Medici vThe Queen

[1995] HCATrans 273

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M37 of 1995

B e t w e e n -

MATTEO ROSARIO MEDICI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 SEPTEMBER 1995, AT 11.53 AM

Copyright in the High Court of Australia

MR B.G. WALMSLEY:   May it please your Honours, I appear with my learned friend, MR M.R. SIMON, on behalf of the applicant.  (instructed by Jonathan Kemp & Associates)

MR G.R. FLATMAN:   May it please the Court, I appear with my learned friend, MS R.E. CARLIN, for the respondent.  (instructed by P. Wood, Solicitor to the Director of Public Prosecutions (Victoria))

DAWSON J:   Mr Walmsley.

MR WALMSLEY:   Thank you, your Honour. 

DAWSON J:   This is a short point, is it not?

MR WALMSLEY:   A short point I would like to think, your Honour, and much of what the Court of Appeal says is not in issue.  There is no argument that juries are substantially protected, and for good public policy reasons, from both curial and public examination of the deliberative process and, clearly, as a restatement of long-standing principle, a juror cannot be asked what took place, for example, during the deliberative process or offer an opinion as to the rationale behind the verdict and - - -

DAWSON J:   There is some legislation in this State, is there not?

MR WALMSLEY:   There is.  The Juries Act has been amended and the Court has had its attention directed to that amendment.  Section 69A of the Juries Act 1967 is the particular section.  Your Honours will see from that amendment that it statutorily prescribes the confidentiality of jury deliberations.  The Court of Appeal cites the particular section at page 32 and following in the application book and concludes after quoting, in turn, subsection (5) on page 33, that it was not, of course:

necessary for the determination of this appeal for the Court to explore and determine the parameters of that sub-section.  By its terms it would enable investigations to be made and disclosure to be had relevant to the commission of a criminal offence perpetrated during the course of the deliberations of a jury -

et cetera.  It is submitted that section 69A is not a statutory imposition upon the pre-existing common law situation that has permitted courts for many years to observe both the basic principle of the inviolate nature of jury deliberations and the exercise of some limited investigation in certain cases where, in the interests of justice, such a course is dictated.

I was going to take your Honours finally to that amendment to the Victorian Act and, indeed, another amendment which has an impact here and that is section 51A of the Juries Act which has, as explained - - -

DAWSON J:   It must be a very recent amendment, is it, Mr Walmsley?

MR WALMSLEY:   Operative from February 1994, your Honour. 

DAWSON J:   I have a reprint up to 1992.

MR WALMSLEY:    Section 51A(1) is in these terms:

Subject to sub-section (2) but despite anything to the contrary in any rule of law or practice, the court may, in its discretion, allow the jury to separate at any time between it retiring to consider its verdict and the verdict being given or the jurors being discharged.

That of course - - -

DAWSON J:   Previously, the practice was that the jurors could separate up until the time they retired to consider their verdict but thereafter they must be kept together, is that right?

MR WALMSLEY:   That is so, your Honour, and, indeed, a useful review of the relevant history can be found in the judgment of his Honour Mr Justice Kaye in Chaouk’s Case - - -

DAWSON J:If you could just tell us.

MR WALMSLEY:   Yes, that that, effectively, is the case, that as a matter of practical application, juries, commonly, in recent years in Victoria have been at large until that stage of the trial, usually, when they are asked to consider their verdict, sometimes slightly prior to that, and they are then or were then kept together. 

DAWSON J:   So, what, now they deliberate for a certain time and then they go home?

MR WALMSLEY:   Yes.  Indeed, the facts of this case is a good example of that.  The jury deliberated for seven days which included a Sunday and on the conclusion of each day, which included Saturday night, they were sent home to resume their deliberations the next day; in the weekend situation on, of course, the following Monday.  That was to be my final point but because we are on it, we may as well deal with it now:  because of these recent changes in the procedures affecting juries, we have two things happening.  On one side we have juries being released from what was seen, perhaps, to be an onerous burden, too onerous, too great an intrusion into their daily lives and allowed to be at large while still being subject to the trial judge’s directions that they must, of course, harken to the evidence and obey his directions at law.  They are then free to re-immerse themselves in everyday life and, as lay people, be subjected to all manner of influences.

