Criminal Law – Appeal and new trial – Particular grounds of appeal – Irregularities in relation to jury – Matters available to jury in jury room – Printouts about meaning of "beyond reasonable doubt" and how to deal with circumstantial evidence found in jury room after verdict – Has irregularity affected the verdict and would jury have returned same verdict had irregularities not occurred? – Impact of directions of trial judge on question.

R v Wilton [2013] SASCFC 60; Gilbert v The Queen [2000] HCA 15, 109 A Crim R 580; Sio v The Queen [2016] HCA 32, followed.
Aust Dig Criminal Law [3512]

REPRESENTATION:

Counsel:
             First Appellant:  E Hughes
             Second Appellant:  E Hughes
             Respondent:  J Ransom
Solicitors:
             First Appellant:  Rae & Partners Lawyers
             Second Appellant:  Rae & Partners Lawyers
             Respondent:  Director of Public Prosecutions

Judgment Number: [2016] TASCCA 21
Number of paragraphs: 76

Serial No 21/2016
File Nos 2192/2015
2195/2015

DAMIEN WESLEY MARSHALL v STATE OF TASMANIA
SEAN GREGORY RICHARDSON v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
ESTCOURT J
BRETT J
7 December 2016

Order of the Court

Appeals dismissed.

Serial No 21/2016
File Nos 2192/2015
2195/2015

DAMIEN WESLEY MARSHALL v STATE OF TASMANIA
SEAN GREGORY RICHARDSON v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
7 December 2016

I have had the benefit of reading the draft reasons of Brett J. I agree with those reasons and would also dismiss both appeals.

File Nos 2192/2015
2195/2015

DAMIEN WESLEY MARSHALL v STATE OF TASMANIA
SEAN GREGORY RICHARDSON v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

ESTCOURT J
7 December 2016

The appeals

On 17 September 2015 the appellants, Sean Gregory Richardson and Damien Wesley Marshall, were each found guilty by a jury of one count of aggravated assault and one count of wounding.
Both men have appealed to this Court on the ground that the jury had regard to documents during the course of its deliberations which were not in evidence in the trial, and that a miscarriage of justice occurred as a result.
The documents referred to were three pages of computer printout from a website, the uniform resource locator of which was < It appears to have been prepared in the United States of America. Two pages were devoted to the legal definition of the term "beyond reasonable doubt" and the third related to the legal definition of circumstantial evidence ("the Free Dictionary documents"). The documents were found by the trial judge's attendant when cleaning up in the jury room after the trial had concluded. The attendant has made a statutory declaration attaching the documents. They contain the following text:
"Beyond a Reasonable Doubt legal definition of Beyond a Reasonable Doubt
a Reasonable Doubt
Also found in: Acronyms, Idioms, Wikipedia.
Beyond a Reasonable Doubt
The standard that must be met by the prosecution's evidence in a criminal prosecution: that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty.
If the jurors or judge have no doubt as to the defendant's guilt, or if their only doubts are unreasonable doubts, then the prosecutor has proven the defendant's guilt beyond a reasonable doubt and the defendant should be pronounced guilty.
The term connotes that evidence establishes a particular point to a moral certainty and that it is beyond dispute that any reasonable alternative is possible. It does not mean that no doubt exists as to the accused's guilt, but only that no Reasonable Doubt is possible from the evidence presented.
Beyond a reasonable doubt is the highest standard of proof that must be met in any trial. In civil litigation, the standard of proof is either proof by a PREPONDERANCE OF THE EVIDENCE or proof by clear and convincing evidence. These are lower burdens of proof. A preponderance of the evidence simply means that one side has more evidence in its favor than the other, even by the smallest degree. Clear and Convincing Proof is evidence that establishes a high probability that the fact sought to be proved is true. The main reason that the high proof standard of reasonable doubt is used in criminal trials is that such proceedings can result in the deprivation of a defendant's liberty or even in his or her death. These outcomes are far more severe than in civil trials, in which money damages are the common remedy.
Cross-references
Clear and Convincing Proof; Due Process of Law; Preponderance of Evidence; Reasonable Doubt.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
beyond a reasonable doubt
adj part of jury instructions in all criminal trials, in which the jurors are told that they can only find the defendant guilty if they are convinced 'beyond a reasonable doubt' of his or her guilt. Sometimes referred to as 'to a moral certainty,' the phrase is fraught with uncertainty as to meaning, but try: 'you better be damned sure. ' By comparison it is meant to be a tougher standard than 'preponderance of the evidence' used as a test to give judgment to a plaintiff in a civil (non-criminal) case. (See: reasonable doubt, moral certainty, conviction)
Copyright © 1981-2005 by Gerald N Hill and Kathleen T Hill. All Right reserved.
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Circumstantial Evidence legal definition of Circumstantial Evidence
dictionary.com/Circumstantial+Evidence
Circumstantial Evidence
Also found in: Dictionary, Thesaurus, Wikipedia.
Circumstantial Evidence
Information and testimony presented by a party in a civil or criminal action that permit conclusions that indirectly establish the existence or nonexistence of a fact or event that the party seeks to prove.
Circumstantial Evidence is also known as indirect evidence. It is distinguished from direct evidence, which, if believed, proves the existence of a particular fact without any inference or presumption required. Circumstantial evidence relates to a series of facts other than the particular fact sought to be proved. The party offering circumstantial evidence argues that this series of facts, by reason and experience, is so closely associated with the fact to be proved that the fact to be proved maybe inferred simply from the existence of the circumstantial evidence.
The following examples illustrate the difference between direct and circumstantial evidence: If John testifies that he saw Tom raise a gun and fire it at Ann and that Ann then fell to the ground, John's testimony is direct evidence that Tom shot Ann. If the jury believes John's testimony, then it must conclude that Tom did in fact shoot Ann. If, however, John testifies that he saw Tom and Ann go into another room and that he heard Tom say to Ann that he was going to shoot her, heard a shot, and saw Tom leave the room with a smoking gun, then John's testimony is circumstantial evidence from which it can be inferred that Tom shot Ann. The jury must determine whether John's testimony is credible.
Circumstantial evidence is most often employed in criminal trials. Many circumstances can create inferences about an accused's guilt in a criminal matter, including the accused's resistance to arrest; the presence of a motive or opportunity to commit the crime; the accused's presence at the time and place of the crime; any denials, evasions, or contradictions on the part of the accused; and the general conduct of the accused. In addition, much Scientific Evidence is circumstantial, because it requires a jury to make a connection between the circumstance and the fact in issue. For example, with fingerprint evidence, a jury must make a connection between this evidence that the accused handled some object tied to the crime and the commission of the crime itself.
Books, movies, and television often perpetuate the belief that circumstantial evidence may not be used to convict a criminal of a crime. But this view is incorrect. In many cases, circumstantial evidence is the only evidence linking an accused to a crime; direct evidence may simply not exist. As a result, the jury may have only circumstantial evidence to consider in determining whether to convict or acquit a person charged with a crime. In fact, the US Supreme Court has stated that 'circumstantial evidence is intrinsically no different from testimonial [direct] evidence' (Hollandv United States, 348 US 121, 75 S Ct 127, 99 L Ed 150 [1954]). Thus, the distinction between direct and circumstantial evidence has little practical effect in the presentation or admissibility of evidence in trials.
Further readings
Romano, John F 1999. 'Prohibitions in the Use of Circumstantial Evidence: Key Tips on Gaining Strategic Advantage.' Trial Lawyer 22 (January-February): 2–4.
Romano, John F, and Rodney G Romano. 1998. 'The Circumstantial Evidence Generation: 25 Guidelines for Winning the Circumstantial Evidence Case: Trial Diplomacy Journal 21 (May-June).
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
circumstantial evidence
n. evidence in a trial which is not directly from an eyewitness or participant and requires some reasoning to prove a fact. There is a public perception that such evidence is weak ('all they have is circumstantial evidence'), but the probable conclusion from the circumstances may be so strong that there can be little doubt as to a vital fact ('beyond a reasonable doubt' in a criminal case, and 'a preponderance of the evidence' in a civil case). Particularly in criminal cases, 'eyewitness' ('I saw Frankie shoot Johnny') type evidence is often lacking and may be unreliable, so circumstantial evidence becomes essential. Prior threats to the victim, fingerprints found at the scene of the crime, ownership of the murder weapon, and the accused being seen in the neighborhood, certainly point to the suspect as being the killer, but each bit of evidence is circumstantial.
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Copyright © 2003-2015 Farlex, Inc
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The two appeals, in my view, are ultimately without merit, and for the following reasons I would grant leave to appeal in each case but would dismiss both.

