Hay v The Queen; Webb v The Queen - [1993] HCATrans 242

~

.

• ~

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

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Hay v The Queen; Webb v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

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.

Orders