HCF v The Queen [2023] HCATrans 43 (14 April 2023)

Last Updated: 14 April 2023

[2023] HCATrans 043

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B50 of 2022

B e t w e e n -

HCF

Appellant

and

THE QUEEN

Respondent

GAGELER J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 14 APRIL 2023, AT 9.45 AM

Copyright in the High Court of Australia
MR J.R. HUNTER, KC: May it please the Court, I appear with my learned friend MR S.A. LYNCH for the appellant. (instructed by Legal Aid Queensland)

MR C.W. HEATON, KC: May it please the Court, I appear with my learned junior MR N.W. CRANE for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))

GAGELER J: Thank you, Mr Heaton. Mr Hunter.

MR HUNTER: May it please. The question posed by this case does not turn on resolution of the question of whether a miscarriage of justice requires a demonstration that the error, or shortcoming, blemish – however it is described – might have made a difference. That is because, in this case, however one views the test, the misconduct – as I will call it – gave rise to what I have called in our outline a legitimate concern, but what might otherwise be described as a reasonable apprehension that this jury might not have conscientiously decided the case according to judicial direction.

We say it is not speculative to make that submission. We say that it follows as a matter of logic that a jury that is incapable of following directions about independent research and the need to report that sort of behaviour to the trial judge cannot be relied on to follow more complicated directions such as those that were given in this case.

JAGOT J: So, sorry, does that first proposition depend – the misconduct, is that confined, in your submission, to the failure of the one juror to follow directions not to do independent research and the other jurors to report that?

MR HUNTER: Yes.

JAGOT J: Or are you including within that misconduct the statements saying one juror – about what they could or could not decide? What are you focusing on in misconduct?

MR HUNTER: I am focusing on the conduct of the independent research and the collective failure to report that.

JAGOT J: Right. That is that misconduct. Okay.

EDELMAN J: And what about the bias issue? That is a separate issue, is it not?

MR HUNTER: That is a separate issue, and it does not necessarily collectively involve the jury in the sense that there was an unambiguous requirement to report a matter such as that as opposed to very clear instructions about the reporting.

EDELMAN J: But why, if one member of the jury is biased, does that need to affect any other member of the jury? If one judge on a multi‑member panel is affected by an apprehension of bias, then there is at least a strong argument that the whole of the panel becomes infected, even if all of the other judges are independent. Is the principle not the same for a jury?

MR HUNTER: It is. I suppose I was thinking of the responses, such as we have them, from jurors who participated in the deliberations that in the end those statements by that juror appeared to fade away and he ultimately did participate in a unanimous verdict, notwithstanding what he had said at one point.

GAGELER J: So, are you making anything of the earlier indication that may be interpreted as bias or are you focusing your submissions solely on the research?

MR HUNTER: These submissions focus on the conduct of the jury as a whole in failing to report something that they were directly told they should report if they found out about it, and they did not.

GAGELER J: The something being?

MR HUNTER: The something being that this juror had conducted independent research and was introducing into the deliberative process considerations that were completely irrelevant and contrary to the oath that the juror had sworn to try the case according to the evidence.

GAGELER J: By reason of that research?

MR HUNTER: Yes.

GAGELER J: That is the entirety of your case ‑ ‑ ‑

MR HUNTER: That is it.

GAGELER J: ‑ ‑ ‑ and it goes purely to the existence of a miscarriage of justice?

MR HUNTER: Yes.

GAGELER J: We do not get to the proviso in this case?

MR HUNTER: We submit that before the Court of Appeal the issue of the proviso might potentially have been raised. The question then for the court was whether a miscarriage of this sort could be described as anything other than substantial. But even if the court were to have considered the proviso, then it was necessary for it to undertake an independent assessment of the evidence, and that just did not occur.

EDELMAN J: It seems – I may be misreading it – from the respondent’s submissions that the respondent may in this Court be raising issues of the proviso, but without any of the full record being put before us, without any submissions as to all of the circumstances, all of the evidence. It is very unclear as to how this Court would be able to, in any event, make any assessment of the proviso other than perhaps to remit the matter if there were a miscarriage of justice found.

MR HUNTER: Well, we respectfully agree with that proposition that this Court is not in a position to independently assess the evidence.

JAGOT J: Your case involves a necessary inference that the fact that – well, one juror did independent research which, as I understand it, related to sentencing for various offences, reported that fact to other jurors and they did not report it. They are the three relevant facts. You are saying inferentially from that, they were incapable of otherwise complying with directions. Is that how the process of reasoning works?

MR HUNTER: We do not put it that high. We say that it raises legitimate concern as to whether or not they did. So, it is ‑ ‑ ‑

JAGOT J: Whether or not they did comply with – right.

MR HUNTER: Did comply, yes. So, it is in that sense, somewhat analogous to the test for bias, in that the issue is whether there was a legitimate or reasonable apprehension that this jury might not have approached its task in accordance with the directions it was given.

That approach is consistent with what was said in Victoria, in the case of Panozzo where I think the language used – without going to the case immediately – is something along the lines of: can the community be entirely sure that the proper processes were followed? And speaking of a reasonable apprehension that they might not have is another way of saying the same thing, in our submission.

In terms of the significance of the conduct, can I take your Honours to the decision of the trial judge when he ordered the investigation, which appears at page 325 of the respondent’s book of further materials. In particular, what his Honour had to say on page 325 at about line 41. It is perhaps stating the obvious, but his Honour ‑ ‑ ‑

EDELMAN J: Sorry. Are you reading from 325 of the appellant’s book of further materials?

MR HUNTER: Yes.

EDELMAN J: Thank you.

MR HUNTER: Where, at line 41, his Honour spoke of how:

unfortunate in the extreme that the jury did not then indicate –

the initial disclosure of bias. And then, over the page at line 11 or, perhaps more properly, at line 14, where his Honour said:

I am particularly agitated that I had given what I thought were very clear directions to all members of the jury not to engage in such conduct as this juror did and to all members of the jury that if anyone did indicate that . . . they ought to advise of that fact.

And there can be no doubt about the absence of ambiguity about the instructions that his Honour gave. They appear at pages 34 and 35 of the appellant’s book of further materials.

STEWARD J: Just before you go there, do you also rely upon the trial judge’s observation at line 11 on page 326 that he could not work out how it is that none of this would have affected the polling on the part of the jury, where he says:

How that is so, I am uncertain.

MR HUNTER: Yes. We rely on the fact that his Honour observes that what had occurred called into question the verdicts in respect of each count.

STEWARD J: And you say the sheriff’s report does not remove that uncertainty?

MR HUNTER: It does not, for a number of reasons. Firstly, because ‑ ‑ ‑

STEWARD J: If you are going to address that later on ‑ ‑ ‑

MR HUNTER: I will come to that, thank you.

STEWARD J: Yes.

MR HUNTER: Perhaps can I go to the directions that his Honour gave – firstly at page 34 of the appellant’s book of further materials. So, at line 9, there is reference to not getting on the internet and looking anybody up. Then, at line 17, his Honour recounted past experience where he said:

Other members of the juries that I’ve had have looked up people involved in the trial. They’ve looked up legal principles.

