2 On 9 December 2008 a jury in the County Court found the applicant guilty of one count of armed robbery (count 1) and one count of possession of a drug of dependence (count 2). On 12 December, she was sentenced to four years' imprisonment,[1] with a non parole period of two years' imprisonment.

3 Now the applicant seeks leave to appeal against conviction.[2] The grounds of appeal are as follows:

1. The trial miscarried by reason of the jury's, in breach of their duty and the directions given them by the learned trial Judge, unilateral search and use of the internet for exposition of the burden and criminal standard of proof.
2. The trial miscarried by reason of:

(a) the Prosecutor's cross-examination of the applicant on whether the accomplice REVERA, the complainant WILSON and investigating POLICE had lied either to the applicant or in their evidence; and

(b) the trial Judge's having failed properly or at all to direct the jury on the law in the light of that impermissible line of cross-examination;

1. The learned trial Judge erred by concluding and ruling that the defence on which the applicant had at all relevant times relied - duress - was not open and thus would not be left for consideration by the jury.
2. The trial miscarried by reason of the trial Judge's having invited the Prosecutor to seek leave to re-open the Crown case, and by the Judge's having permitted the Prosecutor so to do, for the purpose solely of adducing evidence from a member of police, immaterial to the issues joined by the parties at trial, but which contradicted evidence given by the applicant.
3. The trial miscarried as a consequence of the cumulation of some or all

of the errors and matters alleged in Grounds 1 to 4.

4 In June 2007, the applicant was in a relationship with her co-accused, Micky Revera. Both of them were daily intravenous heroin users. Revera lived with his grandmother and aunt in Hampton Park. The applicant had shared the residence with him for most of their relationship.

5 In the period 23 to 24 June, on a view of the evidence most favourable to applicant, the following events occurred:

(2) Revera left the house. On his return, he had heroin, 'ice' and some car keys.

(3) Revera told the applicant that he had robbed an Asian drug dealer of the heroin and 'ice', and had taken the man's car keys.

(4) He told the applicant that he had a knife with him at the time of the robbery.

(5) The applicant was afraid that the drug dealer, whom she knew, would trace Revera.

(6) Both she and Revera 'used' the heroin. Revera used the 'ice'.

(7) Revera 'rant[ed] and rave[d]' about committing further robberies to obtain money for drugs. He spoke of robbing local convenience stores, or persons in the street.

(9) He broke a kitchen window by punching it with one or both of his hands, suffering injury to at least one of his hands.

(10) Then the applicant proposed to Revera that they rob Kirsty Wilson, a friend and heroin user, of heroin. The applicant made this proposal to distract Revera from going out and committing further offences in the near vicinity, and in doing so, hurting someone. Her further reason was to calm him down.

(11) Revera did calm down to an extent when the applicant made this proposal.

(12) The applicant phoned Wilson and arranged to meet her when she finished work at about 4.00 or 5.00am on 24 June. She gave as the reason for the meeting that she wanted Wilson to 'score' for her.

(13) After a further phone conversation with Wilson, in which the latter confirmed that she was finishing work, the applicant drove Revera's car from Hampton Park to Wilson's workplace in Richmond. She drove, rather than Revera, because of his hand injury.

(14) When they left Hampton Park, Revera had in his possession, as the applicant knew, a kitchen knife. She had said to him that he did not need it. But he had said that he was bringing it.

(16) At Richmond, the applicant left the car and went into the brothel where Wilson worked. She was told that Wilson had nearly finished. She then returned to the vehicle.

(17) By the time that Wilson got into the vehicle, Revera was hiding under the bedding in the back seat. The plan was that he would 'pop up' and effect the robbery after Wilson had 'scored'.

(18) In the course of the trip to South Melbourne to meet Wilson's dealer, the applicant stopped the vehicle and went to an ATM. She pretended to attempt to make a withdrawal. She returned to the vehicle and told Wilson that she did not have enough money in her account to buy heroin, but that she would take Wilson to meet her dealer anyway, and then drive her home.

This subterfuge was no doubt intended to prevent an argument later breaking out when the applicant was unable to give Wilson any money for the purchase of heroin. It sat ill with the applicant's evidence that she did not take the opportunity to run away at the time because she did not want to leave Wilson in the car with Revera.

(19) After Wilson had obtained heroin from her dealer, and returned to the car, Revera emerged from his hiding place and grabbed Wilson from behind whilst holding a knife to her neck. He and the applicant then robbed Wilson of the heroin, her money and bags.

(20) The applicant told Revera to collect a bag which Wilson had thrown from the car; but she told him to do this only so that he would let Wilson go.

(21) After the robbery was complete, Wilson escaped, and the applicant drove off with Revera.

(22) They stopped and shared the heroin. Then the applicant drove Revera to the Alfred Hospital for attention to his hand injury. Thereafter, she drove them back to Hampton Park.

(23) Much later on 24 June, there was an incident at a phone box where Revera held a knife to the applicant.

(25) The applicant was in fear of Revera on 23 and 24 June 2007 - before, during and after the armed robbery. She remained in fear of him until he commenced his sentence in prison.

6 The above account is incomplete. Because by intent it is an account favourable to the applicant, it does not refer to evidence given by Revera[3] and Wilson which the applicant disputed. For instance - the following list is not exhaustive - (1) Revera said that it was the applicant's idea that he hide under the bedding; (2) both Wilson and Revera gave evidence that the applicant punched Wilson to the face and head; (3) Wilson gave evidence that the applicant, in the course of the robbery, said words to the effect 'I'll get you for ripping me off'; (4) Wilson stated that the applicant had wrapped a seat belt around her ankles so as to restrain her;[4] (5) Wilson stated that it was the applicant who had demanded, in addition to the heroin, her money and bags; (6) Revera denied that the applicant was frightened of him.

