Smith v The Queen

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.