Hansen v The State of Western Australia

[2011] HCATrans 170

[2011] HCATrans 170

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P38 of 2010

B e t w e e n -

MILTON HANSEN

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO PERTH

ON FRIDAY, 10 JUNE 2011, AT 2.55 PM

Copyright in the High Court of Australia

MR A.C. McINTOSH:   If it please the Court, I appear for the applicant.  (instructed by Thames Legal)

MR B. FIANNACA, SC:   If it please the Court, I appear with MS S.H. LINTON for the respondent.  (instructed by Director of Public Prosecutions (WA))

CRENNAN J:   Yes, Mr McIntosh.

MR McINTOSH:   Your Honours, the only matter I refer the Court to is page 56 of the appeal pages and the reference to his Honour Justice Pullin at paragraph 32.

CRENNAN J:   I am sorry, where are you?  Which page?

MR McINTOSH:   Page 56.

CRENNAN J:   Thank you.

MR McINTOSH:   Yes.  Near the bottom of the page, paragraph 32, the consequences of the juror’s disregard of the trial judge’s direction.  The only oral submission I would wish to make on behalf of the applicant is that it seems that it is an important point of principle where a juror does not follow directions of a trial judge is an important matter.  I am not aware of any recent cases in the High Court where that issue has been dealt with in any great detail.

CRENNAN J:   Do you not have to confront what was put by Justice Buss at application book 71 in paragraphs 93 and 95.  His Honour there dealt with what were the critical issues at the trial.

MR McINTOSH:   Yes, but the only argument I would advance is it is also about perception.  There is a deliberate disregard of the direction given by a trial judge.  It is the perception rather than the consequences which is important and may attract special leave. 

KIEFEL J:   But if it was perception only, every time a juror looked at any matter extraneous to the matters of evidence of direction, it would result in a new trial.  There has to be more than just the perception, does there not?  You have to look at how it may have impacted in a particular case.

MR McINTOSH:   But the High Court has not actually set out the principles governing when a matter is critical in any recent decision we are aware of.

KIEFEL J:   That may be so, but you would have to show that this is the most appropriate or an appropriate vehicle for that matter to be agitated.  I am not saying that the issue is not one upon which the judgments of this Court might not be warranted at some point, but I think you have to face the question whether this is the case to have it argued.

MR McINTOSH:   I accept that if this was an appropriate vehicle, it may not - a different result, but my submission rests that it is an appropriate vehicle to actually clarify law in this area.

KIEFEL J:   This is a case where it is one juror.  It was not the jury acting as a block against the trial judge’s directions.  This was one juror and your submission is that it might be that that juror infected the others?

MR McINTOSH:   Yes.  My submission is it is pretty fundamental when it is a deliberate disregard of a trial judge’s direction.  That is, in our case, a serious allegation to make.  The materiality of it is there is an issue and it may well be the case that the High Court considers it is not material, but it is still an appropriate vehicle to ventilate in the High Court.  It is a deliberate disregard.

CRENNAN J:   You cannot escape from the fact that one has to consider the particular circumstances and the context of this particular trial, and I think that has been dealt with surely in the passages of the judgment to which I took you.

MR McINTOSH:   Yes, I respectfully ‑ ‑ ‑

CRENNAN J:   You seem to be contending that even if resort to information outside the courtroom has no material impact on a trial, nevertheless, the matter ‑ ‑ ‑

MR McINTOSH:   Yes.  I would not go that far, your Honour.  We obviously say it is sufficient material.

CRENNAN J:   Yes, I see.

MR McINTOSH:   How you judge sufficiency is a matter that is best considered by the High Court.  The proposition that it is extreme is obvious.  If it is completely immaterial, then this is not the appropriate case, but I think there were pretty clear extremes, this is an appropriate vehicle to examine the two extremes.  The two extremes are obvious, but where you draw the line is a matter that should attract special leave, in our submission.  It is a line‑drawing exercise and it is not determined merely by materiality because it – what degree of materiality is the issue given the public importance of perception.  It is the interplay of two conflicting principles

and I accept that to be the reason why this may be an appropriate vehicle for your consideration.  I have nothing further to add, your Honours.  Thank you.

CRENNAN J:   Thank you.  We do not require your assistance, thank you.

This application concerns an appeal against conviction for murder.  A majority of the Court of Appeal of the Supreme Court of Western Australia (Buss JA and Mazza J; Pullin JA dissenting) dismissed the applicant’s appeal against conviction, relevantly, on the question of whether the trial judge erred in failing to discharge the jury after a juror independently obtained maps of locations mentioned in evidence.  After considering the irregularity in the particular circumstances and context of the applicant’s trial, the majority concluded that the incident did not raise any serious question as to the fairness of the trial. 

We are not persuaded that an appeal to this Court would enjoy sufficient prospects of success to warrant a grant of special leave.  Further, this is not an appropriate vehicle for the question of what effect non‑compliance on the part of jurors might have on a trial.  Accordingly, special leave to appeal is refused.

Adjourn the Court to 10.15 am on Wednesday, 15 June in Sydney.

AT 3.03 PM THE MATTER WAS CONCLUDED