Hansen v The State of Western Australia - [2010] WASCA 180

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HANSEN -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 180

CORAM: PULLIN JA
BUSS JA
MAZZA J

HEARD: 13 MAY 2010

DELIVERED : 10 SEPTEMBER 2010

FILE NO/S: CACR 129 of 2009

BETWEEN: MILTON HANSEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MURRAY J
File No  :INS 180 of 2008

Catchwords:

Criminal law - Appeal against conviction - Juror obtained maps from internet - Juror handed maps to sheriff's officer and requested permission to give them to the other jurors - Trial judge dismissed application by defence counsel to discharge jury - Nothing prejudicial to the accused in the material obtained by the juror - Any disobedience to the trial judge's instructions not wilful - No material irregularity - No error by the trial judge - No substantial miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3), s 30(4)
Criminal Procedure Act 2004 (WA), s 116(2)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters & Mr P B Cassidy
Respondent: Mr J McGrath

Solicitors:

Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
Bounds v The Queen [2006] HCA 39; (2006) 80 ALJR 1380
Cant v The Queen [2002] NTCCA 8; (2002) 12 NTLR 133
Carney v The State of Western Australia [2010] WASCA 90
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
Demirok v The Queen (1977) 137 CLR 20
Domican v The Queen (No 3) (1990) 46 A Crim R 428
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Folbigg v The Queen [2007] NSWCCA 371
Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293
House v The King (1936) 55 CLR 499
I v The State of Western Australia [2006] WASCA 204
Maric v The Queen (1978) 52 ALJR 631
Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1
Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161
R v Allingham [1991] 1 Qd R 429
R v Bates (1985) 1 NZLR 326
R v Bell (Unreported, NSWCCA, 8 October 1998)
R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
R v Fraser [2001] QCA 187
R v Jackson & La Gros [1995] 1 Qd R 547
R v K [2003] NSWCCA 406; (2003) 144 A Crim R 468
R v Marsland (Unreported, NSWCCA, 17 July 1991)
R v Myles [1997] 1 Qd R 199
R v Rudkowsky (Unreported, NSWCCA, 15 December 1992)
R v Skaf [2004] NSWCCA 37; (2004) 60 NSWLR 86
R v Wilkie [2005] NSWCCA 311; (2005) 64 NSWLR 125
Stegic v The Queen (Unreported, WASCA, Library No 970537, 3 September 1997)
Suresh v The Queen [1998] HCA 23; (1998) 153 ALR 145
The State of Western Australia v Bowen [2006] WASCA 133
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365
Yuill v The Queen (1993) 69 A Crim R 450

PULLIN JA:

The issue

The issue in this appeal arises as a result of the trial judge's refusal to discharge a jury when it was revealed during a criminal trial that a juror who, despite a direction from the trial judge not to, carried out an internet search obtaining two aerial maps showing the area where events described by witnesses occurred.
The appellant was facing a charge of murder. The victim was in the company of a number of men before she died. There was evidence that before she died, she was assaulted by one of the men (not the appellant) as a result of which she bled profusely. A plan was tendered by the prosecution (exhibit 3) showing the location where the prosecution said the victim died. Before evidence was led, the trial judge directed the jury not to 'go on the internet and try to find out something from a source like that about the case. In other cases where people have done that, it has caused the trial to be aborted. That's not on.' His Honour then directed the jury that the material they had to deal with was the evidence that came before them in the courtroom, subject to the rulings and subject to the trial judge's controls as to admissibility, and not what might appear from some other source. The trial judge added that they should be careful 'not to do that'.
Despite this direction, a juror went onto the internet and obtained two aerial maps showing not only the location depicted in exhibit 3, but also another location, namely Loopline Park, where one witness had said there was an assault committed against the victim.
Counsel for the appellant applied for an order that the jury be discharged. The application was dismissed. The appellant was convicted and now appeals.
The appeal is not to be determined by considering whether the discretion of the trial judge to discharge the jury miscarried by applying the principles in House v The King (1936) 55 CLR 499, but by considering whether the failure to discharge the jury resulted in a miscarriage of justice: Maric v The Queen (1978) 52 ALJR 631; Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427, 441 (Toohey, Gaudron, Gummow & Kirby JJ).
In R vMarsland (Unreported, NSWCCA, 17 July 1991), Gleeson CJ (with the other members of the court agreeing) was dealing with an irregularity involving the tender of a document containing inadmissible prejudicial material. Gleeson CJ referred to the tender of this document as an 'irregularity' and said:
The question we must ask ourselves is whether we can be satisfied that the irregularity has not affected the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred.
Gleeson CJ said that he saw 'no reason to doubt' in that case that the jury would have taken at face value what the learned trial judge told them. Gleeson CJ also noted that the erroneous disclosure of material which was in the report which had been tendered was an error on the part of the person who compiled the report. If there has been a miscarriage of justice, then the appeal court must allow the appeal by reason of s 30(3) of the Criminal Appeals Act 2004 (WA), but the court may then dismiss the appeal if it considers that no substantial miscarriage of justice has occurred: see s 30(4).
I have had the advantage of reading a draft of Buss JA's reasons which provide a thorough summary of the evidence. I agree with Buss JA's conclusion that there was a strong prosecution case against the appellant. However my concern is about the validity of the trial process.

Miscarriage of justice - failure of process

A miscarriage of justice will occur if there has been a failure of process which departs from the essential requirements of a fair trial: Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 [5] ‑ [8]; Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 [66]. In Carney v The State of Western Australia [2010] WASCA 90 [44] ‑ [45], I expressed the view that my reconsideration of High Court authority suggests that the correct approach is to treat any departure from trial in accordance with law as a miscarriage of justice. I should add that, by that, I mean any uncorrected departure from trial according to law will be a miscarriage of justice. Minor irregularities often occur which are rectified by directions from the trial judge.
Cesan was a case where the High Court was also concerned with a failure of process and not the merits of the case. The case involved a trial during which the judge fell asleep on a number of occasions, causing some members of the jury to be distracted. In his reasons, French CJ discussed why judicial process is important. In particular, his Honour said that judicial power was exercised in accordance with judicial process in order to maintain public confidence in the courts, that courts depend on public confidence to maintain authority and that public confidence in some cases is subsumed in what a fair and reasonable observer would think about what had happened in that case [70] ‑ [71]. His Honour said [72]:
The appearance of a court not attending to the evidence and arguments of the parties in control of the conduct of the proceedings is an appearance which would ordinarily suggest to a fair and reasonable observer that the judicial process has not been followed.
His Honour added that not every minor distraction or inattention by a judge constituted a failure of judicial function, but added:
Nevertheless, it would be an unnecessarily narrow view of the judicial duty to say that appeal courts are to judge such lapses solely by reference to their effects upon the outcome of the case.
French CJ concluded that there was a miscarriage of justice by failure of judicial process constituted by the judge's substantial failure to maintain the necessary supervision and control of the trial and that, in addition, his conduct created a distraction during the trial process which distracted the jury [96]. His Honour concluded that the appearance of injustice could not be cured by forming the opinion that a reasonable jury would have convicted.
Gummow J decided the case on the basis that the judge's conduct created a distraction [105] ‑ [106]. Hayne, Crennan and Kiefel JJ also decided the appeal on the basis that there had been a miscarriage because the jury was distracted from its task [119].
AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 was another case dealing with failure of process. In that case, the trial judge had convicted the appellant after a trial without a jury and had failed to comply with the statutory obligation to provide reasons for his decision including the principles of law applied by the judge and the findings of fact on which the judge relied. The conviction was set aside.

