1. Ground 1 is concerned with a communication between the tipstaff and a member of the jury after it was empanelled on 13 November 2023.
2. A jury was first empanelled, and the applicant pleaded not guilty to the charges on Indictment A, on Thursday 9 November 2023. During AA's evidence on 10 November 2023, the jury was discharged upon an application made on behalf of the applicant.
3. The trial resumed on Monday 13 November 2023. The second jury was empanelled at approximately 12:30 pm. In the course of empanelment, the applicant was again arraigned and pleaded not guilty to the six charges on Indictment A.
4. After the empanelment of the jury, and after taking counsels' appearances, the trial judge allowed the jury a short break before he commenced his initial directions to the jury. During that break, and while the tipstaff was giving the jury a general briefing in relation to administrative matters, one of the jury members asked him a question, 'Are we allowed to come for the sentence?' The tipstaff's response to that question was: 'You had better concentrate on your verdict first.' That interaction was not communicated to the parties at any point during the trial.

1. In written submissions in support of ground 1, counsel for the applicant submitted that the question asked by the juror, constituted a serious departure from the prescribed processes for trial for four reasons.
2. First, counsel submitted that the question asked by the juror, shortly after the applicant had been arraigned and pleaded not guilty, suggested that the juror might have predetermined the applicant's guilt. Secondly, counsel submitted that the question asked by the juror required, at the least, a strong direction from the trial judge that the jury was to approach its task with an open mind, and with a reminder that the jury was yet to hear any evidence in the case. In those circumstances, it was submitted that the response made by the tipstaff to the question was inappropriate, because it amounted to the tipstaff involving himself in how the juror should approach the case. Further, it was submitted, in that respect, that the tipstaff's response, expressed in the singular ('a verdict') was contrary to the principle that the jury was required to consider its verdicts on each of the six charges separately.
3. Thirdly, it was submitted that the failure of the tipstaff to communicate the juror's question to the judge deprived the applicant of an opportunity to consider how the issue should be addressed in the interests of a fair trial. In particular, in the light of the nature of the charges and issues that were to be determined by the jury, and the early stage of the trial, the question asked by the juror of the tipstaff might have formed the basis of an application to discharge a juror or the whole jury. Accordingly, it was submitted, the applicant was deprived of the opportunity to satisfy himself whether such an application would be in his best interest.
4. Fourthly, counsel submitted that the case was one which required the jury to carefully consider the evidence in respect of each charge separately. In particular, in relation to charge 5 (rape), the prosecution's case was based essentially on the evidence of AA. The applicant did not dispute that he had assaulted AA during the first incident. In those circumstances, the applicant's defence required careful management by all the parties to ensure that feelings of sympathy or prejudice did not overwhelm the jury's task.
5. Based on those matters, it was submitted that the failure to communicate the juror's question to the parties constituted a serious departure from the prescribed processes for trial, so as to constitute a substantial miscarriage of justice. In the alternative, it was submitted that the Court could not be satisfied that the exchange between the juror and the tipstaff did not make a difference to the outcome of the trial.
6. In oral submissions, senior counsel for the applicant submitted that the exchange between the tipstaff and the juror should have been disclosed to counsel at the earliest opportunity. It was submitted that, on its face, the remark made by the juror to the tipstaff suggested that the juror had prejudged the case. In particular, the juror's question revealed that that juror had some understanding of the role of the jury, as distinct from the role of the judge, in that it is the judge, not the jury, who sentences an accused person if that person is convicted by verdict of the jury. In that context, it was submitted, the question by the juror was not innocuous, but it gave rise to a reasonable apprehension that the juror had prejudged the guilt of the applicant.
7. Counsel submitted that the failure to disclose the exchange between the tipstaff and the juror to counsel had the effect that counsel for the applicant lost the opportunity to obtain instructions, and to apply for a discharge of either the juror in question or the whole jury. It was submitted that the failure to disclose the exchange between the juror and the tipstaff to counsel thus constituted a fundamental irregularity so as to result in a substantial miscarriage of justice. Alternatively, it was submitted that the verdicts of the jury were not inevitable. While on behalf of the applicant it was admitted to the jury that the applicant had physically assaulted AA, the case at the trial was that AA had exaggerated the severity of the assaults, so that the jury should acquit the applicant of the charges, and return alternative verdicts for lesser offences. Further, the applicant put in issue the offence of rape that was the subject of charge 5, and, it was submitted, the verdict of guilt on that charge was by no means inevitable.
8. In response, senior counsel for the respondent accepted that the interaction between the juror and the tipstaff ought to have been communicated to the parties. However, it was submitted, the fact that it was not communicated to the parties, did not amount to a serious departure from the prescribed trial processes amounting to a fundamental irregularity, nor to an irregularity resulting in a substantial miscarriage of justice.
9. In that respect, counsel submitted that, considered in its proper context, the remark by the juror demonstrated a naïve lack of understanding of the criminal justice process, rather than any bias or predetermination on that juror's behalf. In the ensuing preliminary directions, the judge explained to the jury, in clear terms, the process of a criminal trial, the role of the jury and the fundamental principles of the criminal justice system. In particular, the judge, in those directions, instructed the jury that the applicant was presumed innocent unless and until his guilt was proven beyond reasonable doubt. The judge directed the jury that it was to approach its task impartially, to keep an open mind, and to decide the case only on the evidence. In that respect, counsel relied on the principle that it is assumed that in a criminal trial jurors are true to their oath and that they adhere to directions given by the trial judge.[5]
10. Counsel for the respondent noted that those preliminary directions were repeated in the judge's charge to the jury, and that they were emphasised during closing addresses of counsel. It was submitted that while the question asked by the juror ought to have been communicated to the parties, no substantial miscarriage of justice resulted from the failure to do so in the present case. Further, it was submitted that, if the non‑communication of that question did amount to a serious departure from the prescribed processes for a trial, the case against the applicant was overwhelming so that the verdicts of guilty were inevitable. In that respect, counsel noted that the prosecution had a particularly strong case in respect of the assault offences that were the subject of charges 1 to 4. The assaults themselves resulted in demonstrable injuries that were visible to witnesses. The applicant, in his record of interview with police, gave an untruthful account in which, in effect, he claimed that he was not present on the occasions on which AA suffered injury. That account was disavowed by counsel for the applicant at the trial. Further, counsel for the respondent submitted that the prosecution case on charge 5 was overwhelming, particularly in view of the relationship evidence, comprising the evidence supporting the assault charges, and which depicted the applicant as a person who inflicted wanton violence on AA.

