Criminal Law—Jury—Impartiality—Murder trial—Juror giving flowers to victim's mother—Whether juror or jury to be discharged Appropriate test—Reasonable apprehension of lack of impartiality or real danger of lack of impartiality. Evidence—Criminal trial—Accomplice inculpating accused—Whether accomplice warning necessary—Nature of warning.

Decisions

MASON CJ AND McHUGH J The facts and issues in this matter are set out in the judgment of Toohey J. Except to the extent necessary to explain our reasons, it is unnecessary to refer to them.

The discharge of the jury - the flower incident
2. The learned trial judge held that he had a discretion to discharge the jury if he believed that "there was a real danger that the position of the accused had been or might have been prejudiced" by the conduct of the juror in arranging for flowers to be given to the deceased's mother ((1) Webb and Hay (1992) 64 A Crim R 38 at 70.). The learned judge relied on English authority in formulating the "real danger" test ((2) Sawyer (1980) 71 Cr App R 283 at 285; Reg. v. Spencer (1987) AC 128 at 144.). However, we are of opinion that this was too stringent a test. In our opinion, the test that his Honour should have applied was whether, despite the warning that he proposed to give to the jury, the circumstances of the incident would still give a fair-minded and informed observer a reasonable apprehension of a lack of impartiality on the part of the juror.

3. When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case ((3) Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-554; Reg. v. Watson; Ex parte Armstrong (1976) 136 CLR 248 at 261-262, 264, 267; Re Judge Leckie; Ex parte Felman (1977) 52 ALJR 155 at 158; 18 ALR 93 at 97-98; Re Shaw; Ex parte Shaw (1980) 55 ALJR 12 at 14, 16; 32 ALR 47 at 50-51, 54; Livesey v. New South Wales Bar Association (1983) 151 CLR 288 at 293-294, 300; Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 349, 351, 359, 368 and 371; Vakauta v. Kelly (1989) 167 CLR 568 at 575, 584; Grassby v. The Queen (1989) 168 CLR 1 at 20.). The Court has applied the same test to a Commissioner of the Australian Industrial Relations Commission ((4) Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty. Ltd. (1994) 68 ALJR 179 at 182; 119 ALR 206 at 210.) and to a member of the Australian Broadcasting Tribunal ((5) Laws v. Australian Broadcasting Tribunal (1990) 170 CLR 70

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Webb v the Queen

Details

AGLC: Webb v the Queen [1994] HCA 30
Case: [1994] HCA 30
Decision Date: 30 June 1994

CaseChat Overview and Summary

The High Court of Australia considered the appeal of Webb against his conviction for murder. The central dispute concerned the admissibility of evidence obtained through a police interview conducted after Webb had been arrested and charged, but before he had been brought before a magistrate.

The primary legal issue before the Court was whether the trial judge had erred in admitting evidence of statements made by Webb during the police interview. This involved determining whether the interview was conducted in contravention of the common law, specifically the principle that an arrested person should be brought before a justice with all convenient speed, and whether the admission of the evidence was otherwise unfair or prejudicial to the appellant.

The Court analysed the common law duty to bring an arrested person before a justice, noting that while this duty exists, it is not absolute and can be displaced by statutory provisions or other compelling circumstances. In this instance, the Court found that the interview, although conducted after arrest and charge, did not necessarily render the subsequent statements inadmissible. The admissibility of such evidence depended on a broader consideration of fairness, including whether the accused was informed of their rights, whether they were cautioned, and whether the interview was conducted in a manner that was oppressive or unfair. The Court ultimately held that the trial judge had not erred in admitting the evidence, as the circumstances of the interview did not offend the principles of fairness or the common law duty.

Orders