Can the proviso be applied if there is a failure of process?

The provisions of s 30(4) cannot be applied if it is impossible to know what effect the miscarriage may have had and where it is impossible to say whether the conviction was just: Cesan; Suresh v The Queen [1998] HCA 23; (1998) 153 ALR 145 [6] and [42]; Carney [41]. In Cesan, Gleeson CJ said that:
There is at least one circumstance in which a failure of process cannot be denied the character of a miscarriage of justice on the ground of the appellate court's view of the strength of the prosecution case. That is where the consequence of the failure of process is to deprive the appellate court of the capacity justly to assess the strength of the case against the appellant … If there has been a failure to observe the conditions which are essential to a satisfactory trial and, as a result, it appears unjust or unsafe to allow conviction to stand, then the appeal will be allowed.
Hayne, Crennan and Kiefel JJ in Cesan concluded that the proviso could not be applied because the 'relevant hypothesis' was that the 'jury did not pay attention to all the evidence led at trial' [129]. Their Honours concluded that the jury was distracted and that it was not possible to place any weight upon the fact that the jury returned its verdict of guilty. Heydon J agreed with the reasons given by Gummow, Hayne, Crennan and Kiefel JJ.
In addition, in Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373, Brennan, Dawson and Toohey JJ said that the proviso had no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. In Nudd, Gummow and Hayne JJ said that it was not necessary in that case to 'explore the boundaries of the proposition in Wilde or to identify circumstances in which it could find application'. Their Honours said that this would require close attention to what is meant by 'essential requirements of the law' and 'the root of the proceedings' [36]. They added:
However that may be, in the context of a criminal trial it may be open to doubt where some requirements of the law are properly to be dismissed as inessential or whether some requirements are to be classified as radical and others not [36].
In AK, the majority were of the view that the proviso could not be applied because the appellant was not tried in accordance with the requirements of the statutory provisions in question [58].

Juries are assumed to understand and faithfully follow the trial judge's directions

An assumption which underlies trial by jury is that, until the contrary is demonstrated, jurors understand and conform to the direction of the trial judge: Demirok v The Queen (1977) 137 CLR 20, 22 (Barwick CJ); The State of Western Australia v Bowen [2006] WASCA 133 [31]; Yuill v The Queen (1993) 69 A Crim R 450, 453 ‑ 454 (Kirby ACJ): R v Bell (Unreported, NSWCCA, 8 October 1998) (Spigelman CJ); I v The State of Western Australia [2006] WASCA 204 [14] (Steytler P). The assumption is supported by some research which reveals that the overwhelming majority of jurors understand judicial instructions: L Trimboli, Juror Understanding of Judicial Instructions in Criminal Trials: Crime & Justice Bulletin No 119, New South Wales Bureau of Crime Statistics and Research (2008).If it were necessary to classify this assumption, I would classify it as one which is radical and made in order to be assured that there has been a fair trial according to law.

Juries are to determine the case according to the evidence

Originally, juries in England were summoned for their local knowledge: R v Allingham [1991] 1 Qd R 429, 436 (McPherson J). The origins of the local link lie in the origins of the Grand Jury which acted on its own local knowledge to found an indictment and of the petty jury of trial which would also act on its own knowledge: R v Wilkie [2005] NSWCCA 311; (2005) 64 NSWLR 125 [14] ‑ [16]. These juries were 'self‑informing': Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 [97]. After the 17th century, the view developed that a juror with personal knowledge must declare it in open court, resulting invariably in disqualification of that juror from service in the trial so affected: Melbourne [97].
The present view is that the satisfactory functioning of the criminal justice system requires that juries determine guilt on the basis only of the evidence presented in court at the trial and in doing so they are, as far as possible, insulated from extraneous information and outside influences. Justice must not only be done, but manifestly be seen to be done: R v Jackson & La Gros [1995] 1 Qd R 547, 549. An irregularity will occur if a jury carries out its own investigations and gathers material relevant to the case: R v Bates (1985) 1 NZLR 326. The authorities referred to below show that if a juror or jury does gain access to extra curial material, courts will assess the degree to which it is relevant or prejudicial in deciding whether the irregularity interferes with the course of justice to such a degree as to warrant a discharge of the jury.

Power to discharge a jury

Section 116(2) of the Criminal Procedure Act 2004 (WA) gives power to a judge to discharge a jury. The section says that the judge may discharge the jury from giving its verdict on a charge if the judge is satisfied 'it is in the interests of justice to do so'. When considering whether it is in the interests of justice to discharge a jury because of some irregular incident involving a juror or the jury, the question to be asked is whether notwithstanding a proposed or actual warning of a trial judge, the incident gives rise to a reasonable apprehension or suspicion on the part of a fair‑minded and informed member of the public that the juror or jury has not discharged, or will not discharge, its task impartially: Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41.
In Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427, 440, Toohey, Gaudron and Gummow JJ referred to the fact that no rigid rule could be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. Their Honours said that the possibility of slips occurring is inescapable and added:
Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction to overcome its apprehended impact.

Other cases where jurors have gained access to information outside the courtroom

There are many cases where appeal courts have had to consider whether the fact that a juror has gained extra curial information led to a miscarriage. Cases can be found where jurors have obtained such information in the course of a trial where the jury has not been discharged and where a court on appeal has held that there was a miscarriage and other cases can be found where it was held that there was no miscarriage. See, for example, R v Bates (1985) 1 NZLR 326 (miscarriage of justice occurred - new trial ordered); R v Jackson & La Gross (impermissible communications between a bailiff and jury - conviction set aside) and Domican v The Queen (No 3) (1990) 46 A Crim R 428 (appeal against conviction on that point dismissed.) In Domican (No 3), Kirby ACJ said that the extra curial information must be 'vital': Stegic v The Queen (Unreported, WASCA, Library No 970537, 3 September 1997) (appeal against conviction dismissed); Cant v The Queen [2002] NTCCA 8; (2002) 12 NTLR 133 (appeal allowed) and R v K [2003] NSWCCA 406; (2003) 144 A Crim R 468 (appeal allowed - new trial ordered).

