Smith v The Queen

[1985] HCA 62

HIGH COURT OF AUSTRALIA

Gibbs C.J., Wilson, Brennan, Deane and Dawson JJ.

SMITH v. THE QUEEN

(1985) 159 CLR 532

26 September 1985

Criminal Law—Jury

Criminal Law—Practice and procedure—"McKenzie friend"—Application—Previous refusal by accused of legal aid—Significance. Jury—Security—Special precautions—Circumstances in which judge should reveal taking of special precautions—Private communications between judge and jury on matter not material to jury's considerations—Whether miscarriage of justice.

Decisions

GIBBS C.J.: Although, in the opinion of the majority of the Court, the circumstances of the present case do not justify the grant of special leave to appeal, there are some matters which I would briefly mention.

2. The question whether an accused person should be allowed to have a "McKenzie friend" present at his trial is very much a matter of practice and procedure, and within the discretion of the trial judge to decide. It would be far too absolute to say that an application to have a "McKenzie friend" should always be refused. All the circumstances of the case must be considered in deciding upon the application. However, when the accused has been offered legal aid but has refused it, and nevertheless desires to have a barrister appear as a "McKenzie friend", it would be understandable if the judge regarded his application with some scepticism.

3. When it is necessary for a trial judge to take special precautions for the security of the jury (a situation which one would expect to be exceptional) the judge should take special care to ensure that the precautions are no more obvious than is necessary, and that all possible steps are taken to avoid or mitigate the prejudicial effect which such precautions may have on the mind of the jury. It may in some cases be desirable for the judge to advise the accused of the nature of the precautions or to warn the jury that they should not be influenced by the fact that the precautions were taken. But whether that will be so must depend on the circumstances of the case. Special leave to appeal would not ordinarily be granted for the purpose of enabling this Court to review the exercise of the judge's discretion in circumstances such as these, particularly when, as in the present case, all the relevant facts do not appear from the material before the Court.

4. The final submission made on behalf of the applicant related to a private communication from the foreman of the jury to the effect that his home was receiving telephone calls which he connected with his role in the trial. It is fundamental law that no private communication may be made between the judge and the jury if the communication is material or may affect the jury's consideration of the case. It might be wise for a judge to disclose any communication made by the jury, but it does not follow that a failure to reveal a communication which is not material to the jury's decision will be a breach of the principle that criminal trials must be held in public, or that such a failure will necessarily result in a miscarriage of justice.

5. I would refuse special leave to appeal.

WILSON J.: I also would refuse special leave to appeal, and I agree with the observations that the Chief Justice has made.

BRENNAN J.: I am in general agreement with the observations that the Chief Justice has made so far as they go. My present inclination of mind without having heard counsel for the Crown is to grant special leave to appeal. I would not therefore join in the order proposed.

DEANE J.: On what has been said to date, I consider that this case calls for the grant of special leave to appeal.

DAWSON J.: I would refuse special leave. I agree with the Chief Justice.

Orders

Special leave to appeal refused.