He refers to an account where a juror had:

looked up a particular legal matter –

and:

printed out pages –

At line 23, in the middle of that line, he bluntly told the jury:

Don’t do it.

He then, at line 28, said:

Don’t do the things that I’ve urged you not to do. As I say, it’s an offence at law to look up anything about the defendant. It’s an offence by way of contempt of court if you look up anything about any of the witnesses or about any of the people or legal principles because I’ve given you clear directions about that issue –

His Honour then even apologised for having:

gone on about it so long –

because of the problem that his Honour perceived that conduct to pose. Then at the top of page 35 is the critical direction that applies to the whole of the jury:

if anybody on the jury lets you know that he or she has looked up anything on the internet or has spoken to their family about the case, just quietly give the bailiff a note saying there’s something I want to discuss.

Then a little further down the page at line 23:

Don’t conduct your own research on any matters of law. And, as I say, if any member of the jury refers to such information or matters not in evidence, please inform the bailiffs and we can deal with it.

So the point is that those instructions were pellucidly clear, and if one is then reflecting, as I invite the Court to do, with respect, on what reasons there might be for the jury to have disobeyed such a clear direction, such things as forgetfulness or mistake do not loom very large – this has to have been a wilful decision by the jury to disobey a simple and repeated direction. And that that is what happened is borne out by the report of the sheriff, which I will take your Honours to now, in particular ‑ ‑ ‑

JAGOT J: When you say “wilful”, do you mean both the juror who did it and the other jury members who did not report it?

MR HUNTER: Yes.

JAGOT J: So, wilfulness covers both?

MR HUNTER: It does, and that is borne out by what I will take your Honour to in a moment concerning the account of what happened given by Juror B.

GLEESON J: Well, it might be explained by a view on the part of some or all of the jurors that this did not warrant the judge’s attention, but that would still be a wilful decision.

MR HUNTER: And if their view was that it did not warrant the judge’s attention, then that view would be completely wrong, with respect.

GLEESON J: In the sense that they would be saying, well, we know better.

MR HUNTER: And obviously that is a real concern when one comes to much more sensitive topics where prejudice looms large, such as how the jury might make use of uncharged acts or what they might do in relation to similar fact evidence, how they might use preliminary complaint.

JAGOT J: You do not allow for the possibility that either the individual or the rest of them’s mind might have been, well, this is only to do with the sentence that might be imposed for a different conviction of different kinds of offences, it does not go to the heart of anything and if it is ultimately not used – or at least they consciously think it is not used – I know the judge at one point refers to “subconscious”, but that is one reference. You do not think there is a possibility that rather than – I mean, wilful disobedience suggests a conscious kind of, I know this would fall against the specific direction, but I am going to do it anyway, as opposed to, I am not sure the judge could have meant something so irrelevant or immaterial. Is there not that possibility?

MR HUNTER: That might be how the jurors rationalised it, but it does not alter the character of the decision. The decision was, if someone is doing external research, you are to tell me about it. As I will take your Honour to in a moment, when it comes to the account given by Juror B, that juror was sufficiently concerned about what happened to immediately tell all the other jurors, and to tell this particular juror that what he had done was not allowed.

GAGELER J: So, you are taking us to the report of this sheriff?

MR HUNTER: Yes. If your Honours go to the report, the relevant portion is at 336 of the appellant’s book of further materials. Your Honours will see that it is jurors A and B who gave what were apparently the most fulsome responses. Juror A being the juror who was sufficiently concerned about what had happened to prompt her to write to, I think, the sheriff, which is what triggered the investigation. So, dealing with the account of Juror A set out in the second dot point. In the face of statements by the judge that the juror should not use the internet:

the juror stated, that over the weekend, on two occasions, he had purposefully researched “rape” and “carnal knowledge” –

and she then goes on to say that he was, at least at that point in time, minded not to convicted because of the consequences that he foresaw occurring if he did. So, the juror, I should say, then went on in the second dot point to talk about “blatant disregard” for the direction on internet use, and although the Court of Appeal and the respondent here seek to rely to some extent on the contents of this document to support the convictions on the basis that there is, in the end, nothing to see, at its highest what this juror says, in the last two lines, is that:

most probably this would not have affected the totality of decisions.

Juror B is the one upon whom we rely to establish that this conduct involved the entirety of the jury. In a third dot point we see that:

Juror x stated that he had researched the charge of carnal knowledge online, and as a result of what he perceived to be excessive severity in the potential sentencing outcome, he stated he was no longer willing to convict. Immediately, I brought everyone’s attention to this, and I said very explicitly ‘It’s not appropriate for you to base your decision on what you think the sentence will be – you can’t do that.’

JAGOT J: Well, you do need to go over the page to the next dot point, or to the bottom of the page.

MR HUNTER: That juror went on to say, of course, that “he had withdrawn his protest”, and “it seemed” that the trial could “continue as it otherwise would have”, and that “it seemed inconsequential”. An assessment of what occurred as inconsequential was incorrect, in our submission. Had the matter been brought to the trial judge’s attention at that time it seems inevitable that the juror who had done the research would have been discharged, and given the nature of his Honour’s response when he found out about what had happened, one has to wonder whether the trial itself would have been permitted to continue.

GAGELER J: Yes, but Juror B is talking about the consequence for the outcome of the jury’s deliberations, surely.

MR HUNTER: Yes.

GAGELER J: Juror B is saying that these matters were inconsequential.

MR HUNTER: Yes.

GAGELER J: Similarly, Juror A is saying, in other words, the same thing, is he or she not?

MR HUNTER: Yes. Our point, though, is that it was not up to these jurors to decide for themselves whether what had occurred was consequential or otherwise.

GAGELER J: You are asking us to draw an inference from ‑ ‑ ‑

MR HUNTER: I am.

GAGELER J: What is the inference you are asking us to draw?

MR HUNTER: The inference is, or the – in our submission, we do not have to demonstrate that there was further non‑compliance, we simply have to demonstrate a legitimate concern that there might have been, and the inference that we invite the Court to draw is that this jury, given what occurred, might not have conscientiously attended to the other directions that they were given on matters of considerable substance.

GAGELER J: Well, when you say “this jury” I mean, are you suggesting that in the case of Juror A or Juror B that they did not conscientiously adhere to the other directions?

MR HUNTER: Well, it simply raises a concern about the jury as a whole. Whether Juror A or Juror B did or did not, I am not able to say, but the fact that they decided to make a decision about this matter on their own raises a concern about whether they faithfully attended to other directions.

GAGELER J: What this shows is conscientiousness on their part in dealing with this troublesome juror.

MR HUNTER: It shows conscientiousness to a point, but that conscientiousness involved them effectively making up their minds to do it their way as opposed to do it the way in which they had been told to do it, and that is the problem.

STEWARD J: Is not another problem with the sheriff’s report the fact that only, was it, five or six responded?

MR HUNTER: That is right.

STEWARD J: We have no idea what the other half of the jury thought or did.

MR HUNTER: Yes, and that is a point we make in our written submissions, that it is a bit difficult to say that verdicts were true for the whole jury when we only have responses from six, of which only five participated in the deliberations, because one was a reserve juror.