Miscarriage of justice

In a case such as the present it is permissible to have regard to the evidence of the discovery of the documents in the jury room after the conclusion of the jury's deliberations. In R v Bilal Skaf, R v Mohammed [2004] NSWCCA 37 at [214]-[215], 60 NSWLR 86, per Mason P, Wood CJ at CL and Sully J, in a joint judgment said:
"214 It is equally well established that there is no blanket exclusion of evidence of matters extrinsic to jury deliberations directed, nevertheless, at establishing miscarriage based on jury misconduct or the consideration of material not admitted into evidence (see eg R v Emmett (1988) 14 NSWLR 327, Mirza at 234-5 [102]-[107]). In R v Minarowska and Koziol (1995) 83 A Crim R 78 the authorities were reviewed by Gleeson CJ, who summarised them as follows (at 85):
'A distinction has been drawn between evidence, first-hand or hearsay, as to the deliberations of a jury, and evidence, sometimes described as relating to "extrinsic matters", which proves a material irregularity in the proceedings. Thus, for example, it is permissible to lead evidence to show that inadmissible and prejudicial material of an evidentiary nature was sent into a jury room and was available to be considered by the jury (Rinaldi (1993) 30 NSWLR 605; 68 A Crim R 284), or that a sheriff's officer wrongly intruded into the jury's deliberations and expressed a view that the accused were guilty (Emmett (1988) 14 NSWLR 327; 33 A Crim R 340), or that a jury bailiff suggested to a jury that an accused had previous convictions (Brandon (1969) 53 Cr App R 466), or that a juror was drunk, or could not speak English, or refused to participate in deliberations (Tuia [1994] 3 NZLR 553).'
215 Recently, this Court set aside a conviction in light of evidence that jurors had conducted internet searches disclosing inadmissible and prejudicial material about the accused (R v K [2003] NSWCCA 406). Wood CJ at CL (with whose reasons Grove and Dunford JJ concurred) drew a distinction (at 13) between the material which related to the internet searches made by individual jurors and then communicated to the remaining jurors; and material relating to the use which was made of that information by the jurors, either individually or collectively, in coming to their verdict."
As to the relevant test, Wood CJ at CL in R v K said at [68]-[74]:
"68      As I have earlier indicated, I do not regard the present case as one that is to be determined by reference to the Webb test of bias; rather, it is one involving a procedural irregularity. The accepted test for disturbing a verdict in such cases is laid down in R v Marsland NSWCCA 17 July 1991 and R v Rudkowsky NSWCCA 15 December 1992.
69       In Marsland, a forensic report was received into evidence which made reference to an allegation of sexual misconduct, on the part of the appellant, concerning the victim who was the subject of that charge before the Court, but which also made mention of his alleged misconduct concerning another person, in respect of which he had recently been tried and acquitted. The jury asked a question as to the identity of that second person and as to the reason why she had not given evidence. The trial judge declined to discharge the jury, but directed them that the second person had nothing to do with the matter and that the reference to her had been an error.
70       The ground of appeal which challenged this decision was held not to have been made out, but in the course of the reasons for that aspect of the case, Gleeson CJ, with whom Lee CJ at CL and Hunt J agreed, said (at p 7):
'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.'
71       The case is distinguishable from the present case for two reasons: first, the irregularity was the subject of a clear express direction to the jury that was held to have been sufficient to overcome the prejudice; and secondly, it involved a matter that came to light, and was dealt with, before verdict.
72       However, the case is instructive in so far as a very senior and experienced Bench, pronounced upon what they considered to be the appropriate test, and it is a test that has been applied subsequently, in so far as I can see, consistently in this state.
73       In Rudkowsky the relevant irregularity was discovered following the return of the verdict in a trial, which was one of guilty of murder. It arose out of the tender of some handbags, the contents of which regrettably had not been carefully examined by the prosecutor or by defence counsel. It was later discovered that one of the bags contained several sheets of paper which appeared to bear the handwriting of the victim, which the Crown conceded would not have been included in the tender, had their presence been known. Their potential prejudice was obvious, in so far as the victim had, in these pages, made assertions to the effect that the accused had been paranoid, delusional and obsessive, had 'damn near succeeded' in an attempt to murder her, and was on 'an attempted murder charge'. That last mentioned assertion was in fact untrue, and there was no evidence of any prior unsuccessful attempt to murder the victim.
74       Gleeson CJ (with whom Cripps JA and McInerney J agreed), held that the appeal, should be allowed by reason of the extremely prejudicial potential of the material, which he considered to have been capable of 'conveying information to the jury about the propensities of the accused', and observed (at p 6):
'The appellant was entitled to be tried and to have his guilt determined according to law. In determining whether there has been a miscarriage of justice in a case such as the present it is important to bear in mind that in this context the word "justice" means justice according to the law. It is not for this Court to decide for itself after perusing the evidence whether we agree with the jury's verdict. Nor is it for this Court to decide whether, even if the irregularity had not occurred, it is likely or even probable that the jury would have reached the same conclusion. We are not here to decide whether or not the appellant received a fair trial and whether or not his conviction was one entered in accordance with the legal rules that govern the trial of a person in a case such as the present.
However, as has been pointed out by counsel for the Crown, the circumstances that there has been shown to have been an irregularity in the trial does not necessarily mean that the conviction must be quashed and there must be a new trial. It is common ground in this appeal that the test to be applied is that which was stated in the case of R v Marsland, that is to say, whether we can be satisfied that the irregularity has not affected the verdict and that the jury would have returned the same verdict if the irregularity had not occurred. That, it is accepted on both sides, is the test to determine whether in the events that have happened in a case like the present, there has been a miscarriage of justice.'" (Emphasis added.)
To the same effect as Marsland and Rudowsky and confirming the test in Marsland, see Folbigg v The Queen [2007] NSWCCA 371, and of interest, although in a purely statutory context, see Martin v The Queen [2010] VSCA 153, 202 A Crim R 97.
In the present case I am satisfied that the irregularity has not affected the jury's verdict, and the jury would have returned the same verdict if the irregularity had not occurred. Accordingly, in my view, there has been no miscarriage of justice.

Although the only truly certain inference that can be drawn from the presence of the Free Dictionary documents in the jury room is that a juror at some unknown time had printed them out and had taken them into the jury room. It can be reasonably safely inferred that he or she read them. However the test for a miscarriage of justice is, as I apprehend it, to be applied on the basis that the documents were available for consideration by all of the members of the jury and may have been read and considered by some or all of them.

Reasonable doubt

I am of the view that any reading and consideration of the Free Dictionary documents as to the definition of the term "reasonable doubt" would have made no difference to the jury's verdict as they were broadly consistent with the learned trial judge's charge and with her memorandum to the jury. Furthermore, there would not, in my view, have been a miscarriage of justice had the learned trial judge instructed the jury including comments along the lines of the material set out in the Free Dictionary definition.
In Jovanovic v The Queen [2008] HCA Trans 406 after hearing submissions from eminent counsel, Hayne J, with whom Crennan J agreed, said in refusing special leave to appeal from this Court:
"The second point to notice is that the trial judge elaborated to some degree in his directions to the jury on what is meant by 'beyond reasonable doubt'. This Court has repeatedly held that this is not to be done: see Brown v The Queen (1913) 17 CLR 570 at 584; Thomas v The Queen (1960) 102 CLR 584 at 587, 595, 604 to 606; Dawson v The Queen (1961) 106 CLR 1 at 18; Green v The Queen (1971) 126 CLR 28 at 31 to 32; La Fontaine v The Queen (1976) 136 CLR 62 at 71 and 84. As was said of these cases, in Green (1971) 126 CLR 28 at 32, they:
'are but some of many admonitions to judges presiding over criminal trials to adhere to and not to attempt needless explanations of the classical statement of the nature of the onus of proof resting on the Crown.'
For the reasons given by the Court of Criminal Appeal, we are of opinion, however, that it is not arguable that there was a miscarriage of justice on this account in this case. We are not persuaded that it is in the interests of justice generally or in the particular case that there be a grant of leave to appeal in this matter."
The reasons given by the Court of Criminal Appeal in Jovanovic had been, first, per Crawford J (as he then was), with whom Tennent J agreed, after examining the relevant Tasmanian cases, concluded as follows at [79]:
"I accept that juries should not be instructed or invited first to consider whether they have a doubt and, if so, to analyse or scrutinise that doubt and decide whether it is a reasonable one. However, the directions of the learned judge in this case did not go as far as that. There is no real difference between a reasonable doubt and a doubt that is a reasonable one. Both expressions say the same thing. The direction went close to offending settled law but did not quite do so. At other points in the summing up, the learned judge consistently referred to the need for proof beyond 'reasonable doubt'. On only one occasion did his Honour refer to a doubt that is a reasonable one. When considered as a whole, the directions clearly stated the standard of proof in criminal trials and did not amount to an error of law."
At [102] Evans J, with whom Tennent J also agreed, said as follows:
"The learned trial judge having elaborated on the meaning of 'beyond reasonable doubt', the determination of whether that elaboration amounts to a misdirection depends upon an examination of his summation as a whole. There can be a fine line between a direction that improperly invites a jury to analyse doubt for reasonableness and one that does not. Jurors are implicitly invited to assess whether any doubts that they have are reasonable by a direction in the traditional form that before they can convict, they must be satisfied that the elements of the crime have been established beyond reasonable doubt. Insofar as this direction requires each juror to determine whether he or she is so satisfied, it invites each juror to assess whether any doubt that he or she has is reasonable. Patently such a direction is not erroneous. I note that the suggested direction as to the concept 'beyond reasonable doubt' contained in the Benchbook in Queensland includes the following sentence: 'It is therefore for you, and each of you, to say whether you have a doubt you consider reasonable'. I should add that the Benchbook also advises that the suggested direction should only be given where the jury indicates that it is struggling with the concept. See R v Clark (2005) 159 A Crim R 281 at 288. In this case, sentences [c] and [d] of the challenged direction of the learned trial judge raise the spectre of a juror assessing whether a doubt is reasonable. However, his Honour did not go further and intrude into the jury's function of making determinations beyond reasonable doubt by attributing a particular dictionary meaning to the word 'reasonable'. What was reasonable was left to the jury. The appropriateness of his Honour's summation ought not be judged by focusing solely upon the four impugned sentences. The summation should be considered as a whole and when that is done, I am satisfied that the jury were not misdirected on the burden of proof. They were repeatedly directed that they must be satisfied of guilt beyond reasonable doubt and the memorandum provided for their use contained two written directions to the same effect."
In Smart v Tasmania [2013] TASCCA 15, Blow CJ, Wood and Pearce JJ said in a rare joint judgment of the Court of Criminal Appeal at [70]-[78]:
"70       It has long been recognised that it is inadvisable for a trial judge to elaborate upon the concept of reasonable doubt because it requires no explanation, and because of the risk that it will lead to error. It is imperative that the trial judge must not obscure the 'vital point that the accused must be given the benefit of any doubt which the jury considers reasonable': Kitto J in Thomas [1960] HCA 2; (1960) 102 CLR 584. The authorities make it clear that it amounts to an error of law to direct the jury that they should analyse a doubt in order to decide whether it is a reasonable doubt: Graham v R [2000] TASSC 153; (2000) 116 A Crim R 108; R v Pahuja (1987) 49 SASR 191, King CJ at 195, Johnston J at 220; Ladd v R [2009] NTCCA 6; (2009) 27 NTLR 1 at [144] – [215]. As stated by Windeyer J in Thomas at 605 – 606 'The task of the jury in a criminal case is to examine the evidence, bearing in mind that they must be satisfied beyond reasonable doubt ... But it is not their task to analyse their own mental processes.'
71       In Graham – a decision of this Court – there was agreement that the phrase 'a reasonable doubt is something which you must examine' and a reference to 'testing of any doubt' in stating that 'the testing of any doubt lies within your own conscience, your own heart and your own mind' was impermissible. Those words suggested that a reasonable doubt was something that must be examined or tested: per Cox CJ at [19], Underwood J (as he then was) at [68], and Evans J at [71].
72       It seems clear that the first aspect of the direction under appeal, before the semi-colon, is a reference to remarks in the closing address of Mr Richardson about the process of arriving at a verdict and the need for individual jurors to be true to their individual views. Mr Richardson urged the members of the jury not to go along with the majority, stating:
'That's not what your role is, your role is to reach your own decision, based on your own thoughts and your own conscience and to be honest and truthful to that decision and the oath or affirmation that you've taken'.
73       Mr Richardson did not speak about examining a reasonable doubt. Still, the jury would have understood his Honour to be referring to and endorsing the effect of Mr Richardson's address. While it may be said that his Honour also, in effect, approved an examination of a reasonable doubt with the affirmative remark, 'that's correct', that remark related to what followed: 'You have each sworn an oath or made an affirmation as an individual. It is true that a jury is not a committee ...'. The overall effect of that part of the summing-up was to endorse Mr Richardson's closing address insofar as it referred to the need for each juror to be satisfied, as opposed to the reaching of consensus.
74       However, his Honour went further, and the effect of the second aspect of the summing-up which is under scrutiny presupposed that there would be testing of any doubt by the individual jurors. Further, the final remark, 'it's something you each need to individually examine' reinforced that it was necessary that there be some examination, although not necessarily examination of a reasonable doubt.
75       The two aspects of the direction under appeal occurred in the context of a direction about each individual juror reaching their own conclusion and the process of a jury reaching a verdict, as a process unlike a committee reaching consensus. We accept that this was the point of the direction, rather than to elaborate upon the nature of reasonable doubt, and certainly was not intended to convey that a reasonable doubt must be subjected to examination. However, it needs to be borne in mind that the trial judge had not moved away from the topic of the standard of proof. The jury had par1.1 of the memorandum in front of them, which addressed the presumption of innocence and standard of proof, and the trial judge was still speaking about matters on that topic. The issues of the process of arriving at a verdict and standard of proof are closely linked. Furthermore, to regard the direction as separate from the direction about the standard of proof, as submitted by the respondent, involves a subtle distinction that almost certainly would have escaped a jury.
76       His Honour's comments were made when assisting the jury about the critical stage of deliberations, when there may be disagreement amongst the jury members, and when assisting the jury as to how the members may resolve differences and reach a verdict. It is a stage when the standard of proof would be in play, and when it is important that the standard not become obscured. Realistically, it is likely that the jury members will in fact examine any doubt held by them and subject their views to some analysis. This was acknowledged in the dissenting judgment of Cox J in Pahuja (above) at 210, and referred to with approval by Underwood J in Graham (above) at [59]. Still, the testing or examination of doubt held by the jury should not be suggested by the trial judge.
77       The cumulative effect of the remarks made by the trial judge is that they would have suggested to the jury that the individual members of the jury should subject a doubt held by them to some examination to ensure it was indeed a reasonable doubt. There was misdirection.
78 The importance of a correct direction on the standard of proof is so fundamental that there is no room for the 'proviso' – s402(2) of the Code – to be applied, and the conviction must be quashed and a new trial ordered: Wilde v R [1988] HCA 6; (1988) 164 CLR 365, per Brennan, Dawson and Toohey JJ at 373; Krakouer v R [1998] HCA 43; (1998) 194 CLR 202, per McHugh J at 226; Graham per Cox CJ at [20] and Underwood J at [69]."
Even if the definition of the phrase "beyond a reasonable doubt" in the Free Dictionary included "needless explanations of the classical statement of the nature of the onus of proof resting on the Crown", to use the words of Hayne J in Jovanovic (above), it did not suggest that the members of the jury should first consider whether they have a doubt and, if so, to analyse or scrutinise that doubt and decide whether it is a reasonable one, and it could not be said that the cumulative effect of the definition was to suggest to the jury that its individual members should subject a doubt held by them to some examination to ensure it was indeed a reasonable doubt.
The Free Dictionary definition, as with a direction of a trial judge, should be considered as a whole and when that is done, I am satisfied that the jury could not have been misled on the burden of proof. It did not obscure the "vital point that the accused must be given the benefit of any doubt which the jury considers reasonable".
The comparison with the civil standard of proof contained in the Free Dictionary definition, and the reference to the words "moral certainty" and "you better be damn sure", taken in context do not, in my view, suggest an elaboration of the term "beyond reasonable doubt" capable of operating against the appellants to their prejudice, much less resulting in a miscarriage of justice. I would have thought the contrary to be true.
Moreover, at whatever stage of the trial or of the jury's deliberations the documents were downloaded by the juror who did so, the jury also of course had the benefit of the learned trial judge's clear explanation of the concept of proof beyond reasonable doubt.
The jury was directed by her Honour that it must be satisfied of guilt beyond reasonable doubt in the following terms:
"The next direction that I give you is fundamental to every criminal trial and it's called the presumption of innocence. An accused person is deemed to be innocent unless and until you the jury are satisfied of guilty beyond a reasonable doubt. If you are not so satisfied, the presumption of innocence remains and the accused are not guilty. The question for juries then is are we satisfied beyond reasonable doubt that the accused in each case is guilty. If the answer is yes, we are so satisfied, the verdict is guilty and the duty is to convict. If the answer is no, we are not so satisfied beyond a reasonable doubt, the verdict is not guilty and your duty is to acquit. A verdict of not guilty is not a verdict that someone has lied or that witnesses have fabricated evidence. It means just one thing, that you are not satisfied beyond reasonable doubt of the guilt of the accused.
The State has the burden of proving the guilt of the accused beyond reasonable doubt. An accused person does not need to demonstrate his or her innocence. So an accused person can remain completely silent throughout the trial if he or she chooses to do so. Of course, this means here that the two accused, Mr Richardson and Mr Marshall, had no obligation to give evidence or call witnesses. You'll remember that I said at the beginning of the case that the accused may not end up giving evidence or calling witnesses because they do not have to prove their innocence. It is and always has been a fundamental part of our system of justice that people tried in our courts are presumed to be innocent unless and until they are proved guilty beyond reasonable doubt. This concept of beyond reasonable doubt, it's an ancient concept, it's deeply ingrained in our criminal law and it needs no explanation from a trial judge. The words mean what they say. It is vitally important that you understand that the accused must be found not guilty if guilt has not been proved beyond reasonable doubt."
Her Honour had also alluded to the concept of proof beyond reasonable doubt in her opening remarks to the jury, and her memorandum to the jury which she carefully worked through with the jury, also contained an unambiguous written direction in simple terms, namely, that "The Crown (State of Tasmania) has the burden of proving the guilt of the accused beyond reasonable doubt."