The problem of the internet

Nowadays, unless constrained, jurors are likely to carry out a search via the internet to find out whether there is any information about either the circumstances of the case or the participants in the trial. This is a growing problem. Many trial judges in this State (but not all) give directions to the jury before the trial gets underway, directing them not to carry out such investigations. That direction is a particular example of a general direction as to the law which a trial judge must give to the jury. That is that the jury must decide the case on the evidence led at trial. The particular direction was given in this case before any evidence was heard. The general direction was also given to the jury.
R v K is a case where the juror searched the internet for information. The appellant, who was charged with the murder of his wife, had been tried and convicted and had successfully appealed. The case under review was the retrial. The jury knew that there had been a previous trial and witnesses were cross‑examined about evidence which they had given at the previous trial. However, the appellant had been previously charged, tried and acquitted of the murder of another wife. There was no attempt to raise tendency or coincidence reasoning. A considered decision was made by the trial judge, at the request of trial counsel, not to give the jury any directions to the effect that they should not make any internet or other searches of their own. This approach was taken (contrary to the assumption which must be made, namely that jurors follow instructions) because it was feared that any mention of that kind might only place the idea in the minds of an inquisitive juror and result in the very kind of research which, as events turned out, occurred. All the trial judge did at the beginning of the trial was to give a general direction that the only thing which was relevant was what happened in the courtroom. The appellant was convicted. After the conviction, evidence was obtained that revealed that jurors had carried out internet searches and discovered that the appellant had been charged, tried and acquitted of the murder of the other wife. The Court of Criminal Appeal upheld the appeal on the basis that the evidence gave rise to a risk of tendency reasoning [76]. It was also significant that the jury had 'not obeyed' the preliminary general direction given by the trial judge not to 'go beyond the evidence' [77].

Wood CJ (Grove & Dunford JJ agreeing) recommended that legislation in New South Wales should be amended to introduce a provision comparable to s 69A of the Jury Act 1995 (Qld) which makes it a criminal offence for a person sworn as a juror in a criminal trial to inquire about the defendant until the jury of which that person is a member, has given its verdict or has been discharged by a judge [90]. The word 'inquire' is defined in the Queensland legislation to include to search an electronic database for information, for example by using the internet. Wood CJ recommended a widening of that provision to embrace not only inquiries concerning the background of the accused but also any matter relevant to the trial. In the year after the judgment in R v K, the New South Wales Parliament enacted such a provision: see Jury Act 1977 (NSW), s 68C. The same provision was inserted into the Victorian Act in 2008: see Juries Act 2009 (Vic), s 78A.
Wood CJ also recommended that trial judges should always give an instruction to jury members not to undertake any independent research by internet or otherwise concerning the proceedings. His Honour said that if a provision like the Queensland legislation were enacted, then the jury should additionally be informed at the outset that it would be an offence for them to make such an inquiry. I agree with the observations of Wood CJ. I would urge the Western Australian government to consider introducing similar legislation.
In the meantime, it is my view that all trial judges should give a direction to jurors at the beginning of a trial, directing them not to carry out any independent research by internet or otherwise concerning the proceedings and that they will act contrary to law if they do so.

Were the maps 'vital'?

The maps obtained by the juror were relevant because there was conflicting evidence about where the victim had been assaulted by a person other than the appellant. The juror obtained maps which showed Loopline Park, which was not shown on the map tendered in evidence. Loopline Park was where one witness said the assault had taken place.
If the only question was whether the extra curial information was 'vital' (to use the word used by Kirby ACJ in Domican (No 3)), then I tend to the view that the maps obtained by the juror were not vital, although how the juror might have reasoned by reference to the maps is not known.

The consequence of the juror's disregard of the trial judge's direction

However, my particular concern is about the fact that a juror deliberately disregarded the direction given by the trial judge. In the face of specific direction not to search the internet, the revelation that the juror went looking for information on the internet leads to the conclusion that it could no longer be assumed that the juror would faithfully follow directions of law subsequently given by the trial judge.
Having discovered what the jury had done, the trial judge raised the issue with counsel in the presence of the jury and pointed out to the jury that he 'did ask the jury not to involve yourselves in a process of endeavouring to do your own investigations in matters of that kind. There are enormous dangers involved in that'. However, his Honour went on to say to the jury that:
I don't think this material shows that any of you declined to follow that instruction.
With respect, I cannot agree with that statement. The juror's conduct did show that one member of the jury had declined to follow the trial judge's instructions. In Marsland's case, Gleeson CJ said that he saw 'no reason to doubt that the jury would have take at face value' what the judge had told them. In this case, it is clear that one member of the jury was prepared not to take at face value what the trial judge said. In fact, the juror was prepared to disregard what the trial judge directed on. This was a case where the assumption that the jury will follow and conform to directions of the trial judge cannot apply because 'the contrary' has been demonstrated (Demirok).
Further, the deliberateness of the irregular conduct can be taken into account: Crofts (440). In R v K, the court regarded it as significant that the jurors had not obeyed the general preliminary direction not to go beyond the evidence [77]. Here the juror deliberately flouted the specific direction given by the trial judge and there could no longer be any confidence that the case would be determined by that juror faithfully following the trial judge's directions. This was a failure of process. In Cesan, the 'hypothesis' was that the jury did not pay attention to the evidence. Here the hypothesis, or rather the fact, is that one juror was prepared to ignore directions of law given by the trial judge.
The influence of the particular juror in the jury room cannot be known, but there is no doubt that individual jurors can pressure other jurors in the jury room: J Fordham, Juror Intimidation? An investigation into the prevalence and nature of Juror intimidation in Western Australia, 'Brief Magazine', June 2010. In circumstances where there was clear evidence of one member of the jury flouting the directions of the trial judge, there was a risk that this jury might have been contaminated by the views of a juror willing to disregard the trial judge's directions. In this case, there were two reserve jurors so the juror in question could have been discharged. There is no evidence that the other jurors would not obediently follow instructions and so the trial could then have continued without any risk of injustice. That course was not followed. The alternative was to discharge the whole jury but that course was not followed. The recalcitrant juror was left on the jury.
As a result, I am of the view that the irregularity involved in having this juror remain on the jury was an irregularity which gave rise to a miscarriage of justice.

Can s 30(4) of the Act be applied?

In Cant, the court held that the proviso could not be applied when it was revealed that there were doubts about the impartiality of at least one juror 'in circumstances where there [were] serious doubts about whether any direction given by the … trial judge would have been acted upon'. The court there applied Wilde, stating that the High Court held in that case that where an error is so fundamental as to depart from the essential requirements of a fair trial, there is no room for the proviso. In Nudd, Kirby J said [100] that the proviso postulates upholding orders that have followed a trial meeting the minimum standards for a fair trial.
There was not a fair trial in this case because the jury contained a member who was willing to disregard a specific direction on the law given by the trial judge. The assumption that the jury would faithfully obey directions of law could no longer apply. In Cesan and AK, the proviso could not be applied and I consider it cannot be applied in this case. As a result, the first ground of appeal should be upheld.
The second ground of appeal alleges that his Honour erred in law and that there was a miscarriage when he failed to inquire of a juror what information had been gleaned as a result of the investigations carried out mid‑trial. Such inquiries can be made but if this is done, a court has to tread carefully making sure that no inquiry is made about the jury's deliberations on the question of guilt or innocence. The subject was discussed in some detail in R v K and also in Stegic. In view of my conclusion that the first ground should be upheld, it is not necessary to deal with this ground. In any event, the mere failure to make inquiry could not itself give rise to a miscarriage.
I would allow the appeal. I would set aside the conviction and order a retrial.
BUSS JA: The appellant was convicted after a trial in the Supreme Court before Murray J and a jury of the murder of Terri Zeta Coleman, his first cousin, on an unknown date between 20 February 2008 and 1 March 2008.
He was sentenced to life imprisonment with a minimum term of 12 years before becoming eligible for release on parole.
The appellant appeals to this court against his conviction.

