Hay v The Queen; Webb v The Queen

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A7 of 1993

B e t w e e n -

VERONICA JANE HAY

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Adelaide No A9 of 1993
B e t w e e n -
MICHAEL PETER WEBB

Applicant

Hay 1 25/8/93
BRENNAN J GAUDRON J McHUGH J

and

THE QUEEN

Respondent

Applications for special leave

to appeal

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 25 AUGUST 1993, AT 2.55 PM

Copyright in the High Court of Australia

MR s.w. TILMOUTH. QC:  May it please the Court, I appear

with my learned friend, MR N.M. VADASZ, for the

applicant, Webb. (instructed by H. Bersee)

MR P.N. WAYE:  May it please the Court, I appear with my

learned friend, MS K.A. WHIMP, for the applicant,

Hay. (instructed by S.D. Saunders, Director,

Aboriginal Legal Rights Movement Incorporated)

MS A.M. VANSTONE:  May it please the Court, I appear with my

learned friend, MR P.B. SNOPEK, for the respondent

in each case. (instructed by P.J.L. Rofe, QC,

Director of Public Prosecutions, (South Australia))

BRENNAN J:  Mr Tilmouth, I wonder whether it might be

advantageous if you were to come immediately to the
question of the juror's provision of flowers for

the mother of the deceased.

MR TILMOUTH:  Your Honours, we have argued in the

applications that there were a whole series of

matters which either alone or together should have

caused a discharge of the jury.

The question of the flowers was really the

last straw. Your Honours would have got from the papers that there was a change of plea, there was

some coverage in the local paper of the voir dire

and various matters arose during the trial, all of which are dealt with extensively, certainly in the trial judge's lengthy reasons, and to a point in

the Court of Criminal Appeal.

What was argued in the Court of

Criminal Appeal about the juror's actions, if it

Hay 2 25/8/93

pleases the Court, no matter how well intentioned,

and no matter how much sympathy for the deceased's

mother might be intended, a juror is charged with a

very serious task of considering impartially all

the evidence, and it could not conveniently or

comfortably be said that although what the act of

giving the flowers mostly reflected on the one

part, was sympathy towards a third party, as it

were, our argument was the other side of the coin

necessarily meant, there must be some adverse

feeling about the case against the accused. Our

submission was, in the Court of Criminal Appeal,

that by that time it was really too much, either

taken alone or in combination with matters, all the
other preceding matters which were extensive, some

of the publicity was very bad, especially the

Border Watch, that you could no longer have,

effectively, an impartial jury considering this

very serious charge.

The reason why it is included as…

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Details
Case
[1993] HCATrans 242
Decision Date

CaseChat Overview and Summary

These proceedings before the High Court of Australia concerned applications for special leave to appeal by Michael Peter Webb and another applicant, Hay. The applicants sought to challenge decisions of the Court of Criminal Appeal of South Australia concerning the discharge of a jury during their respective trials. The central dispute revolved around whether various matters that arose during the trials, including publicity and the conduct of a juror, warranted the discharge of the jury and the commencement of a new trial.

The legal issues before the High Court were whether the trial judges erred in refusing to discharge the jury, and consequently, whether the applicants were denied a fair trial. Specifically, the applicants argued that a combination of factors, including media coverage and the actions of a juror who provided flowers to the mother of the deceased, created a situation where an impartial jury could no longer be assured. This, they contended, meant that the jury was unable to consider the evidence impartially, thereby undermining the appearance and reality of justice.

The applicants' submissions focused on the cumulative effect of these matters. They argued that while individual incidents might not have been sufficient to warrant a discharge, their combined impact rendered the jury incapable of delivering a fair verdict. The act of a juror providing flowers, though potentially well-intentioned, was presented as evidence of sympathy towards a third party, which could imply adverse feelings towards the accused. This, coupled with other preceding issues such as publicity, was argued to have prejudiced the jury's ability to maintain impartiality, leading to a substantial basis for discharging the jury and ordering a retrial.

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Background to the litigation

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Evidence

Evidence Before The Court

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