Circumstantial evidence

The Free Dictionary definition of "circumstantial evidence" is not, in my view, in any way problematic as to what is stated in it. Many of the matters set out in it are otiose and the text is not a complete statement of the law. However I do not see that any of those matters prejudiced the appellants upon a common sense evaluation of the text, particularly when read in the light of the learned trial judge's charge to the jury and her memorandum. The only difficulty I perceive is that the text does not contain the necessary and important information that the commission of a crime may be proved beyond reasonable doubt by circumstantial evidence, only provided that:
(a)all the facts and circumstances from which the conclusion of guilt is drawn must be established to the satisfaction of the jury; and
(b)the jury must be satisfied beyond reasonable doubt that the conclusion of guilt is the only rational conclusion which is open on the whole of the evidence that the jury accepts, and that if there is open, on the whole of the evidence that the jury accepts, any rational hypothesis consistent with innocence, the accused must be found not guilty.
However, once again the jury was properly directed as to the law by the learned trial judge in the following terms:
"The defence position with respect to other evidence, so circumstantial evidence and the categories that I've spoken about with respect to each accused, the defence is that there are other inferences open and the evidence does not have the significance that the Crown contends that it should have. The defence is as you have heard that the Crown has failed to satisfy you beyond a reasonable doubt of the identity of the accused as the individuals responsible and their guilt on this trial.
Now, the Crown counsel and defence counsel have made many points to you in their closing addresses, and as I said yesterday to you, I am not going to try and summarise those for you. I'm sure I couldn't do them justice anyway, but I'm not going to endeavour to do that. I'm sure that they are fresh in your memories. Of course, ultimately, whether the points made to you by counsel have validity is a matter for you and you alone. You decide the facts. In the case of each accused, it's for you to decide the evidence that you accept and its significance. So for you to decide whether having considered the evidence on this trial, am I satisfied beyond reasonable doubt that the statement of Mr Axton, P21, is honest and reliable. If no, then you will bear in mind the direction that I have given you – the verdicts must be not guilty. If yes, then the question is having regard to the evidence that you accept and the inferences that you draw from that evidence, the inferences that in your view are soundly supported by that evidence, and also having regard to the significance that you attach to the evidence, and then considering all of that evidence in totality. Are you satisfied beyond reasonable doubt in the case of each accused of his guilt in relation to the charge in question?
Is there a reasonable hypothesis consistent with innocence in which case the accused in question is not guilty. These are your questions. You are the judges of the facts. It's for you to decide whether you are satisfied beyond reasonable doubt of the accused. You as the jury are well-equipped to that task. In considering this evidence you apply your common sense and your wisdom. I touched on this yesterday, but to give you a fuller explanation now about the possible verdicts." (Emphasis added.)
In addition the trial judge's written memorandum to the jury, which she worked through with the jury and emphasised on this issue, also explained that the existence of a reasonable hypothesis consistent with innocence required that the appellants be acquitted. Her Honour's memorandum to the jury was in the following terms:
"1.3 To find an accused guilty beyond reasonable doubt in a circumstantial case the inference of guilt must be the only rational inference which is open on the evidence accepted by the jury. If there remains a rational hypothesis consistent with innocence the accused be acquitted." (Original emphasis.)
The definition of circumstantial evidence does not allude to any explanation as to the way in which circumstantial evidence may be used in order to find the commission of a crime proved beyond reasonable doubt. It could not therefore have had the effect in any way of contradicting what her Honour told the jury about the way in which such evidence could be utilised. The Free Dictionary definition, properly understood, was just that, a definition. The document did not purport to offer any information as the way in which circumstantial evidence could be processed so as to establish guilt.

Discussion

The State's case turned upon the jury accepting the original statement of an eyewitness, Paul Raymond Axton, and, in my view, the jury's obvious acceptance of that evidence would have been reached irrespective of the irregularity complained of. This is particularly so given the direction to the jury by the learned trial judge that it had to be satisfied beyond reasonable doubt as to the truth and reliability of Mr Axton's statement for either appellant to be found guilty (a Murray direction).
In view of that direction, regarded against the background of and in the context of the learned trial judge's directions as to reasonable doubt, it is hardly likely, in my view, that the jury would have been distracted from its task as explained in the Murray direction by reference to anything in the Free Dictionary documents as I have analysed them above in these reasons. The jury would have understood clearly, in view of her Honour's direction, that it could not find either appellant guilty unless it was satisfied beyond reasonable doubt of the honesty and reliability of the identification by Mr Axton in his statement of the appellants as the shooter and the driver respectively. The jury would also have understood that it could look to the circumstantial evidence in that regard.
As to that circumstantial evidence, the jury would have understood from her Honour's lengthy charge as to the relevant circumstances and her clear direction in her memorandum to the jury, that to reach the state of satisfaction explained by her Honour in the Murray direction, that it could only infer guilt if that was the only rational inference open on the evidence that it accepted.
In my view the Free Dictionary documents dealing with the concept of circumstantial evidence would not, as I have construed them, have distracted the jury from its task, given her Honour's directions, in particular the memorandum to the jury which emphasised that any inference of guilt must be "the only inference which is open on the evidence accepted by the jury". (Original emphasis.)
Having regard to the circumstantial evidence which supported the original statement made by Mr Axton identifying the appellants as the shooter and the driver, particularly CCTV footage showing the motor vehicle used by the appellants to carry out the shooting and recording the sounds of seven separate shots fired from a seven shot revolver, such as that later found in that motor vehicle, the jury would have returned the same verdict if the irregularity complained of had not occurred.
It follows from the foregoing that, in my view, the proven fact that the Free Dictionary documents were found in the jury room, and the highest possible inference that might be drawn from that proven fact, namely that the documents were read by at least one juror and were available for the use of other jurors, and may have been read by them, could not in the circumstances have prejudiced the appellants or resulted in the trial miscarrying. Although there was, what has been accepted by the parties to these appeals as a procedural irregularity, it cannot be said that that the appellants did not receive justice according to law or did not receive a fair trial.
I am satisfied that the irregularity has not affected the verdicts in this case and that the jury would have returned the same verdict if the irregularity had not occurred.