7 The applicant was cross-examined, in part so as to reveal the many differences between the account which she had given in evidence in chief and what she had said when interviewed by police, and in part to point up apparent oddities within her viva voce evidence. She explained a number of inculpatory statements in her record of interview as being lies, or less than the full story, told out of fear that Revera would discover what she had said. She said also that when interviewed she had not been well. But she did not claim that her interview was unreliable on that account.

8 It is desirable to deal at once with ground 3, which complains that the judge erred in ruling that there was no evidence which could support the defence of duress which had been pursued. If the judge did not err then, as counsel for the applicant rightly conceded in this Court, verdicts of guilty on the two counts were inevitable; for the applicant had admitted all the elements of the offences.

9 In his ruling, the judge set out propositions pertinent to the defence, mainly by reference to the judgment of Smith J in R v Hurley & Murray.[5] He referred also to the judgment of Anderson J in R v Dawson,[6] to the elaboration in Makrynikos v R[7] and R v Lorenz,[8] of propositions stated by Smith J, and to the proposition that 'fear on its own, without threats, does not create the necessary compulsion'.[9]

10 From Hurley & Murray, his Honour extracted the following propositions:

I consider that the following affirmative proposition may be stated. Where the accused has been required to do the act charged against him (i) under a threat that death or grievous bodily harm will be inflicted unlawfully upon a human being if the accused fails to do the act and (ii) the circumstances were such that a person of ordinary firmness would have been likely to yield to the threat in the way the accused did and (iii) the threat was present and continuing, imminent and impending (as previously described) and (iv) the accused reasonably apprehended that the threat would be carried out and (v) he was induced thereby to commit the crime charged and (vi) that crime was not murder, nor any other crime so heinous as to be excepted from the doctrine and (vii) the accused did not, by fault on his part when free from the duress, expose himself to its application and (viii) he had no means, with safety to himself, of preventing the execution of the threat, then the accused, in such circumstances at least, has a defence of duress.[10]

11 From Dawson - in which each of Anderson and Harris JJ approved[11] the propositions stated by Smith J - the learned judge below fastened upon an observation by Anderson J that -

In all the cases relating to duress of which I am aware, the offence which the accused person has been constrained to commit has been a particular offence nominated by the person making the threats.[12]

12 Counsel for the applicant did not take issue with the propositions stated by Smith J, or with the accuracy of the observation made by Anderson J. Neither did he mount any attack upon the judge's statement of the circumstances which constituted the matrix by reference to which the propositions and observation fell to be considered. But he submitted that his Honour had erred in the application of principle to the facts of the case. He argued that the evidence established a sufficient threat of immediate harm. He also criticised his Honour's remarks that - (1) the observation of Anderson J in Dawson had 'particular bearing' on his ruling; and (2) it was a 'critical factor' that the applicant's evidence about Revera's violence and threats made to her was 'general, vague and non specific'.

13 There was a little debate in this Court about the test which the judge should have applied in determining whether there was any evidence to support the defence of duress. Counsel for the applicant referred us to R v McCullagh[13] and R v Yasso ( No 2).[14] He submitted that, by analogy, they provided guidance as to the approach which the judge should have taken.

14 I agree with that submission. Each of McCullagh and Yasso referred to the evidentiary threshold which triggers the obligation of a trial judge to give particular directions to the jury - in McCullagh, as to the possible effect of drug intoxication and fatigue on formation of intent to kill or inflict really serious injury; in Yasso with respect to provocation. In McCullagh, Winneke P referred to there being evidence 'fit to be considered by the jury'[15] and to 'the evidence [being] capable of raising a doubt in the minds of the jury as to requisite intent'.[16] In Yasso, Charles JA referred to this passage in the judgment of Dixon CJ in Parker v The Queen[17]

... the issue before the Court of Criminal Appeal was whether by any possibility the jury might not unreasonably discover in the material before them enough to enable them to find a case of provocation. The selection and evaluation of the facts and factors upon which that conclusion would be based would be for the jury and it would not matter what qualifying or opposing considerations the Court might see; they would not matter because the question was, ex hypothesi, one for the jury and not for the Court.

15 In the same case, Batt JA identified the question as being whether, on the version of facts most favourable to the applicant, it was open to the jury to find a case of provocation.[18] The question for the judge to consider was similarly described by Vincent JA.[19]

16 The test most favourable to an accused person, I should think, was that expressed by Dixon CJ in Parker. In the absence of more complete argument, I am content to use it, by analogy, as the yardstick in the present case.

17 In my opinion, thus considered, the learned judge below did not err in concluding that there was no evidence of duress.

18 I would not say that it was decisive that the applicant was the person who suggested robbing Wilson. But it was, I consider, a circumstance opposed to duress being in play; and the judge went no further than that.

19 The principal contention put below was that the applicant participated in the robbery only because of threats made by Revera in the context of his past violence towards her. She feared for her safety, it was submitted, and for the safety of others. So it was that she suggested robbing Wilson.