JAGOT J: But why would you infer anything about the response about – you have nothing. You have nothing but a conviction in the face of internet research to the effect that this juror would not convict because of perceived severity of sentence. Yet, there was conviction. So how do you then infer that this – that there is an inference of lack of conscientiousness from these – if it is based on lack of – or risk of noncompliance with other directions as opposed to – I mean, you seem to be clearly attaching your case to these facts, show risk of noncompliance with other directions, not these facts themselves, in and of themselves without any further inference about other things. Do you see what I am saying? Your case seems to be that there is not necessary inference. You are not saying that in and of themselves these facts alone are sufficient?

MR HUNTER: No, what I am saying is these facts alone are sufficient to raise a concern about compliance generally.

JAGOT J: But that involves a necessary inference.

MR HUNTER: It does, but it does not involve going as far as arriving at an inference that it did occur ‑ ‑ ‑

JAGOT J: No, no, an inference ‑ ‑ ‑

MR HUNTER: ‑ ‑ ‑ merely that it ‑ ‑ ‑

JAGOT J: ‑ ‑ ‑ that it might not have occurred.

MR HUNTER: Yes.

JAGOT J: But you are not putting a case that these facts alone – that fact in and of itself that the juror did that, said that to the others and they did not report it – in and of itself, not a miscarriage, depends on consequential reasoning process. That is just all that I am trying to understand.

MR HUNTER: Yes.

JAGOT J: And it seems that it does depend on some kind of consequential reasoning process.

MR HUNTER: That is how we have put our case.

STEWARD J: Just so I understand it, as I may not have followed, you do not really place emphasis on the quality of the fact of the type of research that was done. Your case is that this juror breached a clear direction and the other jury members breached a clear direction.

MR HUNTER: Correct.

STEWARD J: And it is in those circumstances that we have this uncertainty about what else happened.

MR HUNTER: Yes.

STEWARD J: That is your case.

MR HUNTER: And were we to seek to rely upon the bias expressed by this particular juror, as we see it, we would be met by the response that, well, the investigation, and indeed the verdict, show that that bias did not carry the day in the end.

EDELMAN J: That is not an issue that you are relying upon now, but there is a very large question as to whether or not the proviso or the ultimate consequence matters in a case where bias is demonstrated – but that is not this case, the way you are putting your argument.

MR HUNTER: I am sorry. I did not catch the last question.

EDELMAN J: Your case is not being put on a bias aspect, as you explained to Justice Gageler at the start.

MR HUNTER: Yes.

GLEESON J: Can I ask about that. In the South Australian Full Court, I think it was, there was a case where jury misconduct led to a mistrial, and part of the Full Court’s explanation was that the behaviour of the troublesome juror may have induced a kind of a counter‑suggestive response. So, for example, if someone evinces a determination that they are not going to find guilty, that might theoretically make other jury members more determined to make a finding. Is that kind of idea within your concept of not obeying directions?

MR HUNTER: I need to be careful here. It is not a submission that we have made, but I certainly understand the reasoning behind that approach.

GLEESON J: It is a kind of bias thing. That is why I raised it.

MR HUNTER: Yes. I suppose the only question is whether any of the material that we actually have – I am not sure whether the trial judge had evidence of that – if I can call it a bloody-minded response to a particular juror’s attitude – whether the court was actually aware that such attitudes exist or whether it was merely a concern that was raised.

GAGELER J: Mr Hunter, is there anything further in this material that you want to take us to?

MR HUNTER: There is not.

GAGELER J: So, it seems like your case really turns on the proposition of law that is inherent in your paragraph 5, that it is enough to find a miscarriage of justice that there is a legitimate non‑speculative concern about the jury’s willingness to obey judicial directions generally, and if that is a good proposition of law, then whether the material you have taken to us is sufficient to raise such a concern.

MR HUNTER: Yes, that is the argument in a nutshell. Can I take your Honours to the alternative way of putting it, which is the Victorian decision of Panozzo, which we have extracted in our outline at paragraph 26; in particular, the last two sentences in the italicised passage.

JAGOT J: Which paragraph was that?

MR HUNTER: Paragraph 26.

JAGOT J: Of Panozzo, or ‑ ‑ ‑

MR HUNTER: Of our outline.

JAGOT J: Sure. Have you got the paragraph of Panozzo?

MR HUNTER: Paragraph 28.

JAGOT J: Thanks.

MR HUNTER: So, the passage I rely on is that which commences with the words, “The integrity and the perception”.

GAGELER J: Well, at a general level it is difficult to disagree with that, but is it really stating a test for the determination of a miscarriage of justice?

MR HUNTER: It is another of saying, in our submission, that if there is a reasonable apprehension that a jury might not have approached its task by adhering to judicial direction, then that is either a miscarriage of justice in the sense posited by Weiss, or alternatively, it is something that can not be said might not have affected the result. And so ‑ ‑ ‑

EDELMAN J: So, why do you put it in the alternative based on the proviso?

MR HUNTER: Yes, and I suppose I put it in the alternative because on the one hand you have Weiss and then I am mindful of what Justice Gageler had to say in Hofer.

EDELMAN J: So, your submission then is you are starting with the Exchequer rule, as explained in Weiss, that any departure from a trial according to law – any irregularity – will be a miscarriage of justice. Then there is the gloss that is put on that in Hofer.

MR HUNTER: Yes. And we say, on either view, this is a miscarriage properly so‑called.

EDELMAN J: But the gloss in Hofer is not – or is the second aspect of your submission to suggest that the gloss in Hofer involves inserting proviso considerations into a miscarriage of justice assessment.

MR HUNTER: Yes. And I ‑ ‑ ‑

EDELMAN J: If that is right, then the two limbs have just been collapsed. A hundred years of law is gone.

MR HUNTER: There is some tension between the idea that to demonstrate a miscarriage of justice an appellant must show that it might have made a difference, but then, nonetheless, there is an opportunity for the Court of Appeal to conclude that there was no substantial miscarriage.

EDELMAN J: Well, if the onus is reversed as well – if the alternative interpretation of what is being said by the various judges in Hofer is that a miscarriage of justice is concerned with prejudice to a party or prejudice to a convicted person in the sense that the irregularity is something that, in the abstract, is more than trivial, not something that might have affected result. Because if you start asking, might have affected a result, then you are asking the proviso question, are you not?

MR HUNTER: That is our submission, because if something might have affected the result, then it has to have been a substantial miscarriage, in our submission. The question of a substantial miscarriage or what amounts to a substantial miscarriage is thrown into pretty sharp focus when you are dealing with the constitutional tribunal for determining questions of fact. So, we say, as we have in our outline, that it will be a rare case involving misconduct by a juror that would not be described as involving a substantial miscarriage as opposed to a mere miscarriage.

GAGELER J: I just want to be clear about what you say is the miscarriage.

MR HUNTER: Yes.

GAGELER J: The miscarriage lies in the legitimate concern about the willingness of the jury to obey directions, generally. Is that correct? Is that the way you put it?

MR HUNTER: Arising from the primary failure to follow unambiguous instructions.

GAGELER J: That primary failure in itself, do you say that is a miscarriage of justice? I had not heard you say that before.

MR HUNTER: I have not gone that far.

GAGELER J: It is the inference.