The background facts and circumstances

The State's case at trial was that the appellant was involved in unlawfully killing the deceased. Her body was found in the vicinity of Hopkins and Waverley Streets, Kalgoorlie. The prosecutor informed the court, in his opening address, that a map of the relevant area would be available for the jury to take 'into the jury room [when they] finally retire' (ts 415).
The State contended that the unlawful killing probably occurred on either 21 or 22 February 2008. It was alleged that on about 21 or 22 February 2008 the appellant was seen in company with the deceased. In 'the days following 21 February', the appellant told some people that he had cut 'a female's throat [and] dumped her in the bush somewhere near Boulder Camp' (ts 414). Later, the appellant told these people that he had been 'only joking' about what he had said (ts 414). When the deceased was reported missing, police commenced searching for her.
During his opening address, the prosecutor pointed to the bottom of a map (ts 415), at an area later identified by a police witness as near a water treatment plant (ts 542) and by another police witness as an area called Lakewood (ts 552). This map was tendered by the prosecutor and became exhibit 3 (ts 551).
On 21 March 2008, police arrested the appellant at a remote Aboriginal community. They drove him to Kalgoorlie. During the journey, they stopped for the night (ts 415). The appellant was accompanied by approximately six police officers. The appellant, in the course of this journey, told police where the deceased's body would be found. This statement was recorded by police on a small video recorder. He also told police that the deceased had initially been hit by another person with a rock, and that he then choked her, and 'then she was gone' (ts 417). Later, during the conversation in which he made this admission, the appellant asserted that he only touched the deceased's neck to check her pulse (ts 417).
The following morning, police went to the area nominated by the appellant and found human remains (ts 415, 558 ‑ 559). They were the remains of the deceased.
At the trial, Matthew Watson (also known as 'Campbell Watson') gave evidence that he saw the appellant 'doing things to the deceased' at an area 'at the end of Hopkins Street' (ts 419). Sandy Jamieson gave evidence relating to the area where Hopkins and Waverley Streets intersect (ts 472). This was the area in which the deceased's body was found (ts 540 ‑ 541, 547). According to Mr Jamieson, he, the deceased, the appellant and others had been drinking in the area in question. An argument had developed between Daniel Sinclair (a man referred to as 'Stevie') and the deceased (ts 474). Mr Jamieson saw 'Stevie' Sinclair throw a can of beer at the deceased, and argue with her about some marijuana (ts 475 ‑ 478).
Various people were said to have been present at the time of the killing. In particular:
(a)Clinton Smith, the owner of a black ute, was nominated by the appellant (ts 622), Sandy Jamieson (ts 474) and Matthew Watson (ts 487) as being present. Clinton Smith denied being present at 'a place called "the flat" at the end of Hopkins Street', and said he had never met the deceased (ts 437).
(b)Daniel ('Stevie') Sinclair was nominated by the appellant (ts 623), Sandy Jamieson (ts 474) and Matthew Watson (ts 487) as being present. 'Stevie' Sinclair denied being present, and said the last time he had seen the deceased was at about 1.00 pm or 2.00 pm at Loopline Park (ts 442 ‑ 444), when there were more than 30 people also present (ts 465). He conceded that he had thrown a can of beer which struck the deceased in the face, but said this had occurred at Loopline Park (449 ‑ 450, 458). His evidence was, in this respect, contrary to the evidence of all other witnesses, including the appellant. (Loopline Park was also known as Boulder Park: ts 461.)
(c)Matthew ('Campbell') Watson was nominated by the appellant (ts 623) and Sandy Jamieson (ts 474) as being present. He conceded that he was present in the area where Hopkins and Waverley Streets intersect (ts 486, with the photograph eventually marked as exhibit 2A), and it was at this location that 'Stevie' Sinclair threw the can at the deceased (ts 489, 501).
(d)Sandy Jamieson was nominated by the appellant (ts 622) and Matthew Watson (ts 484) as being present. He conceded that he was present with Matthew Watson when he saw the deceased on either Hopkins Street or Waverley Street, but 'probably Hopkins Street' (ts 472 ‑ 473). He said it was at this location that 'Stevie' Sinclair threw the can at the deceased (ts 475 ‑ 476, 479).
(e)The appellant was nominated by Sandy Jamieson (ts 474) and Matthew Watson (ts 487) as being present. He conceded that he was present at 'the flats' (ts 622), which is the place where the deceased's body was found (ts 657 ‑ 658). It was at this location that 'Stevie' Sinclair threw the can at the deceased (ts 623) and where the entire incident occurred (ts 675). This was the location where he told police the body would be found (ts 674). He did not go to Loopline Park on the day the deceased died (ts 657), and he did not call Loopline Park 'the flats' (ts 676).
The appellant gave sworn evidence in his own defence. He asserted that he had been drinking with the deceased and others, and that one of the other people had thrown a can of beer at the deceased. The can struck her on the front of her lips and nose (ts 624).
She bled profusely, and the appellant attempted to stem the flow of blood (ts 624). 'Stevie' Sinclair then argued with the deceased and struck her with a rock about five times (ts 625, 627). According to the appellant, he intervened and attempted to stop Stevie's assault on her (ts 627, 667).
The appellant gave evidence that 'Stevie' Sinclair told him to 'choke her' (ts 628). The appellant said he did not choke the deceased. Instead, he walked back to a ute in the vicinity (ts 629).
According to the appellant, he told Janice Stevens, about two days after the incident with the rock, that the deceased had been hit and that he did not know whether she was alive or dead (ts 632 ‑ 633).
The appellant denied that in a conversation with Patrick Curry, he had, in reference to the deceased, run his finger across his throat (ts 634).
The appellant also denied an allegation by Matthew Watson that he (the appellant) had kicked and assaulted the deceased in the vicinity of Hopkins and Waverley Streets at a location known as the 'rabbit‑proof fence', and that he had choked her for 'a couple of seconds' (ts 653 ‑ 654).
As to the admissions he had allegedly made to police, the appellant asserted that the police told him that if he did not confess to the killing, he was not going to have 'a smoke or a feed' (ts 636) and he would be 'flogged' (ts 640).
The appellant gave evidence that police had told him he had to admit to having 'strangled her while Basil [Scott] cut her throat' (ts 637, 640). The appellant denied having killed the deceased, and said in cross‑examination that 'Stevie killed her. Not killed her but ‑ you know?' (ts 650).