Disposition

I would dismiss the appeals in each case.

File Nos 2192/2015
2195/2015

DAMIEN WESLEY MARSHALL v STATE OF TASMANIA
SEAN GREGORY RICHARDSON v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BRETT J
7 December 2016

These are appeals against conviction arising from a jury's verdict that each appellant was guilty of the crime of aggravated assault and the crime of wounding.
The prosecution case at trial alleged that on 29 July 2013, the appellants were travelling in a motor vehicle along York Street in Launceston, towards the intersection with Charles Street. It was alleged that Mr Marshall was driving the vehicle and Mr Richardson was sitting in the passenger seat. The prosecution case was that as the vehicle turned from York Street into Charles Street, Mr Richardson leaned out of the passenger window and fired seven shots from a handgun across the roof of the vehicle towards two men who were walking along the footpath, Robert Williams and Paul Axton. It was alleged that the men were known to each other and the shooting was motivated by a desire to retaliate for past conduct, which had occurred as part of an ongoing conflict. Neither Mr Williams nor Mr Axton were struck by a bullet, but another man, an innocent bystander, was wounded in the leg by a bullet which appeared to have ricocheted after being fired.
The indictment charged the appellants jointly with the following crimes:
·     count 1 – aggravated assault upon Robert Williams by shooting at him with a firearm;
·     count 2 – aggravated assault upon Paul Axton by shooting at him with a firearm;
·     count 3 – unlawfully wounding the bystander by shooting him with a firearm.
The appellants pleaded not guilty to all charges. The evidence, which included CCTV footage of the shooting, clearly showing a man leaning out of the passenger window of the moving vehicle apparently firing a gun over its roof, overwhelmingly established that the incident had occurred. The principal issue at trial was whether it had been proved that the men in the vehicle were the appellants.
On 11 September 2015, after a trial of nine days, the jury found each appellant guilty of counts 1 and 3. The jury was unable to reach a verdict in respect of count 2. The State subsequently filed a nolle prosequi in respect of that count against each appellant.
The appellants have now each appealed against the jury's verdict on the remaining counts. They each assert a single, identical ground of appeal which is as follows:
"1THAT the jury had regard to documents during the course of deliberations which were not in evidence in the trial which has resulted in a miscarriage of justice."
On the hearing of the appeals, the Court received evidence in the form of a statutory declaration from the trial judge's attendant. The affidavit testified that the jury had returned its verdict at 3.25pm on 11 September and had been discharged at 3.32pm. The jury exited the Court through the jury room prior to Court adjourning at 4.06pm. At 4.10pm, the attendant entered the jury room to tidy up. He found a number of documents which appeared to be notes from folders and documents provided to the jurors during the trial. Among these documents, on the table in the jury room, he found the two documents which form the basis of these appeals. The attendant's evidence is that he had not noticed these documents prior to the return of the verdict, and that the only persons with access to the jury room during the trial were members of the jury, Court staff and a cleaner.
The text of the relevant documents is set out in full in the reasons for judgment of Estcourt J, which I have had the benefit of reading. I will not set them out again. It was common ground on the hearing of the appeals that the documents appear to have been sourced from an internet site and have their origin in the United States of America. It was also common ground that the documents had not been provided to the jury by the Court and should be treated as having been downloaded from the internet and taken into the jury room by one or more jurors at some stage during the course of the trial and prior to the verdicts.

Reception on appeal of the evidence of the location of the documents

This Court is authorised, by s 409 of the Criminal Code, to receive evidence from a competent witness "if it thinks it necessary or expedient in the interests of justice". The evidence was tendered by the appellants and received by the Court without objection from the respondent.
Of course, the evidence in question in this case relates to deliberations by the jury in the jury room. A principle deeply embedded in our criminal justice system is that jury deliberations should, as far as possible, remain confidential. This principle has been described by the High Court as "of the highest significance in the criminal justice system" (Smith v The Queen [2015] HCA 27, 255 CLR 161). It is given legislative effect by the Juries Act 2003, s 58, which contains various prohibitions relating to the disclosure by a juror of "any statement made, opinion expressed, argument advanced or vote cast in the course of the deliberations of a jury". Despite this, as Estcourt J has noted, it is well established that evidence of matters extrinsic to jury deliberations will be received by an appeal court for the purpose of considering whether or not there has been a miscarriage of justice (R v Bilal Skaf, R v MohammedSkaf [2004] NSWCCA 37, 60 NSWLR 86). This principle was recently confirmed in a joint judgment of the High Court in Smith v Western Australia [2014] HCA 3, 250 CLR 473, where, at [27], it was said:
"The exclusionary rule does not deny the admissibility of evidence 'extrinsic' to the jury's deliberations. What is 'extrinsic' for this purpose is somewhat unsettled in that the description has been used to refer, both to a source of evidence other than the jurors themselves, and to events extraneous to the deliberative process. Evidence of irregularity has been said to be admissible where the evidence comes from a source other than the members of the jury."
In addition to the reception of evidence, this Court has statutory power to authorise an investigation or inquiry into the deliberations of a jury and to receive evidence in relation to same, including by disclosure from a member of the jury (Juries Act, s 58(6), Criminal Code, s 409). However, courts have traditionally been reluctant to exercise that power or receive evidence, other than extrinsic evidence, concerning the deliberations of a jury. The reason for such reluctance can be found in the potential for such inquiry or the receipt of such evidence to undermine the basic principle of jury confidentiality discussed above. In Myles and Myles v The Queen [1995] 1 Qd R 199, (1997) 83 A Crim R 519, Fitzgerald P said this:
"Further, evidence of the jury's reference to such information ought not be received from a juror (Rinaldi and Kessey (1993) 30 NSWLR 605; 68 A Crim R 284; Young [1995] QB 324; [1995] 2 Cr App R 379), even on the more liberal approach evident in New Zealand (see, eg, Tuia [1994] 3 NZLR 553). Reference to, or reliance upon, non-essential matters based on personal knowledge or experience seems likely to commonly form part of jury discussions or to influence individual jurors, consciously or otherwise. The law quite deliberately denies itself the opportunity to know of any such departures from the trial judge's counsel of perfection to the jury because the public interest is better served by that course. Investigations into the deliberations of juries would inhibit free discussion, impose unacceptable burdens on jurors, deprive jury verdicts of finality and weaken public confidence in the criminal justice system. Adherence to the jury system, which is considered essential to the fair trial of serious offences, involves acceptance of its inherent frailties. Imperfections in the deliberative process of juries which lack any exceptional quality or significance are not seen as depriving an accused person of a fair trial. Any substantial departure from the principle reasserted in Rinaldi and Young would make the jury system, which is seen as a vital element in the administration of criminal justice, unworkable."
In this case, the evidence of the attendant as to the circumstances in which the documents were found, and a review of the contents of the documents, supports an inference that a juror obtained those documents from the internet and brought them into the jury room during the trial and prior to the verdicts. It can also be inferred that one or more jury members read the documents, and that the contents of the documents were available to be read by each member of the jury. It was common ground between the parties that this Court should proceed on the basis of those inferences, and further that the documents had been read by some, if not all, members of the jury prior to the determination of the verdicts. It was not suggested that the Court should authorise any further inquiry in respect of the use made of the documents by the jury, nor their actual effect on deliberations. In the circumstances, and having regard to the matters referred to above, that position was the appropriate course to be adopted in this case.