20 That submission failed below, just as a like submission must fail in this Court. The reasons are these: (1) the applicant gave no evidence, and the evidence did not otherwise enable a conclusion, that Revera required her to participate in the particular armed robbery. Until the applicant suggested robbing Wilson, Revera's plan had been to effect robberies without any participation by the applicant; (2) on her own account - and there was nothing in the evidence to gainsay it - the applicant was not induced to participate in the robbery by a threat by Revera. Her reasons for participating - see [5](10) above - were quite different; (3) there was no evidence enabling a conclusion that Revera threatened to do her serious injury if she did not participate in the particular robbery; (4) there was no evidence which permitted a conclusion that, if the applicant did not participate in the robbery, Revera would do serious injury to a person close to her; (5) even if a threat had been made, it was not current at the time of the robbery. It was not 'imminent and impeding'; (6) the evidence only permitted a conclusion that, in a non-specific way, the applicant was fearful of Revera; (7) the applicant had several opportunities to avoid participation in the robbery - when she went into the brothel and when she went to the ATM. She took neither of them.

21 It is a large step for a judge to take a defence away from the jury's consideration. The step is a particularly significant one where, as here, what was done by the judge effectively meant that the applicant must be found guilty. In an extreme case, however - and I am satisfied that this was such a case - the step will be justified. But the step should be confined to a case which is clearly of that kind.

22 The applicant was arrested, at premises which she occupied with a new boyfriend, some seven weeks after the robbery took place. She made a statement and took part in a record of interview that day. In the course of her evidence at trial, it was put to her that in many respects what she had said on the day of her arrest was a litany of now-admitted lies.

23 At a certain point in cross-examination, the applicant stated that her evidence was reliable because she was 'straight now', and not fearful of Revera. On the day of her arrest she had been 'unwell', 'not thinking clearly' and 'very very fearful'.

24 The applicant then volunteered that the police knew she had been unwell, 'that's why they gave me tablets at the house'. She then refined that evidence, and identified one of the two arresting officers as the person who had given her, at her request, two Serapax tablets from a box supplied, under prescription, to her boyfriend. She said she had told the police officer at the time that she was also taking Serapax under prescription.

25 The policeman had given evidence. He had not been cross-examined to suggest that this incident had taken place. Such cross-examination would have gone to his credit.[20] It would surely be improper to supply a suspected person who was about to undergo interview with prescription drugs belonging to another person; the more so, to supply such drugs to a known or suspected drug addict.

26 Later in the trial, the prosecutor informed the judge, in the absence of the jury, that on his instructions the incident had not taken place; and that police were not authorised to administer pharmaceuticals of that nature.

27 The judge then intimated, before argument further developed, that if application was sought to re-open the Crown case to call evidence about the matter, he would be minded to 'sympathetically consider such an application'.

28 Argument then focussed upon how the rule in Browne v Dunn[21] might apply in the circumstances.

29 In the upshot, the judge - as he had foreshadowed he would do - permitted the recall of a police witness. The sequence was this: after the applicant had been further cross-examined about the matter and had denied that her account was 'complete nonsense', the informant was recalled. Applicant's counsel did not oppose her recall.

30 The informant was not the officer who had allegedly given the applicant the Serapax tablets. But she had been in the close company of the applicant, she said, throughout the day of the arrest. She denied, in substance, the allegations made against her fellow officer. She was not cross-examined so as to challenge the denial.

31 In this Court, counsel for the applicant submitted that the judge had intervened so as to produce a trial within a trial upon an issue inconsequential to the facts in issue. This had caused damage, counsel submitted, to the applicant's already 'shaky credibility'.

32 Examination of the transcript, and of a ruling made by the judge after the evidence had ended and after counsel had made submissions, shows that the applicant gave evidence about ten or so matters in respect of which there had been no cross-examination of Wilson and/or Revera. Submissions addressed the way in which the rule in Browne v Dunn should operate. The judge ruled that he would give a Browne v Dunn direction in respect of some matters, but not others. With respect to the 'Serapax allegation', he ruled that the matter had been 'adequately and appropriately dealt with' by the recall of the informant. Consistently with that ruling, he said nothing about it in his charge.

33 One way of dealing with an alleged infringement of the rule in Browne v Dunn is to permit the recall of a witness. Subject to the fact that it was the informant rather than the other officer who was recalled,[22] that is what happened here.

34 There is some force to the applicant's submission that the further cross-examination of the applicant, and the permitted recall of the informant, meant that more attention was given to the matter than was really warranted; and that the judge's involvement was unduly interventionist.[23] But I cannot say that his Honour erred by permitting the informant's recall.

35 The prosecutor cross-examined the applicant to suggest, at worst from the Crown's standpoint in this Court, that she was saying that other witnesses had lied in their evidence; and that one witness had lied to her on the day of her arrest.

36 In complaining in this Court that such cross-examination had been impermissible, and constituted a miscarriage of justice, counsel focused upon five pieces of cross-examination. I should set them out.

37 Wilson gave evidence that the applicant, when punching her, had said 'I'll get you for ripping me off'. In her evidence-in-chief, the applicant denied saying such a thing. In cross-examination, there was this exchange:

You heard Kirsty's evidence about you telling her in the car, that will get you for ripping me off, or something along those lines?---I don't know where she's got that from.

No?---No, I don't.

Complete fabrication, you say?---Yes, it is.

She's just made that up?---She - I understand she's very angry at me, and I can understand she is.

She's just lying to the jury about that, is she?---She is.

38 That was not quite the end of it. First, the prosecutor suggested that it was an odd coincidence that Wilson should have given such evidence when, according to what the applicant said in her police interview, Wilson did in fact owe her money. Second, Wilson was recalled for further cross-examination by applicant's counsel. She denied owing money to the applicant.

39 It was not in dispute that the applicant and Revera broke up on 24 June. It was also not in dispute that on a later occasion they saw each other at a train station. Revera gave evidence that the applicant had approached him. The applicant denied doing so. It would have been inconsistent with her asserted ongoing fear of Revera had she approached him. In cross-examination there was this question and answer.