MR HUNTER: It is what flows from it that really infects the entirety of the trial.

GAGELER J: And what flows from it is the inference in your paragraph 5 of your outline?

MR HUNTER: Yes. This particular appellant cannot be sure that proper processes were followed and nor can the community. On those circumstances ‑ ‑ ‑

EDELMAN J: Why is the primary failure not a miscarriage of justice?

GLEESON J: It sounds like it is.

EDELMAN J: Why is the investigation by a juror into sentencing practices when the juror had been instructed not to do so not a sufficiently substantial departure from the regular trial process as to amount to a miscarriage of justice?

MR HUNTER: I am acutely aware that that is not how we framed our argument, and I am also very reluctant to disagree with your Honour. One only has, I suppose, to reflect on what would have happened had the trial judge learned what had occurred during the trial, which is that that juror would have been discharged immediately ‑ ‑ ‑

GLEESON J: Is that proposition uncontentious?

MR HUNTER: I do not know that our friends have joined issue with us on it, but certainly those sorts of cases do not tend to make it on appeal, but certainly experience would suggest that that sort of behaviour by a juror would almost always result in that juror being discharged.

EDELMAN J: At least.

MR HUNTER: Yes, yes.

GLEESON J: Well, we are talking about – I mean, your proposition at paragraph 4 of your outline is that, had the conduct come to the judge’s attention, the “whole jury would have been discharged”.

MR HUNTER: If the judge had found out that not only had that juror engaged in that misconduct, but the other jurors had failed to report it, then, yes, we say it is likely that the whole trial would have been aborted. That, perhaps, answers the question that your Honour Justice Edelman posed a moment ago in terms of the significant of the conduct itself, quite apart from what it might mean for the rest of the deliberations. But perhaps the reasoning that would underpin the discharge of a jury in those circumstances would be along the lines of, well, these jurors cannot be trusted to adhere to my directions.

I was going to take your Honours to the particular findings that were made by the Court of Appeal – in particular, Justice Morrison – but perhaps it is simpler if I simply identify that they appear in paragraphs 28 through to 33. They establish the matters that have already been the subject of discussion; that is, that whether or not this juror had, in fact, undertaken the independent research, the rest of the jury believed that he had and failed to report it.

His Honour, at paragraph 50 – again, I will not take your Honours to it, because the point is able to be made briefly – his Honour described that juror’s conduct as deplorable or “to be deplored”. That being so, if this juror engaged in that sort of deplorable conduct and his colleagues failed to report it, we say that any miscarriage of justice could only merit the description of a substantial miscarriage.

In any event, the proviso really was not addressed below, other than in a curious way in which his Honour expressed himself by saying that the appeal should be dismissed on the basis that no substantial miscarriage of justice had been demonstrated.

GAGELER J: It is hard to see that his Honour was really applying the proviso at all. That seemed to follow from the previous sentence, which was cast in terms of no miscarriage.

MR HUNTER: He had found that there was no miscarriage. And just to reiterate a point I made earlier, his Honour expressed the view that a review of the material showed that the verdicts were true for the whole jury. In response, we respectfully point to the number of jurors who responded and the fact that if what Juror A and Juror B recounted was correct, then it would seem that at least one and perhaps two of the other jurors did not give a correct account of what occurred. So, rather than fortifying the conclusion that the verdicts were true for the whole jury, they called the verdicts into question.

Now, the last point I wanted to make concerns the argument that is made against us that the course of deliberations is something here that shows a conscientious jury conducting itself appropriately. The point we make about that is that, sure, the jury was taking its time and, sure, they did ask questions, but none of the questions were about matters of particular significance in a legal sense. None of the questions related to, for example, motive to lie, preliminary complaint and the other matters that we set out in our outline. Had the jury come back and asked for some directions about
how they use evidence of sexual interest or, what did they do with the evidence that showed that the appellant had violent propensities, then that would tend to show that they were, in fact, attending to these complex directions. But instead, I think they came back with a request for a direction about the age of consent or capacity to consent, and there was nothing else.

GLEESON J: How was the question of capacity to consent relevant in the context of this trial?

MR HUNTER: I do not think it was relevant at all. So, unless there are some other matters that we have not addressed, those are our submissions.

GAGELER J: Thank you, Mr Hunter. Mr Heaton.

MR HEATON: Your Honours, we respectfully submit that it is not the fact of the irregularities that is really at the core of the issue raised on this appeal but the effect of those irregularities, and focusing on the fact that a ‑ ‑ ‑

EDELMAN J: Sorry, the effect on what?

MR HEATON: On the verdicts, on the decision of the jury.

EDELMAN J: That is the proviso.

MR HEATON: We say, respectfully, that it is part of the consideration of the question of whether or not a miscarriage of justice has occurred, that that antecedent question requires an analysis of whether or not whatever irregularity occurred in the trial can be said to have had an impact, or at least a risk of an impact on the jury’s ultimate verdict.

EDELMAN J: How is that different from the proviso question?

MR HEATON: Well, the proviso, as has now been, we say, clarified by the decision in Hofer, requires the Court to make its own independent assessment as to whether or not on the record, on the material tendered at the trial, that guilt has been proved to the criminal standard. That is a different question to the question of a miscarriage of justice which requires an analysis of what happened, and the risk of, or the potential effect that what happened had on the jury’s deliberation.

EDELMAN J: So, you say that if the court concludes – before it gets to the question of a proviso – that there was a risk that the verdict might have been different, then it can go on to consider that proviso and say, well, although there was a risk that the verdict might have been different, that risk did not exist because we are satisfied on all of the evidence that the conviction was correct beyond reasonable doubt.

MR HEATON: That is our submission, and we say that that is what has now been clarified in the decisions of the various Justices in Hofer. Whatever misconceptions may have existed as a result of the decisions of this Court in Weiss and in Kalbasi and in others, which suggested that a very narrow interpretation of the Exchequer rule and, therefore, the concept of what is a miscarriage of justice was dispelled by a combination of both the majority decision in Hofer and with the very detailed articulation in the historical context and an analysis of the decisions provided by Justice Gageler in Hofer.

EDELMAN J: The joint judgment in Hofer talks about the miscarriage of justice being concerned with prejudice to an accused person.

MR HEATON: Yes.

EDELMAN J: Is there not prejudice to an accused person by a trial that does not proceed according to law where the failure of the trial according to law is more than something that is merely trivial? Why does one then need to find a prejudice to the accused linked to the risk of the verdict being different?

MR HEATON: I guess our response to that is perhaps what is required of a court – an appellate faced with a contention that the verdict should be set aside because there has been a miscarriage of justice is to analyse what happened at the trial and whether or not the irregularity had an impact such that the verdict may have been different. We say that if the court comes to that conclusion, only then does it go on to the next question, which is, despite that irregularity, despite that potential impact, whether in the individual assessment of the judges, nonetheless, guilt to the requisite standard has been established on the evidence in the trial.

EDELMAN J: And at the first stage, does the court look at all the facts and circumstances?

