT JJ. The appeal to this Court is to be resolved by deciding whether there has been a miscarriage of justice in the appellant's conviction, following a trial by a jury, of six sexual offences out of 19 counts on an indictment. The alleged miscarriage arises from an undisputed irregularity in the conduct of the jury which came to light after the entry of the verdicts.
Beech-Jones CJ at CL recently provided a convenient summary concerning those errors or irregularities that will amount to a miscarriage of justice in observing that, if the error or irregularity "is properly characterised as a 'failure to observe the requirements of the criminal process in a fundamental respect' then it would follow that the conviction would not stand regardless of any assessment of its potential effect on the trial", but otherwise there is no miscarriage unless the error or irregularity is "prejudicial in the sense that there was a 'real chance' that it affected the jury's verdict … or 'realistically [could] have affected the verdict of guilt' … or 'had the capacity for practical injustice' or was 'capable of affecting the result of the trial'"[1].
This observation is to be understood in the context of its focus, being the statutory prescription to an appellate court in an appeal against conviction, in the present case embodied in s 668E(1) of the Criminal Code (Qld), that the court "shall allow the appeal if it is of opinion … that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal". The focus is not the common form proviso, in the present case embodied in s 668E(1A) of the Criminal Code, that the appellate court "may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred".
The appellant did not put his case on his appeal to this Court on the basis that the undisputed irregularity in the conduct of the jury, in and of itself, involved a miscarriage of justice. The appellant, rather, put his case on the basis that the undisputed irregularity gave rise to what the appellant described as a "legitimate or reasonable apprehension" that this jury might not otherwise have approached its function in accordance with the directions it was given.
The respondent sought to meet the appellant's case on the basis that the primary question whether a miscarriage of justice occurred was one of prejudice
- ↑ Zhou v The Queen [2021] NSWCCA 278 at [22], citing Hofer v The Queen (2021) 274 CLR 351 at 364–365 [41], 366–367 [47], 390 [118], 391–392 [123] and Edwards v The Queen (2021) 273 CLR 585 at 609 [74]. See also AK v The Queen [2022] NSWCCA 175 at [2]–[5].