Grounds of appeal

There are two grounds of appeal.
The first ground alleges that the trial judge erred in law and fact, and there was a miscarriage of justice, when he failed to discharge the jury after a juror carried out investigations during the trial concerning the alleged offence. The second ground alleges that his Honour erred in law and fact, and there was a miscarriage of justice, when he failed to inquire of a juror what information had been gleaned as a result of investigations carried out during the trial.
Particulars are given in relation to each ground. They are substantially in the same terms and assert, in essence:
(a)The appellant gave evidence that the deceased was fatally injured at a location not shown on exhibit 3 (being the map referred to and displayed by the prosecutor in his opening address, and later tendered by the State);
(b)A juror independently obtained two maps, one of which was an aerial view of 'Greater Kalgoorlie' and the other of which showed the location where, on the appellant's evidence, the deceased was fatally injured;
(c)It was not resolved whether the particular juror gleaned any relevant information from the maps he or she had obtained; and
(d)It was unclear whether information concerning the maps obtained by the juror was disseminated to the other jurors and, in the circumstances, the jury should have been discharged.
As I recount later in these reasons, the appellant did not, in fact, give evidence that the deceased was fatally injured at a location not shown on exhibit 3. Evidence to this effect was given by another witness, Daniel 'Stevie' Sinclair.
On 10 December 2009, Wheeler JA granted leave to appeal on each of the grounds.

The juror's independent investigations and the directions given by the trial judge

On Monday 31 August 2009, towards the end of the first day of the trial, the trial judge directed the jury not to 'go on the internet and try to find out something from a source like that about the case. In other cases where people have done that, it has caused the trial to be aborted. That's not on' (ts 509). His Honour added:
The material that you should deal with in relation to the evidence is what comes before you in the courtroom subject to the rulings and subject to my controls as to its admissibility and not whatever might be appearing on some other source, so be very careful not to do that (ts 509).
Before the trial resumed on the morning of Wednesday 2 September 2009 (being the third day of the trial), the sheriff's officer informed the trial judge that a juror had obtained the two maps I have mentioned, apparently from the internet. His Honour raised the issue with counsel, in the presence of the jury, as follows:
MURRAY J: … Just before we go on, the sheriff's officer gave me before we came into court this morning some maps that have been taken off and copied. It was provided by a member of the jury. I have provided that to counsel who may or may not wish to use that material, but it requires me I think to say this: I did ask the jury not to involve yourselves in a process of endeavouring to do your own investigations and matters of that kind. There are enormous dangers involved in that.
I don't think this material shows that any of you declined to follow that instruction. I think it's innocent and well-meaning and I have accepted it upon that basis, but this is a process of trial which involved strict controls over the material that comes before the jury. Your job is not to investigate and be detectives all by yourselves. It is to deal with the evidence which comes before you in this courtroom subject to my rulings, all the things I said to you the other day, and it's terribly important that you follow that and that you do follow the instructions that I give you about matters of that kind and don't go off on frolics of your own. Thank you (ts 565).

The application to discharge the jury

Shortly afterwards, the appellant's trial counsel made an application, in the absence of the jury, for the jury to be discharged. The trial judge elaborated upon the nature and characteristics of the two maps given by the juror to the sheriff's officer, and the circumstances in which they were given by the juror to the sheriff's officer, in the course of this exchange with the appellant's trial counsel:
MURRAY J:   I received this information in the form which I now have it, which is copies. My clerk of arraigns tells me there are 14 in two folders of two aerial maps. The first is the city of Kalgoorlie-Boulder and it is obviously something taken from a web site, I would think, of that city because it says, 'The City of Kalgoorlie-Boulder does not warrant the accuracy of the information in this publication,' so it's a protective note in relation to any liability. God preserve us from that sort of thing, but anyway, there you have it. It just shows generally the area. You should have a copy of that before you, I think, and so should you, Mr Huggins. Let me just do that.
The other document has been taken as a colour printout from somewhere and you'll see the other one is actually a more confined aerial map of the Boulder area. It shows Waverley Street on it, and I think one could probably work out where this area is in relation to Burt Street and Loopline Park. That's the sort of material. Now, I should think it's previous obvious that it has come off the Internet, Mr Sullivan. Would you not think so?
SULLIVAN, MR:   I'm afraid I'm a Luddite, your Honour.
MURRAY J:   Well, so am I. I quite agree.
SULLIVAN, MR:   But it seems likely, yes.
MURRAY J:   But it seems so to me and it has been printed out by one of the members of the jury. As I say, I received it from the sheriff's officer, who said she had been given it in the form which we now have it, in those two folders, by a juror who asked the question through her, 'Would it be in order to distribute it to other members of the jury?'
SULLIVAN, MR:   Yes.
MURRAY J:   Now, that comforted me because it suggested to me that it hadn't been shown to other members of the jury. The instruction I gave them was of course carefully worded. It was concerned to prevent them from doing their own investigation into the case or in the circumstances of it.
SULLIVAN, MR:   Your Honour did everything possible to make sure that that didn't happen - that this didn't happen.
MURRAY J:   No, quite. So I suppose the question is whether, as you say, the jury's processes, even if they have shared this material, would be relevantly contaminated in a way which would cause the court to be so concerned that the trial ought to be aborted, but your submission is that it should.
SULLIVAN, MR:   Yes.
MURRAY J:   Because, do you say, I can't be sure what else may have been done?
SULLIVAN, MR:   Sir, we can't investigate it.
MURRAY J:   No.
SULLIVAN, MR:   And it's a contamination which is essentially there and has contaminated the trial (ts 566 ‑ 567).

The prosecutor opposed the application to discharge the jury.
The trial judge decided that the jury should not be discharged. He dismissed the application for these reasons:
I think there is not sufficient evidence to show that the trial process as such has been contaminated by the introduction secretively among the jury of information - not evidence but information obtained by one of their number from a source outside the confines of the trial process.
The way in which the juror dealt with these results of his inquiries or her inquiries, I have no idea who the person was, seems to me to give some comfort to the view that the court should not jump to the conclusion that there has been a disobedience to the court's instructions as to the jury being careful not to undertake their own investigations into the facts of the case.
I would propose to reinforce the instruction I gave in relation to that when I come to direct the jury and I suppose I might say this; that I think the court needs to be careful not to be too precious about this sort of thing. Throughout all of my rather too long contact with criminal courts in this state there have always of course been the possibility that people would read reports of cases in the newspaper.
It was often the case when we had committal proceedings in a fully-blown form that they would be regularly reported and attract great prurient interest often in the daily press, and the court's reaction was always simply to tell the jury that if anything had come to their notice outside of the court which seemed to be a factual account about the matter they should ignore it and pay attention entirely to the evidence.
I think that's probably, except in specific circumstances where the evidence of contamination is stronger than here, all that needs to be done to preserve the integrity of the trial process, but I am obliged to counsel for raising it and it was properly raised but that's the ruling I make on it (ts 569 ‑ 570).
The trial continued throughout 2 and 3 September 2009. The jury returned their verdict at 5.05 pm on 3 September 2009.

