Edelman J
Steward J
35.
no coercion[1]. There was, therefore, by definition, no need to inquire into whether there was any reasonable suspicion of coercion and therefore any reasonable apprehension of partiality. Had coercion, or a reasonable suspicion of coercion, been found then the "integrity of the trial process" would have been compromised[2]. There would have been a substantial miscarriage of justice without any further inquiry into whether the coercion or reasonably suspected coercion might have affected the result[3].
This Court in Smith should not, however, be taken to have suggested that the only form of irregular conduct or misbehaviour by a juror or jurors that is capable of being a miscarriage of justice is that conduct which raises a reasonable apprehension or suspicion of bias or partiality or which demonstrates actual bias or partiality. The integrity of the criminal justice system is not confined to the minds of the jurors. Indeed, on one view, internet research acted upon by a juror will rarely demonstrate apprehended or actual bias or partiality, although there might be grave procedural unfairness to an accused person. For instance, it is arguable that in a trial involving an issue, and expert evidence, about the weapon used for a murder there would be no more reasonable apprehension of bias concerning a juror who conducts internet research into the nature and effect of the alleged murder weapon than there would be concerning a juror who brings that background knowledge with them to the jury room. But the use of that untested specialist knowledge by the jury would be a miscarriage of justice by a denial of procedural fairness. The test of "reasonable apprehension or suspicion" would not be apt. Nor is it apt in this case. The irregularity is clear. The question is whether, having regard to its nature and character, it has the capacity to prejudice the jury's consideration of the defendant's case and thereby result in practical injustice.
The law's great concern to secure the integrity of the jury system can be seen in the decision of the Full Court of the Supreme Court of Victoria in R v Chaouk[4], to which reference was made with approval in Smith[5]. In Chaouk, whilst in the course of its deliberations, the jury adjourned overnight to
- ↑ Smith v Western Australia [No 2] (2016) 263 A Crim R 449 at 464–465 [348] per Martin CJ, 472 [430] per McLure P, 472 [432] per Mazza JA.
- ↑ Smith v Western Australia (2014) 250 CLR 473 at 485 [52] per French CJ, Crennan, Kiefel, Gageler and Keane JJ.
- ↑ Smith v Western Australia (2014) 250 CLR 473 at 486 [54] per French CJ, Crennan, Kiefel, Gageler and Keane JJ.
- ↑ [1986] VR 707.
- ↑ Smith v Western Australia (2014) 250 CLR 473 at 486 [55].