Did you approach him?---No, I didn't approach him.

So, he was either wrong or lying or something about that, was he?---Yes.

40 It was put to the applicant in cross-examination that in her record of interview she had told the police about Revera having a knife at the time of the robbery 'because presumably [Wilson] has already told them'. Her response was 'and Micky. They told me in the car'. In fact, up to the time of the applicant's arrest and interview, Revera had said nothing to the police about having had a knife at the time of the robbery.

It wasn't until after you'd given the interview that {Revera] fessed up about having a knife; isn't that right?---Yeah, I've read them both now.

Are you saying that the police told you that [Revera] had told them that he had a knife? Is that your evidence?---That is my evidence, yes.

That was never put by your barrister to [the informant], was it?---I didn't hear that put, no.

What 'Im suggesting to you is that you didn't hear him suggest to [the informant] that - - -?---No, he didn't - no, I didn't.

That the police had - what you're saying, the police had told you a lie?---Well, I've read the statement now, and it must have been.

You're saying the police lied to you in the car?---Well, if it's not true, which I've read now, it's not. It must have been a lie.

It can't be that you're mistaken about this?---I don't believe so, no.

Is it possible they told you that [Wilson] said there was a knife involved, but they didn't say anything about [Revera] saying that?---It's possible. I don't think so. It's possible. You say it's possible that the police didn't tell you about that, but if they did tell you it was a lie; is that your evidence?---Yes. Well, it's evident now that it - that he didn't say it in the first one, so.

42 Wilson and Revera gave evidence that in the course of the robbery the applicant punched Wilson. The applicant denied it in evidence-in-chief. There was this cross-examination:

[Revera] and [Wilson] have both given evidence before this jury and they've both said that during the robbery you punched [Wilson]. You say that's wrong?---Yes.

That must be a lie, they must both be lying?---Yes.

Independently of one another, they must both be lying?

---Well, they've both got something to gain, and yes.

You heard [Revera] say that he has got nothing to gain, he has already been sentenced. Do you remember him giving that evidence?---I did. I heard him say he wouldn't hit a girl too.

You say that [Wilson] has got something to gain?---I understand she's very angry with me. She wants to make sure that - - -

[Wilson], you heard in her evidence, gave a statement to the police later the very same day; yes?---Yes.

You say at that time she came up with this lie?---She, from what I heard, she said both of us hit her. I didn't see [Revera] hit her either.

You say that she made up that lie on the day?---If [Revera] had hit her, her face would not look like that.

You say that [Wilson] made up the lie about you punching her on the day, that very same day?---Must, must have, yeah. I haven't read her (indistinct) that day.

Independently [Revera] comes up with the very same lie?---Yes.

43 Wilson gave evidence about her position in the vehicle when she was being held by Revera. One aspect of the issue was the position of Wilson's legs at the time. There was this cross-examination:

Do you also remember [Wilson] giving evidence about how far her legs reached across?---Yes.

You say that that's a lie as well?---No, they did reach across.

44 The cross-examiner did not expressly invite the applicant to speculate what motive the other person had for lying. So the problem resolved by Palmer v The Queen[24] did not directly arise.

45 There is, however, a line of authority in this and other States that - subject to qualification - an accused person must not be cross-examined to the effect that he or she is saying that another witness lied in giving evidence. The qualification is that such cross-examination is permissible if the defence[25] has positively asserted that a Crown witness was lying. In this State, see R v Buckley,[26] R v Bajic[27] and R v Davis.[28] I should add that a suitable direction may in some circumstances provide a sufficient antidote for impermissible cross-examination.[29]

46 It might be thought that the line of authority to which I have just referred unduly restricts the ability of a cross-examiner to confront a defendant. There are circumstances - for example, where mistake is not a tenable explanation for the defendant's rejection of the other witness's evidence - in which the defendant's evidence almost necessarily bespeaks an assertion that another witness has lied. But as I understand it, absent cross-examination of the other witness which specifically asserts that the witness lied, or evidence by the defendant to that effect, the defendant cannot be asked if that is what he/she is alleging. Such concern as I have, however, is beside the point in the present state of the law in this and other jurisdictions.

47 In the event, applying principle to the facts of this case, I consider that instances 2 and 3 should be put to one side. Instance 2 involved a single question which wrapped up a lying explanation with other possible explanations. Instance 3 involved a suggestion that a Crown witness must have lied in something which the applicant volunteered in cross-examination he had said to her shortly after her arrest. The witness had given no evidence about the matter.

48 I would also put aside instance 5. The applicant was asked whether Wilson had lied in describing a particular factual circumstance of the incident. The applicant in fact accepted the accuracy of Wilson's evidence.

49 It is next convenient to go to instance 4. The prosecutor did tax the applicant that she was saying that both Wilson and Revera had lied in giving evidence that she had punched Wilson; and that it was a considerable coincidence that they had independently done so - Wilson on the day of the incident, Revera after he was arrested. The applicant agreed that the two witnesses had lied, said that they both had something to gain by doing so, and said what it was.

50 The question whether the applicant punched Wilson was a most obvious question of fact. It happened or it did not. In the particular case, no question arose of possible innocent mistake on the part of Wilson or Revera in giving the particular evidence. On the applicant's account, that evidence was untruthful, and it must have been deliberately untruthful.

51 There is a threshold question whether the cross-examination was impermissible. Although the applicant did not give evidence that Wilson or Revera had lied in giving evidence that she had punched Wilson, her denial that she had done so, in the particular circumstances, really admitted of no other explanation but that she was saying that Wilson and Revera had lied. On that analysis, the cross-examination was permissible.