A procedural irregularity

Where the circumstances of an irregularity in the jury's performance or conduct are such as to give rise, notwithstanding any warning to the jury by the trial judge, 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 their or its task impartially or at all, then, if identified during the trial, the jury must be discharged (Webb v The Queen (1993-1994) 181 CLR 41). If the circumstances are subsequently discovered, or the jury has not been discharged, then a miscarriage of justice will be established and verdicts of guilty will be quashed: Cant v The Queen [2002] NTCCA 8, 12 NTLR 133 (CCA); R v Czajkowski, R v Shepherd [2002] NSWCCA 530, 137 A Crim R 111.
However, there are many examples of procedural irregularities affecting the performance or deliberation of a jury, which do not fall within the ambit of the test propounded in Webb. The cases are replete with examples from many jurisdictions within Australia and overseas of such irregularity, although there would not seem to have been a prior case in Tasmania. The cases on this question demonstrate that procedural irregularities can take many forms, ranging from inquiry and investigation by a juror outside the courtroom and the trial process, to the introduction of general information into the jury room. Examples of the latter category include specific information relating to the accused, a witness or the case itself, matters relating to technical and other expert evidence and, as in this case, general matters relating to legal questions or the role of the jury. It is well established that the introduction of extraneous material into the jury room will constitute a procedural irregularity, and that position was accepted by both parties in this case.
A finding on appeal that there has been an irregularity will not necessarily lead to a verdict of guilt being set aside. The Court's power to allow an appeal is prescribed by s 402(1) of the Criminal Code. In the case of a procedural irregularity, the applicable basis for the exercise of the power to allow an appeal and set aside the verdict is the Court's satisfaction that there has been a miscarriage of justice.
In R v Brown [2012] QCA 155, Gotterson JA, with whom Holmes JA and Philippides J agreed, said:
"[23]Implicit in the respondent 's submission is the proposition that not every irregularity in a criminal trial constitutes a miscarriage of justice. That proposition finds ample support in the authorities. In R v Forbes, Spigelman CJ (with whom McCellan CJ at CL and Hall J agreed) observed at [28]:-
'Clearly not every irregularity can constitute a miscarriage of justice. It is often said that the irregularity must be a "material irregularity".'
[24]What characterises an irregularity as material in this context is impact upon the trial process of such an order that it results in the accused being deprived of a fair trial. In Folbigg v R McClellan CJ at CL (with whom Simpson and Bell JJ agreed) explained that determination of whether or not a particular irregularity is material or not '… requires consideration of the irregularity; the relevance of the irregularity to the issues before the jury; whether the material arising from the irregularity was prejudicial; and the extent of the prejudice.'
[25]In Martin v R Ashley JA (with whom Buchanan and Redlich JJA agreed), in discussion of the same issue, observed:-
'[83]Problems of a variety of kinds have arisen with respect to the behaviour of juries. In the appellate context, a distinction has been drawn between irregularities discovered in the course of the trial and irregularities discovered after verdict. It is relevant in both contexts to consider whether any revealed irregularity was relevant to the issues before the jury, was prejudicial to the accused, and if it was, then the extent of the prejudice. Instances of the two kinds include R v Domican (No 3), R v Marsland, R v Rudkowsky, R v K, R v Skaf, Qing An v R, R v Gillespie, R v Bates, and R v Cogley.
[84]But focusing now upon irregularities discovered after verdict, in R v K, Wood CJ at CL undertook a substantial review of the authorities. He concluded that the appropriate test was that stated by Gleeson CJ in Marsland, and reiterated by his Honour in Rudkowsky, that is –
"… 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 verdict if the irregularity had not occurred."
[85]In Skaf, the New South Wales Court of Criminal Appeal referred to earlier authority, most particularly R v K, and stated (at [242]) that –
"there must be a new trial unless this Court can be satisfied that the irregularity has not affected the verdict and that the jury would have returned the same verdict if the irregularity had not occurred."
In resolving whether there must be a new trial, the court focused upon the materiality of the irregularity having regard to the issues in the case and having regard to the potential prejudice to the applicants flowing from the juror's behaviour constituting the irregularity'." (Footnotes omitted.)
His Honour's reference to the test drawn from Marsland, Rudkowsky and R v K, and restated in Skaf, is a test which has been accepted and expounded in New South Wales for some years. It is, in effect, the test that has been accepted by the High Court as appropriate for determining whether any irregularity in the trial process, not just one which relates to the performance or conduct of the jury, has caused a miscarriage of justice (Driscoll v The Queen (1977) 137 CLR 517; Maric v The Queen (1978) 20 ALR 513). It would seem that that test has been accepted and applied by intermediate courts of appeal in a number of other Australian jurisdictions, in circumstances of irregularities related to the conduct of the jury (eg in Queensland: R v Brown; R v Martinez [2015] QCA 169; Western Australia: Hansen v The State of Western Australia [2010] WASCA 180; Victoria: Benbricka v The Queen [2010] VSCA 281).
This test has also been applied to cases of jury irregularity in South Australia. In R v Wilton [2013] SASCFC 60, Blue J, with whom Sulan and Kelly JJ agreed, set out a very useful summary of the principles affecting appeals which relate to influences on a jury's determination of guilt. This summary encapsulates many of the principles discussed above:
"18There are five fundamental principles affecting challenges on appeal to jury verdicts insofar as they raise influences on a jury's determination of guilt.
19The first principle is that evidence is inadmissible on appeal about what has passed between members of a jury in the course of their deliberations. This principle is based on public policy considerations which include:
1     preservation of the unity of a jury verdict;
2preservation of secrecy of the deliberations amongst the jurors and promotion of full and frank discussion amongst jurors;
3     preservation of finality of the jury's verdict;
4     protection of jurors from extrinsic pressure and criticism;
5maintenance of public confidence in juries and preservation of the integrity of jury verdicts.
20The second principle is that there is a right of appeal by a defendant against a jury verdict of guilty. Insofar as an appeal relates to the merits of the jury's verdict, the appeal court determines whether the verdict is unreasonable or cannot be supported having regard to the evidence. Because of the existence of the first principle referred to at [19] above, the approach of an appeal court to an appeal from a jury's verdict is quite different to an appeal against a conviction by a magistrate or judge sitting alone. The appeal court does not directly consider credibility findings, factual findings or the reasoning of the jury (which remain secret). It considers the objective question whether a reasonable jury could have been satisfied of the matters necessary to convict having regard to the objective evidence, the conduct of the trial and the trial judge's rulings and directions. - This principle is based upon public policy considerations including:
1the interests of the defendant in those cases in which the jury's verdict is regarded by the appeal court as unreasonable or unable to be supported having regard to the evidence;
2the public interest in justice and the preservation of public confidence in the criminal justice system.
21The third principle is that a jury's verdict of guilty is vitiated by the jury having been subjected to material improper extraneous influence. This principle is based on public policy considerations including:
1guilt or innocence should be determined by the jury only on the basis of evidence properly presented to them in the course of the trial in the presence of and subject to challenge and comment by the accused;
2protection of jurors from extrinsic pressure;
3protection of the integrity of jury verdicts;
4protection of public confidence in jury verdicts.
22The fourth principle is that evidence is admissible on appeal if it relates to matters extraneous to the jury's deliberations and discloses a material irregularity potentially affecting the jury's verdict. This principle is a corollary of the third principle and, properly understood, is not inconsistent with the first or second principles discussed above.
23The fifth principle is that, where an irregularity has occurred in the sense that the jury has been subjected to improper extraneous influence, an appeal court will not inquire into the actual effect of that influence upon the jury's verdict but will determine the materiality of the influence according to whether the court considers it was objectively capable of affecting the verdict. Generally, the verdict will be set aside unless the court is satisfied that the same verdict would have been returned had the improper influence not been present. This principle is a corollary of the second, third and fourth principles discussed above." (Footnotes omitted.)

I agree with Estcourt J that the test so stated is the test which should be applied in this case. That was the common position of the parties to this appeal.

The documents

I agree with the submissions of the appellants' counsel that each document, considered in isolation from the trial judge's directions and the context of the trial, contains a number of statements which, if a jury was directed in that way by the judge, would be liable to mislead the jury and deflect it from a proper consideration of the appropriate verdict, in accordance with law. This conclusion is not surprising. The documents do not purport to be an authoritative legal source. They seem to contain a general explanation of relevant concepts in the context of the law applicable in the United States, intended for the purpose of informing the general public and without the intellectual and legal rigour that one would expect from a trial court. Some specific difficulties are as follows:
Beyond a reasonable doubt
(a)Some of the statements in this document are couched in terms which, without further explanation, tend to undermine the presumption of innocence. In particular, the second paragraph suggests that the process of determining guilt involves an examination by the jurors of any doubt they may have and whether that doubt is a reasonable one, and if they are not satisfied of that, then "the prosecution has proven the defendant's guilt beyond a reasonable doubt and the defendant should be pronounced guilty". This paragraph does not directly suggest that a jury should scrutinise a doubt to determine whether it is reasonable, but if the jury were to follow the process implied by that paragraph, then that might be the result. If a jury was given such a direction then it would be a matter which would justify the setting aside of the verdict. (See Smart v Tasmania [2013] TASCCA 15.)
(b)The attempt to explain the meaning of "beyond a reasonable doubt" is also fraught with danger. Although the terms "to a moral certainty" and "you better be damn sure" do not necessarily reduce the burden on the prosecution, it is a fair criticism that those terms can mean different things to different people, and they do not represent the proper test, which is simply, proof beyond reasonable doubt.
Circumstantial evidence
(a)The principal concern with this document is that it does not explain circumstantial evidence in the manner that would be required of a trial judge. In particular, it omits the crucial direction that, in respect of a circumstantial case, for guilt to be proved, the inference of guilt must be the only rational inference which is open on the evidence accepted by the jury, and that if, after the jury has considered all of the evidence, the circumstances can be explained by a rational hypothesis consistent with innocence, the accused must be acquitted.
(b)The document gives examples of circumstances which might support an inference of guilt in a criminal matter. These include resistance to arrest, denials, evasions or contradictions on the part of the accused and the general conduct of the accused. Considered in isolation, and without appropriate explanation and warning by the trial judge, there is significant danger that a jury would misuse such evidence. In particular, such warnings should refer to the need to consider other possible explanations for such conduct which are consistent with innocence. The reference to "denials, evasions or contradictions on the part of the accused" has the potential to undermine the accused's right to silence.
A general criticism that can be applied to both documents is that by introducing formulations which may be incorrect or misleading, the documents created a danger that different jurors may adopt one formulation or another and apply that formulation as a matter of law, so that the result was an inconsistent application of legal principle by various members of the jury.
There is little doubt that if a jury were directed in the terms contained in those documents, then a miscarriage of justice would be established. However, the applicable test is whether this Court can be satisfied that the irregularity, in particular, the fact that the jury may have read the documents containing the identified errors, has not affected the verdict, and that the jury would have returned the same verdict if the irregularity had not occurred. As noted above, the resolution of this question will require consideration of the irregularity; the relevance of the irregularity to the issues before the jury; whether the material arising from the irregularity was prejudicial; and the extent of the prejudice. These considerations can only be properly assessed in the context of the trial and her Honour's directions.
In considering this question, it is important to remember, as was noted in R v Wilton, that the question involves an objective assessment of the extent to which the irregularity was objectively capable of affecting the verdict. It is not a question of whether this Court agrees with the verdict, and while the strength of the prosecution case is relevant to the impact of the irregularity, the focus of the enquiry is on an objective assessment of the nature and extent of the irregularity and its potential impact in the context of the trial. I will now undertake that enquiry.

