Criminal Law - Appeal and new trial - Particular grounds of appeal - Irregularities in relation to jury - Partiality - Note from juror suggesting bias - Grounds for reasonable apprehension of bias not dispelled by inquiry when jurors interviewed.

Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41; R v Czajkowski [2002] NSWCCA 530, 137 A Crim R 111, followed.

Judgment Number: [2022] TASCCA 11

Parts of this judgment have been redacted to remove information relating to the deliberations of a jury.

1. On 10 October 2019 this Court made orders, for reasons that were to be published at a later date, that this appeal be allowed, that the appellant's convictions be quashed, and that there be a new trial. My reasons for joining in the making of those orders were the same as those stated by Martin AJ, whose judgment I have read.
2. At a late stage in the jury's deliberations, the learned trial judge was sent a note which suggested that one or more jurors might have been biased. On 22 August 2019, when this appeal first came before this Court, orders were made pursuant to s 409(1) of the Criminal Code and s 39(5)(a) of the Supreme Court Civil Procedure Act 1932 requiring an inquiry to be conducted in relation to that note. The disclosure by jurors of matters relating to their deliberations is ordinarily prohibited by s 58 of the Juries Act 2003, but s 58(6)(c) creates an exception in relation to investigations authorised by this Court. When the hearing of the appeal resumed on 10 October 2019, the information that the Court received led to the conclusion that, if a fair-minded and informed member of the public was provided with that information, that person might entertain a reasonable apprehension that one or more jurors might not have brought impartial and unprejudiced minds to the resolution of the issues in the trial. The appeal therefore succeeded.

1. I have had the opportunity to read the reasons for judgment of Martin AJ. I joined in the making of the orders on 10 October 2019 for the reasons expressed by his Honour.

1. The appellant was found guilty by a jury of one count of aggravated sexual assault, contrary to s 127A of the Criminal Code, and one count of indecent assault contrary to s 127. Geason J imposed a sentence of imprisonment for 18 months, 9 months of which was suspended.
2. The appellant appeals against the convictions on two grounds relating to the contents of a note passed from the jury to the learned trial judge during the jury deliberations. Other grounds concerning tendency evidence and the conduct of a juror during the trial were abandoned. In substance, the appellant contended that the verdict was unsafe and unsatisfactory because the jury, or some jurors, were biased, or there exists a reasonable apprehension of bias. In this way a miscarriage of justice has occurred.
3. At the conclusion of the hearing the appeal was allowed and the conviction set aside. The Court ordered a retrial. I now set out my reasons for agreeing with those orders.

1. The two counts involved different complainants. They were sisters aged approximately 14 and 12 years. At the relevant time they were holidaying with their aunt who lived with the appellant. The sisters slept in a double bed.
2. The elder sister described an occasion when she and her sister were sleeping and she was awoken by a noise. In essence, she said the appellant lifted the blanket, placed his hands on her legs and then under her pants, after which he inserted his finger or fingers into her vagina. She said the appellant's fingers remained inside her vagina for two or three minutes and it "felt like forever". The assault ceased when the complainant rolled over and pretended to be asleep.
3. The younger sister described an occasion when she fell asleep on the couch in the TV room and was woken by the appellant touching her vagina. After a couple of minutes she opened her eyes and the appellant was walking away from her.
4. The Crown called the mother of the complainants who gave evidence that she spoke with her daughters by telephone while they were staying with their aunt. In the third week, her elder daughter was upset and said "I just want to effin come home".
5. During cross-examination it emerged that the complainants' mother made the following statement to police in September 2014:

"My [younger] daughter got on the phone and said I want to fucking come back home. I said what's wrong? She said I'm fucking sick of [the appellant], I fucking hate him. I thought there was something wrong as [younger daughter] was swearing. My sister [complainant's aunt] then got on the phone and said '[younger daughter] is being nasty to [appellant], he's always sending her to the bedroom.'

OK, well it's time for them to come home. I remember [elder daughter] wasn't talking to me during this time."

