Smith v The Queen

Case [2015] HCA 27

HIGH COURT OF AUSTRALIA

FRENCH CJ,
KIEFEL, BELL, GAGELER AND GORDON JJ

LESLIE GLYN SMITH  APPELLANT

AND

THE QUEEN  RESPONDENT

Smith v The Queen

[2015] HCA 27

5 August 2015

B18/2015

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Queensland

Representation

A Boe with P Morreau and S McGee for the appellant (instructed by Biggs Fitzgerald Pike Solicitors)

A W Moynihan QC with S J Hedge for the respondent (instructed by Director of Public Prosecutions (Qld))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Smith v The Queen

Criminal law – Appeal – Appeal against conviction – Fair trial – Procedural fairness – Jury disclosed interim votes and interim voting patterns to judge – Judge did not disclose jury's interim votes or voting patterns to counsel – Judge's obligation to inform counsel of precise terms of jury's questions – Whether appellant denied procedural fairness by non-disclosure of jury's interim votes and voting patterns – Whether jury's interim votes and voting patterns relevant consideration to issue before court – Whether jury's interim votes and voting patterns relevant to discretion to permit majority verdict or discharge jury – Whether disclosure of jury's interim votes and voting patterns necessary for proper performance of jury's functions.

Criminal law – Confidentiality of jury deliberations – Directions to jury – Directions not to communicate or reveal interim votes or interim voting patterns to court – Whether appropriate for trial judge to inquire of jury as to interim votes or voting patterns.

Words and phrases – "capacity to influence the trial judge's exercise of discretion", "confidentiality of jury deliberations", "interim votes", "interim voting patterns", "necessary for the proper performance of the jury's functions", "procedural fairness".

Jury Act 1995 (Q), ss 50, 59A, 60(1), 70.

  1. FRENCH CJ.   I agree with Gordon J.

  2. KIEFEL J.   I agree with Gordon J.

  3. BELL J.   I agree with Gordon J.

  4. GAGELER J.   I agree with Gordon J.

  5. GORDON J.   The appellant was charged with one count of rape.  He was tried in the District Court of Queensland by judge and jury.  After the jury retired to consider its verdict, the trial judge received a note from the jury which disclosed interim votes of the jury and the voting pattern for each disclosed interim vote.  The trial judge told counsel that the note indicated that the jury was not in total agreement but the trial judge did not disclose to counsel those interim votes or interim voting patterns.  Did the failure of the trial judge to inform counsel of those interim votes and interim voting patterns constitute a denial of procedural fairness?  The answer to that question is no. 

  6. There was no denial of procedural fairness.  The interim votes and interim voting patterns of the jury were not relevant to the future conduct of the trial.  What was relevant to the issue before the court about the future conduct of the trial were the jury speaker's…

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Details
AGLC
Smith v The Queen [2015] HCA 27
Case
[2015] HCA 27
Decision Date

CaseChat Overview and Summary

In Smith v The Queen, the appellant appealed against his conviction for sexual intercourse without consent, where the central issues for the jury were consent and the appellant's honest and reasonable belief in consent. The appeal concerned the conduct of the trial judge in relation to communications with the jury.

The High Court of Australia was required to determine whether the trial judge's failure to disclose the jury's interim votes and voting patterns to counsel constituted a denial of procedural fairness. This involved considering whether such information was relevant to any issue before the court, including the exercise of the judge's discretion regarding majority verdicts or the discharge of the jury, and whether disclosure was necessary for the proper performance of the jury's functions. The court also considered the appropriateness of a trial judge inquiring about interim votes or voting patterns, and the principle of confidentiality in jury deliberations.

The High Court reasoned that the interim votes and voting patterns of the jury were not relevant to any issue before the court. The court distinguished between jury questions that directly address the ultimate question of guilt or the inability to reach a verdict, which are material and require disclosure to counsel, and questions that are merely steps towards a final conclusion. The judge's obligation to inform counsel of the precise terms of jury questions arises because those questions are relevant to the issues before the court. In this instance, the jury's interim voting information was not considered relevant to the future conduct of the trial or the judge's discretion.