52 But if that was not so, I cannot detect any miscarriage in what eventuated. In the particular circumstances, the jury could not have thought otherwise than that the necessary corollary of the applicant's evidence was that Wilson and Revera had lied. What the applicant said in cross-examination, really seeking to explain why they had done so, reflected that inevitability. Applicant's counsel conceded that there must be cases where an impermissible question would not give rise to a miscarriage of justice. That concession, in my view, has application in the present context.

53 I turn finally to the first instance relied upon by applicant's counsel. The point of the cross-examination, as I have earlier said, was to show that the applicant's denial that she had accused Wilson of 'ripping her off' was incompatible with her allegation, when interviewed by the police, that Wilson owed her money.

54 I accept that the cross-examination was impermissible. It was, however, of little moment. It was short, and it addressed a point of marginal significance. Unlike the kind of situation which arose in Bajic, it was but a fragment in a lengthy cross-examination.

55 In all, to the extent that the impugned cross-examination was impermissible, I consider that it occasioned no miscarriage of justice. But if that was wrong, I would certainly apply the proviso to s 568(1) of the Crimes Act 1958 (Vic).

56 For completeness, I should refer to four further matters. First, shorn of the defence of duress, the applicant had no answer to the counts on the presentment. The Crown could not but prove its case. It was not, contrast Buckley, an 'oath against oath' case. Second, to the extent that there was impermissible cross-examination, it was only a fragment of an extensive cross-examination. Third, compatibly with the impugned questions being only a fragment of the cross-examination, trial counsel for the applicant raised no objection and sought no special direction. Fourth, the judge did give a certain warning to the jury about reasoning by a 'who is lying' approach. It was not, however, directed to the impugned cross-examination, and I doubt that it would have been a sufficient antidote had the impermissible cross-examination been of any magnitude.

57 The day after the jury delivered its verdict, the judge's tipstaff found seven pages of material apparently downloaded from the internet in the jury room. The pages reveal that they were downloaded on 5 December 2008. The trial had commenced on 1 December. The jury retired to consider its verdict on 9 December, and rendered its verdict the same day. Although there was no evidence as to the provenance of the pages, the inference can scarcely be avoided that a juror downloaded the material in the course of the trial.

58 The seven pages, drawn from five sites, addressed the topic, 'what is meant by beyond reasonable doubt'.

59 Because the jury had been finally discharged by the time that the pages were found, the judge was unable to consider whether a problem had arisen which could be remedied by a direction, or which required the jury's discharge without verdict.

60 The judge had given the jury preliminary directions in order to alert its members to the offence created by s 78A of the Juries Act 2000, which by sub-s (1) provides that -

A person who is

(b) a juror

must not make any enquiry for the purpose of obtaining information about ... any matter relevant to the trial, except in the proper exercise of his or her functions as a juror

and which by sub-s (5) provides that 'making an enquiry includes -

61 The directions which the judge gave were relevantly quite brief:

Not long ago the Parliament introduced a new law which makes it a criminal offence for a member of a jury to engage in inquiries or investigations of his or her own into any facts related to the trial, for example, to look at the internet to see if you can find anything out about this trial or about any person who may be involved in it; that is now a criminal offence for which there is a penalty imposed. I'm not suggesting that any of you would contemplate doing that but I just thought it appropriate to let you know that any such conduct is now liable to punishment as a criminal offence.

62 I consider that a juror would not have understood the prohibition to extend to an enquiry as to the meaning of the criminal standard of proof.

63 The judge directed on the burden and standard of proof on 8 December. The direction was in a form which is commonly given. As to standard, his Honour said:

... the standard of proof in this trial which is a criminal trial is the highest standard of proof known to our law, and that is proof beyond reasonable doubt. You can compare that standard of proof with the much lower standard of proof that applies in a civil trial. A civil trial is where one person sues another for breach of contract for example, or for damages if someone was injured in a car accident, or injured at work, or in some other way, and they sue for damages, that is a civil action not a criminal action. And in a civil action the standard of proof, and you have probably heard this expression is 'on the balance of probabilities', is something more likely than not? That is a very low standard of proof compared to the standard of proof with which you are concerned in this trial. That standard of proof is beyond reasonable doubt. As I have said to you, it is the highest standard of proof known to the law.

Those words 'beyond reasonable doubt' are plain everyday words used in an everyday language. No further definition of them can be given nor am I permitted to give it. But they are plain everyday words and you will understand what they mean, and that is that it is a very high standard of proof and it is for the Crown to persuade you of that standard of proof in relation to the guilt of Ms Martin or either Count 1 or Count 2, which you are considering.

64 The jury did not seek a further explanation of that direction.

65 It was accepted by applicant's counsel that none of what was said in the seven pages made the Crown's task of proving guilt beyond reasonable doubt less onerous than it should properly be. Counsel stated that it was not part of his submissions that the material 'diminished the standard of proof'.

66 Counsel agreed also that one of the seven pages was essentially descriptive of the distinction between the criminal and civil standards of proof, and that another page simply explained why the higher standard is applied in criminal proceedings.