Yet, at the other end of the scale, per courtesy of 69A, we have the statutory insertion of penal sanctions against jurors or outsiders asking too many questions about the nature of their deliberations or how they arrived at conclusions.  It might be time now for a far closer look at the long-standing principle that has held jury deliberations inviolate because now one can assume, with greater frequency, incidents - to pick up the language used in Webb & Hay by this Court - are more likely to occur of a kind that at least raise the spectre of a miscarriage of justice.

If we are still burdened with the letter of the old principle in Ellis v Deheer’s Case, Thompson’s Case and the earlier cases in England and here, then what will occur will be that juries will remain inviolate and in the face of suspected incidents of a nature that might well lead to a miscarriage of justice, the Court and the appellate courts will not be able to do anything about it.

TOOHEY J:   That sounds like a cri de coeur which might have something going for it but in the end you have to enunciate some principle, do you not, by which the Court should, in this case, carry out the sort of inquiry that you suggest.

MR WALMSLEY:   Quite so, and the principle is - - -

DAWSON J:   And it would have to be a principle which is consonant with section 69A, particularly subsection (2).

MR WALMSLEY:   Yes, quite so.  It is submitted that in certain circumstances if an incident - again to use that language - is observed that has the potential to raise the spectre of a miscarriage of justice, the real apprehension that the jury might not have performed and conducted itself according to law, then it can be isolated, if you like, and ought to be scrutinised as an incident.    It is submitted that that was the case here.  The incident is easily identified to the - - -

DAWSON J:   What is the incident?

MR WALMSLEY:   The incident is this, that at the conclusion of seven days deliberations, in the context of being at large in the evening hours on each of the days, including a full Sunday, and in the context of the jury being preoccupied in asking questions demonstrating confusion as to the state of the law of conspiracy, on more than one occasion, at the conclusion of their deliberations eight copies of a foreign text, an American text on the law of conspiracy with annotations and markings on it was found in their jury room.

It can be safely, it is submitted, inferred from that that the jury had recourse to the foreign text and the consequence of that conclusion or “real suspicion”, to use the words in Chaouk, or “real apprehension”, to use the words in Webb & Hay, that is raised is that they have disobeyed the directions of the judge as to - - -

DAWSON J:   That is taking it a long way.  Why is that a necessary inference from merely finding these copies?  It may be that one juror had this in mind and when he attempted to use this it was pointed out to him that the judge had said that the sole source of the law was his directions and we must disregard this.  In fact, one must assume, must one not, unless there is real evidence to the contrary, that the jury did obey the judge’s directions.

MR WALMSLEY:   Yes, in the absence of anything to the contrary, but what we have here is an intrusion into the jury room of a foreign text which, of course, in terms, demonstrates that someone has had recourse to it and in circumstances where, to do so, would be to contravene the judge’s solemn directions that they must take their law from him.

The statement of principle that is sought to be invoked here is really a combination of that adumbrated in Chaouk’s Case when dealing with a procedural irregularity at a time prior to the amendment to section 51 of our Juries Act where, as your Honours would appreciate, the jurors were unattended and not kept safe from outside interference, and that which was the view of all of the Justices of this Court in Webb & Hay, that the event, the incident as it was called, of giving flowers to the victim’s relative did raise a real apprehension that something had gone wrong or might go wrong and that the interests of justice were not likely to be served as a consequence.  In that case, of course, the majority observed that the problem was identified during the curial process and because of events that then occurred, the real apprehension abated.

It is submitted that the statement of principle here that now should come into sharp focus in dealing with cases such as these, because of these amendments to the Victorian Act which appear in spirit, at least, to have been similar to recent amendments in New South Wales and one which is planned very shortly for Queensland - - -

TOOHEY J:   Could I just ask you this:  how far does the argument go?  Is it that the court below erred in not admitting the evidence of the tipstaff that eight copies of this publication were found in the jury room after the jury had reached its verdict or does it go on to say that the court should have admitted further evidence as to the circumstances in which the volume came to be there?

MR WALMSLEY:   Both of those and a further matter.  It is submitted that the court erred in not receiving formally, if formal receipt was necessary, the evidence of the tipstaff but, more significantly, not in the result receiving the offending document - that which was still surviving, the other seven having been destroyed - except in the de bene esse since that the court received it.  That was, it is submitted, an error.  But one can then draw a line at that point and observe that if the court had have done those things and taken into account the utterances of the trial judge at relevant times per courtesy of the transcript, then the court had enough to observe an irregularity, a material irregularity of a kind - call it procedural irregularity or material irregularity - that then, because there was no other cure available ‑ it was not a case as in Webb & Hay were the curial process had not concluded and the bridges were mended.  Here, the only cure after the event was, in the interests of justice, to grant a retrial.

