HCF v The Queen

[2022] HCATrans 171

[2022] HCATrans 171

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B77 of 2021

B e t w e e n -

HCF

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAGELER J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 14 OCTOBER 2022, AT 10.29 AM

Copyright in the High Court of Australia

GAGELER J:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR J.R. HUNTER, KC appears with MR S.A. LYNCH for the applicant.  (instructed by Legal Aid Queensland)

MR C.W. HEATON, KC appears with MR N.W. CRANE for the respondent.  (instructed by the Office of the Direction of Public Prosecutions (Qld))

GAGELER J:   Mr Hunter.

MR HUNTER:   May it please the Court.  We seek an extension of time.  We understand that that is not opposed.

GAGELER J:   Very well.  Proceed, please.

MR HUNTER:   These submissions will focus on draft grounds 1 and 2.  In the end, the conclusion in paragraph 51 about the absence of a “substantial miscarriage of justice” is really, we respectfully submit, only a curiosity, given the finding in the preceding paragraph that there had been “no miscarriage”, substantial or otherwise, although we interpolate that paragraph 51 does suggest that it was for the applicant to establish a miscarriage of that sort.  Moving to grounds 1 and 2, I ask your Honours ‑ ‑ ‑

GAGELER J:   It does not seem to be a case where the court was getting to the proviso at all.  It was decided at an earlier stage of analysis.

MR HUNTER:   Yes, we accept that.

EDELMAN J:   We are squarely in the field that Weiss described as a case where there was no departure whatsoever from any of the procedure or – required usual procedure or process of trial, according to law.

MR HUNTER:   I did not quite hear the first part of that sentence, your Honour, I am sorry.

EDELMAN J:   In Weiss, the Court described ‑ ‑ ‑

MR HUNTER:   Yes.

EDELMAN J:   ‑ ‑ ‑ a miscarriage of justice as something that involves no departure from a trial according to law, whether in evidence or procedure.

MR HUNTER:   Yes.  I accept that that is what Weiss says.  Of course, the argument here is that there was a substantial departure from procedure.  The directions that the learned trial judge gave the jury are set out at page 89 of the application book, in paragraph 14 of the judgment of the Court of Appeal.  In particular, directions (c), (d), and (f) through to (h) could not have been clearer.  The jury could not have been mistaken about what was proscribed in terms of conduct, and also how serious any non‑compliance with those directions might be, and so when it comes to assessing whether or not a miscarriage of justice occurred, we say that this is not a case about actual or perceived bias, but rather it is a case about disobedience . . . . . instructions.

In that regard, we observe that Webb was not a case where the juror acted in defiance of any judicial direction.  Here, the disobedience of the instructions about independent research and required the judge to be informed if any juror become aware that another had engaged in that type of misconduct calls into question the conduct of the jury as a whole, and consequently there can be no confidence that other important directions were followed.

GAGELER J:   Can I just ask, was there a finding that the juror in question, in fact, conducted internet searches?  I know he said he did, but he seemed to be a rather brash kind of person who said things.

MR HUNTER:   At page 93 of the application book, at paragraph [32], his Honour Justice Morrison observed that he had revealed to:

the jury that he had (apparently) conducted internet research –

and:

As the report found, other members of the jury believed that he had done so.

Then, at [33], halfway through that paragraph, having observed that if the juror had done that, it:

would be a contempt . . . the fact remains that other jurors formed the belief that Juror X had done so –

So, whether or not the ‑ ‑ ‑

EDELMAN J:   The juror revealed to the other jurors what was said to have been the consequences of the research that he said he had conducted.

MR HUNTER:   Correct.  So, the misbehaviour of the jury as a whole gives rise to a significant lack of confidence that other important directions – including, for example, similar fact – may not have been followed.  That lack of confidence is not dispelled by the responses of only five of the 12 jurors who were concerned in the verdict who assert that what happened did not affect the verdict.  We say that their responses cannot dispel that lack of confidence for three reasons.  Firstly, it is only five of the 12 jurors.  Secondly, they would say that, would they not?  Lastly, whatever in fact occurred was sufficiently troubling that one of the jurors saw fit to write to the registrar to draw it to the registrar’s attention.

So, assurances about the integrity of the verdicts from a minority of the jury do not address wider adherence to – wider concerns, I am sorry – about adherence to all of the directions.  We say – and we do not understand this to be in dispute – that the assumption that jurors will follow judicial directions is a fundamental one.  Here, there is conduct that can only be described as a wilful transgression, not by one juror but by the jury as a whole.  In those circumstances, it is hard to be consistently – with what was said by the Victorian Court of Appeal in Panozzo – entirely confident that proper procedures have been followed.  Those are our submissions, may it please.

GAGELER J:   Yes, thank you.  Mr Heaton.

MR HEATON:   The finding of the Court of Appeal in relation to the irregularity which is accepted appears, firstly, at paragraph [43] of the decision and then most, perhaps particularly, at paragraph [50].  That conclusion was that the verdict – despite the irregularity, despite the declared bias, the admitted internet research and the rest of the jury’s failure to bring these things to the notification of the judge – despite those irregularities, the court was able to conclude that the verdict:

remained true for the whole jury.

That conclusion was supported by the nature of the initial disclosure made by juror number Y, and that appears at page 88 of the application book.  The nature of the further disclosures, which appears at 95 and 98 of the application book in the judgment at paragraphs [39] and [45], it is the nature of those disclosures not in relation to just the thinking of the individual jurors, but insight into the thinking of the whole of the jury.