67 In the end, counsel's submission came down to this: (1) the judge was not permitted to elaborate upon what is meant by the phrase 'beyond reasonable doubt';[30] (2) one juror, at least, obtained such an elaboration; (3) although the material downloaded, so far as it consisted of an elaboration, did not render the Crown's task less onerous than it should be, there was a fundamental and irremediable miscarriage because - (a) the jury possessed material which it should not have had; (b) the fact that the jury had obtained the material in disobedience of the judge's preliminary directions raised the question in what other way the jurors might not have adhered to his Honour's charge. There was a pall over the verdicts; (c) different jurors might have acted upon different formulations in the elaboration, there being a certain inconsistency between them, and at the very least a verdict should be based upon the jurors' unanimous understanding of the burden of proof; (d) although, absent duress, there was no answer to the Crown case, the proviso to s 568(1) could not be applied. The situation, counsel submitted, was like that where a jury was not lawfully empanelled.[31]

68 Counsel for the Crown submitted that - (1) The Court should disregard the material. To do otherwise would be 'to go into the jury room', which is impermissible; (2) it is for individual jurors to work out what 'reasonable doubt' means to him or her. In no case can it be assumed that each juror will have an identical understanding of what is comprehended by the phrase. In this case the downloaded material (to the extent that it could be inferred that any juror read it) would have aided that understanding; (3) the circumstances were not analogous to the situation where a jury is not lawfully empanelled; (4) in all, there was no miscarriage; or else the proviso to s 568(1) could and should be applied.

69 The parties' submissions raised a number of potentially important questions. But I consider that it is not necessary to decide all of them in order to conclude that this ground should be rejected. For that reason, the resolution which I propose is not to be understood as determining any more than is absolutely necessary for the disposition of the ground.

70 There are questions whether the Court should receive the material at all; and, if it did, what inferences it should be prepared to draw. As to the first of those questions, the distinction between the preclusion against investigating a jury's deliberations and investigating matters extraneous thereto - as to which see, inter

alia, R v Medici,[32] R v Portillo[33] and, recently in England, R v Mirza; R v Connor[34] - would fall for consideration. The distinction between those two situations is, I think, more easily stated than applied. The second of the questions would invite enquiry whether the Court could properly infer that the pages, or any and which of them, had been read by all jurors, or some jurors, or one juror only; whether the Court could infer that reading the material had influenced all, or some, or one of the jurors in his/her conclusion as to the meaning of the phrase 'beyond reasonable doubt'; and whether, if any juror settled upon a particular meaning before the judge charged the jury, that juror adhered to that meaning after the judge had given his directions.

71 Whilst I provisionally consider that particularly the second question just noted would present the applicant with considerable difficulties, I will assume that the Court could receive the material, did receive it, and inferred that all the jurors read all the relevant pages, thereby reached conclusions as to the meaning of the phrase 'beyond reasonable doubt', and applied those conclusions in determining the applicant's guilt.

72 Then there is a question whether the jurors were disentitled to consider the material. That question is not answered simply by reaching a view whether the assumed action of a juror or jurors in obtaining the material breached s 78A(1) of the Juries Act.

73 The question which I posed in the preceding paragraph needs to be considered, in my opinion, in the context of the standard of proof direction; not in the context of a general enquiry about the permissibility or otherwise of jurors researching the legal principles applicable to the case before them. The authorities make it very plain that it is for the jurors to give meaning to the critical phrase.[35] The fact that a judge may not elaborate upon its meaning, except in particular circumstances, does not mean that jurors may not consider what meaning to give it.

74 In R v Chatzidimitriou, where the judge provided the jury with a dictionary at its request, inferentially so that the jurors could resolve upon a meaning of the phrase 'beyond reasonable doubt', Phillips JA noted the important distinction between the relevant functions of judge and jury:

As I apprehended it, the argument came down to this: by recourse to the dictionary the jury might have been led to select, for example, 'not irrational' as the meaning of the word 'reasonable'; that was a meaning which the judge, according to authority, was not permitted to convey to the jury; ergo it was error to allow the jury to have the dictionary. To that argument this answer may be given: that what is proscribed is not that meaning of the word 'reasonable', but the attribution of that meaning to the word by the judge. To attribute meaning to 'reasonable' is no part of the judge's function; that lies wholly within the province of the jury. In this instance the judge did not transgress in that fashion; for he did no more than comply with the jury's request that a dictionary be supplied. The judge gave no direction; he said nothing further about the meaning of any word; the jury were not even present in the court room when the request was made and acceded to. The judge simply allowed that a dictionary might be provided and left the jury to its task. [36]

and

To sum up: it seems to me that so long as the jury itself must be the arbiter of what is reasonable, it cannot be the law that the jury must not consider, at all, what is meant by the word 'reasonable'. The jury can scarcely consider what is reasonable without knowing what the word means. The courts proscribe any attempt by the judge to define the word 'reasonable' for the jury; for the judge to attempt such a definition is to trespass on the jury's function. That is why this case seems to me to depend upon the proper division of function between judge and jury. It is the jury's task to decide whether at the end of the day the jurors entertain a doubt which they consider reasonable; it is for the judge to give them a direction to that effect without, at the same time, inviting them to analyse too carefully their mental processes.[37]

See, to like effect, the reasons for judgment of Cummins AJA.[38]

75 Let it be assumed that the jurors, conceptually, were not disentitled to access a dictionary to enable them to give meaning to the critical phrase. A question would nonetheless arise whether a dictionary is to be equated with a legal dictionary or text; and a further question would arise as to the possible impact of s 78A(1) of the Juries Act 2000 upon the common law position.

76 The statute aside, I consider that there would be force to an argument that it is for a juror, guided only by the judge's directions and at most by recourse to a standard dictionary, to arrive at a meaning of the critical phrase. For otherwise, recourse might be had to a legal dictionary or text which promoted a false meaning; and, in the absence of a download being found in the jury room (let the receipt of the download by a Court be assumed) the use of a false meaning might never emerge.

