Jury misconduct and miscarriage of justice

Heather Webb

HCF v The Queen [2023] HCA 35

In HCF v The Queen [2023] HCA 35, the High Court considered whether a miscarriage of justice had arisen from an undisputed irregularity in the conduct of the jury that came to light after the entry of its verdicts.


The appellant was convicted by a jury of six out of 19 counts of sexual offending. He was acquitted of 13 counts.

The day after the entry of the jury verdicts, a juror delivered a note to the Acting Deputy Registrar of the District Court of Queensland concerning the jury’s deliberations. The note, written by Juror A, explained that another juror, Juror X, had announced to the jury at the commencement of the trial that he would not be in favour of conviction due to something he had previously experienced relating to his interactions with a 13-year-old. During the trial Juror X conducted internet research regarding the penalties for carnal knowledge and rape offences and told other members of the jury about his research. No jurors reported these matters to the trial judge during the trial. An investigation was conducted by the Sheriff of Queensland, and six jurors provided information in response to the investigation: at [30]–[39].

The respondent conceded on appeal that, had the conduct been brought to the attention of the trial judge during the trial, it would almost inevitably have led to the discharge of the jury and the abortion of the trial: at [44]. Accordingly, the issue before the High Court was whether this amounted to a miscarriage of justice.

The test

The majority considered the circumstances in which juror or jury misconduct will give rise to a miscarriage of justice, preferring the test in Webb v The Queen1 over the test derived from the reasoning in R v Marsland2: at [12].

Irregular conduct by a jury or juror, whether described as procedural or otherwise, involves a miscarriage of justice if a fair-minded and informed member of the public might reasonably apprehend that the jury (or juror) might not discharge its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge. If the jury or juror misconduct would give rise to such a reasonable apprehension then, for that reason, the misconduct will involve a ‘failure to observe the requirements of the criminal process in a fundamental respect’: at [11].

The decision of the majority

The majority considered the responses provided by the members of the jury in the Sheriff’s inquiry and determined that, on balance of probabilities, it could not be found that the conduct of the jury involved ‘wilful disobedience’: at [57]. The conduct of the jury or jurors was characterised by the majority (at [62]) as a ‘[f]ailure of a jury or juror to fully appreciate and therefore apply a procedural direction about what is to occur in the course of a hearing’, which ‘does not, without more, provide a foundation for a positive feeling of actual apprehension or mistrust on the part of a fair-minded and informed member of the public that the jury or juror might have failed fully to appreciate and therefore apply a substantive direction about how a verdict is to be rendered’.

The court considered that the assumption, fundamental to the criminal jury trial, that jurors understand and conform to a trial judge’s directions continues to apply to the jurors in this case ‘other than in the proven respect of the identified misconduct’: at [62].

The majority considered that the objective nature and extent of the misconduct might provide a basis upon which someone might speculate that the jury might not have discharged their function as required. However, the majority found that the misconduct did not provide any basis to conclude that a fair-minded and informed member of the public might reasonably apprehend that the jury had not discharged its function according to law: at [69].

The decision of the minority

The minority (Edelman and Steward JJ) considered that there was not only the mere chance that the jury did not reach its verdict by strictly following the rules of procedure and evidence in accordance with the judge’s directions, but rather, that it was known that the jury had not done so: at [73].

The minority characterised the jury as having disobeyed the trial judge’s directions in three serious and separate ways:

(1) Juror X having conducted his research into sentencing outcomes;

(2) Juror X having conveyed that research to his fellow jurors; and

(3) those jurors having failed to bring this conduct to the attention of the trial judge: at [100]–[102].

The minority considered that the misconduct involved a serious denial of procedural fairness to both the appellant and the Crown, in that neither party had an opportunity to make submissions to the trial judge in respect of directions to be given in response to the jury misconduct: at [122].

The minority further considered that the jury misconduct supported, at the very least, a conclusion that the impugned conduct, regardless of the jurors’ responses to the Sheriff’s investigation, had the capacity to prejudice the jury’s consideration of the appellant’s case: at [123]. As such, the minority held that a miscarriage of justice had occurred: at [124].

By majority (Gageler CJ, Gleeson and Jagot JJ), the court dismissed the appeal against conviction. BN


1 (1994) 181 CLR 41: at 53.
2 Unreported, Court of Criminal Appeal of New South Wales, 17 July 1991.

Heather Webb

Forbes Chambers