Also, it is consistent with the course of the deliberations, the length of time, the obvious diligence that the jury were applying to their task, which is also supported by the notes and the inquiries on matters of law that the jury made during the course of their lengthy deliberations.  It is also consistent – the court’s conclusion is consistent with the outcome in terms of the different verdicts – a mix of verdicts, both guilty, not guilty, guilty of alternatives, not primary offences, and hung on some verdicts and not others.

It is also relevant and, in our submission, supports the conclusion of the court, that when the jury delivered the verdicts there was the customary concurrence by each member of the jury with the verdicts that were delivered.  It is, in our respectful submission, speculation of the highest order to suggest that because of the irregularities that have been uncovered that the entire integrity of the jury’s deliberations is called into question and their failure to follow other directions ‑ ‑ ‑

EDELMAN J:   Mr Heaton, does a miscarriage of justice require the entirety of the integrity of the jury’s procedures and processes to be called into question, or is it sufficient for a miscarriage of justice that there are matters which support the conclusion, or that lead to the conclusion that there has been a departure from the applicable rules of evidence, procedure or process?

MR HEATON:   In our submission, there is no controversy about what is required of a miscarriage of justice and if it were not before, any controversy was finally put to rest in the decision in Hofer of this Court, and particularly at paragraph 41 in the plurality decision of the Chief Justice and Justices Keane and Gleeson.  At paragraph 41 of Hofer, the Court there – or the plurality judges – said:

A miscarriage of justice to which section 6(I) of the Criminal Appeal Act –

which is, in all respects, materially the same as ours:

refers includes any departure from a trial according to law to the prejudice of the accused.

Indeed, in the more detailed articulation of what is meant by a “miscarriage of justice” and, indeed, its comparison to the proviso in the judgment in Hofer of Justice Gageler, it confirmed that in fact that articulation – at paragraph 41 of the plurality judgment – confirms what was intended by the Court in Weiss at paragraph 18 and confirmed what was said by the Court in Kalbasi.

EDELMAN J:   Is your submission that there is no prejudice to an accused by doubts or concerns about the integrity of the jury in the course of the trial?

MR HEATON:   If there were doubts that were reasonably open, it may go to establish a miscarriage of justice.  We say in this case the nature of the

investigation into the jury’s deliberation, what it uncovered – and consistent with other objectively observable circumstances – supports the conclusion of the Court of Appeal that in this case there was no lingering doubt that the jury did not apply their minds properly to the task that faced them.

GAGELER J:   Was it put to the Court of Appeal that the failure of the jury to comply, in respect of Juror X, with the instructions of the trial judge raised a question as to whether the jury was complying with other instructions of the trial judge?  I mean, that is the way the case is largely put to us.

MR HEATON:   I am not sure.  I will just see if my junior can confirm that.  Perhaps if the opportunity arises, we will perhaps confirm that, but my understanding is that it was not argued in that way.  It was argued that the irregularity resulted in a prejudice to the defendant in the circumstances of this particular case, rather than suggesting more broadly that reasonable members of the community could reasonably conclude that the integrity of the jury more broadly was called into question.  Just a moment, please, your Honours.  My junior informs me that it was not addressed specifically; that there were some more broad implications on the integrity of the jury.

Ultimately we say in response to that that, as I said, it is speculation of the highest order, that what was uncovered was explored and was addressed, and to suggest that the integrity of the jury is more broadly called into question in fact, in our submission, distracts from the proper question that is raised by the appeal to the Court of Appeal about which they made their judgment and indeed the application to this Court, and that is whether or not there has been a miscarriage of justice.  A miscarriage of justice necessarily requires – as has been explained in Weiss, Kalbasi and more recently in Hofer – that there be some impact on the irregularity to the prejudice of a defendant.

In this particular case, the court properly analysed the circumstances, what was revealed by the investigation, in the context of the force of the deliberations, the notes that were asked, the verdicts that were delivered, and concluded, soundly, in our submission, that there was no impact; certainly not one that could be said to have been to the prejudice of the defendant as a result of the irregularity in the conduct of the juror and the jury.  Those are our submissions.

GAGELER J:   Yes, thank you.  Mr Hunter, could you answer the question I put to Mr Heaton?

MR HUNTER:   I can answer that question.  It was not argued in that way below.  Just dealing, though, with the question of prejudice to the defendant, it is submitted that the applicant in this case was entitled to a jury

that obeyed judicial directions, and he clearly had a jury that did not.  So, in circumstances where the investigation by the sheriff only attracted responses from a minority of the jurors, one cannot conclude with confidence that the jury adhered to those directions, and one is left with the impression that there may well have been some compromise to the integrity of the applicant’s trial.  Those are the matters in reply.

GAGELER J:   Yes, thank you.  We will retire momentarily to consider the course we will take.

AT 10.47 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.58 AM:

GAGELER J:   There will be a grant of special leave to appeal in this matter on grounds 1, 2 and 3.  A half‑day case, Mr Hunter?

MR HUNTER:   We think so, your Honours.

GAGELER J:   Yes.  Mr Heaton?

MR HEATON:   Yes, I agree.

GAGELER J:   Thank you very much.  The Court will now adjourn until 11.30 am.

AT 10.58 AM THE MATTER WAS CONCLUDED