In the alternative, to follow your Honour’s question, if that was not seen to be enough, then, yes, in certain circumstances and despite the operation of section 69A of the Act, the court should embark upon a limited inquiry because if one analyses it carefully, it is not really an intrusion into the deliberative process of the jury, the proper deliberative process of a jury, but an inquiry to determine what in fact occurred, extraneous to those proper deliberations of a kind that, once raised, indicates, on the face of it, the real apprehension or the real suspicion or fear that in the result a miscarriage of justice has occurred.

TOOHEY J:   Does your argument go so far as to say that the court should have allowed evidence as to the possession - if, indeed, there was possession ‑ by members of the jury, in this case, of the volume?

MR WALMSLEY:   Yes, in the alternative.  I say you can stop short of that in the way that I have indicated but, yes, being more expansive, if you go to the secondary aspect of my argument, that is what the court should have done.

TOOHEY J:   You are running perilously close to subsection (5) then, are you not?

MR WALMSLEY:   Section 69A then, yes.  Clearly so, and 69A might get in the way then.  But that is the problem.  We have 69A as a penal sanction with some teeth in almost a code of prescribed jury conduct that is loosening up the ability of a jury to inadvertently or even purposefully and mischievously take on board extraneous matters which, in the result, do not permit them to be true to their oath.  It might be that there is no longer room for the strict application of what is erstwhile being seen to be the inviolate nature of jury deliberations and there is now a need to review that comprehensively, particularly in the light of - - -

TOOHEY J:   We cannot just review it comprehensively, can we?  I mean, we have to take the statute law as it is and the common law as it has been developed and build on that.

MR WALMSLEY:   Yes, that is true and finally, on that issue, I can say that I am personally aware of two other appeals, one in New South Wales and one in Queensland, that are the subject of reserve judgments at this stage that are dealing with the issue of the extent to which the appellate courts ought to intrude into an examination of the deliberative process for reasons that are seen to be objectively sound, that is, they demonstrate, upon examination, the risk of a miscarriage of justice or whether this principle is so well entrenched that despite these loosening statutory provisions, we are trapped in the worst of either world.

That is why it is submitted that the court here erred.  It made two mistakes, it refused to take on board the document, wrongly determining that to do so would be to enter the domain of an examination of the deliberative process.  It is submitted that does not pertain because, in the way that Chaouk talked of it, in the way that Webb & Hay analysed an incident, there is scope for analysis well short of the need to intrude into the jury room.  It is submitted that one or other of those avenues should have been adopted.  I notice it is time.

DAWSON J:   Thank you, Mr Walmsley.  Yes, Mr Flatman.

MR FLATMAN:   May it please the Court.  The approach of the Court of Criminal Appeal correctly identified the history of the cases and the approach to be followed, particularly from the competing interests set out in Mathews and Ford and that was set out at page 26 of the judgment of the Court of Criminal Appeal which referred to a passage at page 211 of the judgment of Mathews and Ford. 

On the other hand the Curts have recognised that there is another social interest which needs to be considered, namely, the interest of the community (as well as a defeated litigant or convicted person as the case may be) in seeing that the accepted rules and formalities of a fair trial are maintained and enforced.  The Courts have, therefore, in proper cases received evidence tendered to show misconduct or partiality or bias on the part of jurors, or that the rules of procedure have not been followed by the jurors, as, for instance that they have separated during their deliberations, or that one or more of them have taken part in a private view, or a consultation with a witness or a party, or that a juror has accepted bribes or read inadmissible documents, or that the verdict has been determined by lot, game of chance or other impermissible means.

That was contrasted with the general approach that the courts were loath to inquire into jury’s deliberations because of what was said to be four fundamental points:  the need for confidentiality, the need for the verdict to be treated as the outward formal expression of the jury, the need to ensure finality and the need to protect jurors from the importuning of defeated litigants.   But in the passage that I read to the Court from page 26 of the application book, the Court of Criminal Appeal recognised that there may be cases which, because of the particular circumstances, give rise to a conclusion that the interests of the public or the public perception is such that they should receive evidence tendered to show misconduct or partiality or bias.