The appeal was dismissed. The Court concluded that the non-disclosure of the jury's interim votes and voting patterns did not amount to a denial of procedural fairness, as this material was not relevant to any issue before the court.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

There was no denial of procedural fairness. The interim votes and interim voting patterns of the jury were not relevant to the future conduct of the trial. What was relevant to the issue before the court about the future conduct of the trial were the jury speaker's answers, given in open court, to the trial judge's direct questions about whether allowing a majority verdict might resolve the situation and whether the jury wanted more time to consider its verdict. The appeal should be dismissed.The facts The appellant's trial began on Tuesday, 18 February 2014. There was no dispute that the appellant had sexual intercourse with the complainant. The issues for the jury were whether that intercourse was by consent and, if not, whether the appellant had an honest and reasonable, but mistaken, belief as to consent. The jury retired to consider its verdict at 11.14 am on Friday, 21 February 2014. No direction was given to the jury concerning any prohibition or restriction upon the disclosure of jury deliberations to the court. The jury was told:"If you need any further directions on the law, again, all you need to do is ask. I ask if you have any requests that you reduce them to writing so that they can be considered before you are brought back in the court room." At 3.09 pm that day, the jury was permitted to disperse and return the following Monday to resume deliberations. The trial judge said, in part:"You shouldn't talk to anyone at all about the case or any of the decisions you've got to make or any thoughts you've got about the case, and that also includes any one of your number, at this stage. You should only deliberate when all 12 of you are together, so, when I allow you to separate now and go home, you can't even talk about it between yourselves, all right? So simply put the case aside. Obviously, you can think about it over the weekend, but you shouldn't discuss it with anyone else." On Monday, 24 February 2014, the jury resumed deliberations. The jury sent the trial judge a note. The jury sought further direction on the term "beyond reasonable doubt", the reading of part of a witness' statement and a definition of "consent". Following consultation with counsel, the trial judge dealt with those matters at 12.31 pm. At 2.31 pm that day, the trial judge read to counsel a further note sent to him by the jury. The note read "[t]his jury cannot reach a consensus of opinion. Please advise." At 2.33 pm, the jury was given a Black[1] direction and asked to consider the matter anew. [1]Black v The Queen (1993) 179 CLR 44; [1993] HCA 71. At 4.20 pm, the trial judge told counsel that the jury had sent him a third note. The third note read:"To His Honour,The jury is still not in total agreeance.- First formal vote was [redacted] for [redacted] against (Guilty)- Second formal vote was[redacted] for [redacted] againstThank you." The trial judge informed counsel that the note read "[t]he jury is still not in total agreement." The trial judge told counsel that the note disclosed the jury's voting patterns, which he did not intend to publish further. The trial judge also stated that the jury had been deliberating for more than eight hours. Counsel did not disagree with that calculation or disagree with the trial judge's declaration that he did not intend to disclose the jury's voting patterns.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH CJ KIEFEL J BELL J GAGELER J GORDON J
The questions from the jury in this appeal demonstrate the point. The jury asked the trial judge questions concerning the term "beyond reasonable doubt" and access to part of the evidence, and a further question of law[39]. Those questions were material relevant to an issue before the court. Some questions from a jury are directed at the ultimate question of whether guilt has been established beyond reasonable doubt, the final conclusion being reflected in a verdict or the inability to reach a verdict. Other questions from a jury are steps along the way to that final conclusion. It is for those reasons that the precise questions are disclosed and the accused and the prosecution are afforded an opportunity to make submissions.[39]See [10] above.Conclusion and orders The failure of the trial judge to inform counsel of the interim votes and interim voting patterns of the jury did not constitute a denial of procedural fairness. The central question to be answered in reaching that conclusion was whether the material – the information about the interim votes and interim voting patterns of the jury – was relevant to an issue before the court. Neither the interim votes of the jury nor the interim voting patterns of the jury were relevant to any issue before the court or regarded as such by the trial judge. The appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, KIEFEL J, BELL J, GAGELER J, GORDON J

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