Appeal against a trial judge's refusal to discharge a jury

When a trial judge refuses an application to discharge a jury and the accused is convicted, an appeal by the accused is against the conviction and not against the exercise of the trial judge's discretion not to discharge the jury. See Maric v The Queen (1978) 52 ALJR 631, 634 (Gibbs ACJ, Mason & Jacobs JJ agreeing); Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 90 (Toohey J); R v Fraser [2001] QCA 187 [37] (White J, McMurdo P & Dutney J agreeing).

Applicable legal principles in determining whether to discharge a jury

Section 116(2) of the Criminal Procedure Act 2004 (WA) provides that a trial judge may discharge the jury from giving its verdict on a charge if the judge is satisfied it is 'in the interests of justice' to do so.
It is well‑established that the presence in the jury room of material that was not tendered in evidence constitutes an irregularity. The trial judge must assess the importance of the material in the context of the trial.
In Domican v The Queen (No 3) (1990) 46 A Crim R 428, the appellant was convicted of shooting with intent to murder. The jury had before them six photographs which were not exhibits. The trial judge refused an application to discharge the jury when this fact was ascertained towards the end of the trial. It appears that the photographs were, of themselves, innocuous. They were similar to other photographs which had been admitted into evidence (447).
In the Court of Criminal Appeal of New South Wales, Kirby ACJ (Campbell & Studdert JJ agreeing) said:
Not every irregularity will result in the quashing of a conviction: see, for example, Twiss [1918] 2 KB 853; Riley [1982] 1 NZLR 1 at 10. A conviction may be quashed where a jury has been shown to have gone outside the evidence in a way that may reasonably be suspected to cast doubt on the integrity of the verdict: see, for example, Bates [1985] 1 NZLR 326 at 328 and Gillespie (unreported, Court of Appeal, NZ, 7 February 1989). In the last-mentioned case, after the verdict, counsel became aware that the foreman of the jury had visited the place of the alleged crime to test the explanation given by the accused. Another juror had also later visited the scene to make his own inspections. These were duly reported to the fellow jurors. Richardson J, delivering the judgment of the court said, referring to Bates, that 'the occasion would be rare indeed when the court could say that notwithstanding a jury's extrajudicial inquiry on a vital issue, the jury undoubtedly would have reached the same conclusion without it' (at p 4). It was held that the jury should have kept itself to the photographs tendered in evidence. The conviction was quashed (448).
The Court of Criminal Appeal dismissed the appeal in Domican (No 3). Kirby ACJ's reasoning was, relevantly, as follows:
The appellant urged that ... [by] the photographs found in the jury room, the jury had the equivalent of a further view outside the evidence. The jury's assessment of the photographs and what it made of them cannot be judged because of the confidentiality of the jury's deliberations. To that extent, I consider that Roden J was right to reject the application made at the trial that he should interrogate the jury either as to how it obtained the photographs or what it had made of them: see Chaouk [1986] VR 707 at 713; (1986) 23 A Crim R 463 at 468-469; compare Emmett and Masland (1988) 14 NSWLR 327; 33 A Crim R 340. But the case falls far short of the equivalence to a view. It is not suggested that the photographs, of themselves, had any particular prejudicial effect. In these circumstances, I do not consider that his Honour's discretion, refusing to discharge the jury, miscarried. Fortified by hindsight, I believe that it would have been preferable for his Honour to have withdrawn the photographs from the jury room and not to have returned them to the jury. I also believe that he should have given a specific instruction that the non‑exhibit photographs were to be entirely ignored. But the fact that these steps were not taken does not, in the circumstances, involve such a risk of miscarriage of justice as to require that the jury's verdicts be quashed. As the New Zealand courts have said in Bates and Gillespie the extracurial information must be on a 'vital' or at least important issue before discharge is required. It is not every irregularity that requires that drastic course. It was not required in this case (448).
The High Court reversed the Court of Criminal Appeal in Domican (No 3) and ordered a re‑trial, but not on the point of relevance to this appeal. See Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555.
In R v Myles [1997] 1 Qd R 199, the appellants were convicted of possession of cannabis sativa. On appeal to the Court of Appeal of Queensland, they asserted that the court should order an inquiry into allegations by a member of the jury that the jury foreman had introduced into the jury room information not in evidence at the trial, and that there had been an unauthorised inspection by three or four members of the jury during the trial. The appeal was dismissed. Fitzgerald P (Pincus JA substantially agreeing) said (203 ‑ 204):
While the jury's access to information which was not in evidence would have been an irregularity (see, for example, R v Domican (No 3) (1990) 46 A Crim R 428, 448; Barker v R (1994) 127 ALR 280), with the possible exception of the information based on the inspection by the foreman and some other jurors of the location where the appellants loaded their truck, the information was unimportant; it consisted of no more than the relative cost of meat in Cairns and Mackay, and the cost of sending seafood by rail from Cairns to Mackay. The jury's access to such peripheral information would raise neither a serious question as to the fairness of the appellants' trial, a significant possibility that an innocent person (or innocent persons) might have been convicted nor any other prospect of a substantial miscarriage of justice: see Domican (No 3); Barker; Webb; R v Spencer [1987] AC 128; R v Emmett and Masland (1988) 14 NSWLR 327; R v Jackson and Le Gros [1995] 1 Qd R 547.
...
An inspection conducted by some jurors without authorisation by the trial judge under s 623 of the Code, and the subsequent communication to other jurors that it disclosed that there was only a 'slim' risk of the appellants being seen while they were loading the truck, would raise more difficult issues. The test of whether the verdict should be set aside if such circumstances were established has been said to be whether the verdict's integrity is thereby called in question: see Domican (No 3) at 448, citing Bates [1985] 1 NZLR 326, 328 and Gillespie (Court of Appeal (NZ), 7 February 1989, unreported); R v Owens (CA 343/1992; Court of Appeal, 13 May 1993, unreported); cf Kozul v R (1981) 147 CLR 221, 226-227. Kirby ACJ's summary in Domican (No 3) of Gillespie suggests that it was similar to this case, and the test there adopted was whether 'the jury would otherwise undoubtedly have reached the same conclusion'; it was said that 'the occasion would be rare indeed' when that test would be satisfied. See also Barker, where it was said at 290:
'The presence in the jury room of material relating to a subject of the jury's deliberations and not in evidence constitutes an irregularity: Domican v R (No 3) (1990) 46 A Crim R 428 at 447‑8; R v Rinaldi (1993) 30 NSWLR 605. Each verdict of that jury must be set aside unless the court is satisfied that the jury would have returned that same verdict if the irregularity had not occurred: R v Marsland (SC(NSW), 17 July 1991, unreported); R v Rinaldi, supra. And "[i]t is for the Crown to make it clear that there is no real possibility that justice has miscarried": Mraz v R (1955) 93 CLR 493 at 514 (per Fullagar J).'
In Stegic v The Queen (Unreported, WASCA, Library No 970537, 3 September 1997), the appellant was convicted on two counts of making a threat to kill. On appeal to the Court of Criminal Appeal of Western Australia, it was alleged that the verdict was unsafe in that, at some stage during the trial, a juror made independent inquiries as to an issue at trial and communicated the results of her inquiries to the other members of the jury. The appeal was dismissed. Malcolm CJ, Pidgeon and Steytler JJ held that the material in question was unimportant and would not have caused any miscarriage of justice (8).
In R v K [2003] NSWCCA 406; (2003) 144 A Crim R 468, the appellant was convicted of the murder of his first wife. He had previously been tried and acquitted of the murder of his second wife. After the appellant's conviction for the murder of his first wife, virtually all of the members of the jury went to a nearby hotel, which was also visited by defence counsel. There were conversations between defence counsel and a juror which revealed that several of the jurors had acquired knowledge, to varying degrees, as a result of internet searches, about several matters including that the appellant had been accused of murdering his second wife, and that his trial and conviction for the murder of his first wife was a retrial. In the Court of Criminal Appeal of New South Wales, Wood CJ at CL (Grove & Dunford JJ agreeing) held that the relevant test for setting aside the verdict was not that formulated by the High Court in Webb (47) concerning juror bias [58]. Rather, the case involved a procedural irregularity, and the accepted test for disturbing a verdict in such cases was laid down in R v Marsland (Unreported, NSWCCA, 17 July 1991) and R v Rudkowsky (Unreported, NSWCCA, 15 December 1992) [68].
In Marsland, Gleeson CJ (Lee CJ at CL & Hunt J agreeing) said:
The tender of the document with the name [name deleted] on it was an irregularity and the question we must ask ourselves is whether we can be satisfied that the irregularity has not affected the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred. (cf R v Maric (1978) 5 ALJR 631; R v Knape (1965) VLR 469 but see R v Vaitos (1981) 4 ACR 238). I see no reason to doubt that the jury would have taken at face value, what the learned trial judge told them. Once they accepted his assurance that what was involved was an error on the part of the person who compiled the report, which had in turn gone unnoticed by the judge himself and by counsel at the trial, and that [name deleted] had nothing to do with the case or with the charge against the accused, I consider that the jury would have disregarded that piece of information. It is to be borne in mind that there was nothing else of any kind before them that would have given them any indication of, or even a hint as to, who [name deleted] might have been. I do not consider that this ground of appeal is made out (7). (original emphasis)
The Court of Criminal Appeal in R v K decided that the appeal should be allowed, and a retrial ordered. The reasoning of Wood CJ at CL was this:
Applying the test in Marsland to the present case, I am unpersuaded that any independent search conducted, or information acquired, by any jury member relating to the fact that this was a retrial gives rise to the need for intervention by this Court. That circumstance was before the jury, and although, quite properly, they had not been expressly informed of the result of the trial, it must have been apparent to them that there was at least a very high probability of there having been a conviction, which had been subsequently set aside for error. Whatever be the case in that regard, his Honour's directions were clear and unambiguous in relation to the need to ignore the circumstances of the prior trial, and to concentrate on the evidence presented.
The remaining matter relating to the internet search, and the information that resulted from it, concerning the charge which had been brought in respect of the murder of the second wife, falls, in my view, on the other side of the line. Even though the appellant had been acquitted of that charge, it is not known whether the information which was recovered from the internet search revealed that circumstance, or was confined to a discussion of the fire and the death, and of the fact that the appellant had been charged. As I have earlier indicated, there was a risk of coincidence or tendency reasoning being employed, in those circumstances, by the relevant members of the jury, which had been totally uninstructed concerning these principles. There was also a risk of the matter having been viewed by those jury members as raising bad character, again without the benefit of any appropriate instructions.
Moreover, there is the circumstance that the jurors, who had undertaken the search, had not obeyed the preliminary direction by his Honour not to go beyond the evidence, which was presented in the trial. That they considered it appropriate to make the searches was clearly wrongful, as was the conduct of the juror who had taken himself on a 'private view' of the place where the alleged murders had taken place. I would not, however, have regarded that circumstance as sufficient for the Court to intervene, particularly in circumstances where it was not known whether he had done any more than to pass by the house.
In those circumstances I do not believe that the court could be satisfied that the irregularity arising from the internet search had not affected the verdict, in accordance with the Marsland test, which I have observed has been applied, not only in Rudkowsky, but also in R v HJS [2000] NSWCCA 205; R v Allan [2002] 133 A Crim R 444 and R v Lansdell NSWCCA 22 May 1995 [75] ‑ [78]. (original emphasis)
See also R v Skaf [2004] NSWCCA 37; (2004) 60 NSWLR 86 [242] ‑ [276] (Mason P, Wood CJ at CL & Sully J).
In Folbigg v The Queen [2007] NSWCCA 371, the appellant was convicted of three counts of murder, one of manslaughter and one of having maliciously inflicted grievous bodily harm with intent to do grievous bodily harm. The victims of the offences were the appellant's children. She appealed to the Court of Criminal Appeal of New South Wales. The appellant relied on two grounds of appeal. First, the trial miscarried as a result of a juror or jurors obtaining information from the internet, which revealed that the appellant's father had killed her mother. Secondly, the trial miscarried as a result of a juror or jurors informing themselves, away from the trial, as to the length of time an infant's body is likely to remain warm to touch after death. The appeal was dismissed. McClellan CJ at CL (Simpson & Bell JJ agreeing) held that although the irregularities in question should not have occurred, they were not material and did not give rise to a miscarriage of justice [62]. His Honour added that even if his conclusion that there had not been a miscarriage of justice was wrong, he was nevertheless satisfied that no substantial miscarriage of justice (within the 'proviso') had actually occurred [63].