TOOHEY J:   But you do not necessarily reach that stage here, do you?  Say, for instance, all that was sought to adduce by way of evidence was that at the conclusion of the trial there was found in the jury room eight copies of the volume that had some possible bearing on matters that the jury had to consider.  Now, it may be  - and I am not saying it is - that that is enough to give rise to a reasonable apprehension of a miscarriage of justice.  That is perhaps the strongest way in which the applicant can really put his case because from thereon you start to get into the area of inquiring what really went on in the jury room.  In a sense, you do not have to do that for the purposes of that first step that might be taken.

MR FLATMAN:   That is precisely what the Court of Criminal Appeal did here.  In my submission, they followed the line of reasoning in Chaouk’s Case that there may be a situation where you can look at the irregularity as such without taking the further step.  Indeed, that is precisely what they did.

TOOHEY J:   Can you just show us, Mr Flatman, precisely the passage or passages at which the court took that approach, in the present case?

MR FLATMAN:   The conclusions are really set out at pages 34, 35 and 36.  At page 34 of the application book, at line 18:

The fact that at some stage after a jury has returned its verdict convicting an accused and it has vacated the jury room, there is found in the jury room a particular document, does not necessarily mean that the document was in the jury room during the course of the trial and when the jury was deliberating or more importantly whether it was seen by one or other members of the jury.  Whether an inference can be drawn that such a document was in the jury room during this period of time and the strength of that inference may depend on a number of other facts.  There may be cases where an Appeal Court may seek to obtain evidence from the members of a former jury relevant to such matters.  Such a course may be followed where the document that was said to be found in the jury room may of itself point to a procedural irregularity or “give rise to a reasonable apprehension or suspicion on the part of fair-minded and informed members of the public” that a juror or the jury had not discharged their task with impartiality.  An example of such a situation may occur if the document found was a document which was in Court during the trial, but not admitted in evidence but which may have been wrongly included among the documents that went out to the jury when they deliberated, by a mistake of a Court officer.

The document now sought to be put before this Court is not such a document.  Assuming for the purpose of argument that it and seven other copies of the same, were in the jury room during the jury’s deliberations, it does not provide evidence of a procedural irregularity having occurred during the course of the trial or that there arises a reasonable apprehension or suspicion that one or other members of the jury failed to act impartially to the accused.  Accordingly it is our opinion that even if the document and the seven other copies of it were present in the jury room during the course of the trial and/or while the jury was deliberating it does not constitute a material irregularity in the conduct of the trial giving rise to a miscarriage of justice which would warrant this Court setting aside the verdict.

DAWSON J:   Yes, but when you boil all that down - it does not matter whether they received the document or not, they looked at it de bene esse - the fact of the matter is they said they could not draw the necessary inference from the presence of this document in the jury room after the jury had ceased deliberating.  That is it, is it not?

MR FLATMAN:   Which it was open for them to do.  They went, in my submission, as far as they could go in the circumstances of the case.

DAWSON J:   Why is it not right to say, as Mr Walmsley puts it against you, “Look, it must have been there for some purpose; there were eight copies; they were annotated by hand and the only reasonable inference is someone had taken these documents into the jury room to use”.  It is not a matter of impartiality, it is a question whether they applied a law which was the wrong law.  I do not know whether Mr Burke and Mr Kadish espoused a view of conspiracy which was different from that one which was expounded by the trial judge.  I would be intrigued to know, but you need not answer that question.

MR FLATMAN:   I think we have a dispute about whether that is the case or not.

DAWSON J:   It is not really relevant.

MR FLATMAN:   I think that is a different question.  My point is this, that the Full Court did examine the document and they looked at it in terms of the very questions that Mr Walmsley has raised and then, having looked at the document, taken the view that it was not a document that could lead to that kind of conclusion.

DAWSON J:   So, what you are saying is one can argue about these things but this is not a special leave case because this Court should not take this case on board merely to examine the question which the Court of Criminal Appeal examined applying the same principles for the purpose of coming to a different conclusion?

MR FLATMAN:   The Court of Criminal Appeal applied all the correct principles and viewed the document in fact and, as part of applying those principles, they exercised their discretion at that stage.

DAWSON J:   It is not the discretion, it is a question of whether they were prepared to draw an inference and they were not.