MR HEATON: To the extent that it is necessary to assess the impact of the irregularity. Some may on their face not suggest potential impact. Others may require a greater analysis. And if we are wrong, we will happily find that out. We say that the proper process is that the court, faced with a contention that there has been miscarriage of justice, must analyse the irregularity said to give rise to the miscarriage of justice and decide whether or not there has been a miscarriage of justice – properly understood, a miscarriage of justice. That is the test, not whether or not there has been an irregularity. Few trials are perfect in every sense, and what the concept of a miscarriage of justice requires is that some irregularity occurred – I am focusing on irregularity as opposed to an error, which is a much more clear case – but an irregularity in the process which may have impacted on the verdict.

STEWARD J: Is that another way of simply saying that trivial irregularities will not be enough?

MR HEATON: Yes, but it goes further than that, in our submission, and this is ‑ ‑ ‑

EDELMAN J: But if it does, if it goes further than that, then what you are really saying is one needs to look at all the facts and circumstances. We know we have something that is more than a trivial irregularity. We look at all the facts, assess all the circumstances and decide whether that non‑trivial irregularity could have affected the result. You have just reversed the onus on the proviso. You have just put exactly the proviso question on an appellant.

MR HEATON: We say respectfully, not, because in making an appeal, an appellant asserts that the verdict should be set aside because there has been a miscarriage of justice. It is for the appellant to establish that a miscarriage of justice resulted from whatever it was that is said to have happened at the trial that was irregular.

EDELMAN J: Let me put it differently, then. Suppose the appellant establishes – satisfies the court that in all of the facts, having regard to all of the evidence, all of the circumstances, there is a risk the result could have been different. Are you saying that the court could then go on and determine that on all of those same facts and circumstances, they are convinced beyond reasonable doubt that the verdict would not have been different?

MR HEATON: That is not the application of the proviso. We say the first step in your Honour’s process of reasoning is what is required to determine whether there was a miscarriage of justice. If a court decides that whatever the irregularity was may have had an impact on the verdict, it may have been different, then that will be a miscarriage of justice. It is then for a court to determine on its own independent assessment of the evidence whether or not, despite that irregularity, guilt has been proved to the criminal standard.

EDELMAN J: The first stage is on its own independent assessment of the evidence as well.

MR HEATON: Perhaps in some cases more so than others, but the inquiry is whether or not the irregularity had an impact on the verdict.

STEWARD J: Mr Heaton, you will probably come to this, but your submission about Hofer having sort of a changed, somewhat, the law, I must say I did not read Hofer that way because there are repeated references in all the judgments to Weiss and Kalbasi ‑ ‑ ‑

MR HEATON: Indeed.

STEWARD J: ‑ ‑ ‑ and whilst of course my brother Gageler expressed the difficulties of the law, his Honour said at 95 that he was duty‑bound to follow Weiss.

MR HEATON: Yes.

STEWARD J: And all the judges did so. I do not recall reading anything to the effect of Weiss and Kalbasi need to be clarified in some respect or altered, changed.

MR HEATON: We say precisely that ‑ ‑ ‑

STEWARD J: If you are going to come to this later, I do not want to take you out ‑ ‑ ‑

MR HEATON: I am happy ‑ ‑ ‑

STEWARD J: All right.

MR HEATON: Because fundamentally this underpins our response to the appeal that is launched.

STEWARD J: Yes, I appreciate that.

MR HEATON: We say – to perhaps just address the global question – we say that we do not shy away from the fact of what happened – we do not cavil with the fact that it is bad that that happened. We say, though, that categorising it as a jury disobeying a clear direction does not answer the question.

STEWARD J: You say it did not go anywhere?

MR HEATON: Precisely.

STEWARD J: Yes, I understand that.

EDELMAN J: So, you accept that there was an irregularity.

MR HEATON: Yes.

EDELMAN J: And you accept that the irregularity was more than trivial, but you say that the appellant has not shown that that non‑trivial irregularity might have affected the result.

MR HEATON: Yes.

GAGELER J: So, you are taking us to ‑ ‑ ‑

MR HEATON: I was going to take us to your judgment in Hofer. We say that, in fact, the decision of Justice Gageler in Hofer does not change the law but simply clarifies what should be properly understood of the decisions, particularly in Weiss and in Kalbasi. There was a specific reference, let me see if I can just turn it up.

GAGELER J: It is probably not necessary to read to me my own words.

MR HEATON: I was not going to do that, but your Honour did specifically say that the circumstances in Hofer did give rise to “an opportunity for clarification”.

GAGELER J: Yes.

MR HEATON: And properly understood, in our submission, the decision of the majority, which did not delve into the same extent of detail in the historical context of the law of miscarriage of justice, nonetheless adhered to the same concept that what was required was not simply the fact of an irregularity but an analysis of the effect of it, and that is the effect, then, to the prejudice of the appellant.

GAGELER J: Yes.

MR HEATON: In all respects, the majority did not demur to what was set out in great detail in your Honour Justice Gageler’s decision. And we say that that supports an argument that that represents a majority view of the state of the law in relation to what is a miscarriage, which has, we acknowledge, not been necessarily understood with the clarity that is required. We also say that this case provides this Court the opportunity to clarify that majority view.

And if that – if what Justice Gageler has explained is the clarification of the law following from Weiss and Kalbasi, well then again, we will happily find out. But that is not the case, because this is, essentially, the fundamental task of any appellant court is to look at whether or not there has been a miscarriage of justice. And it seems, sadly, that it is not as well – the relationship between miscarriage and the proviso is not as well understood as we as practitioners might hope that it is. And it perhaps stems right back to Mraz, and Weiss, and certainly Kalbasi, and even Hofer goes to Mraz as the original articulation of what the miscarriage of justice ground is in effect, and that is at page 514 of the judgment of Justice Fullagar, which is the often‑cited passage.

EDELMAN J: Just before you go to that, Mr Heaton, is it paragraph 41 of the joint judgement in Hofer that contains the crucial sentences that you rely on?

MR HEATON: Yes.

EDELMAN J: And that is the sentence that says that miscarriage of justice:

includes any departure from a trial according to law to the prejudice of the accused.

MR HEATON: That is right.

EDELMAN J: That then footnotes Weiss at paragraph 18, where at paragraph 18 the joint judgment in Weiss says that:

any departure from trial according to law, regardless of the nature or importance of that departure.

Falls within a miscarriage of justice under the old Exchequer rule.

MR HEATON: Yes, so my point about that is, the Court at paragraph 41 cites Weiss for a proposition that is not essentially made out in the authority to which reference is made. But the Court then goes on to say ‑ ‑ ‑

EDELMAN J: Because of the words:

to the prejudice of the accused.

MR HEATON: That is right. Which do not appear in that passage in Weiss, as your Honour has pointed out. The passage in Weiss appears to suggest a narrow interpretation of the concept of a miscarriage of justice and, indeed, the Exchequer rule. But that then, too was clarified in the detailed analysis conducted by Justice Gageler in that ‑ ‑ ‑

EDELMAN J: And you say that it is not necessarily prejudiced to an accused person to have a trial that is conducted irregularly, where the irregularity is non‑trivial.

MR HEATON: That is right, in that as a broad statement in that form, I say that is right – because what is required is an analysis of what actually happened and the effect that it had on the integrity or otherwise of the trial. Can I just go one step further ‑ ‑ ‑

EDELMAN J: Sorry, can I just ask one final question ‑ ‑ ‑

MR HEATON: Of course.

