R v HCF

The appellant was convicted after a trial of six sexual offences. After the verdict was entered, a member of the jury provided a letter to the Court advising that another juror had conducted his own internet research and had disclosed to other members of the jury that he was biased. An investigation was undertaken by the Sheriff of Queensland pursuant to s 70(7) Jury Act 1995. The issue before the Court of Appeal was whether the juror’s conduct gave rise to a miscarriage of justice. Justice Morrison (with whom Mullins JA and North J agreed) held that in the circumstances of this case it did not. As a result of the parties and the Court being provided with a copy of the Sheriff’s report, it was able to be demonstrated that the juror’s conduct did not affect the impartiality of the other members of the jury. The appellant also appealed against his sentence. That appeal is not the subject of this note.

Morrison and Mullins JJA and North J

3 September 2021

Background

Following a trial by jury, the appellant was convicted on six counts of sexual offending. He was acquitted on 13 counts. [2].

At the beginning of trial, the learned trial judge had given the jury directions in “explicit terms”. [14]. The directions included that the jurors were not to conduct internet searches about matters relating to the case and that if an issue arose it should be raised with the judge by way of a note. [14].

The day after the verdict was entered, but prior to sentencing, a juror (“Juror Y”) hand delivered a letter to the Registrar. The letter provided, amongst other things that:

(a) on the first day of the trial, a juror (“Juror X”) stated that he would not convict due to his own personal experience with the law arising from interactions he had with a 13 year old child when he was young;

(b) during the course of the trial, he conducted his own “internet research”. [10].

As a consequence, the learned trial judge ordered an investigation into the conduct of Juror X by the Sheriff of Queensland pursuant to s 70(7) Jury Act 1995. [12]. The report prepared by the Sheriff ultimately concluded that the matter should be referred to the Queensland Police. [23].

Court of Appeal

The issue before the Court of Appeal was whether Juror X’s conduct, as borne out in the Sheriff’s report, gave rise to a miscarriage of justice.

The Court (Morrison JA with whom Mullins JA and North J agreed) ultimately held that a miscarriage of justice had not occurred and dismissed the appeal against conviction. [51], [67]–[69].

In reaching that conclusion, Morrison JA found that:

(a) the conduct of Juror X displayed a bias based upon his own personal experiences; and

(b) any internet research by Juror X would have been in clear disregard of the trial judge’s directions. [28], [30].

His Honour also observed that the contents of the Sheriff’s report, which had been provided to both parties, demonstrated that the deliberations of the jury had occurred despite other members of the jury being aware that Juror X was biased and that he had conducted internet research. [32]. During the course of the trial, no jury member brought these issues to the judge. [33].

By reference to R v Peter [2020] QCA 228, [12]–[14], His Honour explained that “impartiality of a jury is fundamental to a fair trial”. [34]. It requires a jury to not only be impartial but “to be seen to be impartial by all fair-minded people” (see Webb v The Queen (1994) 181 CLR 41, 53). [35].

Justice Morrison held that if a fair-minded person did not have access to the Sheriff’s report, they would reach the conclusion that, as a result of Juror X’s conduct, the jury was not impartial. [36]. But the Sherriff’s report demonstrated that the verdicts delivered by the jury were not affected by Juror X’s conduct, were impartial and were “genuinely unanimous”. [43]. “This is not a case like Hall and Panozza where the departure from regular and duly recognised process of law was as to the lawful constitution of the jury itself”. [50].

To demonstrate that Juror X’s conduct had not impacted the impartiality of the jury, His Honour pointed to:

(a) Juror Y’s letter which provided that “[b]ased on a jury polling, [Juror X’s] vote would not alter the ability to obtain a unanimous decision”; [10], [38]; and

(b) the views of other jurors surveyed in the Sherriff’s report. [39].

For example, Juror B, as explained in the Sherriff’s report told the other jury members that it was inappropriate for the jury to form a decision based on the likely sentence. Juror B summarised the events by saying “because I had identified [Juror X’s] bias, he had withdrawn his protest, and thus it seemed that the ultimate conclusion of the trial was to continue as it otherwise would have. Simply put, it seemed inconsequential”. Similarly, Juror C said that “he was not aware of any bias on the party of any juror”. [39].

The chronology of the jury deliberations was also important, including that:

(a) at 12:50 pm on Friday 16 October 2020, after deliberating for less than two hours, the jury sent a note to the judge asking about the consequences of a hung jury and were directed that they should listen to each other and “talk about it”; [40];

(b) on Monday 19 October 2020, the jury sent notes about topics such as consent, carnal knowledge and maintaining; [41];

(c) on Tuesday 20 October 2020, the jury sent a note advising that they had reached unanimity about all counts but two. Following further directions, they returned with their verdict; [42]; and

(d) on each count, the jury “signified” that the verdict provided by the speaker was the verdict of all of them. [42].

Justice Morrison held that the content of the Sheriff’s report, together with the chronology, revealed that a fair-minded and informed member of the public would consider that Juror X’s conduct did not affect the impartiality of the jury. It was “the additional information from the Sherriff’s report that permits a level of certainty that would otherwise be denied in relation to the impact of Juror X’s conduct”. [48].

A Hughes of Counsel