MR FLATMAN:   Whether they were prepared to draw an inference, but it is similar to a situation of arguing about the - it is the application of inference or a question of fact, I suppose, by the Court of Criminal Appeal and this Court - - -

DAWSON J:   Am I right:  no one is suggesting that the Court of Criminal Appeal should have gone further and examined jurors as to what actually happened?

MR FLATMAN:   I do not suggest it.

DAWSON J:   You say Mr Walmsley is - that is a matter for Mr Walmsley, I suppose.

MR FLATMAN:   I think Mr Walmsley before was saying that that might be a course that could be followed.  It seems to me - - -

TOOHEY J:   I do not think he went so far as to say that the jury could be questioned any further than whether or not they had the document in their possession, not what regard they had to it or what bearing it had on their deliberations.  I think he stopped short of that.

DAWSON J:   What do you say about section 69A(2) of the Juries Act and a court, in those circumstances?  Does “a person” include members of the Court of Criminal Appeal?

MR FLATMAN:   The Court of Criminal Appeal approached the question at the bottom of page 33 of the application book, having set out section 69A(5):

It is not necessary for the determination of this appeal for the Court to explore and determine the parameters of that sub­section.  By its terms it would enable investigations to be made and disclosure to be had relevant to the commission of a criminal offence perpetrated during the course of the deliberations of a jury.  Further, by its operation a Judge or a Court might be able to investigate and obtain information from jurors relevant to procedural irregularities occurring during the course of the deliberations of a jury.  In appropriate cases it might also enable wider investigations to be had and disclosures made relevant to what occurred during the course of a jury’s deliberations.  However we do not read the provisions of s.69A of the Act and in particular sub-s.(5) as evincing an intention of Parliament to bring about a change to the general proposition that a Court will not receive evidence after verdict or enquire into what has taken place or passed between jurors during their deliberations or the reason for its decision.

DAWSON J:   I am not sure what that means, that section.

MR FLATMAN:   That passage?

TOOHEY J:   Say, for instance, it became known that a stranger to the trial had - stranger or not, but someone had entered the jury room during the jury’s deliberations.  Is that a matter that could be inquired into at least to the extent of whether somebody did enter the jury room?

MR FLATMAN:   That would constitute the kind of procedural irregularity, I would have thought, your Honour, that the court envisaged in that reference to the legislation.  That is a procedural irregularity of a significant kind.

DAWSON J:   If one reads subsection (5) correctly, cutting out all the unnecessary verbiage: 

Nothing in this section prevents a person who is or has been a member of a jury disclosing to a judge....any information about the deliberations of a jury -

is that how it reads?

MR FLATMAN:   “Any information about the deliberations of a jury, or.....the disclosure”, yes.

DAWSON J:   Well then, why would not this section have enabled the court to have asked a juror about what happened?

MR FLATMAN:   The court took the view, your Honour, that it was limited in its meaning in relation to criminal offences perpetrated during the course of the deliberations, that it was a section that enabled a judge or a court to investigate certain things but that it did not change the general position at law that a court would not receive evidence after verdict or inquire into what had taken place or passed between jurors during their deliberations or the reason for its decision.  That is well established by law and the section did not change that but simply introduced sanctions in relation to the - - -

DAWSON J:   I can see that, that it does not change the previous common law position.  It just means that the section does not impose any additional restrictions.

TOOHEY J:   It is pretty wide in its operation actually, is it not, if in fact it constitutes some sort of imprimatur for the inquiry as opposed to maybe just representing some break on the ordinary principles because it speaks of “a judge” and then goes on:

any information about the deliberations of a jury, or the investigations by the police.....of any complaint made about the deliberations of the jury -

that is, admittedly, “at the request of the Director of Public Prosecutions”.

MR FLATMAN:   And that would suggest, in relation to a complaint about the deliberations of the jury, that that would relate to a procedural irregularity or a criminal offence.  The issue that this case is concerned with is a question that goes to the deliberations of the jury as opposed to a procedural irregularity and the court here has applied the proper approach and that is to look at the document and form its preliminary assessment of it.  Given the assessment that the Court of Criminal Appeal made of the document - I am putting it that the Court of Criminal Appeal considered the document applying all the appropriate principles - then they did not find it necessary to answer the further question as to whether there ought to be a further receiving of the document or a further question concerning the way the document might have been used.

In those circumstances, they made their decision according to law and any question that arises out of the application of the Juries Act or any question that might flow from a further investigation does not become relevant.

