Gageler CJ
Gleeson J
Jagot J
5.
the verdict, in the sense that the jury would have returned the same verdict if theirregularity had not occurred[1].
Conceptual coherence requires that the test derived from Marsland, and the range of verbal variations on it, be reconciled with the test formulated in Webb, applied in Smith, and confirmed in Ebner. The reconciliation needs to be in favour of the test formulated in Webb. Irregular conduct by a jury or juror, whether described as procedural or otherwise, involves a miscarriage of justice if a fair-minded and informed member of the public might reasonably apprehend that the jury (or juror) might not discharge its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge. If the jury or juror misconduct would give rise to such a reasonable apprehension then, for that reason, the misconduct will involve a "failure to observe the requirements of the criminal process in a fundamental respect"[2]. In such a case, satisfaction of the reasonable apprehension test means that the "shadow of injustice over the verdict"[3] cannot be dispelled, that the trial is "incurably flawed"[4], that there has been a "serious breach of the presuppositions of the trial"[5], and that "the irregularity [is] so material that of itself it constitutes a miscarriage of justice without the need to consider its effect on the verdict"[6].
There may be no practical difference between the test formulated in Webb and the test derived from Marsland were application of the common form proviso focused solely on the effect of an irregularity on the actual jury in the trial. If the reasonable apprehension test were satisfied, it may then be impossible to conclude that the irregularity did not affect the verdict and the proviso would not be available. However, this Court's rejection in Weiss v The Queen[7] of the utility of considering the effect of an irregularity on the actual jury in the trial (referred to as the "this jury" test) in the application of the common form proviso negates that
- ↑ Mathews v Western Australia (2015) 257 A Crim R 55 at 76 [207]–[208]
- ↑ Hofer v The Queen (2021) 274 CLR 351 at 391 [123], quoting Maher v The Queen (1987) 163 CLR 221 at 234.
- ↑ Smith v Western Australia (2014) 250 CLR 473 at 486 [54].
- ↑ Cesan v The Queen (2008) 236 CLR 358 at 385 [87].
- ↑ Smith v Western Australia (2014) 250 CLR 473 at 486 [53].
- ↑ TKWJ v The Queen (2002) 212 CLR 124 at 147 [73].
- ↑ (2005) 224 CLR 300 at 313–315 [34]–[38].