EDELMAN J: What about the next sentence ‑ ‑ ‑

MR HEATON: Well, that is where I was going. Because the reference there is to Mraz, if we look at the footnote – so, Mraz, really, when you get into it – Mraz, page 514, Justice Fullagar’s decision, really is the origin of much of the jurisprudence around this concept of a miscarriage of justice, but it is important to go to that source, and at page 514, even in that judgment, and this is sadly often overlooked in the jurisprudence that refers to it:

If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice.

So, even that original source of Mraz articulates an impact on the outcome as a precondition to the finding of a miscarriage of justice.

STEWARD J: Their Honours also quote or reference Kalbasi in the same footnote – to paragraph 12 – we again see that observation that:

any irregularity or failure to strictly comply with the rules of procedure and evidence is a miscarriage –

MR HEATON: Yes. And then in Kalbasi, paragraph 12, they refer back to Mraz ‑ ‑ ‑

STEWARD J: I understand that ‑ ‑ ‑

MR HEATON: ‑ ‑ ‑ and that is that passage.

EDELMAN J: Mr Heaton, the paragraph you are reading from in Mraz begins with:

It is very well established that the proviso to s. 6.(1) does not mean that a convicted person . . . must show that he ought not to have been convicted by anything. It ought to be read –

and so on. This is a discussion about the proviso.

MR HEATON: Well, we say what is articulated there is an understanding of what is a miscarriage of justice.

STEWARD J: Can I put this to you, Mr Heaton? Is it possible that the phrase at paragraph 41 to the prejudice of the accused in circumstances where their Honours are quoting Weiss and Kalbasi is simply a reference to the exclusion of trivial irregularities? I mean, is it likely that their Honours were intending to make such a fundamental change in the law in this way?

MR HEATON: Well, we submit, respectfully, that it was not a fundamental change in the law that was being ‑ ‑ ‑

STEWARD J: You say clarification.

MR HEATON: It was a clarification ‑ ‑ ‑

STEWARD J: All right.

MR HEATON: ‑ ‑ ‑ and that this was made plain. Justice Gageler helpfully – it is, to some extent, awkward talking about him when he is in the room, but Justice Gageler helpfully went through the historical context and explained that what was understood as the Exchequer rule in Australia and in England was different to how it had been applied much more narrowly in America and that this was perhaps why there have been misconceptions as to what is meant by the Exchequer rule in some of the jurisprudence.

GAGELER J: I think there is some intermediate appellate court analysis of the outcome in Hofer and what is to be made of the majority reasoning in paragraph 41. Have you collected that anywhere?

MR HEATON: No, I have not. Can I perhaps conclude this part of our submissions by commending to the Court what, again, Justice Gageler has said at paragraph 123 in Hofer? Whilst I commend the whole paragraph to the Court, I will not read it all, but can I just specifically take the Court to the first part of it:

Except in the case of an error or irregularity so profound as to be characterised as a “failure to observe the requirements of the criminal process in a fundamental respect”, an error or irregularity will rise to the level of a miscarriage of justice only if found by an appellate court to be of a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had.

That, in essence, is what we say is the proposition – the legal position that we are in, in terms of understanding or finding the answer to the question raised in this appeal. On the back of that, we say that the irregularity – the conduct of the juror in this case did not rise to the level of being able to be ‑ ‑ ‑

STEWARD J: Do you dispute or take issue with what Mr Hunter described as his test, namely, did what happened give rise to a reasonable apprehension that the jury may not have conducted themselves in accordance with the directions of the judge, as a test, is that the test you can live with?

MR HEATON: It is a test I can live with. That is an articulation, I guess, of what this case calls for an inquiry to be made in relation to.

STEWARD J: So, really, there is probably no difference about the law here between you. It is a difference about applying the test.

MR HEATON: I say, yes, so long as the court agrees with us on our submissions in relation to what is a miscarriage.

STEWARD J: If you agree with Mr Hunter’s expression of that test, we may not need to get into whether Hofer has clarified anything or not.

MR HEATON: Well, I will be disappointed if you do not.

EDELMAN J: We are here to disappoint, Mr Heaton.

MR HEATON: I can live with that. So, can I turn, then, to the features of this conduct which we say undermines and indeed dispels any concern that the conduct of the juror had an impact on what in fact occurred. I guess, can I start by saying that simply characterising it as juror disobedience does not answer the question. It is necessary to actually look at what the juror did and what impact it had to understand whether or not it can be truly said that what Juror X did and indeed, then what the flow‑on, the other jurors did, operated to the prejudice of the defendant so as to give rise to a miscarriage of justice.

Firstly, the inquiry – it is relevant, we say, that the nature of the inquiry made by Juror X was in relation to penalty, his concern was about the relative penalty for offences, particularly rape as compared to other offences. It did not go, therefore, to the legal issues that were applied in the trial. It is also clear – and this comes both from an understanding of the sheriff’s report and the insight that that provides as to what was going on in the jury room, but also what is apparent on the record – that the significance or otherwise of this declared bias and the disclosure of having done research did not dissuade the jury from looking at the legal issues that were raised in this fairly straightforward case in which allegations of sexual misconduct were made by two complainants, to some extent supported by the observations of other witnesses and in response the defendant said, I did not do any of that and raised the broader circumstances being a house in which there was violence that might have provided a motive for the children to have given a false account.

So, it is an allegation and a complete denial. The jury’s task, then, is to determine whether or not the complainants are both credible and reliable in the sense that they give a reliable account. The inherent nature of sexual offending against two children particularly gives rise to commonly‑held notions of potential prejudice because of the very nature of the allegations that are being made. But that prejudice can not be said to have come to fruition in any meaningful way in this case because of the discerning way in which the jury returned verdicts, in relation to the various charges.

So, properly understood, what the issues were that the jury were considering, it is difficult, we say impossible to conclude that enquiries about what penalty might be imposed if conviction of one offence is opposed to another can properly intrude into the jury’s consideration of the issues that are raised. It is also apparent that the questions that were asked by the jury during their deliberations are focused on matters of legal issues, and supports the contention that the jury were diligently considering the issues and the law and applying them to the facts as they were finding them.

GLEESON J: What was the relevance of the complainant’s consent?

MR HEATON: Well, that is an interesting question, because there were allegations of rape and yet very little evidence – in relation to count 17 there was some reference to no permission, she was asked if – this is, we would note complainant K was asked if she had given permission, to which she said, no. Despite there being other allegations of rape on the indictment, there was no other evidence led about a lack of consent. The trial included evidence about discipline or domestic violence in that broader sense within this household, but there was never an attempt to link that, in any way, to her concurrence with what was going on.

The directions during the summing‑up spoke of very little moment about consent. Basically, the judge said to the jury, consent is a common English word and basically left it to them. And yet there were allegations of rape on the indictment. The jury asked a question about consent; they asked about what was consent, they asked about whether a 16-year-old can consent. And they were then given much more fulsome directions about what consent is, and whilst it did not specifically link the violence to consent, the judge also gave what is a fairly common direction about the nature of consent being coerced and compliance being coerced, and that it does not necessarily equal consent. I am paraphrasing, but that was the effect of what was given to the jury.