The prosecution case

The evidence available for the jury's consideration was contained entirely within the prosecution case. Neither appellant gave or adduced evidence.
As noted above, the principal issues on the trial were the identity of the driver of the motor vehicle and the shooter. The CCTV evidence, in particular, established overwhelmingly that the incident had occurred. It should be noted, in addition to relatively clear vision on the CCTV footage of the shooter apparently firing a pistol across the roof of the car, and the evidence that an innocent bystander was hit by a bullet, that the seven shots can be clearly heard on the audio of the CCTV footage. There was other evidence which also supported the conclusion that shots had been fired from the motor vehicle.
There was also evidence available from the CCTV footage to establish that the vehicle had passed Mr Axton and Mr Williams before the shooting, and had gone around the block before coming back past them again, which is when the shooting took place. This evidence strongly supports the accessorial liability of the driver for the actions of the shooter. This matter was not conceded by Mr Marshall's counsel at the trial, and in closing, counsel argued that even if the jury was satisfied that Mr Marshall was driving the vehicle, it could not be satisfied of the fact that he aided or abetted the shooter. However, in addition to going around the block and the movement of the vehicle immediately prior to the shooting, the circumstantial evidence relied upon by the prosecution, if accepted by the jury, strongly supported the inference that the actions of both men were carried out with the common intention that the shots would be fired at Mr Williams and Mr Axton.
The crucial issue for the jury's consideration, therefore, was whether the prosecution had proved that each of the appellants was one of the men in the vehicle at the time of the shooting.
The prosecution case in respect of the identity of the men in the car consisted of a combination of direct and circumstantial evidence. That evidence can be summarised as follows:
(a)The direct evidence consisted of a previous representation of Mr Axton in the form of a statutory declaration made by him over two years before the trial. That document was admitted into evidence after the prosecutor was given leave to question Mr Axton as though he were being cross-examined, about having made the prior inconsistent statement. This leave was given after Mr Axton failed to give evidence in accordance with the statutory declaration. In particular, he had claimed in evidence not to remember the events in question. Upon its admission into evidence, the representation became admissible for the purpose of proving the existence of the facts asserted in it (Evidence Act 2001, s 60).
In the statutory declaration, Mr Axton claims that he recognised both the driver and the passenger in the car. He recognised them as people he knew. The driver was Damien Marshall and the passenger was Sean Richardson. However, in cross-examination by defence counsel, he directly contradicted the statement and claimed that he had never seen the shooter before.
(b)Mr Axton's identification of each appellant as the driver and shooter respectively was supported by a number of pieces of circumstantial evidence. This evidence included the following:
1There was evidence from a witness that on 28 May 2013, he was present at a house with both appellants when Robert Williams and his brother arrived there carrying firearms. He saw Mr Williams' brother shoot Mr Marshall in the leg. This was admitted as evidence of motive.
2On 30 September 2013, police found a revolver and live ammunition in a motor vehicle which had been driven that day by Mr Marshall. The bullets found at the scene and the bullet removed from the leg of the bystander had similar characteristics to, and were capable of being fired from the revolver found in the said motor vehicle. That firearm had the capacity to fire seven shots in quick succession without ejecting spent casings. As already noted, seven shots can be heard being fired in quick succession on the CCTV footage of the incident. No casings were found at the scene, as might have been expected to take place if the firearm had been one that ejected casings. Mr Marshall admitted that the revolver located in the motor vehicle on 30 September 2013 was his, and that he had possessed it for some months.
3A general description of the vehicle involved in the shooting can be seen in the CCTV footage depicting the incident. In particular, it has a distinctive colour and distinctive wheels. A motor vehicle matching that description was found at Mr Marshall's home on the day after the shooting. There was evidence that the vehicle was absent from Mr Marshall's home earlier on 30 July 2013, but was there when Mr Marshall was located there by police later that day.
4There was other evidence connecting Mr Marshall to that vehicle. He and Mr Richardson can be seen leaving the Country Club Casino approximately 12 minutes before the shooting, which occurred in the Launceston CBD. That timeframe is roughly consistent with a vehicle having been driven directly to the CBD. There was some weak CCTV vision which was contended by the prosecution to show a vehicle resembling the vehicle in question.
5There was evidence that Mr Marshall had stayed at the Sebel Hotel that night. The prosecution contended that a vehicle matching the description of the vehicle involved in the shooting can be seen, again on CCTV footage, entering the car park of the Sebel Hotel some time after the shooting. The prosecution points in particular to the distinctive wheels.

Trial judge's directions

The trial judge summed-up the case to the jury in a detailed and comprehensive way, and provided the jury with detailed and, with respect to her Honour, impeccable directions as to the law and warnings with respect to appropriate aspects of the evidence. Some relevant aspects of her Honour's charge to the jury are as follows:
(a)In relation to Mr Axton's evidence, her Honour provided a clear warning in relation to the potential unreliability of the previous representation arising from the fact that it was a statement made out of Court and not under oath, that there were factors around the making of the statement that may affect its reliability, and that, in the light of the witness's claim to not remember the events dealt with in the statement, it was difficult for defence counsel to test its accuracy by cross-examination. Her Honour also gave a separate and detailed warning in respect of the aspects of the statement that related to the question of identification. Finally, her Honour directed the jury as a matter of law that Mr Axton was a critical witness to the Crown case, and that it could only convict either appellant if satisfied beyond reasonable doubt that the contents of Mr Axton's statutory declaration were truthful and reliable. Her Honour also warned the jury of the need to scrutinise Mr Axton's evidence with care, in accordance with the direction formulated in Murray v The Queen (1987) 11 NSWLR 12, 30 A Crim R 315.
(b)Her Honour provided detailed directions on the question of the presumption of innocence and the burden of proof. Her Honour repeated this formulation on a number of occasions throughout her charge. In accordance with principle, her Honour declined to explain the meaning or provide some other formulation of the phrase "beyond reasonable doubt", but her clear reference to this as the test, authoritatively directed the jury as to the correct test to apply in determining guilt.
(c)Her Honour provided clear directions concerning the judge's role as the judge of the law, the need for the jury to follow her directions as to law, and the need to determine the matter on the evidence it had heard and seen in Court.
(d)Her Honour provided full and comprehensive directions with respect to the use of the circumstantial evidence, including an explanation of the nature of circumstantial evidence and the need for the jury to be satisfied, before it could find either appellant guilty on the basis of that evidence, that an inference of guilt is the only rational inference available from the evidence it accepted. Her Honour directed the jury that if it was left with a rational hypothesis consistent with innocence on the basis of that evidence, then it must acquit the appellants.
(e)Her Honour reviewed each aspect of the circumstantial evidence in considerable detail, identifying the contentions made in relation to that evidence by each party.

Discussion

Her Honour's directions and the nature and context of the evidence in the case are crucial in determining whether any false impression the jury may have gained from reading the relevant documents deflected it from its proper task, and created a risk that the irregularity has affected the verdicts. In considering this question, it is reasonable to have regard to the statement of Gleeson CJ and Gummow J in Gilbert v The Queen [2000] HCA 15, 109 A Crim R 580, at [13]:
"The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice."
This statement was again recently cited with approval by the High Court in Sio v The Queen [2016] HCA 32.
In Demirok v The Queen (1977) 137 CLR 20, Barwick CJ said at 22:
"In the administration of the criminal law, it must be accepted until the contrary is demonstrated that the jury accept and faithfully apply the judge's direction. The law cannot be administered upon any other basis."
This observation has been cited with approval in numerous cases, including by the New South Wales Court of Criminal Appeal in Yuill (1993) 69 A Crim R 450, and by the Court of Appeal in Western Australia in Salehi v The Queen [1999] WASCA 279 and The State of Western Australia v Bowen [2006] WASCA 133 [31]. Of course, this assumption is not absolute and the test of whether a miscarriage of justice has occurred requires a judgment to be made by the appeal court as to the potential effect of the irregularity. In Leaman v The Queen (1987) 28 A Crim R 104, Neasey J, when considering whether there had been a miscarriage of justice as a result of the refusal of the trial judge to order separate trials when the failure to do so meant that the jury would hear prejudicial material not admissible against the appellant, said:
"A basic question faced by a trial judge considering whether to order a separate trial, or an appellate court considering whether a miscarriage of justice has occurred because he did not, always is whether the prejudicial effect of the inadmissible evidence is (or was) capable of being adequately neutralised by appropriate instructions to the jury. That question will usually involve two further issues, namely:
(i)Will an average jury be reasonably capable, as an intellectual exercise, of performing the task thus given them? and
(ii)Is the prejudice likely to be so great in the circumstances that it would not be reasonable to expect the jury to leave the prejudicial evidence out of account against a particular accused even though it is inadmissible against him?"
Underwood J (as he then was) agreed with this statement, but disagreed with the result of its application to the appeal under consideration.
If one accepts that the jury understood, followed and applied her Honour's detailed directions, then there can be no doubt that any inaccuracy or misapprehension arising out of the documents in question would have been rectified adequately. This can be comfortably accepted given the general nature of the documents and their lack of assertion of authority that would have provided any effective challenge to the authority of the trial judge's directions. In relation to the question of circumstantial evidence, although the document in question leaves out the crucial direction in relation to an alternative rational hypothesis consistent with innocence, it is pertinent to note that:
(a)Her Honour provided express and clear oral directions in relation to this question, and these directions were supported and emphasised in the written memorandum.
(b)The prosecution case did not depend entirely on the circumstantial evidence. That evidence really provided supporting evidence in relation to the jury's assessment of the honesty and reliability of Mr Axton's statement. The jury was left in absolutely no doubt that it needed to be satisfied of the truthfulness and reliability of that statement before it could convict either appellant.
Mr Hughes, who appeared for both appellants on the appeals, argued the assumption that the jury will follow the trial judge's directions, referred to in Gilbert, is weakened and undermined in this case because the presence of the documents in the jury room demonstrates that as a matter of reality, at least one member of the jury has acted contrary to her Honour's instructions not to conduct research on the internet and not to have regard to extraneous material. His argument is consistent with judicial statements that the presumption that the jury will accept and faithfully apply the trial judge's direction is assumed "until the contrary is shown" (Demirock).
I accept that evidence which suggests that the jury or a juror may not have been prepared to follow the trial judge's directions is relevant to the enquiry as to whether the irregularity has resulted in a miscarriage of justice. However, in this case, a careful analysis of the transcript would not support such a conclusion. It is impossible for the Court to determine when the relevant material was introduced into the jury room. In her Honour's directions in her summing-up at the conclusion of the case, she touched only briefly on the question of ignoring outside sources:
"As I've said to you during the course of the trial, if anyone makes a comment to you about the case outside the courtroom then you must completely disregard that, completely ignore that, and any media reporting must also be ignored by you."
Her Honour did provide a more comprehensive warning to the jury at the commencement of the case, on 1 September 2015, in relation to not obtaining information from other sources. I set out her Honour's directions in full:
"Now, at this stage you have heard me emphasise a number of times to you that your verdict must be based on the evidence and what the evidence is and the sort of evidence that you might hear whether it's sworn evidence or items the witnesses may produce. I want to elaborate on that just a little further. A jury's verdict must be based on the evidence and nothing else.
This means no other information source. Of course in our day-to-day lives we are all used to having access to a range of information sources such as the internet. Juries must not have access to any other information source other than the evidence on the trial. There have been cases where there has been a mistrial because a member of the jury has accessed the internet for example or another information source.
I'll pause to give you an example of what would be impermissible. Let's say it was a dangerous driving case and there was a question which came up in the trial about whether a particular street intersected with another street, say, Russell Street or whatever the case may be. The jury's decision in that particular trial would have to be based on the evidence and nothing else.
The jury in that case would not be permitted to undertake any of their own inquiries. So for example they couldn't go to the scene or ask someone about whether that street intersected with such and such street. They could not access Google maps for example to do that. That's the case no matter how unimportant it may seem. It's absolutely critical that the jury's verdicts in every case are based on the evidence and nothing else.
So important to avoid any other information source and effectively quarantine yourselves so that your verdict, your consideration of this matter is based just on the evidence in this trial."

