GAGELER CJ, EDELMAN, STEWARD, GLEESON AND JAGOT JJ
HCF APPELLANT
AND
THE QUEEN RESPONDENT
HCF v The Queen
[2023] HCA 35
Date of Hearing: 14 April 2023 Date of Judgment: 15 November 2023
B50/2022
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Queensland
Representation
J R Hunter KC with S A Lynch for the appellant (instructed by Legal Aid Queensland)
C W Heaton KC with N W Crane for the respondent (instructed by Office of the Director of Public Prosecutions (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
HCF v The Queen
Criminal practice – Appeal – Miscarriage of justice – Juror or jury misconduct – Where following trial by jury appellant convicted of six sexual offences – Where after entry of verdicts juror delivered note causing trial judge to authorise Sheriff to conduct investigation under s 70(7) of Jury Act 1995 (Qld) – Where investigation revealed conduct involving juror undertaking internet research about definitions of and sentences for certain offences, juror informing other members of jury about research, and other members of jury not informing trial judge – Where conduct contrary to directions of trial judge – Whether conduct gave rise to miscarriage of justice.
Words and phrases – "capacity to prejudice", "discharge a juror", "disobedience", "double might", "fair-minded lay observer", "independent research", "integrity of the jury system", "integrity of the trial process", "internet research", "irregularity", "juror misconduct", "jurors", "jury directions", "jury trial", "misbehaviour", "miscarriage of justice", "practical injustice", "procedural fairness", "proviso", "reasonable apprehension of bias", "substantial miscarriage of justice".
Criminal Code (Qld), s 668E. Jury Act 1995 (Qld), ss 50, 53, 54, 56, 60, 69A, 70.
GAGELER CJ, GLEESON AND JAGOT JJ. The appeal to this Court is to be resolved by deciding whether there has been a miscarriage of justice in the appellant's conviction, following a trial by a jury, of six sexual offences out of 19 counts on an indictment. The alleged miscarriage arises from an undisputed irregularity in the conduct of the jury which came to light after the entry of the verdicts.
Beech-Jones CJ at CL recently provided a convenient summary concerning those errors or irregularities that will amount to a miscarriage of justice in observing that, if the error or irregularity "is properly characterised as a 'failure to observe the requirements of the criminal process in a fundamental respect' then it would follow that the conviction would not stand regardless of any assessment of its potential effect on the trial", but otherwise there is no miscarriage unless the error or irregularity is "prejudicial in the sense that there was a 'real chance' that it affected the jury's verdict ... or 'realistically [could] have affected the verdict of guilt' ... or 'had the capacity for practical injustice' or was 'capable of affecting the result of the trial'"[1].
[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.
Continue reading HCF v The Queen
Sign in free to access the full text
Details
AGLC
HCF v The Queen [2023] HCA 35
Case
[2023] HCA 35
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal by HCF (the appellant) against his conviction for six sexual offences. The dispute arose from alleged juror misconduct during the trial, where one juror conducted internet research into the definitions and sentences for certain offences and shared this information with other jurors, who in turn failed to report the conduct to the trial judge as directed.
The central legal issue before the High Court was whether the jury's conduct, specifically the internet research and the subsequent discussions and failure to report, constituted a miscarriage of justice that warranted overturning the appellant's convictions. This required the court to consider the integrity of the jury system and the trial process, and whether a fair-minded and informed observer might reasonably apprehend that the jury might not have discharged its function according to law.
The High Court reasoned that while the juror's conduct and the subsequent failure of the jury to report it were clear breaches of the trial judge's directions and constituted an irregularity, they did not, in themselves, demonstrate a miscarriage of justice. The court applied the principle that a miscarriage of justice occurs only if there is a substantial miscarriage of justice, and that the conviction should be upheld if the court is of the opinion that no substantial miscarriage of justice has actually occurred. Despite acknowledging the seriousness of the jury's disobedience and the potential for it to have led to the discharge of the jury had it been discovered earlier, the court found that the objective nature and extent of the misconduct did not provide a basis to conclude that a fair-minded and informed member of the public might reasonably apprehend that the jury had failed to discharge its function according to law.