Section 30(3) and (4) of the Criminal Appeals Act 2004 (WA)

The principles revealed by the case law I have reviewed, in the context of appeals against refusals by trial judges to discharge juries, must be accommodated within the statutory framework in this State which governs criminal appeals.
By s 30(3) of the Criminal Appeals Act2004 (WA), this court must allow an appeal against conviction if, in its opinion:
(a)the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;
(b)the conviction should be set aside because of a wrong decision on a question of law by the judge; or
(c)there was a miscarriage of justice.
By s 30(4), despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
There are statutory provisions in other Australian jurisdictions which are similar to or comparable with s 30(3) and (4). Some different views have been expressed as to the relationship between the provision that the appellate court must allow an appeal against conviction if, in its opinion, there was a 'miscarriage of justice' and the provision that the appellate court may dismiss the appeal if it considers that 'no substantial miscarriage of justice' has occurred. In particular, there has been some disagreement as to:
(a)the difference, if any, between a 'miscarriage of justice' and a 'substantial miscarriage of justice'; and
(b)whether any irregularity at a criminal trial will constitute a 'miscarriage of justice' or whether a 'miscarriage of justice' will have occurred only if the irregularity was 'material'.
See, for example, TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [67], [97]; Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [18], [36]; Bounds v The Queen [2006] HCA 39; (2006) 80 ALJR 1380 [78]; Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 [17], [58]; R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 [26] ‑ [30]; Folbigg [11] ‑ [18]; Carney v The State of Western Australia [2010] WASCA 90 [41] ‑ [49].
It is unnecessary, in this appeal, to add to the judicial literature on these issues.