1. In the course of oral argument, an issue was raised by senior counsel for the respondent whether the juror, who asked the question of the tipstaff, was a member of the first jury that was empanelled on 9 November 2023 and subsequently discharged on 10 November 2023, or whether the juror was a member of the jury which was subsequently empanelled on 13 November 2023, and before whom the trial proceeded to verdict.
2. After senior counsel for the respondent raised that issue, appropriate inquiries were made of the County Court. In response, the County Court advised that the judge, who presided at the trial[6], and his Honour's tipstaff, were each unable to confirm whether the exchange took place in the context of the first jury (which was discharged on 10 November 2023) or the second jury (which was empanelled on 13 November 2023 and before whom the trial proceeded to verdict). The County Court also advised that the judge's Associate has a recollection that the question was asked in the course of the second trial (which proceeded to verdict), but she was unable to confirm that recollection 'with absolute certainty'.
3. For the reasons that follow, we have concluded that if the exchange took place with the member of the second jury, then it must be concluded that the failure of the Court to inform counsel of the exchange constituted, of itself, a substantial miscarriage of justice. In circumstances in which it is not possible to determine whether the exchange took place in the context of the first jury or in the context of the second jury, it necessarily follows that there is a reasonable possibility that the proceedings in the second trial constituted a substantial miscarriage of justice. On that basis, we have determined that ground 1 of the application for leave to appeal must succeed.
4. It is a well-established and basic principle that, in any jury trial, the contents of any communication between the jury and the trial judge must be disclosed to the parties in open court and recorded in the transcript of the trial.
5. There are two principal exceptions to that rule, neither of which are applicable to the circumstances of the present case. The first exception is where the communication in question concerns a subject that is entirely unconnected with the issues which the jury must determine, and which is also unconnected with any matter that may affect or impair the appropriate adjudication by a member of the jury or the jury of the issues that must be determined. The second exception is where the communication concerns a subject about which it was improper for the jury to have communicated to the judge, and in particular, a disclosure of voting figures when properly informing the judge of the existence of a disagreement or potential disagreement among the jury.[7]
6. The relevant principles were stated by this Court in Farha v The Queen[8] in the following terms:

The following relevant principles are well established:

1. Generally, a trial judge must disclose questions asked by a jury.

1. If the communication raises something irrelevant to the trial, it can simply be dealt with without reference to counsel.
2. In almost every case, a judge should state in open court the nature and content of the communication which he has received from the jury and, if he considers it helpful to do so, seek the assistance of counsel.
3. Exceptionally, if the communication from the jury contains information which the jury need not, and indeed should not, have inspected, then so far as possible, the communication should be dealt with in the normal way, save that the judge should not disclose the detailed information which the jury ought not to have revealed.
4. Jury deliberations should, so far as possible, remain confidential. This is a principle of the highest significance in the criminal justice system.
5. Information about the jury's voting numbers or voting patterns should also remain confidential.

The above principles are usually stated as applicable to the jury as a single entity. There is no reason why they should not apply to communications from single jurors.[9]

1. The same principle applies to communications which occur between the jury, or a member of the jury, and the tipstaff, or an officer of the Court, who is responsible for the management of the jury. Thus, in Carson (a pseudonym) v The Queen,[10] the principle was held to apply to a communication by a juror to the tipstaff as to the juror's concern that the support worker of the accused man had been present in the jury pool room at the time at which the panel was selected and that the support worker took a photograph of the juror, and the juror's concern that subsequently he had seen that support worker walking down the street in which the juror resided.
2. In the present case, the principal submission on behalf of the applicant was that the question asked by the juror of the tipstaff was such as to give rise to a reasonable apprehension that that juror, or indeed the jury, might not apply an impartial and unprejudiced mind to the resolution of the issues in the proceedings and the determination of the verdicts.
3. The test, which is to be applied in determining whether a juror (or a jury) should be disqualified by reason of an appearance of bias, is whether '... the parties or the public might entertain a reasonable apprehension that the jury [or juror] might not bring an impartial and unprejudiced mind to the resolution of the issues involved in the proceedings'.[11] The double use of the verb 'might' is significant in the formulation of the applicable principle. The test is whether the parties or a fair minded member of the public 'might' (not 'would') have the relevant apprehension, such apprehension being that the jury or a juror 'might' (not 'would') not apply an impartial and unprejudiced mind to the determination of the relevant issues in the trial.
4. In the present case, counsel for the respondent correctly accepted that the interaction between the juror and the tipstaff, at the commencement of the trial, ought properly to have been communicated to the parties. He did not contest that the failure to do so constituted an irregularity, but he maintained that it was not a fundamental irregularity. The issue, under ground 1, is whether the fact that the interaction was not properly communicated to the parties, constituted a serious departure from the prescribed trial processes such as to amount to a substantial miscarriage of justice.
5. Section 276(1)(b) of the Criminal Procedure Act 2009 provides that, on an appeal, this Court must allow the appeal against conviction if the appellant satisfies the Court that, as a result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice.
6. In Baini v The Queen,[12] the High Court identified three types of miscarriage of justice which may arise as a result of an error or irregularity in relation to the trial, namely:

(1) where the jury has arrived at a result that cannot be supported;

(2) where there has been an error or irregularity in, or in relation to, the trial and the appellate court cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial;

(3) where there has been a serious departure from the prescribed processes for trial.[13]

1. In respect of the second category of miscarriage of justice, the Court explained that in some cases, it might be possible for the appellate court to conclude that there has not been a substantial miscarriage of justice, because, despite the error or irregularity in the trial, the admissible evidence at trial required the conclusion that the appellant was guilty of the offence charged;[14] that is, the appellate court might conclude that there was no substantial miscarriage of justice because, based on the evidence adduced at the trial, the finding of guilt by the jury was inevitable.[15]
2. In respect of the third category, in Awad Gordon and Edelman JJ expressed the relevant principles in the following terms:

... [W]here the conclusion is reached that an error is a fundamental one, which "goes to the root of the proceedings" or amounts to "a serious breach of the presuppositions of the trial", the demonstration of that error by the appellant will, of itself, establish a substantial miscarriage of justice. That is, a fundamental error will result in a substantial miscarriage of justice irrespective of whether the Court of Appeal considers that the error could have affected the result of the trial.[16]

1. In HCF v The Queen,[17] subsequent to the delivery of verdicts by a jury, a juror delivered a note which caused the trial judge to authorise the sheriff to conduct an investigation under s 70(7) of the Jury Act 1995 (Qld). That investigation revealed that a juror had undertaken internet research about definitions of, and sentences, for rape and unlawful carnal knowledge, and that that juror had informed other members of the jury about the research. The jury did not inform the trial judge of the conduct by the juror in question.
2. In determining whether there had been a miscarriage of justice in the conviction by the jury of the appellant of six sexual offences out of the 19 charges on the indictment, Gageler CJ, Gleeson and Jagot JJ stated the test in terms of whether a fair-minded lay observer might reasonably apprehend that the jury (or juror) might not have discharged its function of deciding the accused's guilt according to law.[18] Their Honours thus stated:

Irregular conduct by a jury or juror, whether described as procedural or otherwise, involves a miscarriage of justice if a fair‑minded and informed member of the public might reasonably apprehend that the jury (or juror) might not discharge its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge. If the jury or juror misconduct would give rise to such a reasonable apprehension then, for that reason, the misconduct will involve a "failure to observe the requirements of the criminal process in a fundamental respect". In such a case, satisfaction of the reasonable apprehension test means that the "shadow of injustice over the verdict" cannot be dispelled, that the trial is "incurably flawed", that there has been a "serious breach of the presuppositions of the trial", and that "the irregularity [is] so material that of itself it constitutes a miscarriage of justice without the need to consider its effect on the verdict".[19]