77 The possible application of s 78A, as a gloss on the common law position, in my view raises a question of some difficulty. As it is a function of jurors to give meaning to the critical phrase, it is not quite clear that a juror would infringe s 78A(1) by searching for guidance as to its meaning; for a juror is only precluded from making enquiries 'except in the proper exercise of his or her functions as a juror'. Arguably, that language would not make it an offence for a juror to enquire about that which the common law would permit - which begs the question, would the common law prohibit a jury having access to a legal dictionary concerning the critical phrase?

78 The questions to which I have been referring would stand substantial argument. But let it be assumed, in favour of the applicant, that the jurors' presumed attempt to give meaning to the critical phrase, by downloading the pages from legal dictionary/text sites on the internet was impermissible; and that both this action, and bringing the material into the jury room, constituted an irregularity.

79 The question to be considered next is whether, assuming that all jurors read the material, and that it influenced their respective understandings of the meaning of the phrase 'beyond reasonable doubt', it should be inferred that they reached a unanimous view or disparate view as to its meaning. It might fairly be argued that the question is immaterial, it being common ground that none of the formulations imposed a less rigorous burden on the Crown than it should rightly bear. But let it be assumed, in the applicant's favour, that the various jurors relied upon different expressions of the concept: 'no other logical explanation can be derived from the facts;' 'a particular point [established] to a moral certainty'; 'proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs'.

80 I turn next to the argument for the applicant that the jury's search of the internet was in defiance of the judge's preliminary directions. In my opinion, the argument was unsound.

81 I have already set out what his Honour said. In my opinion, it was not apt to warn the jury against making the search which was in fact made. So I do not accept that the making of the search exhibited defiance of the preliminary directions, and thereby raised a doubt as to the jury's preparedness to accept his Honour's final directions, this casting a pall over the verdicts.

82 I approach resolution of this ground - (1) upon the assumptions which I have made in the applicant's favour; (2) having regard to my conclusion that the jury did not exhibit defiance of the judge's preliminary directions; and (3), on the footing that, deprived of the defence of duress, the applicant had no answer to the Crown case.

83 Problems of a variety of kinds have arisen with respect to the behaviour of juries. In the appellate context, a distinction has been drawn between irregularities discovered in the course of the trial and irregularities discovered after verdict. It is relevant in both contexts to consider whether any revealed irregularity was relevant to the issues before the jury, was prejudicial to the accused, and if it was, then the extent of the prejudice. Instances of the two kinds include R v Domican (No 3),[39]

R v Marsland,[40] R v Rudkowsky,[41] R v K,[42] R v Skaf,[43] Qing An v R,[44] R v Gillespie,[45] R v Bates[46] and R v Cogley.[47]

84 But focusing now upon irregularities discovered after verdict, in R v K, Wood CJ at CL undertook a substantial review of the authorities. He concluded that the appropriate test was that stated by Gleeson CJ in Marsland, and reiterated by his Honour in Rudkowsky, that is -

... the question we must ask ourselves is whether we can be satisfied that the irregularity has not affected the verdict, and that the jury would have returned the same verdicts if the irregularity had not occurred.

85 In Skaf, the New South Wales Court of Criminal Appeal referred to earlier authority, most particularly R v K, and stated that -

there must be a new trial unless this court can be satisfied that the irregularity has not affected the verdict and that the jury would have returned the same verdict if the irregularity had not occurred.[48]

In resolving whether there must be a new trial, the court focused upon the materiality of the irregularity having regard to the issues in the case and having regard to the potential prejudice to the applicants flowing from the juror's behaviour constituting the irregularity.

86 There is no doubt that correct empanelment of the jury is of critical importance. It is a fatal irregularity if a trial is conducted by an unlawfully constituted jury.[49] But that is not this case. Neither is this case of the kind anticipated and dealt with by Coldrey J in R v Cavkic &Ors,[50] or of the kind dealt with by this Court in R v Black & Ors.[51]

87 There is no doubt, also, that a judge, by his or her directions, must leave the jury with a correct understanding of standard of proof in a criminal matter. So, in Cavkic (No 1),[52] where the judge failed to correct an error revealed by a jury question as to the meaning of reasonable doubt, Vincent JA said this -

Whilst there is clearly room for argument concerning what may or may not constitute a fundamental defect in a given criminal trial, the presence of a possible misconception by the jury of the applicable standard of proof must be regarded as a matter of such importance that it is to be treated as having resulted in a substantial miscarriage of justice, notwithstanding the apparent, even overwhelming, strength of the prosecution case perceived from the perspective of a judge in an appellate court. This proposition has application in the cases of all of the applicants. Accordingly, no question of the application of the proviso in Section 568(1) arises with respect to any of them.[53]

88 Here, no question of misdirection arises. Rather, the irregularities which I have assumed are that the jurors impermissibly resorted to the downloaded material to give meaning to the phrase 'beyond reasonable doubt', and that they had the material with them in the jury room. I have also assumed that the jurors did not apply the same expression of the test; but that this occurred in circumstances where each formulation was admittedly no less burdensome upon the Crown than that conveyed by the language of the judge's charge.

89 Applying the test summarised by Wood CJ at CL in R v K - it being the test stated by Gleeson CJ in Marsland, and later reiterated by his Honour in Rudkowsky - I consider that there is no doubt that the assumed irregularities did not affect the jury verdict. None of the circumstances which I have assumed were prejudicial to the applicant. I consider that there is no significance to the assumed fact that the individual jurors adopted variant but permissible meanings of the critical phrase.