The merits of the appeal

The maps obtained by the juror depicted a larger geographic area than the map tendered by the prosecution as exhibit 3. One of the juror's maps depicted Loopline Park on Burt Street in Boulder. This park, which is at the intersection of Burt and Hamilton Streets, was not shown on exhibit 3.
The appellant's case at trial was, relevantly, that he had lied to police when he told them that Basil Scott was the person responsible for the deceased's death. According to the appellant at trial, police instigated this lie. In fact, it was Daniel 'Stevie' Sinclair who had caused the fatal injuries. The appellant was present when this occurred, but he had not participated in the attack on the deceased. Indeed, he had tried to stop it.

Daniel 'Stevie' Sinclair gave evidence that any contact which occurred between the deceased and him had been earlier on the day in question and at Loopline Park, when he had inadvertently thrown a can of beer that had struck her face. The appellant's trial counsel cross‑examined him on the basis that the remaining events which culminated in the fatal injuries occurred at that location. However, 'Stevie' Sinclair denied that anything further had occurred in relation to the deceased. Further, he did not accept that Loopline Park was also known as 'the flat' (ts 454 ‑ 465).
The appellant, who gave evidence that he was present when the deceased was attacked and the fatal injuries occurred, did not assert that these events occurred at Loopline Park. As I have mentioned, the appellant conceded that he was present at 'the flats' (ts 622), which is the place where the deceased's body was found, near the intersection of Hopkins and Waverley Streets (ts 657 ‑ 658). This was where 'Stevie' Sinclair threw the can at the deceased (ts 623) and where the entire incident occurred (ts 675). The appellant told police that the body would be found at this location (ts 674). He maintained that he did not go to Loopline Park on the day the deceased was killed (ts 657), and that he did not call Loopline Park 'the flats' (ts 676).
Daniel 'Stevie' Sinclair was the only witness who referred to Loopline Park as the place where there was an assault committed against the deceased. All of the other witnesses who gave evidence in relation to the attack on the deceased, including the appellant, asserted that it occurred in either Hopkins Street or Waverley Street or in the area where Hopkins and Waverley Streets intersect. The map tendered by the prosecution as exhibit 3 depicted Hopkins and Waverley Streets and their intersection.
The critical issue at trial was whether (and, if so, to what extent) the appellant had participated in the attack on the deceased which caused the fatal injuries. It was not the appellant's case at trial that the deceased had been killed at Loopline Park. The precise location of the park (including its location as shown on one of the juror's maps) had no material bearing on the resolution of the issues at trial.
The juror appears to have obtained the two maps because of evidence given by various witnesses as to the location of Boulder in relation to Kalgoorlie and the size of Boulder in relation to the limited view shown on exhibit 3 (ts 568).
I am satisfied that the maps obtained by the juror were not relevant to any material issue from the perspective of the State's case or the appellant's case, as run at trial. The obtaining of those maps, and the information they depicted, was not prejudicial to the appellant's interests. The information would not have assisted the jury to accept or reject the evidence of the appellant or any other witness except, possibly, the rejection of the evidence of Daniel 'Stevie' Sinclair. But this possibility is of no moment because 'Stevie' Sinclair's interests were relevantly opposed to those of the appellant.
The access by the juror in question to the maps (or, indeed, by the jury as a whole, if that occurred) was not a material irregularity in the particular circumstances and context of the trial. Further, it does not raise a serious question as to the fairness of the appellant's trial or whether a substantial miscarriage of justice has occurred. The jury would undoubtedly have arrived at the same verdict if the irregularity had not occurred.
It is of concern that the juror obtained the maps despite the trial judge's direction, given towards the end of the first day of the trial, that the jury must not 'go on the internet and try to find out something from a source like that about the case' (ts 509). Disobedience by a juror of a trial judge's direction may indicate an unwillingness by the juror to follow the trial judge's instructions and may, in a particular case, require the discharge of the juror or even, depending on the circumstances, the discharge of the jury as a whole. The information which the relevant juror obtained from the internet was not about the killing of the deceased or about the appellant or about any of the prosecution witnesses whose names were revealed by the prosecutor to the jury at the commencement of the trial (ts 400). It may be that the relevant juror understood his Honour's direction towards the end of the first day of the trial to relate to those kinds of matters rather than to an independent and objective representation of the general locality where the events in question occurred. However that may be, the relevant juror, having obtained the two maps, did not provide them to the other jurors, but approached the sheriff's officer, gave the officer the copies of the maps, and inquired of the officer whether it would be 'in order' to distribute them to the other jurors. The trial judge accepted that what had been done was 'innocent and well‑meaning', and did not demonstrate an unwillingness on the part of the relevant juror (or any of the other jurors) to follow his Honour's instructions.
Plainly, the trial judge was in a better position than this court in determining whether it was 'in the interests of justice', within s 116(2) of the Criminal Procedure Act, to discharge the jury or whether there was a reasonable possibility of a miscarriage of justice if the application to discharge was refused. He had heard the opening by the prosecutor, had access to the prosecution brief, was familiar with the atmosphere of the trial, and was acquainted to some extent with the jury and their evident ability.
The trial judge's reasons for dismissing the application to discharge indicate that his Honour concluded that any disobedience to his instructions had not been wilful, insolent or contumelious. His Honour decided, from the position of forensic advantage which I have mentioned,

that the irregularity could properly be managed by reiterating his instruction to the jury in blunt language, as he did when the occurrence of the irregularity was made known to him (ts 565). I am not persuaded that his Honour's approach was in error.

The trial judge was not bound, in the circumstances, to inquire of the relevant juror whether any 'other investigations' had been undertaken. The possibility of 'other investigations' having been undertaken is entirely speculative. There was no reasonable basis for thinking this may have occurred. The manner in which his Honour chose to deal with the matter, in the exercise of his discretion, has not been shown to have been vitiated by error.
In summary, I am satisfied that the obtaining of the maps by the juror was not a material irregularity in the particular circumstances and context of the trial, even if the information in the maps was conveyed by him or her to the other jurors. Further, I am of the opinion that no substantial miscarriage of justice has occurred. The irregularity did not affect the reliability or integrity of the verdict. The trial judge has not been shown to have erred in the manner in which he dealt with or disposed of the application to discharge.

Conclusion

The appellant has not made out either of the grounds of appeal. The appeal should therefore be dismissed.
MAZZA J: I agree with Buss JA.