1. Based on the circumstances of that case, Gageler CJ, Gleeson and Jagot JJ concluded that the irregular conduct of the juror was not such that a fair-minded and informed member of the public might reasonably apprehend that that juror (or the jury) might not have discharged its function of rendering a verdict according to law on the evidence and in accordance with the directions of the judge. In reaching that conclusion, their Honours noted that the judge had directed the jury that it was not to conduct any research on the internet concerning the case. However, the juror in question might not have appreciated that the internet research conducted by him (concerning the definitions of and sentences for rape) was contrary to the judge's directions. Accordingly, it could not be concluded that the conduct of the juror was in wilful disobedience of the judge's directions.[20] Their Honours further considered that it did not follow, as a matter of inferential reasoning, that the juror, or other members of the jury, had failed to understand or apply the judge's other relevant directions.[21] Accordingly, their Honours concluded that there was no basis to determine that a fair-minded and informed member of the public might reasonably apprehend that the jury might not have discharged its function according to law, on the evidence, and in accordance with the directions of the judge.[22]
2. The decision of this Court in Carson is an example of a case in which the failure to advise counsel, of a material interaction between a juror and the tipstaff, constituted such a departure from the prescribed processes of the trial as to amount to a substantial miscarriage of justice.
3. In that case, the jury was empanelled on Monday, 29 July 2019. On the following Monday, 5 August 2019, a member of the jury approached the tipstaff and expressed concern that the accused's support worker had been present in the jury pool room when the jury was struck, and that the support worker took a photograph of him and perhaps of other jurors. That matter was not communicated to counsel for a further week. During that time, the prosecution case closed, and the accused commenced evidence. On the following Monday, 12 August 2019, the judge advised counsel of the interaction between the tipstaff and the jury member. Defence counsel sought a discharge of the jury, which was not opposed by the prosecution. The trial judge, having questioned the juror in open court, rejected the application by defence counsel, but discharged the particular juror from the jury. On appeal, this Court held that the failure to advise trial counsel of the interaction between the juror and the tipstaff, and the delay in ultimately advising counsel of that interaction, constituted a substantial miscarriage of justice.
4. T Forrest JA expressed his reasons for that conclusion in the following terms:

...[I]n discussion, senior counsel for the respondent accepted that the events outlined above constituted an irregularity, but contended that the events of 12 August 2019 cured the irregularity or any prejudice that may have arisen from it, and thus there was no substantial miscarriage of justice. For my part, I am unable to accept this submission. The rule that was breached so as to give rise to the irregularity exists to ensure procedural fairness and to maintain public confidence in the administration of justice. In my view, from the moment this allegation made by Juror 21 was kept from the parties and a private investigation was commenced, this trial ceased to be a fair trial according to law. It could not be revived by the events of 12 August 2019 and the ultimate discharge of Juror 21. The damage to public confidence had been done and the applicant was denied the opportunity to make a timely application for a discharge of either Juror 21 or the jury itself. I consider that what occurred (and what did not occur) on 5 and 6 August 2019 constituted a serious departure from the prescribed processes for trial, such as to constitute a substantial miscarriage of justice.[23]

1. Section 32(1) of the Juries Act 2000 prescribes the information which a judge must provide to a jury panel, before empanelment of a jury, in order to enable panel members to determine whether they should seek to be excused from service on the particular trial. That information includes the type of action or charge, the name of the accused, the names of principal witnesses, the estimated length of the trial and 'any other information that the Court thinks relevant'.[24] It is at that point that the Court then calls on persons on the panel to seek to be excused from jury service on the trial. Section 32(3)(a) provides that the Court may excuse a person from jury service on the trial if the Court is satisfied that the person 'will be unable to consider the case impartially'.
2. In the present case, the judge explained to the panel the fundamental function of the jury. He told the panel that the jury stands between the person accused of a crime and the prosecution, and that the role of the jury is to only allow an accused person to be found guilty if the jury finds the charges proven beyond reasonable doubt. The judge instructed the panel that it was essential that every member of the jury be completely open-minded about the case. His Honour then informed the jury panel of the charges against the accused and provided a brief summary of the prosecution case by which it was alleged that the applicant committed those offences. As the judge said to the panel, the provision of that information was important and necessary in order to ensure that each member of the jury, selected for the trial, would be able to determine the case objectively and with an open and unbiased mind.
3. The question, which the juror asked of the tipstaff, made it clear that the juror, quite correctly, understood that it was the role of the jury to determine the guilt of the applicant, and that it was the role of the judge to sentence the applicant if he was convicted of the charges that were before the jury. Quite plainly, it may be assumed that the juror also fully understood that the judge would only sentence the applicant if the jury determined the guilt of the applicant on the charges that were before the jury.
4. It is in that context that the juror asked the tipstaff whether the jury were permitted 'to come for the sentence?' That question reasonably admits of two possible interpretations. The first such interpretation is that the juror was asking whether he or she could attend the sentencing by the judge if the juror convicted the applicant of the charges before it. The second, alternative, interpretation is that the juror had a predisposition that the accused be convicted. In the context in which the question was asked by the juror, that latter alternative construction of the question could not be excluded. A fair minded and informed member of the public, if appraised of the question, would be aware that the juror understood that the judge would only come to sentence the applicant if the jury determined the guilt of the applicant on the charges before it. The question asked by the juror at least implied the real possibility that the juror assumed that the applicant was guilty or would be found guilty. In those circumstances, it could only be concluded that a fair-minded and informed member of the public might reasonably apprehend that the juror might not bring an impartial and unprejudiced mind to the resolution of the issues involved in the trial, that is, the question of whether the juror was satisfied beyond reasonable doubt of the guilt of the applicant on the charges that were before the jury.
5. Senior counsel for the respondent argued that the question asked by the juror can be explained by mere curiosity or naiveté. Even accepting that this might be a possible explanation, an alternative explanation, that is at least equally probable is that the question evinced an apparent bias. As such, the question asked by the juror was not intractably neutral; a fair minded member of the public might reasonably apprehend that it bespoke of predisposition. For the purpose of completeness, we do add, however, that we do not regard the question asked by the juror as intractably neutral, or that the competing interpretations of it are merely equally possible. In the circumstances, we regard the interpretation, that evidenced apparent bias on the part of the juror, as more probable.
6. It is important to keep in mind that the test for apparent bias requires that a fair minded observer might reasonably conclude that the juror in question might not bring a fair and impartial mind. Once it is accepted that a reasonable possibility exists that the question asked by the juror was borne of prejudgment, there can be no doubt that the question asked by the juror meets that test. The fact, that there may have been an alternative possible innocent explanation, does not exclude or dispel apprehended bias.
7. Consequently, it was necessary that that interchange between the juror and the tipstaff be brought immediately to the attention of counsel in the trial. The fact, that the exchange between the tipstaff and the juror was not communicated properly to counsel, of itself constituted a fundamental irregularity in the trial process. If counsel had been informed of the exchange between the tipstaff and the juror, counsel would have been entitled, and indeed, in proper performance of his or her role, obliged, at the least, to seek the discharge of the juror or, indeed, the entire jury. On its face, the exchange between the juror and the tipstaff could only have given rise to a reasonable apprehension that the jury in question might not approach his or her task with an impartial and unprejudiced mind in determining whether the applicant was guilty of the charges that were before the jury.
8. On the present application, senior counsel for the respondent placed particular reliance on the preliminary directions which the judge gave to the jury after it had been empanelled, and subsequent to the exchange between the tipstaff and the juror in question. As senior counsel pointed out, those directions gave some emphasis to the requirement that the applicant had a right to have the case presented against him determined by twelve independent and open-minded members of the community. The judge directed the jury that it must approach the evidence and the issues in the case with an open mind unaffected by any bias or sympathy or other emotion. The judge emphasised that the jury must decide its case only on the evidence adduced in the trial. The judge specifically directed the jury to 'keep an open mind'.
9. Those directions given by the judge to the jury were unimpeachable. However, notwithstanding the clarity and force of the directions, the fact remains that, as a consequence of the question asked by the juror of the tipstaff, the applicant then and there had the right, if informed of that exchange, to apply for the discharge of the juror, or the jury. The circumstance that the applicant was denied that right, of itself, was a fundamental denial to the applicant of an important aspect of procedural fairness, and was such as to constitute a fundamental irregularity in the trial.
10. Further, as we have noted, the content of the interchange between the juror and the tipstaff was such that a fair-minded observer might reasonably conclude that that juror in question might not bring a fair and impartial mind to the determination of the issues in the case. In those circumstances, that juror was, per se, disqualified from remaining on the jury for the duration of the trial. The juror was, in effect, an irrevocably biased juror. In circumstances in which a juror, at such an early stage of the trial, had evinced apparent bias concerning the charges against the applicant, it could not be concluded that the directions, given by the judge to the jury, were sufficient to remove that bias. In short, and at the risk of repetition, the presence on the jury of a juror who, at the commencement of the trial, evinced an apparent bias against the applicant, was of itself a fundamental irregularity in the conduct of the trial. Expressed in different terms, the juror, having evinced apparent bias, was plainly not qualified to be and remain on the jury.
11. The applicant's complaint is one of procedural fairness. Under this ground of appeal, the materiality of the denial of procedural fairness is tied to the question of apprehended bias. The various formulations adopted for the purpose of assessing the materiality of a breach 'require some assessment of what might have occurred, as a realistic possibility, had procedural fairness been accorded'.[25] In this case, had the information been disclosed, it almost certainly would have provoked an application to discharge the juror and, had that application been made, the judge would have been bound to discharge the juror. To adopt the words of the High Court, this is a case where 'a fair-minded and informed member of the public might reasonably apprehend that the jury (or juror) might not have discharged its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge'.[26]
12. For those reasons, it must be concluded that, in the circumstances of this case, there was a serious departure from the prescribed processes for a criminal trial, such as to constitute a substantial miscarriage of justice. It follows that ground 1 of the application for leave to appeal must succeed, and the appeal allowed on that ground.
13. While that conclusion is sufficient to dispose of ground 1, we would also add that it could not be concluded, in any event, that the error or irregularity in the trial did not make a difference to the outcome of the trial. In other words, it was plainly a material irregularity, and it could not be concluded that the conviction of the applicant on the charges considered by the jury was inevitable. For the purpose of considering that issue, it is necessary to set out, in a little detail, a summary of the relevant evidence given at the trial.