That is neither more nor less than may occur in any case where individual jurors give meaning to the critical phrase for the purposes of making their personal decision whether the Crown has established its case. In my opinion, also, it would attach far too much importance to a few words in one of the texts were it concluded that a juror might have applied a 'reasonable juror' test to the phrase 'beyond reasonable doubt' rather than consider, subjectively, whether he or she considered that there was a reasonable doubt as to guilt.

90 In all, whilst bearing steadily in mind the fact that it is always for the Crown to prove guilt, I cannot accept that the jury would not have found the applicant guilty in circumstances where the elements of the offences were admitted and the defence of duress had been taken away. On any view, the assumed irregularities were immaterial to the outcome of the trial. In the language of the New South Wales authorities, those assumed irregularities do not require that there be a new trial.

91 I would refuse the application for leave to appeal against conviction.

92 At [77], I explained why it may be impermissible for a juror to search a legal dictionary or text for the meaning of the phrase 'beyond reasonable doubt'. I expressed no concluded opinion. But unless and until this Court passes upon the matter after full argument, I consider that judges would be wise, when charging as to 'reasonable doubt', to instruct juries that the prohibition in s 78A(1) extends to searching legal dictionaries or texts in an attempt to elaborate the meaning of the critical phrase.

[1] This was the total effective sentence.

[2] On 29 April 2010 the court granted the applicant leave to abandon an application for leave to appeal against sentence.

[3] He had pleaded guilty to armed robbery, had agreed to give evidence against the applicant, and had received a discounted sentence.

[4] The applicant said that any restraint was, in effect, just a response to Wilson kicking out.

[5] [1967] VicRp 57; [1967] VR 526. Smith J dissented in the result.

[6] [1978] VicRp 51; [1978] VR 536.

[7] [2006] NSWCCA 170 [11].

[8] (1998) 146 FLR 369.

[9] Citing P (a child) v R, (Unreported, Court of Criminal Appeal, Western Australia, 7 September 1995.).

[10] [1967] VicRp 57; [1967] VR 526, 543. His Honour stated that these propositions did not necessarily set the limits to the doctrine of duress.

[11] In the case of Anderson J, implicitly at 537-538. In the case of Harris J, explicitly at 541.

[12] [1978] VicRp 51; [1978] VR 536, 538.

[13] [2002] VSCA 163.

[14] [2004] VSCA 127; (2004) 10 VR 466.

[15] (2002) VSCA 163 [15].

[17] [1963] HCA 14; (1963) 111 CLR 610, 616. Except for 'ex hypothesi', my emphasis.

[18] (2002) VSCA 163 [52].

[20] Depending upon the applicant' instructions, such cross-examination might also have challenged the reliability of admissions made by the applicant in her statement and record of interview. But in cross-examination the applicant did not seek to rely upon her alleged consumption of the tablets that way.

[22] No point was made about this aspect of what transpired.

[23] Although his Honour should be forgiven to the extent that, inferentially, he approached the matter on the footing that this was but one instance of wholesale disregard of the rule in Browne v Dunn.

[24] [1998] HCA 2; (1998) 193 CLR, 1, [7]-[8] (Brennan CJ, Gaudron and Gummow JJ).

[25] Perhaps, only the accused in evidence.

[26] [2004] VSCA 185; (2004) 10 VR 215, 218-220 [9]-[16] (Nettle JA).

[27] [2005] VSCA 158; (2005) 12 VR 155, 156-157 [2]-[3] (Charles JA) 168 [71], 169-171 [73]-[84] (Eames JA).

[28] [2007] VSCA 276 [20]-[23] (Buchanan JA), [38] (Coldrey AJA).

[29] The matter was considered in Palmer and Bajic. See Bajic, 171 [83]-[84] (Eames JA).

[30] See, for instance R v Cavkic; R v Athanasi; R v Clarke (No 2) [2009] VSCA 43, [54]-[60].

[31] R v Panozzo; R v Iaria [2003] VSCA 184; (2003) 8 VR 548.

[32] (1995) 79 A Crim R 582. A case which really turned on the Court's unwillingness to accept that documents found in the jury room after verdict had been in the hands of the jury during the trial and during deliberations.

[33] [1997] 2 VR 723. The case considered, inter alia, the impact upon the common law position of the legislative predecessor of s 78 of the Juries Act 2000.

[34] [2004] UKHL 2; [2004] 1 AC 1118.

[35] See, for instance, R v Chatzidimitriou [2000] VSCA 91; (2000) 1 VR 493, 498 (Phillips JA), cited by Vincent JA in R v Cavkic & Ors [2005] VSCA 182; (2005) 12 VR 136, 141 [219].

[36] [2000] VSCA 91; (2000) 1 VR 493, 499 [14].

[39] (1990) 46 A Crim R 428, particularly 448 (Kirby ACJ).

[40] (Unreported, NSWCCA, 17 July 1991.)

[41] (Unreported, NSWCCA, 15 December 1992.)

[42] [2003] NSWCCA 406; (2003) 59 NSWLR 431.

[43] [2004] NSWCCA 37; (2004) 60 NSWLR 86.

[44] [2007] NSWCCA 53.

[45] (Unreported, NZCA, 7 February 1989.)

[46] [1984] NZCA 110; [1985] 1 NZLR 326.

[47] [2000] VSCA 231.

[48] [2004] NSWCCA 37; (2004) 60 NSWLR 86, 98 [242].

[49] R v Panozzo; R v Iaria [2003] VSCA 184; (2003) 8 VR 548.

[50] [2007] VSC 47; (2007) 14 VR 389.

[51] [2007] VSCA 61; (2007) 15 VR 551.

[52] [2005] VSCA 182; (2005) 12 VR 136.