It in fact, we say, reflects a very diligent jury trying to understand the charges that they have, the allegations that are made and the facts that they have or, the evidence that they have to support them. And at the end of the day, he was not convicted of any offence involving rape. It was only in redirection that the jury were given directions about alternative verdicts and the possibility that unlawful carnal knowledge was open on a count of rape.

So, we say those questions show diligence and conscientiousness in the jury’s deliberation and consideration of the issues in the trial. And, can I make this point as well, that, in this appeal and the issue that has been raised in this appeal, there is enormous focus on the conduct of Juror X and that focus and that prominence that that conduct has in the context of this appeal and what we are all doing here today is not borne out with the same prominence in the deliberations of the jury. We find support for that in the report of the sheriff.

GLEESON J: I thought that the focus, as I heard it this morning, was much more about the conduct of the whole jury. And I had another question about that. Do you agree with the proposition that if the judge had found out about this conduct, including the juror’s failure to draw Juror X’s misconduct to the trial judge, that the whole jury would have been discharged?

MR HEATON: I do not doubt that as a proposition. I would think it would be highly unlikely at that stage of proceedings, that the trial would continue. But what we say is it is a different question at that point. What is being averted is the potential, whereas what we have now is the responsibility to look at what happened and determine a very different question: whether what happened did impact. And so, a judge faced with this proposition during the course of a trial is making a very different determination.

GAGELER J: Is it a determination that is dealt with in the Jury Act or is it a more general determination made at that stage?

MR HEATON: That is a good question that I do not know the answer to. I am being shown something, will your Honours excuse me for a moment? Section 56(1)(a) of the Jury Act (Qld).

GAGELER J: That would be the provision to which regard would be had at that stage?

MR HEATON: Yes.

GAGELER J: Thank you.

MR HEATON: And that gives the judge the power to discharge the juror if:

(from the juror’s own statements or from evidence before the judge) that the juror is not impartial or ought not, for other reasons, be allowed or required to act as a juror in the trial –

Section 56(1)(a).

GLEESON J: Is that a discretion in the sense that a judge might not exercise the discretion if they made that finding?

MR HEATON: Yes. And that is in there as well.

GAGELER J: And what would happen to the rest of the jury at that point?

MR HEATON: That is all dealt with there as well. Can continue without or discharge the whole jury, depending on the circumstances.

GAGELER J: Thank you.

MR HEATON: Now, I was just going quickly take the Court to the report of the sheriff, and in particular at page 337 of the core appeal book. This juror is not given an identifying particular, but in the third dot point, the juror is reported to have expressed the juror is reported to have expressed:

The announcement ‘though shocking’ did not bother –

and there is a redaction there:

‘enough to contemplate discussions with the judge. It was after all the first morning”.

JAGOT J: Was that for the bias statement or the internet?

MR HEATON: I guess I have to concede it is not entirely clear.

JAGOT J: Somewhere I got the impression that the bias statement came on the first morning and then the internet happened later.

STEWARD J: I think it happened over the weekend, did it not?

JAGOT J: That is from the note, but I cannot remember.

MR HEATON: The first note asked about a hung jury and that was before they had gone home for the weekend – inferentially. They went out shortly before lunch and then shortly after lunch – half an hour or so after lunch, they came back in and asked a number of questions, one of which was: what do we do if we are unable to agree?

JAGOT J: So, where is all the evidence of the notes? I saw it from the actual ‑ ‑ ‑

MR HEATON: It is in the appellant’s book of further material, and they start ‑ ‑ ‑

STEWARD J: Well, there is one at 346. That is the one delivered after the verdicts were entered.

JAGOT J: I think that is the note I am thinking of. The after – yes.

MR HEATON: In the core appeal book, starting at 37 ‑ ‑ ‑

JAGOT J: It seems to have been from – 346 does say:

At the beginning of the trial –

the statement is made, and then:

On Monday, this week, during deliberations –

he said about the internet search. That seems to have been two separate things. Sorry, go to page 37?

MR HEATON: Well, I am turning to the book of further material now because that seemed to be the page references you were going to. It appears in two places.

JAGOT J: Sure. So, you are on 37 of the book for further material?

MR HEATON: No, I am on 37 of the core appeal book.

JAGOT J: Sorry.

MR HEATON: Am I? No, you are right, I am at 37 of the appellant’s book of further material. Sorry, I have been corrected again, it is the core appeal book.

GAGELER J: Mr Heaton, what stage in your argument are we at at the moment?

MR HEATON: I do not have – well, I do not have a lot more to go through, depending on what enquiries the Court have of me, but if you are insinuating time for a break, well, I am not going to argue ‑ ‑ ‑

GAGELER J: No, no, no. I am just trying to understand where we are going, and in what order.

MR HEATON: Okay. Well, where we are going is I am taking the Court through matters which, we say, demonstrate that this did not have an impact on the verdicts.

GAGELER J: Yes.

JAGOT J: I think, to be fair, I asked you about the notes.

MR HEATON: Yes.

JAGOT J: And we know there is ‑ ‑ ‑

MR HEATON: Well, we say, that the notes give insight into the jury’s diligent application of legal principle to the task that they were contemplating. I do not need to go – well, I do not need to unnecessarily take the Court through each of those notes. There were five of them and they were given redirections in each case, starting at pages 37 to 39 of the core appeal book. Then the second one was at page 42. The question – I might add, that it was not always – we do not have the notes, and so we have to read the ‑ ‑ ‑

JAGOT J: Yes.

MR HEATON: ‑ ‑ ‑ discussion to understand what the questions were sometimes. But in relation to the second note, the question was very squarely:

Is it possible for a child under 16 years to provide consent?

Then ‑ ‑ ‑

GLEESON J: So there was a charge of rape in relation to under the age of 16.

MR HEATON: Well, she was under the age of 16. That was part of the focus, because there was a charge of maintaining. So, the fact that she was under 16 when sexual offending was happening to her was a focus of the case. It was also alleged that she was raped during the period of the maintaining, which necessarily cuts out at 16. So, under 16 was not specifically tied to the offence of rape, but it was all part of the, I guess, broader matrix of the factual circumstances that the jury were considering. And bearing in mind that there was never really any evidence specifically led about a lack of consent, apart from, as I said, that one reference to no permission which was in relation to count 17, the bathroom incident.

The third note appears at core appeal book 52, and that was a question about whether or not they had to be satisfied of all the particulars of the offence of maintaining, bearing in mind that the indictment alleged a number of aggravating circumstances. Then the fourth one at page 55, which seems to have been an enquiry about – or the judge advised the jury that they can have verdicts on some counts, but not others. And then the fifth one, core appeal book 64, where the jury asked for a definition of carnal knowledge, and whether consent plays any specific role in relation to carnal knowledge.

JAGOT J: Did you say 54 or 64?

MR HEATON: I said 64.

JAGOT J: Page 64.

MR HEATON: Despite the fact that only five members of the jury responded to the inquiry, we say that it still provides the opportunity for this Court to have insight into the thinking of the jury as a whole and that there was nothing within those responses to suggest or to support the conclusion that the jury did not properly apply themselves ultimately to the issues in the trial in returning their verdicts.