1. The complainant, AA, commenced her evidence by describing the circumstances of her relationship with the applicant. The relationship commenced in about June 2019. At that time, AA had moved into an address in Mooroopna, and the applicant was residing in Shepparton. After they commenced their relationship, they would stay at each other's places for short periods. Their son, KA, was born on 20 September 2020. At that time, the applicant resided with AA for about a week, and then he moved back to his own premises.
2. AA then gave evidence about the circumstances of the offending in December 2020. On 18 December 2020, AA received a number of messages on Facebook from the applicant. The messages suggested that AA might be in a relationship with another man, and they stated that the applicant was going to come to her premises and hurt her. As a result of receiving the messages, AA left her home and went to a friend's house in the same street for about two hours. When AA returned to her home, the applicant was standing outside it. She reluctantly let him inside the house. When she opened the door, the applicant snatched her phone from her. He yelled at her, hit her on the face, and slammed her head into the wall at least twice. At one point, AA was lying on the floor and the applicant was on top of her holding a yellow-handled boning knife to her throat. In the whole of that time, the applicant was screaming at AA. He said he was going to kill her, and he called her a 'slut' and accused her of cheating on him. In addition, during the course of the incident, and while they were still standing in the front entrance to the house, the applicant strangled AA for about thirty seconds.
3. During the assault, the applicant and AA moved inside the house. AA sat on the three‑seater couch and the applicant knelt on his knees in front of her. As he did so, he was screaming at AA, asking 'who is he?'. If AA did not respond, or if he did not like any answer she gave, he hit her again.
4. It was at that point that AA described the circumstances of the rape that is the subject of charge 5. AA said that after the applicant was 'done beating me up ... he sodomised me'. In answer to further questions, she said that he put his penis in her anus. AA did not recall how it started. She was face down on the couch, and she could not stand up because the applicant was holding her down by her head. The applicant was at the side of the couch and her head was shoved into the corner of it. AA was unable to recall how long that part of the incident went for. She presumed the applicant ejaculated, but she did not feel anything of that nature. After he had concluded, she stayed on the couch and went to sleep.
5. Subsequently, AA went to the toilet. The applicant followed her there and watched her. AA in her evidence said that she did not feel that she could move around freely in the house because the applicant had her trapped. After going to the toilet, she returned to the couch. She fell asleep and woke the next morning. At that time, the applicant was sitting on the two-seater couch staring at her. When AA went to have a shower, the applicant took her there, and he got into the shower with her. He told her to stay in the shower while he went out to her car, fetched her clothes, and returned to the house. After the shower, AA got dressed and put on makeup. At that time she had an abrasion under her lip, she had a black eye, and the whole of her forehead and her ear was bruised. She also had bruising around her neck and on her arms.
6. After her shower, AA applied makeup because she had to go to Albury that day to see her two older children. She did not want anyone to see her face battered. The applicant watched her putting on makeup, and he told her to keep applying more makeup, because he could still see the bruising. He told her that if anyone asked what happened, she was to say that she got into a bar fight.
7. After they left the house, AA drove the applicant back to his house in Shepparton. She then returned to her own home to meet her father who was to drive her to see her older children in Albury.
8. On the same day, on 19 December 2020, AA exchanged a number of Facebook messages with her friend, TL. At that time, KA was staying with TL. The messages included a description by AA as to what had occurred the previous night. AA stated: 'I tried to escape last night. He caught me and flogged me. I couldn't call the cops. He took my phone. He stayed up to watch me sleep so I couldn't leave'.
9. AA then gave evidence about a number of Facebook messages she exchanged with TL on 21 December, on 26 December, and on 27 December, in which she discussed reporting the applicant to the police. In a message on 27 December at 7:30 pm, AA stated to TL 'I don't want to be with him anymore'. In a further message on 27 December, AA stated to TL, 'Because I don't want to take him back, he bashes me and rapes me when I'm almost unconscious. He's a rat'.
10. AA gave evidence that on the night of 19 December 2020, she ended up staying at the premises of her cousin, FX. AA had sent messages to FX in which she stated that she needed to get away from the applicant and that she had nowhere to stay. AA said that she did speak to the police on 20 December after FX had contacted the police. However, she did not make a statement because she was then intoxicated.
11. AA next gave evidence that she exchanged text messages with the applicant on 20 December and 21 December 2020 and a series of Facebook messages on 22 December 2020. Between 22 December and 28 December, she spent time with the applicant on Christmas Day and Boxing Day. Subsequently on 28 December 2020, AA sent a message to the applicant that she did not want to be with him anymore and that she had 'had enough'.
12. At 11:30 pm on 29 December 2020, AA contacted police because she felt someone was in the house. Subsequently, at 1:30 am on the following morning, when AA stepped out of the toilet, the applicant ran towards her, slapped her, and fled out the back door. AA ran up the street to her friend's house and the police were contacted.
13. In cross-examination, AA agreed that she had consensual sex with the applicant in the period of 25 December and 26 December 2020. She agreed that she made her first statement to the police at 1:30 am on 29 December. Subsequently, at 11:30 pm on that date, and at 1:30 am on 30 December, AA telephoned the 000 number and police attended. At 4:43 pm on 30 December 2020, AA signed a second statement. Four hours later, at 8:24 pm on the same date, she signed a third statement to police relating to the earlier incident on 18 December and 19 December. AA also confirmed that she made her fourth statement to police on 18 January 2021. She also confirmed at the committal proceeding that each of her four statements were true and correct.
14. AA confirmed that in December 2020, KA, who was about two months old, was not living with AA and the applicant at that time. Through an arrangement that was in place through the Department of Health and Human Services (DHHS), KA was living with TL. One of the reasons KA was not in AA's care was because of AA's abuse of alcohol. At the time, she had a significant alcohol dependency problem and she would drink large amounts of alcohol regularly. As a result, there were occasions when she was unable to recall events that had taken place while she was intoxicated. TL would not let AA visit KA if she was drunk. AA also agreed that her abuse of alcohol was a matter of dispute between herself and the applicant. The applicant would accuse her of prioritising alcohol over the care of KA. He would become quite frustrated and angry when AA became intoxicated.
15. AA agreed that in the lead-up to 18 December, she was having regular contact with the applicant through text messages, Facebook and telephone calls. She agreed that she had been drinking alcohol on the afternoon of 18 December 2020. When the applicant started to message her that evening, he thought that she had been cheating on him. When AA went to her neighbour's place on that evening, she continued to drink alcohol. She returned home close to midnight. AA agreed that in her first statement to police, and at the committal proceeding, she said that on that evening she went to sleep after midnight. However, in cross-examination, she said that she had been beaten for about three hours before she went to sleep. She agreed that there were aspects of that night that she could not remember. On the morning of 19 December, when she woke she was sleeping on her couch, which was where she normally slept. During the morning of 19 December, both she and the applicant were quiet and they did not talk much between themselves. AA agreed that she then drove the applicant home, and on route, they stopped at a milk bar so that the applicant could purchase some cigarettes.
16. Counsel then took AA through the series of text messages which had passed between AA and TL on the morning of 19 December 2020. She agreed that in the messages, although she referred to the fact that the applicant had assaulted her, she did not make any reference to the applicant raping her. In addition, in text messages which AA had with the applicant on that morning, she accused the applicant of physically assaulting her, but she did not say anything about him raping her.
17. AA agreed that, on the morning of 20 December, she said to FX that the applicant had bashed her. During that day, AA continued to consume a large quantity of gin. When the police attended at FX's house that afternoon at 3 pm, AA was unable to provide a statement to them. AA agreed that she did not say to FX anything about the applicant raping her. She agreed that when police attended the home of FX on 20 December, she was only able to make a general allegation that the applicant had physically assaulted her.
18. AA confirmed that on 28 December and 29 December, she sent a text message to the applicant making it clear that the relationship was over. She also confirmed that at that time the applicant was concerned as to how he would continue to have contact with KA. For her part, AA was concerned that when the relationship ended, the applicant was going to explore whether KA could stay with his parents in New South Wales. AA confirmed that in text messages between herself and TL, AA said to TL '[the applicant's] going to get KA, take him to Sydney if I didn't report him'. AA also stated in the text message 'I don't know how to make things better until he's gone for good'.
19. AA confirmed that the only mention she had made to TL that she had been raped was in the Facebook message on 29 December 2020, when she referred to the applicant bashing and raping her.
20. AA confirmed that in the period between 19 December 2020 and 28 December 2020, she spent the Christmas period with the applicant. She also agreed that on the evening of 18 December 2020, she told the applicant she was in love with him, and that in the Christmas period between 25 and 26 December, she had consensual sexual intercourse with the applicant.
21. AA agreed that she did not mention that the applicant had strangled her in any of her Facebook messages with TL. She also agreed that, although she did mention that matter in her first statement, she did not make any further reference to it in her second, third and fourth statements to police.
22. The next witness in the trial was TL. TL gave evidence that in late 2020, she lived near AA. She confirmed that at that time she had responsibility for the care of KA. TL confirmed the Facebook messages that passed between herself and AA on 19 December 2020 (exhibit G). When she saw AA in the late morning of 20 December 2020, she noticed that AA's face was swollen and she was wearing a lot of makeup.
23. In cross-examination, TL confirmed that she facilitated contact between AA and KA from time to time during November and December 2020. She agreed that during that period she would not facilitate contact with KA, if AA had been drinking or was intoxicated. TL also confirmed that when she made her statement to police, she knew that police were interested in what AA had told her about what the applicant had done to her. TL confirmed that she did not mention in her statement any allegation that AA was raped by the applicant.
24. FX, in her evidence, stated that she would use Facebook Messenger to exchange messages with AA quite regularly. She confirmed that on the night of Saturday 19 December 2020, AA stayed at the home in which she was then living. FX noted that AA had bruising on her face, which she had covered with makeup. AA did not want to discuss how she had incurred the bruising. FX and AA went to a hotel in Shepparton where they stayed until closing time. On the next morning, AA said to FX that she had left her home because the applicant said that he was coming around and AA had told him not to do so. AA said that when she returned home on the Friday night, the applicant was waiting for her inside. She said that he grabbed her and dragged her in the house, smashed her head into the side of a wall, ripped her hair out and bashed her for hours.
25. FX said that as a result of what she was told, she persuaded AA to call police. Later on the same day, police attended their home. FX told police what AA had said to her.
26. In cross-examination, FX agreed that she had a bottle of gin at her house, which AA opened and drank throughout the course of the day. When police arrived, AA was intoxicated and was trying to keep to herself. FX agreed that she had been cautioning AA against her relationship with the applicant, but AA told FX that she still loved the applicant. AA did not want FX to call the police, but FX persuaded her to do so. FX confirmed that throughout 20 December 2020, when AA was telling her about the events of 18 December, she did not mention anything about being raped and she did not mention anything about a knife.
27. Belynda McDonald was a neighbour of AA. She lived about six doors from AA's home on the opposite side of the road. On 7 January 2021, Ms McDonald spoke to the police about an incident that had occurred about one week earlier. On that occasion, AA arrived at Ms McDonald's home at about 1:30 am. AA was distressed and crying, and she smelt of alcohol. AA said to Ms McDonald that her ex-partner had been at her home. She said that when she came out of the toilet and stepped into the laundry, the applicant stepped in from around the corner and slapped her. AA told Ms McDonald that the applicant then ran out the back door and she ran out the front door. Ms McDonald was unable to observe any marks on AA's face at that time. Ms McDonald called the emergency number 000 and a short time later police attended at her home.
28. In cross-examination, Ms McDonald agreed that she had told the 000 operator that AA was 'under the weather' and that she had been drinking. Ms McDonald and her partner had gone out to have a look in the street but they did not see the applicant there.
29. In December 2020, Julie Haigh was a member of Victoria Police attached to the Mooroopna police station. At 2:30 am on 20 December 2020, Ms Haigh was dispatched with Sergeant Natalie Jubb to attend an address in Ann Street, Mooroopna. When they attended the address, they found that AA was not comfortable talking to them. She gave the police small pieces of information, but at the time she was visibly upset. Ms Haigh observed that AA had bruising to her eye and to the right upper arm area, and redness to the left side of the neck. She appeared to be affected by alcohol, and was slurring her words. Ms Haigh advised AA to seek medical attention, but she declined to do so. AA also declined to make a statement to police about what was alleged to have occurred.
30. In cross-examination, Ms Haigh stated that AA was very intoxicated, and police were unable to take a statement due to her level of intoxication. The running sheet compiled by Sergeant Jubb also noted that AA denied any sexual assault. Ms Haigh could not recall that exact conversation and could not confirm the accuracy of the record.
31. Sergeant Steven Turpin was a senior constable of police at Mooroopna police station in December 2020. On 28 December 2020, Sergeant Turpin was working on patrol duties with Constable Keely Gissing. On the morning of 29 December 2020, Sergeant Turpin was directed to take a statement from AA, who had presented at the police station. During the taking of her statement, AA stated that the applicant had assaulted her over a period of time and during those assaults he had forced her to have anal sex with him. As a result of that information, Sergeant Turpin ceased to further interview AA, and the matter was deferred to Senior Constable Zoe Mansfield of the Sexual Offences and Child Abuse Investigation Unit (SOCIT).
32. Senior Constable Zoe Mansfield gave evidence that in the afternoon of 30 December 2020, she attended Shepparton police station and spoke to AA about the sexual assault allegation. Senior Constable Mansfield gave AA an 'options talk' before AA made her second statement in which she detailed the rape allegation.
33. In December 2020, Detective Senior Constable Sarah Trewin was attached to the Shepparton Family Violence Investigation Unit. On 22 December 2020, Detective Senior Constable Trewin attended the address of FX and spoke with AA. During that conversation, AA did not make any disclosures about an assault. Detective Senior Constable Trewin made an appointment with AA to attend the police station on the next day, but AA did not meet that appointment. Subsequently, on 30 December 2020, Detective Senior Constable Trewin took a statement from AA in relation to the burglary allegation.
34. On 5 December 2021, Detective Senior Constable Trewin attended an address with other members of police and arrested the applicant at 9:20 am. An interview was conducted at Shepparton police station and the interview was played to the Court.
35. In cross-examination, Detective Senior Constable Trewin stated that she was aware that when police specifically asked AA on 20 December 2020 whether she had been sexually assaulted on 18 December and 19 December, AA responded 'no'. At that time, FX, who was present, said 'are you lying?' and AA responded 'yes'.