1. Under further cross-examination, the mother said that the elder sister spoke to her prior to her conversation with the younger sister.
2. The events under consideration occurred in 2012. The complainants' mother gave evidence that in 2014 she took a phone call from a case worker at the Brisbane Youth Detention Centre while she was at work. During that call she spoke with her elder daughter who told her that something very bad had happened to her in Tasmania. Her daughter told her that while she was sleeping the appellant entered the room and inserted his finger inside her private parts. This occurred about three or four days before they returned home. Her daughter was sobbing during the conversation.
3. The complainants' mother later spoke to her younger daughter, first by telephone. She asked if anything strange had happened in Tasmania. Her younger daughter went quiet and responded "can we talk about it later".
4. That night when they spoke face to face, the younger daughter told her mother she had been asleep on the couch just before they returned home and she felt something touch her on the private part. As she opened her eyes she saw the appellant walking away through the doorway of the kitchen/lounge.
5. The case worker from the Brisbane Youth Detention Centre, who had spoken to the complainants' mother, also gave evidence. She was assigned to the elder sister while the elder sister was in detention. She described an occasion on 7 July 2014 when she spoke with the elder sister who disclosed that she was having flashbacks from a previous event in her life. During the conversation the elder sister disclosed being sexually abused by her uncle in Tasmania. The case worker arranged for the complainant to talk with her mother the following day.
6. The aunt of the complainants, with whom the appellant lived, gave evidence concerning the events of the holidays when the complainants stayed with her and the appellant. In substance, she said nothing unusual happened and the complainants both appeared to be normal and happy throughout the holiday. This included hugging the appellant when they left.
7. The appellant was interviewed by police. He denied sexually assaulting the complainants.
8. Prior to the trial, the Crown served a notice of tendency evidence. Over objection the trial judge acceded to the Crown application. His Honour directed the jury that if they were satisfied of guilt on one count, they could use the evidence relating to that count as tendency evidence in respect of the other count. The use of the evidence in this way was the subject of the ground of appeal in the notice of appeal, but that ground has been abandoned.

1. The trial occurred over 25-28 March 2019. The jury commenced deliberations on 27 March 2019, but failed to reach a verdict and resumed their deliberations on 28 March 2019. Toward the middle of the day, the trial judge received a note from the jury which was subsequently provided to counsel.
2. The first part of the note is uncontentious. It sought clarification of the meaning of the words "least degree", which related to the issue of penetration of the vagina of the elder sister. It is the second part of the note which is the subject of the appeal. The entire note reads:

1. The trial judge raised the matter with counsel and subsequently gave directions concerning penetration to the least degree, but did not address the jury with respect to the second part of the note relating to bias. The relevant section of the transcript from the trial is as follows:

"HIS HONOUR: Now Counsel you've seen a question that's been directed to me. I propose to answer the question by saying to the jury that the words 'to the least degree' simply mean what they say. However slight the penetration may be, it is still a penetration. That - those words are extracted from a number of previous directions that have been given by judges of this court. That one comes from Chief Justice Crawford. I've also searched the general data base and the decisions of the Court of Criminal Appeal to see if the court has had anything to say further than that as to what 'to the least degree' means. It's one of those expressions that I think that's easily understood. Plainly it's exercising the mind of a lay jury that are not legally trained. Does anyone want to say anything? Mr Sherriff you first in respect of the way I propose to answer the question?

MR SHERRIFF: No, I've no submissions, to the contrary.

HIS HONOUR: You're content that I answer the question that way?

HIS HONOUR: All right. Now then there's the next bit on that note that I'll ask you to speak to which - it's difficult to know whether that's an additional note that's been added to the question. My present view is that I'll answer the question and give the jury an opportunity to consider the matter and then I'll get them back and I'll see if there's any prospect of them reaching a verdict. My tentative view is that if they don't come back within a reasonably short period of time after I've answered the legal question, that there is no such prospect and that they ought be discharged. But I'm going to hear from you both with respect to that additional matter. Are you content to deal with that or - here, or would you prefer to deal with it in chambers?

MR SHERRIFF: I'm content to deal with it here your Honour.

MR SHERRIFF: I - I have no contrary submission to make as to the way your Honour proposes. The -comment on the bottom, I respectfully submit doesn't form part of a question.

MR SHERRIFF: It's there, we've both seen it but I say it has no work to do.