Consequently, the High Court dismissed the appeal, finding that the appellant's convictions for the six sexual offences had not been demonstrated to involve a miscarriage of justice.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
We will turn now to the background to the appeal, to the course of the trial, and to the circumstances which subsequently revealed the undisputed irregularity in the conduct of the jury.Background to the appeal The appellant was charged with 25 counts, each concerning an alleged sexual offence against one of two complainants, referred to as K and E, including when K and E were under 16 years of age. The appellant is K and E's uncle. The counts involved offences alleged to have been committed between December 1989 and September 2001. The appellant was about 25 to 37 years old during the charge period; K was about six to 18 years old during the period. The trial judge directed acquittals of the appellant on counts 8, 10, 11, 12, 13 and 23. Of the remaining 19 counts, the appellant was convicted on six counts and acquitted of 13 counts. The counts on which the appellant was convicted all related to K. Those counts were: (a)count 1 (maintaining a relationship of a sexual nature with K, a child under 16 years, between 31 December 1989 and 19 September 1999 with two circumstances of aggravation, namely, (i) unlawfully and indecently dealing with K, a child under 16 years; and (ii) wilfully and unlawfully exposing K, a child under 16 years, to an indecent act by himself);(b)counts 3 and 4 (unlawfully and indecently dealing with K, a child under 16 years, between 31 December 1994 and 20 September 1996);(c)count 5 (wilfully and unlawfully exposing K, a child under 16 years, to an indecent act by himself, between 31 December 1994 and 20 September 1996);(d)count 14 (unlawfully and indecently dealing with K, a child under 16 years, between 18 September 1997 and 19 September 1998); and(e)count 17 (the alternative verdict of unlawful carnal knowledge of K, between 18 September 1997 and 20 September 1999)[39]. [39]R v HCF [2021] QCA 189 at [1]‑[3]. The counts on which the appellant was not convicted were: (a)a circumstance of aggravation of count 1 (rape of K during the maintaining of the relationship of a sexual nature with K, a child under 16 years);(b)count 2 (maintaining a relationship of a sexual nature with E, a child under 16 years, between 9 August 1994 and 10 August 2000);(c)count 6 (unlawfully and indecently dealing with E, a child under 16 years, between 9 August 1994 and 1 January 1998);(d)count 7 (unlawfully and indecently dealing with K, a child under 16 years, and under 12 years, on 25 December 1994);(e)count 9 (rape of E and unlawful carnal knowledge of E, between 9 August 1995 and 10 August 1997);(f)count 15 (unlawfully and indecently dealing with K, a child under 16 years, between 18 September 1997 and 19 September 1998); (g)count 16 (wilfully and unlawfully exposing K, a child under 16 years, to an indecent act by himself, between 18 September 1997 and 19 September 1998); (h)count 17 (rape of K and unlawful carnal knowledge of K, between 18 September 1997 and 20 September 1999); (i)count 18 (rape of K and unlawful carnal knowledge of K, between 31 December 1998 and 1 January 2000); (j)count 19 (wilfully and unlawfully exposing K, a child under 16 years, to an indecent act by himself, between 9 August 1997 and 10 August 2000); (k)count 20 (rape of K and unlawful carnal knowledge of K, between 9 August 1997 and 10 August 2000); (l)count 21 (wilfully and unlawfully exposing E, a child under 16 years, to an indecent act by himself, between 9 August 1997 and 10 August 2000); (m)count 22 (unlawfully and indecently dealing with E, a child under 16 years, between 9 August 1997 and 10 August 2000); (n)count 24 (unlawfully procuring K, without her consent, to witness an act of gross indecency by himself, between 9 August 1997 and 10 August 2000); and (o)count 25 (unlawfully and indecently assaulting K, between 18 September 2000 and 19 September 2001).The jury found the appellant not guilty on these counts, other than a circumstance of aggravation of count 1 (rape of K during the maintaining of the relationship of a sexual nature with K, a child under 16 years) and count 17 (rape of K, between 18 September 1997 and 20 September 1999), in respect of which the jury was unable to reach a verdict.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GAGELER CJ, GLEESON AND JAGOT JJ
EDELMAN AND STEWARD JJ
What is left then is the undisputed misconduct of juror X in undertaking the internet research about the definitions of and sentences for rape and unlawful carnal knowledge and of the other jurors in not reporting these matters to the trial judge as directed. Might a fair‑minded and informed member of the public reasonably apprehend that the jury might not have discharged its function as required? The "objective nature and extent"[49] of this misconduct, which is all that exists in this case, might provide a basis upon which someone might speculate that the jury might not have discharged that function as required. In our opinion, it provides no basis to conclude that a fair‑minded and informed member of the public might reasonably apprehend that this jury might not have discharged its function according to law, on the evidence, and in accordance with the directions of the judge.[49]Smith v Western Australia [No 2] (2016) 263 A Crim R 449 at 466 [364].Conclusion The appellant's convictions of the six sexual offences have not been demonstrated to involve a miscarriage of justice. The appeal should be dismissed. When many or all members of a jury disobey the clear directions of the trial judge on an important matter is it possible to say that the accused person has received a trial "where rules of procedure and evidence are strictly followed"? The disobedience by the jury in this case involved:(1)internet research by one juror, in contravention of the trial judge's directions, concerning sentences for offences with which the appellant was charged;(2)the juror sharing that research with other jurors and, despite at least one juror recognising it to be in "blatant disregard" of the trial judge's directions, the jury nevertheless discussing the sentencing practices, with at least some members reaching conclusions on the sentencing practices; and(3)every member of the jury disobeying the trial judge's direction to report any internet research in a note to the bailiff. Neither counsel had any opportunity to make submissions to the trial judge about directions on the issues of sentencing that the jury had discussed. Nor did the trial judge have the opportunity to address or inquire of the jury about the issue. The behaviour of the jury members was not merely misconduct which cast a pall over their deliberations. It also involved a serious denial of procedural fairness to both the appellant and the Crown. As senior counsel for the appellant rightly said, if the trial judge had found out about the behaviour of one juror engaging in internet research and the failure of the jury to report it, it is likely that the whole trial would have been aborted. The Director of Public Prosecutions also rightly accepted that this was "almost inevitable". Any remaining doubt would be removed if the trial judge had also discovered that the sentencing matters researched had been discussed by the whole jury, with at least two members of the jury believing that the juror who had engaged in the prohibited research had engaged in discussions with other jurors about sentencing practices and had reached a conclusion that the sentences for two of the offences were not significantly different.
Ratio Decidendi
Legal Principle Established
Established by:
GAGELER CJ, GLEESON AND JAGOT JJ,
EDELMAN AND STEWARD JJ