1. It was based on that evidence, that counsel for the applicant, at trial, submitted to the jury that it could not be satisfied beyond reasonable doubt of the guilt of the applicant on the charges under consideration.
2. Counsel submitted to the jury, in respect of charge 1, that it should not be satisfied beyond reasonable doubt that the applicant intended to cause AA injuries, and that it should acquit the applicant of that charge, and convict him on the alternative charge of recklessly causing injury. While the prosecution case on charge 1 was particularly strong, it could not be concluded that the conviction of the applicant on that charge, instead of on the alternative charge, was inevitable.
3. In respect of charges 2 and 3, the defence counsel, at trial, relied, principally, on the lack of any complaint made by AA to the actions that were the subject of those charges, namely, the applicant holding the knife to her throat and choking her. Counsel also referred to the lack of detail concerning the allegations when AA made a statement about the assaults to the police. Again, while the prosecution case on charges 2 and 3 was strong, it could not be concluded that the conviction of the applicant on those charges was inevitable.
4. The same proposition applies to the offence that was the subject of charge 4. Counsel drew to the attention of the jury the concession by AA that, on the evening of 18 December, AA had told the applicant that she loved him. It was also put in contention the evidence by AA that the applicant had taken her phone from her to prevent her contacting police that night. Counsel noted that when AA and the applicant woke the next morning, nothing was said about what had happened the night before, and they spent the morning together like a normal couple. In those circumstances, it could not be concluded that the conviction of the applicant on charge 4 was inevitable.
5. In respect of charge 5, counsel for the applicant relied on a number of factors to submit to the jury that it should have a reasonable doubt about the guilt of the applicant on that charge. Those factors included: the lack of detail in the evidence by AA about the allegation; the lack of complaint by AA concerning the rape until she spoke to police; the continuation of the sexual relationship between the applicant and AA over the Christmas period; and the motive of AA to ensure that the applicant did not succeed in removing KA into the care of his mother. Those considerations are sufficient to conclude that the conviction of the applicant on charge 5 was not inevitable.
6. The prosecution case on charge 6 was that the applicant attended the premises in Mooroopna on 30 December 2020 with the intention of assaulting AA, and thus he committed the offence of burglary. Counsel for the applicant submitted to the jury that it could not be satisfied, on AA's evidence, about what the applicant was intending to do when he attended AA's address on that date. Again, that argument was sufficiently tenable to preclude a conclusion that the conviction of the applicant on charge 6 was inevitable.
7. For those reasons, it could not be concluded that the conviction of the applicant on any of the charges was inevitable.