We say that it is speculation to suggest that the absence of response supports somehow some mischief in the jury’s conduct. I do not want to – the failure of the other jurors to bring the conduct of Juror X to the attention of the judge is, we say, also consistent with other features of what we can determine from their deliberations and their application to the issues, particularly having regard to what is said in the sheriff’s report, and what that demonstrates in terms of the lack of prominence or significance to the jury that that event had – or the conduct of Juror X had.

It is perhaps also relevant in that context to turn to what the judge did tell them – and my learned friend took the Court through this from pages 34 and 35 of the core appeal book, I will not go through it again – but the focus is on do not look anybody up:

Other members of the juries that I’ve had have looked up people involved in the trial . . . Don’t do it. If you’ve got a problem, put it in a note –

I do not want to in any way appear as though I am justifying what the jury did or not, but it is perhaps understandable that the significance that we attach to this conduct may not have been of such significance to the jury, particularly when now that we have the insight into their collective thinking when it did not impact on what the jury were ultimately doing. Again, we say that undermines any suggestion that the misconduct by Juror X and the failure to act by the rest of the jury leads to a miscarriage of justice.

It is also apparent that the mix of verdicts, the fact that the jury were discerning about the various verdicts, supports the conclusion that the jury did not just indulge in prejudicial reasoning, that they did not just indulge in the reasoning about violent conduct or the fact that there were two complainants making allegations of a similar sexual nature against the defendant. These are areas where traditionally it is thought that there is great prejudice to an accused and yet this jury, clearly by their varying verdicts, did not indulge in that.

Those are the matters that we say go to properly understand the context in which the jury made its determination on the verdicts. On that basis, and bearing in mind what our submissions were initially in terms of what is necessary to constitute a miscarriage of justice, we say that this irregularity did not rise to the level required to constitute a miscarriage of justice and the Court of Appeal was right to conclude that the verdict were the verdicts of all jurors and that they were true verdicts according to the law and the issues in the case.

It is also perhaps relevant that the overarching feature is that the bias that was declared and the extent to which then it fed into the improper research that was done about penalty can only have operated to the advantage of the defendant. So, we say this was a case that there was no miscarriage of justice. If this Court is against us on that, we say for the same reasons that impact of the – the effect of the irregularity, that this Court can make its own independent assessment of the record and conclude, despite that irregularity by the juror and the jury, that the proof of guilt was otherwise proved.

GAGELER J: Well, that is very difficult, is it not, in light of the vice and in light of us not actually having the totality of the record.

EDELMAN J: Or being taken through any of it.

MR HEATON: It is in the core appeal book.

GAGELER J: Yes, but are you submitting that we should form a view of our own about the guilt of the appellant? I mean, we have to go that far, do we not, on the vice analysis?

MR HEATON: Yes.

EDELMAN J: Where are your submissions on all of the evidence that was given and how it would reasonably be weighed, and so on?

MR HEATON: We say – and I perhaps cannot on my feet say it any better than we have in our written outline, but we say that the verdict of the jury carries considerable weight in terms of resolving what would otherwise be a credibility issue, which is usually the ‑ ‑ ‑

GAGELER J: How can that be so, when it is the conduct of the jury that is in issue?

MR HEATON: I accept that. I accept that as a proposition. Regardless, we say that the transcript of the trial discloses that the verdict of the jury was a sound one, having regard to the evidence that was led and the issues that were litigated and that the impact, for the same reasons that I have been articulating – if I am wrong about what is a miscarriage, well, then all of what I have said is relevant to whether or not it is a substantial miscarriage of justice.

GAGELER J: It is relevant, but it is not the whole story, is it?

MR HEATON: It is not the whole story and there is more there. The record has more there. In our written material, we have taken the Court through some of the relevant factual matters and the evidence in relation to each of the counts. Then, in part 5 of our written material, we have taken the Court through what we say are our submissions in relation to the conclusions the Court can draw about the integrity of the findings of guilt in relation to the six counts that it was convicted of.

Those are our submissions.

GAGELER J: Yes, thank you. Mr Hunter, how long will you be in reply?

MR HUNTER: Less than five minutes.

GAGELER J: I think you should proceed.

MR HUNTER: Can I deal with the concession that was made by our learned friends that it is accepted that had this come to the attention of the trial judge, it is almost inevitable that the jury – the whole of the jury – would have been discharged.

JAGOT J: I do not think that was conceded. What was conceded was that that juror was likely to have been out. Was that right?

GLEESON J: On my note, it was ‑ ‑ ‑

MR HEATON: It was broader than that. It was broader than that.

GAGELER J: Perhaps, you should move to the podium and clarify your position.

MR HEATON: My point about that was that is a different stage.

JAGOT J: No, no, I understand that ‑ ‑ ‑

MR HEATON: That is a different inquiry.

JAGOT J: ‑ ‑ ‑ but I did not think you had conceded that the judge necessarily would have discharged the whole jury.

MR HEATON: No, I do not concede that. The judge would have had to make an assessment of what happened and what the impact was, and decide whether or not it was one juror or the whole jury that it needed to be discharged.

JAGOT J: That was what I just ‑ ‑ ‑

GLEESON J: Let me check that, because – but what I heard you to say in relation to the first paragraph – first sentence of the appellant’s outline of oral submissions, paragraph 4 – agree, but different question, because seeking to avert a miscarriage. That was agree to the proposition that it is almost inevitable the whole jury would have been discharged. Is that incorrect?

MR HEATON: No, no. I guess I can concede that it is almost inevitable. There is prominence in the world “almost” in that context because we say it requires the examination of what happened.

GAGELER J: Thank you.

MR HUNTER: The point I can make about that is a very brief one. My note was that our learned friend used the word “potential” to speak about what might happen as to underscore, or underpin, the reasoning to discharge the jury. So, our point is if it is reasonable at that stage of the trial to infer that this jury has to be – might not comply with judicial directions, then why is it unreasonable to infer now that we know that they did not comply with those directions? At this stage of proceedings, why is it unreasonable to infer that they might not have followed others, or at least be concerned that they might not have?

Dealing with the issue of the absence of response from the jurors who did not respond to the sheriff’s investigation, we do not argue that the absence of response supports a conclusion that there was mischief. Rather, what we say is that the potential for mischief, or the apprehension of mischief, exists, and the failure of those jurors to respond merely fails to dispel that apprehension.

Lastly, on a point that was made not long ago, our learned friend spoke about the directions of the trial judge being focused on looking people up, and we can respectfully say that – deal in particular with what was said at page 34. When the words “don’t do it” were used, they were immediately preceded by his Honour relating an account of particular juror printing out some United States law. So, he said:

What that particular juror had printed out related to the English – to the American law, in particular. [indistinct] it was completely different from the law in Australia. Don’t do it.

And there were, of course, other occasions where he referred to looking up the law as well. Those are the matters in reply. May it please.

GAGELER J: Yes, thank you, Mr Hunter. The Court will consider its decision in this matter and will adjourn until 10.00 am on Tuesday, 18 April.

AT 11.19 AM THE MATTER WAS ADJOURNED