MR WRIGHT: Your Honour whilst it's concerning, we don't know its source and its - whether it comes from a view of a number or it's a single view.

MR WRIGHT: As far as the question's - whilst it's concerning, and its source and who - whether it's an individual view or otherwise -

MR WRIGHT: -I concur with my learned friend that in regards to the question it has no purpose, but it does concern.

HIS HONOUR: Yes, but it's difficult to take it further isn't it?

HIS HONOUR: -to - to what end and - I mean it may simply indicate - or suggest intractable difference in that room.

HIS HONOUR: Which is why I propose to answer the question, give them a short time and then proceed as I've proposed.

HIS HONOUR: All right, well thank you both for that. We'll get the jury back please.

HIS HONOUR: Thank you ladies and gentlemen, the court has received your question. I've discussed the question with Counsel. You asked for clarification of the phrase 'to the least degree'. The words 'to the least degree' mean what they say. However slight the penetration may be it is still a penetration in law. I'll ask you to retire and continue your deliberations.

1. The jury retired to continue deliberation at approximately 12.42pm and, at approximately 12.55pm, returned unanimous verdicts of guilty.

1. The fundamental principle is not difficult to state, but the application of the principle to the particular facts of a case is often contentious and a matter in respect of which reasonable minds can differ.
2. In Webb v The Queen[1], during a murder trial a juror gave a bunch of flowers to the deceased's fiancée in the courthouse and requested she give it to the deceased's mother. The juror was identified and apologised for her conduct. The trial judge refused applications for the discharge of the jury and emphasised to the jury that they should have regard only to the evidence which they were to assess in a dispassionate manner, putting aside any feelings of sympathy or emotion. The convictions were upheld by the Court of Criminal Appeal and the appeal to the High Court was dismissed (by a majority).
3. In a joint judgment, Mason CJ and McHugh J identified the fundamental principle[2]:

"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."

1. Later in that judgment, their Honours said[3]:

"It follows that the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially."

1. In Webb, the trial judge questioned the juror and accepted that the contact instigated by the juror was, as described by Mason CJ and McHugh J, "a spontaneous and sympathetic gesture".[4] The trial judge also concluded that the jury was diligent.
2. Mason CJ and McHugh J expressed the view that the trial judge should have concluded that the conduct of the jury gave rise to a reasonable apprehension of a lack of impartiality. However, in view of the warning subsequently given by the trial judge, their Honours concluded that a fair-minded and informed person would not apprehend bias on the part of the juror. In those circumstances, that ground of appeal failed.
3. Toohey J agreed that the "reasonable apprehension" test was the correct test and that the appeal based on the conduct of the juror should be dismissed. Although in dissent as to the result of the appeal, Brennan and Deane JJ agreed with Mason CJ and McHugh J as to the reasonable apprehension test.
4. In R v Boland[5], the Victorian Full Court was concerned with communication received by a juror in the eighth week of a trial which the juror reported to the trial judge. The juror received a telephone call at home from a male person claiming to be speaking on behalf of the police who told her that she must find the accused guilty, and that if she did so she would receive $5000. The trial judge disclosed the communication to the remainder of the jury and gave a strong warning to the jury. In rejecting this ground of appeal, the Full Court said[6]:

"Much depends in every case on the nature and degree of the alleged prejudice, the body of evidence already heard and yet to be heard, how far the prejudicial matter may be submerged and pushed into the background by the totality of the evidence, and whether in all the circumstances a clear warning to the jury will be sufficient to avoid or dispel any prejudice and enable a fair trial to be held. Great weight must always be given to the views on such matters of the trial judge, for he is acquainted at first hand with the conduct and atmosphere of the trial and he has had during its progress the opportunity of assessing the jury - advantages which are necessarily denied to an appellate court.

The power of a trial judge to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends for its exercise upon the principle stated in Winsor v R (1866) LR 1 QB 390. The principle is really one of necessity. There must be evident 'a high degree of need for such discharge', that high degree being 'such as in the wider sense of the word might be denoted by necessity'.

In the present case the learned trial judge was of the opinion that he should not discharge the jury. We can see nothing in the circumstances of this case and nothing in the statement of his reasons which would warrant us in concluding that his Honour had wrongly exercised his discretion or that his refusal to discharge the jury was wrong in law. In particular we are of the opinion that his Honour was not un error in taking into account the length of the trial." [Authorities omitted.]