1. For the foregoing reasons, the applicant must succeed on ground 1. Accordingly, the applicant should be granted leave to appeal on that ground, the appeal allowed, and the applicant's convictions on each of the six charges be set aside, and it should be ordered that there be a retrial of those charges.

1. I have had the benefit of reading Kidd and Kaye JJA's reasons in draft, and gratefully adopt their summary of relevant facts and outline of the circumstances that gave rise to the application for leave to appeal. However, I am unable to agree with their Honours' conclusion that the non-disclosure of the exchange between the juror and the tipstaff amounted to a substantial miscarriage of justice.

Was non-disclosure of the juror's question an irregularity?

1. The single ground of appeal now pressed by the applicant is:
   • An error or irregularity in the trial process occurred resulting in a substantial miscarriage of justice, by reason of the failure of the trial judge to inform the parties of communications that took place between the tipstaff and the jury on 13 November 2023.
2. The communications in question took place during a short break between the empanelment of the jury and the judge's initial directions, while the judge's tipstaff was giving the jury a general briefing about housekeeping matters. A juror asked, 'Are we allowed to come for the sentence?' and the tipstaff responded, 'You had better concentrate on your verdict first'. The exchange was not disclosed to the parties during the trial.
3. It is uncertain whether the question was asked by a member of the jury that delivered the verdict, or a member of an earlier jury that was discharged. For the reasons given by Kidd and Kaye JA, I accept that there is a reasonable possibility that the exchange involved the second jury and that the application should be determined on that basis.
4. The respondent accepted that the exchange ought properly to have been communicated to the parties. That concession was correctly made.
5. It is well-established that any question asked by a jury must be disclosed in open court, unless the question concerns something irrelevant to the trial or would disclose information that should remain confidential to the jury.[27] The principle applies equally to questions asked by a single juror,[28] whether they are asked of the judge or a member of the judge's staff such as a tipstaff.[29] In this case, the juror's question was one of substance and, as a matter of procedural fairness, ought to have been disclosed to the parties at the earliest opportunity.
6. The failure to disclose the juror's question and the tipstaff's response was therefore an irregularity in, or in relation to, the trial for the purposes of s 276(1)(b) of the Criminal Procedure Act 2009.

Did the irregularity amount to a substantial miscarriage of justice?

1. Section 276 of the Criminal Procedure Act provides, in full:
   • 276 Determination of appeal against conviction

(1) On an appeal under section 274, the Court of Appeal must allow the appeal against conviction if the appellant satisfies the court that -

(a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or

(b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or

(c) for any other reason there has been a substantial miscarriage of justice.

(2) In any other case, the Court of Appeal must dismiss an appeal under section 274.

1. The High Court considered the construction of s 276(1)(b) and the meaning of 'substantial miscarriage of justice' in Baini v The Queen.[30] The majority held:
   • No single universally applicable description can be given for what is a "substantial miscarriage of justice" for the purposes of s 276(1)(b) and (c). The possible kinds of miscarriage of justice with which s 276(1) deals are too numerous and too different to permit prescription of a singular test. The kinds of miscarriage include, but are not limited to, three kinds of case. First, there is the case to which s 276(1)(a) is directed: where the jury have arrived at a result that cannot be supported. Secondly, there is the case where there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial. Thirdly, there is the case where there has been a serious departure from the prescribed processes for trial. This is not an exhaustive list. Whether there has been a "substantial miscarriage of justice" ultimately requires a judgment to be made.[31]
2. Applying that analysis to this case, two questions arise. First, can the Court be satisfied that the non-disclosure of the exchange between the juror and the tipstaff did not make a difference to the outcome of the trial? And second, was the non-disclosure a serious departure from the prescribed processes for trial? For the reasons that follow, I would answer those questions 'yes' and 'no', with the result that I do not agree that the non-disclosure amounted to a substantial miscarriage of justice.
3. While the applicant was at pains to emphasise that the juror's question might indicate bias, he did not contend that the convictions should be set aside on that basis. The sole ground on which the application was based was that the non-disclosure amounted to an error or irregularity in the trial process.
4. The failure to disclose the exchange to the parties soon after it occurred deprived the applicant of an opportunity to consider what, if any, action was in his best interests to take. Several options were identified in the applicant's submissions, variously:

(a) a request that enquiries be made of the juror or jury to confirm that they could hear the matter with an open mind;

(b) a request for a strongly-worded direction as to the need to keep an open mind;

(c) an application to discharge the individual juror - presumably for an apparent lack of impartiality;[32] or

(d) an application to discharge the entire jury on the same basis.