TOOHEY J:   Mr Flatman, what was the time interval between the conclusion of the jury’s deliberations and the finding of this material by the tipstaff while cleaning up?

MR FLATMAN:   I think the jury verdicts were completed in the morning and this was in the afternoon.  It is suggested hours.  My understanding of it was that the report of it became available after the luncheon adjournment and the jury had concluded its verdict earlier that morning.

TOOHEY J:   Is there any suggestion as to whether another trial had taken place in the meantime or had not taken place?

MR FLATMAN:   It was listed for plea, as I understand it.  The jury verdict was given; it was listed that afternoon.  My submission, in very simple - - -

DAWSON J:   What you are saying is there is no error in principle here.  It may be that others would apply the same principles and come to a different conclusion but that is not a reason for granting special leave.  That is essentially it, is it not?

MR FLATMAN:   That is it, your Honour.  Thank you.

DAWSON J:   Thank you, Mr Flatman.  Mr Walmsley.

MR WALMSLEY:   The error in principle is demonstrated by, in my respectful submission, what the Court of Appeal says on page 36 of the application book as reviewed by my learned friend with your Honours in about the fourth line:

For this Court to receive the document together with factual evidence relevant to its finding by the tipstaff as a basis for the drawing of such an inference would be for this Court to receive evidence as to what transpired between jurors, and as to what matters they took into account during the course of their deliberations.

It is submitted that that is a clear error and ignores the force of what was said in Chaouk and, indeed, in Webb & Hay as adopted partially in the unreported decision of Evans.

In Chaouk, in each of the judgments - and they were separate judgments - their Honours raise pertinent observations.  Firstly, the test of irregularity is stated by his Honour Mr Justice Kaye at 712 where he indicates, having identified an incident, relying upon a quotation from the case of Duff:

“whether the incident was of such a character that, if the verdict is allowed to stand, justice would not appear to be done or that the incident was likely to give rise to a reasonable suspicion concerning the fairness of the trial”.

He continues over the page in time honoured reference to the oft quoted dicta of his Honour Mr Justice Fullagar in Mraz’s Case in these terms:

every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed.  If there is any failure in any of these respects, and the appellant may thereby have lost a change which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. 

In the judgment of Mr Justice Fullagar, at 715, he so categorised the incident in all its surrounding circumstances as one which itself constituted a miscarriage of justice, irrespective of any conclusion upon what he referred to as the first question, an examination of whether there was a reasonable possibility of influence.  His Honour Mr Justice Hampel, at 717:

It is of fundamental importance that the basic rules pertaining to the criminal trial process should be strictly adhered to particularly in relation to jury deliberations.

His Honour Justice Brennan, in Hay’s Case, stated at 57 and 58 in at least a favourable notation of Chaouk’s Case:

The possibility of a prejudicial communication during the journey by taxi could not be excluded.

And certain things flowed from that. 

Other observations in the cases raise this spectre:  what is an accused man faced with this consequence to do?  How can he examine it?  How can he, when told and having heard the jury told that the law has to be as he directs them, test whether something seriously wrong has not occurred after the event?  And how can the ordinary man, the fair-minded and informed observer in Webb & Hay who has heard both the judges’ charge and discovered with everyone else this incident, have anything other than a real apprehension?  It is the event that occurs and an inquiry into the event, even if that intrudes into the privacy of a juror who is called back to say, “Did you receive this document?”, is not intruding into the inviolate nature of proper jury deliberation.  It is merely collecting appropriately material that ought to be collected once the spectre of a miscarriage of justice is there to be observed.  It was a mistake, an error in law of the Court of Appeal to determine that by receiving into evidence this offending text was to intrude into the jury deliberative process which they had concluded was forbidden.  That is the error and the error that should be reviewed by this Court.  May it please the Court.

DAWSON J:   Thank you, Mr Walmsley.  The Court will give its decision in this matter after lunch.

AT 12.40 THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.05 PM:

DAWSON J:   The Court is of the view that there was no departure from principle in the approach taken by the Court of Criminal Appeal with respect to the material found in the jury room which would warrant the grant of special leave.  That being so, it would not be appropriate for this Court to grant special leave in order to consider whether, applying the relevant principles, it would reach a different conclusion.  Special leave is therefore refused.

AT 2.06 PM THE MATTER WAS CONCLUDED