In Martin v The Queen [2010] VSCA 153, 202 A Crim R 97, the Court of Appeal in Victoria was dealing with a case in which, after a jury verdict, seven pages addressing the topic "What is meant by beyond reasonable doubt" were found in the jury room. In that case, it was accepted by the parties that the material did not diminish the standard of proof that was required of the prosecution. However, the Court was considering the question of whether or not the jury had acted in breach of a prohibition contained in the Juries Act 2000 (Vic) which prohibited a juror from making any inquiry for the purpose of obtaining any information about any matter relevant to a trial. Ashley JA, with whom the other judges agreed, considered that the direction which the judge gave the jury with respect to the statutory prohibition from making any other inquiry, including looking at the internet, would not necessarily have been understood by a juror as being a prohibition that extended "to an enquiry as to the meaning as to the criminal standard of proof". In R v Brown (above), Gotterson JA, dealt with the specific argument raised by Mr Hughes in this case, in the following way:
"[30] Secondly, it was argued that the undertaking of the research was in direct disregard of a jury direction made by the learned judge and, on that account, tended to demonstrate that the juror concerned was a person who was prepared not to follow specific directions. A perusal of the transcript of the introductory remarks by his Honour to the jury indicates that the direction that was given to them concerning enquiry into matters by electronic means was given in the context of not attempting to investigate either something inadvertently heard by them about the trial, or the defendant. Whilst the jury were told that it was inherently unjust for them to act on information not in evidence and which neither prosecutor nor defence knew was being acted upon, the jury were not told, in terms, that they were not to access legal sources, electronic or otherwise.
[31] The information accessed here was not within the context to which his Honour had expressly directed his remarks. Having regard to this and to the absence of reference to accessing legal sources, I consider that the juror's conduct here is not apt to be characterised as having been undertaken in direct disregard of a direction given by the learned judge. Nor do I consider that the conduct gives rise to a reasonably grounded apprehension that the juror concerned was a person who was prepared not to follow specific directions."
In my view, these remarks are apposite to the relationship between her Honour's opening instructions to the jury and the material located in the jury room in this case. Although her Honour's remarks were careful and accurate, they did not specifically deal with the question of research as to matters of law. One cannot, in my view, reasonably expect that a lay juror would, at that stage of the trial, have understood that the prohibition by her Honour related not only to factual matters and matters of evidence, but also to research of general topics relating to matters of law and the role of the jury. Insofar as her Honour made it clear that the jury was to have regard only to evidence in the case, I would not expect that the jury would interpret that necessarily as prohibiting access to the type of material that was found in this case. In my view, the location of the material in the jury room does not support a conclusion that one or more of the jurors was prepared to disregard her Honour's directions.

Resolution

Upon an overall consideration of the material in the context of the issues and evidence in the case, and her Honour's directions, I am satisfied that the assumption referred to in Gilbert and approved in Sio is properly applicable to a consideration of this case. In my view, having regard to her Honour's careful and comprehensive directions, there is no reasonable possibility that the jury would have misunderstood the correct principles of law to be applied by it. Further, it would have been clear that any perceived difference between those directions and the contents of the documents, must be resolved in accordance with the judge's directions. The following direction, delivered at the commencement of the summing-up really leaves no room for any misunderstanding on this point:
"My responsibility in this trial is solely in the area of the law. It is my duty to explain what the law is and you must accept that the law is as I direct you, and you must conscientiously then apply the law as I direct you."
Having regard to those matters, I am satisfied that the irregularity "has not affected the verdict and that the jury would have returned the same verdict if the irregularity had not occurred". It follows that both appeals should be dismissed.

Final comment

The cases reviewed in the course of preparation of these reasons, and a general understanding of the comprehensive nature of the internet and ease of access to it by a great variety of electronic devices, emphasises the growing problem faced by the criminal justice system in ensuring that juries do not have access to information that is extraneous to the trial process. This case, and other cases which have dealt with this question, arise because evidence is available that a juror has had actual access to such an information source during the course of the trial. Jurors can, of course, easily access information from the internet without discovery. There is no need to produce a written version of the information, thereby creating evidence of the research or alternative consultation. The information can simply be viewed on a screen, shared with others and then deleted, leaving no easily detectable trace. This state of affairs, which is of relatively recent origin, has the potential to create a significant risk to the viability of the jury process. It is one thing for a juror to bring preconceptions about the law or a memory of information read on a previous occasion to their jury service, but it is quite another if alternative information sources are accessed during the deliberative process that commences with the start of the trial. Of course, the preferable remedy is prevention, and this can best be achieved by an explicit warning, with appropriate explanation of the reasons for it, from the trial judge given at the start of the trial, and an acceptance in accordance with the assumption stated in Gilbert, that the jury will understand and follow that instruction. With the benefit of hindsight arising from the circumstances of this case, it is reasonable that the early instructions given by the trial judge should make it clear to the jury explicitly that it must not seek out other sources of information relating to the law, as well as other relevant matters, on the basis that the trial judge is the sole judge of law, and that the law will be explained during the course of the trial, and that that is the law the jury must follow and apply in its deliberations.

Details

AGLC: Marshall and Richardson v Tasmania [2016] TASCCA 21
Case: [2016] TASCCA 21
Decision Date: 7 December 2016

CaseChat Overview and Summary

Marshall and Richardson appealed their convictions to the Full Court of the Supreme Court of Tasmania following a trial before a judge and jury. The central issue on appeal concerned alleged irregularities in relation to the jury, specifically the discovery of printouts within the jury room after the verdict had been delivered. These printouts contained information regarding the meaning of "beyond reasonable doubt" and guidance on dealing with circumstantial evidence.

The Full Court was required to determine whether these irregularities had affected the verdict and, if so, whether the jury would have returned the same verdict had the irregularities not occurred. The court also had to consider the impact of the trial judge's directions on these questions.

The Court reasoned that while the presence of the printouts constituted an irregularity, it did not necessarily vitiate the verdict. The judges applied the principle that an irregularity will only lead to a new trial if it can be shown to have actually affected the verdict or if there is a real possibility that it did. In this instance, the Court found that the directions given by the trial judge were clear and comprehensive, and that the jury had been properly instructed on the relevant legal principles. Consequently, the Court concluded that the jury would have reached the same verdict even in the absence of the printouts.

The appeals were accordingly dismissed.

Orders

Orders of the court

Appeals dismissed.

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Evidence Before The Court

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Citations

Marshall and Richardson v Tasmania [2016] TASCCA 21

Most Recent Citation

Langford v Tasmania [2018] TASCCA 1

Cases Citing This Decision

Langford v Tasmania [2018] TASCCA 1
Citation 1 (Para 12)

…iven by trial judges": Gilbert v The Queen [2000] HCA 15, 109 A Crim R 580 at [13]; Sio v The Queen [2016] HCA 32; Marshall and Richardson v Tasmania [2016] TASCCA 21, per Brett J at [63]-[65].…

Cases Cited

Statutory Material Cited

Rinaldi v The Queen [2021] SASCFC 6
Citation 1 (Para 1)

…hat inadmissible and prejudicial material of an evidentiary nature was sent into a jury room and was available to be considered by the jury ( Rinaldi (1993) 30 NSWLR 605; 68 A Crim R 284), or that a sheriff's officer wrongly intruded into the jury's deliberations and expressed a view that the accused were guilty ( Emm…
Sio v The Queen [2016] HCA 32
Citation 2 (Para 2)

…This statement was again recently cited with approval by the High Court in Sio v The Queen [2016] HCA 32.…
R v Martinez [2015] QCA 169
Citation 3 (Para 5)

…of other Australian jurisdictions, in circumstances of irregularities related to the conduct of the jury (eg in Queensland: R v Brown ; R v Martinez [2015] QCA 169; Western Australia: Hansen v The State of Western Australia [2010] WASCA 180; Victoria: Benbricka v The Queen [2010] VSCA 281).…
Smith v The Queen [2015] HCA 27
Citation 4 (Para 2)

…confidential. This principle has been described by the High Court as "of the highest significance in the criminal justice system" ( Smith v The Queen [2015] HCA 27, 255 CLR 161). It is given legislative effect by the Juries Act 2003, s 58, which contains various prohibitions relating to the disclosure by a juror…
Smith v Western Australia [2014] HCA 3
Citation 5 (Para 2)

…ohammed Skaf [2004] NSWCCA 37, 60 NSWLR 86). This principle was recently confirmed in a joint judgment of the High Court in Smith v Western Australia [2014] HCA 3, 250 CLR 473, where, at [27], it was said: "The exclusionary rule does not deny the admissibility of evidence 'extrinsic' to the jury's deliberations…
Smart v Tasmania [2013] TASCCA 15
Citation 6 (Para 5)

…In Smart v Tasmania [2013] TASCCA 15, Blow CJ, Wood and Pearce JJ said in a rare joint judgment of the Court of Criminal Appeal at [70]-[78]: "70 It has long been recognised that it is inadvisable for a trial judge to elaborate upon the concept of reasonable doubt because it requires no explanation, and because of…
R v Wilton [2013] SASCFC 60
Citation 7 (Para 6)

…This test has also been applied to cases of jury irregularity in South Australia. In R v Wilton [2013] SASCFC 60, Blue J, with whom Sulan and Kelly JJ agreed, set out a very useful summary of the principles affecting appeals which relate to influences on a jury's determination of guilt. This summary encapsulates ma…
R v Brown [2012] QCA 155
Citation 8 (Para 4)

…In R v Brown [2012] QCA 155, Gotterson JA, with whom Holmes JA and Philippides J agreed, said: "[23]Implicit in the respondent 's submission is the proposition that not every irregularity in a criminal trial constitutes a miscarriage of justice. That proposition finds ample support in the authorities. In R v Forb…
R v Murray [2011] QSC 170
Citation 9 (Para 1)

…onour also warned the jury of the need to scrutinise Mr Axton's evidence with care, in accordance with the direction formulated in Murray v The Queen (1987) 11 NSWLR 12, 30 A Crim R 315. (b)Her Honour provided detailed directions on the question of the presumption of innocence and the burden of proof. Her Honour repe…
Benbrika v The Queen [2010] VSCA 281
Citation 10 (Para 5)

…R v Brown ; R v Martinez [2015] QCA 169; Western Australia: Hansen v The State of Western Australia [2010] WASCA 180; Victoria: Benbricka v The Queen [2010] VSCA 281).…
Hansen v The State of Western Australia [2010] WASCA 180
Citation 11 (Para 5)

…ted to the conduct of the jury (eg in Queensland: R v Brown ; R v Martinez [2015] QCA 169; Western Australia: Hansen v The State of Western Australia [2010] WASCA 180; Victoria: Benbricka v The Queen [2010] VSCA 281).…
Martin v the Queen [2010] VSCA 153
Citation 12 (Para 3)