1. It is not a foregone conclusion that the judge would have acceded to any of these courses. Much would have depended on the prosecution's response, and the judge's own assessment. However, it may be accepted that the judge would probably have granted a discharge application, had one been made on 13 November 2023.
2. Regrettably, the exchange was not disclosed, the trial proceeded without the applicant having the opportunity to consider and respond to it, and the jury reached a verdict. From that point onwards, the question whether the non-disclosure amounted to a substantial miscarriage of justice cannot be answered by asking what would have happened had the exchange been disclosed. Rather, it must be answered by a retrospective assessment of the relevant facts in order to reach a judgment as to whether a substantial miscarriage of justice has in fact occurred.[33]

1. The applicant did not seek to set aside his conviction on the basis that the juror's question gave rise to a reasonable apprehension of bias. Had he done so, the relevant test is that stated by the majority in HCF v The Queen:[34]
   • On the facts to be found on the balance of probabilities, might a fair-minded and informed member of the public reasonably apprehend that the jury or a juror might not have discharged the function of deciding the appellant's guilt according to law, on the evidence, and in accordance with the directions of the judge?[35]
2. In HCF, as in this case, the juror conduct of concern did not come to light until after the jury had given its verdict, finding the accused guilty of six sexual offences. It later emerged that, contrary to the trial judge's directions, a juror had conducted internet research on the definitions of and sentences for rape and carnal knowledge and had told other members of the jury about his research. By majority, the High Court held that the available evidence did not give rise to a reasonable apprehension of bias and mere disobedience of the judge's directions was not, of itself, enough to give rise to a miscarriage of justice.
3. Applying the test for reasonable apprehension of bias requires some fact-finding, in circumstances where the available evidence is necessarily limited by the exclusion of evidence regarding the jury's deliberation. Inferences may be drawn from the available evidence on the balance of probabilities, which requires something more than conjecture, guesswork or surmise.[36]
4. Critically, evaluation of the available evidence from the perspective of the fair-minded and informed member of the public must take account of the oath or affirmation taken by the jury to faithfully and impartially try the issues between the Crown and the applicant in relation to all charges brought against him and to give a true verdict according to the evidence.[37] Appellate courts should not lightly infer an apprehension that jurors have violated that oath or affirmation.[38]
5. In addition, it must be assumed, as a general rule, that the jury understood and followed the directions given by the trial judge.[39] The fair-minded and informed member of the public must be taken to know the directions that were in fact given by the judge to the jury and to assume that they were understood and followed, unless there is some evidence to displace that assumption.

1. Had the applicant sought to set aside his conviction on the basis that the juror's question gave rise to a reasonable apprehension of bias, the following evidence would have been available.
2. At the start of the empanelment process, the accused was arraigned in front of the panel and pleaded not guilty. The judge then provided the panel with a brief outline of what is involved in jury service, the charges against the applicant and their context, and the circumstances in which a panel member should seek to be excused. In particular, the judge told the panel:
   • In this system, a finding of guilt is not a matter for judges or lawyers. Our system provides that it is only a decision of the jury representing the community which can change a person's status from innocent to guilty.
   • ...
   • [J]ury service is an important and privileged duty and it is within the power of each of you to carry out that duty, exercising your common sense and with an open mind.
   • In a moment, I'm going to give you a final opportunity to apply to be excused from sitting on the jury for this trial. So please listen careful to what I'm about to say about that. It is essential that every member of the jury be completely open minded about the case that they will hear and not favour one side or the other.
   • ...
   • Alternatively, there may be some personal reason you feel you cannot be a juror in this case. This is a trial regarding an allegation of sexual offending against a woman by a former partner. That may raise issues for a potential juror that may mean that a particular person could not treat the parties to the case fairly. In a case involving allegations of sexual offences, a potential juror once told the judge that it was 'too close to home'. That may have meant he could not treat the parties to the case fairly. However, other people in similar situations serve as jurors in similar cases every day and are able to do so by putting side any personal experiences or any bias or sympathy that may arise.
3. The judge excused every member of the panel who sought to be excused. The 14 jurors who were then empanelled took the oath or affirmation required by s 42 of the Juries Act 2000.
4. As mentioned, during the break between the empanelment of the jury and the judge's initial directions, a juror asked, 'Are we allowed to come for the sentence?'. The tipstaff responded, 'You had better concentrate on your verdict first'. The description of the exchange provided in correspondence from the County Court indicates that it took place in the presence of other jurors.
5. After the break, the judge gave his initial directions to the jury. The relevant parts of those initial directions were:
   • [Y]ou represent one of the most important institutions in our community, the institution of trial by jury. Our legal system guarantees any individual charged with a criminal offence the right to have the case presented against him or her determined by 12 independent and open minded members of the community in accordance with the law.
   • ...
   • [The applicant] has pleaded not guilty and so it is for you and you alone to decide whether he is guilty or not guilty of any of these crimes or all of them.
   • ...
   • Now, it's your duty as you're sitting there, you come to court and you agree to act as a jury, you can have all sorts of opinions about life and about cases such as this, but acting as judges now and you've taken an oath or an affirmation, you've got to listen to the evidence with a blank canvass. The man sitting in the dock is innocent. That's his status at the moment. It's up to the prosecution to prove any of these charges beyond reasonable doubt. So you've got to discipline yourselves to have a blank canvass. That doesn't mean you don't have your common sense and all that sort of thing and you've got your experience of life, but you're going to act as a judge now and the way to test it is if you or your family were ever charged and you were in the dock, you would want the jury to have a blank canvass and behave without any bias or sympathy, et cetera. So it's pretty obvious.
   • So in particular, you should dismiss any feelings of sympathy or prejudice you may have whether it's sympathy for or prejudice against the accused or anyone else. No such emotion has any part to play in your decision. You are the judges of the facts. That means that in relation to all of the issues in this case, you must act like judges. You must dispassionately weigh the evidence logically and with an open mind, not according to your passion or feelings. Your duty is to consider the evidence using your intellect, not your heart.
   • ...
   • [Y]ou should not form conclusive views about the case until you've heard all of the evidence. Listen to counsel on both sides and receive my instructions about the law. Keep an open mind.
   • ...
   • Now, the onus and standard of proof. It's a critical part of our justice that people are presumed to be innocent unless and until they are proved guilty. So before you may return a verdict of guilty, the prosecution must satisfy you that the accused is guilty of the charge in question. As the prosecution brings the charges against the accused, it's for the prosecution to prove those charges. The accused does not have to prove anything. That never changes from start to finish. It is not for the accused to demonstrate his innocence but for the prosecution to prove the charges that they have brought against him.
   • The prosecution must do this by proving the accused's guilt of the charge beyond reasonable doubt.
6. The applicant made no criticism of these directions. I agree with Kidd and Kaye JJA that they were unimpeachable. Their impact on jurors hearing them for the first time should not be downplayed. They covered everything that might have been the subject of a specific direction in response to the juror's question.
7. In his charge to the jury at the end of the trial, the judge repeated his directions to put aside any feelings of sympathy or prejudice and to weigh all the evidence with an open mind. The judge again explained the presumption of innocence and reiterated that the jury could only return a verdict of guilty on a particular charge if the prosecution had proved the elements of that charge beyond reasonable doubt. Again, no complaint is made about the judge's charge.
8. The judge's directions to the jury were clear, emphatic, and correct. There is no basis to infer that the jury did not follow them.
9. On 20 November 2023, the jury returned verdicts of guilty on all six charges.