1. In Boland, the issue arose during the eighth week of the trial. The appellant's trial occupied four days.
2. As to the observation in Boland that there must exist a high degree of need for the discharge of the jury, in R v Goodall,[7] Redlich JA, with whose judgment Buchanan AP and Neave JA agreed, noted that a reasonable apprehension that a juror is biased "is one of the circumstances that constitutes a high degree of need".[8]
3. In Goodall, Redlich JA also observed that the decision of a trial judge to continue a trial notwithstanding an irregularity is a discretionary judgment with which an appellate court will be slow to interfere[9]:

"Generally, an appellate court will be slow to interfere with the discretionary decision of the trial judge with respect to the discharge of the jury. In Webb Mason CJ and McHugh J said:

'The decision of the judge is a discretionary judgment in the sense that it involves a value judgment. Where no error of principle is involved, an appellate court is naturally slow to substitute its opinion for the trial judge's opinion. The law reports contain many cases where the decision of the trial judge to continue a trial has been upheld, notwithstanding irregular incidents'." [Footnotes omitted.]

1. The decision of the New South Wales Court of Criminal Appeal in R v Czajkowski[10] requires careful consideration. The appellants were found guilty of attempting to obtain possession of a prohibited drug and sentenced to lengthy terms of imprisonment. The trial occupied approximately three weeks and, after completion of the evidence and addresses, but before the summing up by the trial judge, the foreperson of the jury sent a note to the trial judge:

Some of the jurors are slightly bias [sic] against drugs and have already made there [sic] minds up on day one."

1. The trial judge declined applications for discharge of the jury and gave the following directions to the jury:

"You are the sole judges of the facts. Although that is your role, indeed your right, you must not exercise that right irrationally. You are not entitled to find as a fact what you would like the fact to be. You are obliged by the oath each of you took to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial and nothing else. That evidence comprises what has been said by the various witnesses whom you have seen and heard, and the various exhibits which have been produced and which you will have with you in the jury room. You will recall that the purpose of the inspection of locations in the Botany area was to assist you in understanding the evidence given in the trial and it is open to you to draw any reasonable inference from what you saw, heard or otherwise noticed during the inspection.

That is the only material upon which you should arrive at your conclusions. You should reach your conclusions totally excluding any considerations of sympathy, prejudice or other emotion. You are judges and acting judicially requires you to shed any emotion and to act only upon evidence and according to reason.

We all have strong feelings about illegal drugs and those who are involved in such drugs. That is only natural. However, any prejudices any of you might have in that regard must not be permitted to play any part in your deliberations. Your deliberations must be undertaken in a totally objective fashion without regard to considerations of sympathy, prejudice or other emotions, and must start from the presumption that both accused are innocent until the Crown has proved they are guilty. It is essential, in accordance with the oaths each of you took at the commencement of the trial, that you have listened to the evidence with an open mind during the course of the trial. It is vital that during the course of the evidence of the trial that you have not prejudged any issue or fact until such time as your deliberations have taken place following this summing-up. The fact that this case involves drugs is irrelevant unless you are ultimately satisfied, following an objective consideration of the evidence in accordance with the directions of law I give you, that the accused whose case you are considering has been proved by the Crown to be guilty of the offence charged."

1. The appeals against conviction were allowed. In a judgment with which Wood CJ at CL and Sully J agreed, Sheller JA referred to the principle enunciated by Mason CJ and McHugh J in Webb and spoke of the approach of the New South Wales courts to the application of the principle[11]:

"This Court has held that the test is whether 'the parties or the public might entertain a reasonable apprehension that the jury might not bring an impartial and unprejudiced mind to the resolution of the issues involved in the proceeding'; R v Maxwell 23 December 1998 NSWCCA at 27-28 'a test of possibility upon possibility.' The test will be at its most strict for a criminal trial.

