Gageler CJ
Gleeson J
Jagot J
4.
irregularity has not affected the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred"[1].
The distinction drawn in K, and the test derived from Marsland, have been applied to jury or juror misconduct in a number of intermediate appellate court decisions, with a range of variations of verbal formulae[2], as has the test in Smith[3]. In Mathews v Western Australia[4], Martin CJ, in dealing with a juror who had sought and obtained information about the accused, considered that the circumstances could not be characterised as a case of either lack of juror impartiality or procedural irregularity[5]. Rather, the circumstances involved aspects that fell within each of those categories[6]. His Honour applied both tests and concluded that, on either test, the same result had to be reached–the facts would have given rise to a reasonable apprehension or suspicion on the part of a fair-minded lay observer that the juror did not discharge his function impartially and the court could not be satisfied that the procedural irregularity did not affect
- ↑ R v K (2003) 59 NSWLR 431 at 446 [70]. See also at 446 [68], 447–448 [72]–[74].
- ↑ eg, R v Skaf (2004) 60 NSWLR 86 at 98–100 [242]–[247], 102 [267], 103–104 [274]–[276]; R v Forbes (2005) 160 A Crim R 1 at 7 [29]; Qing An v The Queen [2007] NSWCCA 53 at [23]; Folbigg v The Queen [2007] NSWCCA 371 at [11]–[19]; R v Brown [2012] QCA 155 at [24]; R v Wilton (2013) 116 SASR 392 at 397 [23]; R v DBG (2013) 237 A Crim R 581 at 586–587 [27]; Mathews v Western Australia (2015) 257 A Crim R 55 at 57–60 [93]–[103], 76–77 [210]; R v Martinez [2016] 2 Qd R 54 at 63 [32]; Marshall v Tasmania (2016) 31 Tas R 236 at 242–245 [6]–[9], 255–258 [46]–[52]; Nadjowh v The Queen [2019] NTCCA 6 at [14]; cf R v Chaouk [1986] VR 707 at 712; R v Emmett (1988) 14 NSWLR 327 at 339; Domican [No 3] (1990) 46 A Crim R 428 at 448; Medici (1995) 79 A Crim R 582 at 593; R v Myles [1997] 1 Qd R 199 at 203–204, 209.
- ↑ eg, Bahrami v The Queen (2017) 265 A Crim R 11 at 22–23 [54], 27–28 [80]–[84]; Lane v The Queen [2017] NSWCCA 46 at [74], [80]–[86]; Divine v Western Australia [2019] WASCA 49 at [15]–[16], [48]–[55]; Murphy v The Queen [2020] VSCA 111 at [82], [86]; R v SDP [2022] QCA 17 at [23]–[30].
- ↑ (2015) 257 A Crim R 55.
- ↑ (2015) 257 A Crim R 55 at 57–60 [93]–[103], 76–77 [210], with Buss and Mazza JJA agreeing at 77 [212], [213].
- ↑ Mathews v Western Australia (2015) 257 A Crim R 55 at 57 [94], 75 [205].