…ing the test in Marsland , see Folbigg v The Queen [2007] NSWCCA 371, and of interest, although in a purely statutory context, see Martin v The Queen [2010] VSCA 153, 202 A Crim R 97.…
Ladd v The Queen [2009] NTCCA 6
Citation 13 (Para 5)

…a reasonable doubt: Graham v R [2000] TASSC 153; (2000) 116 A Crim R 108; R v Pahuja (1987) 49 SASR 191, King CJ at 195, Johnston J at 220; Ladd v R [2009] NTCCA 6; (2009) 27 NTLR 1 at [144] – [215]. As stated by Windeyer J in Thomas at 605 – 606 'The task of the jury in a criminal case is to examine the evidenc…
Folbigg v R [2007] NSWCCA 371
Citation 14 (Para 3)

…To the same effect as Marsland and Rudowsky and confirming the test in Marsland , see Folbigg v The Queen [2007] NSWCCA 371, and of interest, although in a purely statutory context, see Martin v The Queen [2010] VSCA 153, 202 A Crim R 97.…
The State of Western Australia v Bowen [2006] WASCA 133
Citation 15 (Para 4)

…3) 69 A Crim R 450, and by the Court of Appeal in Western Australia in Salehi v The Queen [1999] WASCA 279 and The State of Western Australia v Bowen [2006] WASCA 133 [31]. Of course, this assumption is not absolute and the test of whether a miscarriage of justice has occurred requires a judgment to be made by the…
R v Clark [2005] VSCA 294
Citation 16 (Para 4)

…hat the Benchbook also advises that the suggested direction should only be given where the jury indicates that it is struggling with the concept. See R v Clark (2005) 159 A Crim R 281 at 288. In this case, sentences [c] and [d] of the challenged direction of the learned trial judge raise the spectre of a juror asse…
R v Skaf [2004] NSWCCA 37
Citation 17 (Para 1)

…to the evidence of the discovery of the documents in the jury room after the conclusion of the jury's deliberations. In R v Bilal Skaf, R v Mohammed [2004] NSWCCA 37 at [214]-[215], 60 NSWLR 86, per Mason P, Wood CJ at CL and Sully J, in a joint judgment said: "214 It is equally well established that there is no b…
R v K [2003] NSWCCA 406
Citation 18 (Para 1)

…onviction in light of evidence that jurors had conducted internet searches disclosing inadmissible and prejudicial material about the accused ( R v K [2003] NSWCCA 406). Wood CJ at CL (with whose reasons Grove and Dunford JJ concurred) drew a distinction (at 13) between the material which related to the internet sea…
R v Czajkowski [2002] NSWCCA 530
Citation 19 (Para 1)

…justice will be established and verdicts of guilty will be quashed: Cant v The Queen [2002] NTCCA 8, 12 NTLR 133 (CCA); R v Czajkowski, R v Shepherd [2002] NSWCCA 530, 137 A Crim R 111.…
Cant v The Queen [2002] NTCCA 8
Citation 20 (Para 1)

…ered, or the jury has not been discharged, then a miscarriage of justice will be established and verdicts of guilty will be quashed: Cant v The Queen [2002] NTCCA 8, 12 NTLR 133 (CCA); R v Czajkowski, R v Shepherd [2002] NSWCCA 530, 137 A Crim R 111.…
Murray v The Queen [2002] HCA 26
Citation 21 (Para 1)

…and reliable. Her Honour also warned the jury of the need to scrutinise Mr Axton's evidence with care, in accordance with the direction formulated in Murray v The Queen (1987) 11 NSWLR 12, 30 A Crim R 315. (b)Her Honour provided detailed directions on the question of the presumption of innocence and the burden of proof. Her…
Graham v R [2000] TASSC 153
Citation 22 (Para 5)

…hat it amounts to an error of law to direct the jury that they should analyse a doubt in order to decide whether it is a reasonable doubt: Graham v R [2000] TASSC 153; (2000) 116 A Crim R 108; R v Pahuja (1987) 49 SASR 191, King CJ at 195, Johnston J at 220; Ladd v R [2009] NTCCA 6; (2009) 27 NTLR 1 at [144] – [215…
Gilbert v The Queen [2000] HCA 15
Citation 23 (Para 1)

…fected the verdicts. In considering this question, it is reasonable to have regard to the statement of Gleeson CJ and Gummow J in Gilbert v The Queen [2000] HCA 15, 109 A Crim R 580, at [13]: "The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, j…
Salehi v The Queen [1999] WASCA 279
Citation 24 (Para 4)

…y the New South Wales Court of Criminal Appeal in Yuill (1993) 69 A Crim R 450, and by the Court of Appeal in Western Australia in Salehi v The Queen [1999] WASCA 279 and The State of Western Australia v Bowen [2006] WASCA 133 [31]. Of course, this assumption is not absolute and the test of whether a miscarriage of…
Krakouer v The Queen [1998] HCA 43
Citation 25 (Para 5)

…st be quashed and a new trial ordered: Wilde v R [1988] HCA 6; (1988) 164 CLR 365, per Brennan, Dawson and Toohey JJ at 373; Krakouer v R [1998] HCA 43; (1998) 194 CLR 202, per McHugh J at 226; Graham per Cox CJ at [20] and Underwood J at [69]."…
Webb v the Queen [1994] HCA 30
Citation 26 (Para 1)

…discharged their or its task impartially or at all, then, if identified during the trial, the jury must be discharged ( Webb v The Queen (1993-1994) 181 CLR 41). If the circumstances are subsequently discovered, or the jury has not been discharged, then a miscarriage of justice will be established and verdic…
Wilde v the Queen [1988] HCA 6
Citation 27 (Para 5)

…is no room for the 'proviso' – s402(2) of the Code – to be applied, and the conviction must be quashed and a new trial ordered: Wilde v R [1988] HCA 6; (1988) 164 CLR 365, per Brennan, Dawson and Toohey JJ at 373; Krakouer v R [1998] HCA 43; (1998) 194 CLR 202, per McHugh J at 226; Graham per Cox CJ at [20] and…
Leaman v The Queen [1987] TASSC 21
Citation 28 (Para 4)

…f whether a miscarriage of justice has occurred requires a judgment to be made by the appeal court as to the potential effect of the irregularity. In Leaman v The Queen (1987) 28 A Crim R 104, Neasey J, when considering whether there had been a miscarriage of justice as a result of the refusal of the trial judge to order se…
Brown v the Queen [1986] HCA 11
Citation 29 (Para 2)

…e degree in his directions to the jury on what is meant by 'beyond reasonable doubt'. This Court has repeatedly held that this is not to be done: see Brown v The Queen (1913) 17 CLR 570 at 584; Thomas v The Queen (1960) 102 CLR 584 at 587, 595, 604 to 606; Dawson v The Queen (1961) 106 CLR 1 at 18; Green v The Queen (1971)…
Driscoll v The Queen [1977] HCA 43
Citation 30 (Para 5)

…n the trial process, not just one which relates to the performance or conduct of the jury, has caused a miscarriage of justice ( Driscoll v The Queen (1977) 137 CLR 517; Maric v The Queen (1978) 20 ALR 513). It would seem that that test has been accepted and applied by intermediate courts of appeal in a number of oth…
Demirok v The Queen [1977] HCA 21
Citation 31 (Para 3)

…In Demirok v The Queen (1977) 137 CLR 20 , Barwick CJ said at 22: "In the administration of the criminal law, it must be accepted until the contrary is demonstrated that the jury accept and faithfully apply the judge's direction. The law cannot be administered upon any other basis."…
La Fontaine v The Queen [1976] HCA 52
Citation 32 (Para 2)

…CLR 584 at 587, 595, 604 to 606; Dawson v The Queen (1961) 106 CLR 1 at 18; Green v The Queen (1971) 126 CLR 28 at 31 to 32; La Fontaine v The Queen (1976) 136 CLR 62 at 71 and 84. As was said of these cases, in Green (1971) 126 CLR 28 at 32, they: 'are but some of many admonitions to judges presiding over criminal…
Green v The Queen [1971] HCA 55
Citation 33 (Para 2)

…(1913) 17 CLR 570 at 584; Thomas v The Queen (1960) 102 CLR 584 at 587, 595, 604 to 606; Dawson v The Queen (1961) 106 CLR 1 at 18; Green v The Queen (1971) 126 CLR 28 at 31 to 32; La Fontaine v The Queen (1976) 136 CLR 62 at 71 and 84. As was said of these cases, in Green (1971) 126 CLR 28 at 32, they: 'are but som…
Dawson v The Queen [1961] HCA 74
Citation 34 (Para 2)

…is not to be done: see Brown v The Queen (1913) 17 CLR 570 at 584; Thomas v The Queen (1960) 102 CLR 584 at 587, 595, 604 to 606; Dawson v The Queen (1961) 106 CLR 1 at 18; Green v The Queen (1971) 126 CLR 28 at 31 to 32; La Fontaine v The Queen (1976) 136 CLR 62 at 71 and 84. As was said of these cases, in Green…
Thomas v The Queen [1960] HCA 2
Citation 35 (Para 2)

…ond reasonable doubt'. This Court has repeatedly held that this is not to be done: see Brown v The Queen (1913) 17 CLR 570 at 584; Thomas v The Queen (1960) 102 CLR 584 at 587, 595, 604 to 606; Dawson v The Queen (1961) 106 CLR 1 at 18; Green v The Queen (1971) 126 CLR 28 at 31 to 32; La Fontaine v The Queen (1976) 1…
Brown v The King [1913] HCA 70
Citation 36 (Para 2)

…rections to the jury on what is meant by 'beyond reasonable doubt'. This Court has repeatedly held that this is not to be done: see Brown v The Queen (1913) 17 CLR 570 at 584; Thomas v The Queen (1960) 102 CLR 584 at 587, 595, 604 to 606; Dawson v The Queen (1961) 106 CLR 1 at 18; Green v The Queen (1971) 126 CLR 28…
R v Skaf [2006] HCATrans 10
Citation 37 (Para 1)

…of the documents in the jury room after the conclusion of the jury's deliberations. In R v Bilal Skaf, R v Mohammed [2004] NSWCCA 37 at [214]-[215], 60 NSWLR 86, per Mason P, Wood CJ at CL and Sully J, in a joint judgment said: "214 It is equally well established that there is no blanket exclusion of evidence…
Pahuja v The Queen [1990] HCATrans 177
Citation 38 (Para 5)

…hat they should analyse a doubt in order to decide whether it is a reasonable doubt: Graham v R [2000] TASSC 153; (2000) 116 A Crim R 108; R v Pahuja (1987) 49 SASR 191, King CJ at 195, Johnston J at 220; Ladd v R [2009] NTCCA 6; (2009) 27 NTLR 1 at [144] – [215]. As stated by Windeyer J in Thomas at 605 – 606 'The t…

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