If a juror indicates that he or she is biased, the jury should be discharged; R v Piccin (2001) NSWCCA 35; R v Stretton; R v Story at 255. Similarly, if a Judge indicates that he is biased in some way (for example he has a generalised view that drug dealers are not to be believed; R v van Hoang [2002] NSWCCA 128; (2002) 128 A Crim R 422 such expressions of opinion conflict with the requirement of neutrality) and impartiality and cause a reasonable apprehension of bias. In Bright [2000] NSWCCA 258; (2000) 114 A Crim R 466 at [28] Kirby J said:

'A person should not sit as a juror if, in all of the circumstances, the parties, or a fair-minded and informed member of the public, might entertain a reasonable apprehension that he or she might not bring an impartial or unprejudiced mind to the resolution of questions involved in the trial; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293'."

1. In reaching a conclusion that this was "a clear case where such a fair-minded and informed member of the public would entertain a reasonable apprehension that the jury could not discharge its task impartially, that a juror or jurors were biased and had prejudged the case on day one"[12], Sheller JA expressed the view that the "trouble" in the case under consideration was that the note indicated that some jurors, or a juror, had made up their minds on the first day of the trial.

1. One of the difficulties that faced the Court was the extremely vague nature of the jury note which contains reference to bias. Considered without any information as to the circumstances in which the note was written, the note cannot be interpreted with any degree of confidence. The note does not contain a specific allegation that a juror or the jury, generally, was biased. It could be read as suggesting that a juror believed that some members of the jury were biased, but there is a lack of information as to the circumstances that led to a juror making the note. Another view reasonably open is that a juror was in disagreement with the remainder of the jury and, because they would not agree with the juror, the inference was drawn that the remainder of the jury was biased. These were not the only options and, without more information, they amount to no more than speculation.
2. In my view, the trial judge should have raised the matter with the jury. Speaking generally, if a juror raises a concern, it is important that the concern is addressed specifically by the trial judge without delay. In the circumstances under consideration, it would not have been difficult to identify the juror who wrote the note. The juror could have been asked, in the absence of the balance of the jury panel, what led that juror to write the words in the last line of the note referring to bias. Depending on the answers, the trial judge would then have been in a position to determine whether there was any cause for concern and to make further enquiries if he considered such a course was appropriate. The nature and extent of further enquiries would necessarily depend on the information conveyed to the judge, as would the content of further directions to the jury.
3. Although, in my view, making an enquiry was the preferable course, it is apparent that counsel did not consider that the judge should have raised the issue of the note with the juror or jury. In particular, experienced counsel for the appellant agreed with the trial judge that the note might simply suggest an "intractable difference" in the jury room. Counsel submitted that the passage in question served no purpose with respect to the jury question. Although stating that the relevant passage was "concerning", counsel for the appellant agreed it was difficult to take the matter further. Neither counsel suggested that the trial judge should make any enquiry of the jury.
4. In most cases, the issue as to juror bias has arisen prior to the final directions by the trial judge. In such circumstances, trial judges have made enquiries of the juror and/or the jury and followed with specific directions. In the matter under consideration, however, the issue arose after the summing up and after the jury had been undertaking deliberations for some hours.
5. Unlike most other cases, therefore, the trial judge did not give any special directions to the jury after the issue of potential bias arose. In his directions, given the day before receipt of the jury note, the trial judge gave the usual directions that the jury was to consider all of the evidence, and only the evidence heard in Court, and followed with directions which included a requirement to approach the task impartially:

"Now, Mr Sherriff indicated to you relevantly that you're members of the community who are chosen at random from the community and your method in approaching the evidence is expected to be that of people who bring their experiences of life to the evidence that they have heard. Your understanding of people and human affairs is the knowledge, if you like, that you bring to the function of deciding the facts that you accept and the facts that you don't accept. It's the experience that you bring to your judgements about the individual witnesses who have been called to give evidence. That involves you using your common sense and your ability to judge your fellow citizens and in doing that you must act impartially, dispassionately and fearlessly. You must not let yourselves be influenced by any emotions that the circumstances of this case may've caused you to experience and you should put aside any emotions or prejudices about crimes such as these or criminal behaviour in general. Feelings such as there is too much crime in our community have no place in a criminal trial. Nor should you be concerned about the consequences of your verdicts. After you have delivered your verdicts the case will be my responsibility. It is your responsibility to ensure that whatever verdicts are delivered in this case are delivered solely on the basis of the evidence produced by the State during this trial and not upon any other matter." [My emphasis.]