1. On the available evidence, I cannot conclude that a fair-minded and informed member of the public might reasonably apprehend that the juror might not have discharged the function of deciding the appellant's guilt according to law, on the evidence, and in accordance with the directions of the judge. I do not accept that the more likely explanation for the juror's question was that it was born of prejudgment, given that the juror had not sought to be excused during the empanelment process. It is just as likely that the question was naïve or misinformed. On any interpretation, the juror's question was less consequential than the established juror misconduct in HCF.
2. The fair-minded observer would understand that the juror was newly empanelled, unlikely to be familiar with the criminal justice process, and yet to receive detailed directions from the judge. In my view, there is an insufficient basis to infer that the juror might have disregarded the directions subsequently given by the judge and violated their oath or affirmation to give a true verdict according to the evidence.
3. Where irregular conduct by a juror gives rise to a reasonable apprehension of bias, there will have been a substantial miscarriage of justice.[40] That is not this case. This is a case where a question asked by a juror was not disclosed to the parties when it should have been. Such a non-disclosure is not necessarily a substantial miscarriage of justice.[41]
4. In light of the judge's initial directions given immediately after the question was asked, and repeated at the end of the trial, I am satisfied that the non-disclosure did not make a difference to the outcome of the trial. In reaching that conclusion, I have assumed that the jury understood and followed the judge's directions and adhered to their oaths and affirmations. There is no evidence to displace those assumptions.
5. For similar reasons, I do not consider that non-disclosure of the juror's question amounted to a serious departure from the prescribed processes for a trial. The question itself did not give rise to a reasonable apprehension of bias. While the question should have been disclosed to the parties, the judge's directions to the jury were clear, comprehensive and correct, and there is no reason to conclude that they were not followed.
6. For completeness, I agree with Kidd and Kaye JJA's conclusion that the jury would not inevitably have convicted the applicant on the six charges he faced. While the prosecution case was strong, it was open to the jury to entertain a doubt as to the applicant's guilt on each of the charges
7. I would grant leave to appeal, but dismiss the appeal.

[5] Gilbert v The Queen (2000) 201 CLR 414, 425-6 [31]-[32] (McHugh J); [2000] HCA 15.

[7] R v Fitzgerald [1889] VicLawRp 37; (1889) 15 VLR 40, 48-9 (Williams J), 51-2 (Hodges J); R v Yuill (1994) 34 NSWLR 179, 190 (Hunt CJ at CL, Abadee and Simpson JJ); R v Crowe [1985] 2 Qd R 389, 390 (DM Campbell J), 392-4 (Thomas J); Rabey v The Queen [1989] WAR 84, 87 (Burt CJ); R v Gorman [1987] 1 WLR 545, 550-1 (Lord Lane CJ); R v Black [2007] VSCA 61; (2007) 15 VR 551, 554-5 (Buchanan AP); [2007] VSCA 61; Smith v The Queen [2015] HCA 27; (2015) 255 CLR 161, 171 [32], 177 [58] (Gordon J); [2007] HCA 27.

[8] [2018] VSCA 310.

[9] Ibid [24]-[25] (Priest, T Forrest and Ashley JJA).

[10] [2019] VSCA 317 ('Carson').

[11] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 53 (Mason CJ and McHugh J); [1994] HCA 30; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 492 [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); [2000] HCA 48; R v Czajkowski [2002] NSWCCA 530; (2002) 137 A Crim R 111, 115-6 [19] (Sheller JA); [2002] NSWCCA 530; CF v The King [2022] NSWCCA 260, [21] (Beech‑Jones CJ at CL).

[12] (2012) 246 CLR 469; [2012] HCA 59 ('Baini').

[13] Ibid 479 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); Awad v The Queen [2022] HCA 36; (2022) 275 CLR 421, 431-2 [26]-[28] (Kiefel CJ and Gleeson J), 444-5 [76]-[78] (Gordon and Edelman JJ); [2022] HCA 36 ('Awad').

[14] Baini [2012] HCA 59; (2012) 246 CLR 469, 480 [28] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59.

[15] Ibid 480 [30] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59.

[16] Awad [2022] HCA 36; (2022) 275 CLR 421, 444-5 [77]; [2022] HCA 36.

[17] (2023) 280 CLR 596; [2023] HCA 35 ('HCF').

[18] Ibid 600-1 [6]; [2023] HCA 35.

[19] Ibid 603 [11] (emphasis in original). See also 624-5 [81]-[83], 634-5 [112] (Edelman and Steward JJ).

[20] Ibid 616 [51], 618 [57]; [2023] HCA 35.

[21] Ibid 619 [62]; [2023] HCA 35.

[22] Ibid 620-21 [69]; [2023] HCA 35.

[23] Carson [2019] VSCA 317, [86]. See also [26], [29]-[30] (Niall JA), [133]-[134] (Ashley JA).

[24] Section 32(1).

[25] Carson [2019] VSCA 317, [11] (Niall JA).

[26] HCF [2023] HCA 35; (2023) 280 CLR 596, 516 [46] (Gageler CJ, Gleeson and Jagot JJ); [2023] HCA 35.

[27] R v Black [2007] VSCA 61; (2007) 15 VR 551, 554 [14]-[15] (Buchanan AP, Eames JA and Kellam AJA agreeing); [2007] VSCA 61; Farha v R [2018] VSCA 310, [24] (Priest, T Forrest and Ashley JJA) ('Farha'); Carson v R [2019] VSCA 317, [9] (Niall JA), [77] (T Forrest JA) ('Carson').

[28] Farha [2018] VSCA 310, [25] (Priest, T Forrest and Ashley JJA).

[29] See eg, Carson [2019] VSCA 317.

[30] (2012) 246 CLR 469; [2012] HCA 59 ('Baini').

[31] Baini [2012] HCA 59; (2012) 246 CLR 469, 479 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59 (footnotes omitted).

[32] Juries Act 2000, s 43(a).

[33] HCF v R [2023] HCA 35; (2023) 280 CLR 596, 615 [46] (Gageler CJ, Gleeson and Jagot JJ); [2023] HCA 35 ('HCF').

[34] (2023) 280 CLR 596; [2023] HCA 35.

[35] HCF [2023] HCA 35; (2023) 280 CLR 596, 604 [14] (Gageler CJ, Gleeson and Jagot JJ); [2023] HCA 35.

[36] HCF [2023] HCA 35; (2023) 280 CLR 596, 604 [13]-[14] (Gageler CJ, Gleeson and Jagot JJ); [2023] HCA 35.

[37] Juries Act 2000, s 42, sch 3.

[38] HCF [2023] HCA 35; (2023) 280 CLR 596, 605 [16] (Gageler CJ, Gleeson and Jagot JJ); [2023] HCA 35.

[39] Gilbert v R (2000) 201 CLR 414, 420 [13] (Gleeson CJ and Gummow J); see also 425 [31] (McHugh J, in dissent) and 431 [51]-[52] (Hayne J, in dissent); [2000] HCA 15.

[40] HCF [2023] HCA 35; (2023) 280 CLR 596, 601 [7] (Gageler CJ, Gleeson and Jagot JJ); [2023] HCA 35.

[41] See, eg, Hughes v R (2014) 41 VR 428; [2014] VSCA 4.