1. Near the end of his directions, the trial judge again mentioned the question of emotions and emphasised the need to scrutinise the evidence of each complainant with great care and caution:

"The allegations made by each complainant is [sic] serious. They inevitably attract strong emotions from members of the community, such as you, such as all of us, but you must scrutinise the complainant's evidence with great care and great caution. That is so because unless you are satisfied beyond reasonable doubt that each complainant, in giving evidence in respect of each matter about which they spoke, is both an honest and accurate witness in the account she has given, you cannot find the accused guilty. Now it maybe that you regard each complainant's evidence or one of them and not the other is so convincing and [the appellant's] denials in his interview are so unconvincing that its possible for you to reach the state of mind that you are satisfied that you can safely act upon the evidence to the high standard required in a criminal trial, which is guilt beyond reasonable doubt. But the caution I am making and giving you is that unless you're satisfied of the honesty and accuracy of each of those complainants in the account that she has given, you cannot find the accused guilty.

That caution is not based upon any personal view that I have of either of the girls who gave evidence in this trial. I am not suggesting to you that you are not entitled to accept that evidence or to convict the accused upon the evidence of either or both of the complainants. I told you at the outset that I would not express my personal opinions on the evidence. But in any criminal trial where the Crown case relies solely or substantially upon the evidence of a single witness or single witnesses, given that there are two trials going on, a jury must approach that evidence with particular caution because of the onus and standard of proof which rests with the State."

1. During the hearing of the appeal, counsel for the appellant, who was not counsel at trial, informed the Court that she had been advised that a juror had made a complaint to a legal practitioner in respect of the trial. Counsel emphasised she had not had any contact with the juror and no further details were provided to her as to the nature of the complaint.
2. Irrespective of the complaint, counsel for the appellant submitted that in the absence of any inquiry by the trial judge at the time the note was received, this Court should institute an inquiry. In view of the complaint, counsel for the DPP agreed it was appropriate for an inquiry to be ordered.
3. In these circumstances, the Court ordered that an inquiry be undertaken. The power of the Court to order an inquiry is found in the combined operation of s 409(1) of the Criminal Code and s 39(5)(a) of the Supreme Court Civil Procedure Act.
4. Section 39(5)(a) provides that on the hearing of an application to set aside any verdict, a Full Court may direct that inquiries be undertaken. Section 409(1) empowers a Court of Criminal Appeal to exercise powers which may be exercised by the Supreme Court on appeals in civil matters.
5. In the context of the power to order an inquiry, it is appropriate to dispose of a submission advanced to this Court by counsel for the Crown, who also appeared at trial. Counsel contended that s 58(1) of the Juries Act, prevented the trial judge and this Court from making an inquiry of any juror. Section 58(1) prohibits a person from soliciting or obtaining disclosure by a juror or former juror of "any prohibited matter". In substance, the definition of "prohibited matter" in s 3 encompasses anything said during deliberations.
6. The submission was misconceived. Section 58(6) specifically provides that the prohibition in s 58 does not prevent a juror or former juror disclosing information about the deliberations of a jury to a number of specified persons, including a judge or a person authorised by the Court of Criminal Appeal to conduct an investigation concerning the deliberations of a jury.
7. The terms of the order were:

"1 That the Sheriff and his staff conduct an inquiry about the allegation that the note passed to the learned trial judge suggests that one or more jurors might have been biased.

1. That without limiting the scope of the inquiry, the following are to be investigated:

(a) The authorship of the note. > > (b) The identity of the intended reader of the note. > > (c) The intended meaning of the comment 'PS keep quiet jury to bias'. > > (d) The basis for that comment.

2. That the Sheriff provide a report to this Court as to the results of the investigation, including details of any information provided by any juror suggesting irregularity in the conduct of the jury.
3. That the further hearing of this appeal is adjourned sine die."
4. Pursuant to the order of the Court, a deputy sheriff interviewed eleven of the twelve jurors. Despite several attempts, it was not possible to conduct an interview with the twelfth juror. All jurors were advised that, with the exception of persons authorised by the Court of Criminal Appeal, the jurors remained bound by their duty of confidentiality and were not permitted to discuss the deliberations of the jury with any person other than a fellow juror. They were also advised that there was no suggestion that any member of the jury had done anything unlawful, and the purpose of the interview was to gather information for the judges of the Court of Criminal Appeal to enable the judges to determine facts relevant to a ground of appeal.
5. The first juror interviewed [A] was ... the author of the note. [A] said it was intended that the note be read by the trial judge and the interview continued:

1. The second juror interviewed [B] said he was aware that [A] had composed the note, but did not see the note before it was given to the judge. Until shown by the Deputy Sheriff, B had been unaware of the reference to jury bias. The interview continued:

1. The third juror interviewed [C] was also unaware of the reference to jury bias. [C] had no idea as to the intended meaning of the comment concerning jury bias. [C] was then asked about a possible basis for the comment:

1. The fourth juror interviewed [D] had no idea as to the intended meaning of the comment concerning jury bias or why that part of the note had been written. As to whether [D] had any concerns about the deliberations, bearing in mind that the verdict of the jury was delivered as unanimous, [D's] answer is somewhat confusing:

1. The remaining jurors who were interviewed all said they had no idea of the basis for the reference to jury bias, and no other relevant concerns about the jury deliberations.
2. Applying the question posed by Mason CJ and McHugh J in Webb, the critical question is whether, despite the general directions given by the trial judge, the circumstances of the note and explanations provided by the jurors "would still give a fair-minded and informed observer a reasonable apprehension of a lack of impartiality on the part of the juror" or the jury. As discussed [34], the test has been refined by authority in New South Wales to ask whether "the parties or the public might entertain a reasonable apprehension that the jury might not bring an impartial and unprejudiced mind to the resolution of the issues involved in the proceeding". In the absence of compelling authority to the contrary, in my view this Court should adopt that test, but I would add that "the public" should be understood as a "fair-minded and informed member of the public".
3. ...
4. ...
5. ...
6. Sexual assaults perpetrated against children are abhorrent to reasonable members of the community. In recent years these types of crimes have attracted a large amount of publicity, particularly in the context of the recent Royal Commission. Widespread community outrage followed the disclosures in the Commission. It is not surprising, therefore, that in the privacy of the jury room, strong views about this issue might be expressed.
7. Notwithstanding the expression of strong views, and even overbearing conduct in the jury room, in the absence of any enquiry at the time of the trial, it is a significant step to conclude positively from such conduct that a juror or jurors might have been biased against the appellant and not determined his guilt or otherwise on the basis of an impartial assessment of the evidence. Such an approach would involve jurors ignoring the directions of the trial judge.
8. Notwithstanding the vague terms of the note and the responses of counsel, and considering the contents of the note without regard to the information subsequently ascertained, in my opinion the possibility that the accused or a fair-minded and informed member of the public "might entertain a reasonable apprehension that the jury might not bring an impartial and unprejudiced mind to the resolution of the issues" cannot be excluded. Further, the information subsequently obtained through the Sherriff's investigation does not negate that possibility. Rather, it confirms it.
9. It must be acknowledged that it was only the author of the note who expressed cause for concern about the impartiality of the jurors. It is possible that the particular juror felt isolated and under pressure, and has misinterpreted vigorous debate for an indication of bias. However, the juror has made the following critical assertions:

1. In my opinion, while there may be other explanations, and in the absence of specific directions after the issue of bias was raised by the note, if a fair-minded and informed member of the public was provided with this information, such member of the public might entertain a reasonable apprehension that the jury, or some members of it, might not have brought an impartial and unprejudiced mind to the resolution of the issues in the trial; in particular to the issue of whether the Crown had proven guilt.
2. For these reasons, I was satisfied that a miscarriage of justice had occurred and that the appeal should be allowed and a re-trial ordered.

[1] [1994] HCA 30; (1994) 181 CLR 41

[5] [1974] VicRp 100; [1974] VR 849

[7] [2007] VSCA 63, 15 VR 673

[8] At [18] citing R v Matthews [1998] VSCA 2; [1999] 1 VR 534 at 537, [9] per Callaway JA

[10] [2002] NSWCCA 530, 137 A Crim R 111