Smith v The Queen

The High Court has unanimously dismissed an appeal from a decision of the Queensland Court of Appeal on procedural fairness and majority jury verdicts. The appellant was convicted of rape by a majority jury verdict of 11:1. After several hours of deliberation on the issue of whether the appellant had an honest and reasonable mistaken belief as to consent, the jury disclosed to the Court its voting pattern, which the trial judge did not disclose to the parties. After the required 8 hours had passed, the trial judge advised the jury that it could now return an 11:1 decision. The QCA held that the voting information provided to the trial judge was neither relevant nor capable of influencing the trial judge’s exercise of discretion in allowing a majority verdict (Holmes JA at [88]). The appellant argued before the High Court that the QCA erred because, among other things, it declined to follow a similar approach in two cases decided by the Victorian Court of Appeal.

The High Court (Gordon J, French CJ, Kiefel J, Bell J and Gageler J agreeing) held that the appellant had not been denied procedural fairness. The jury speaker’s answers, given in open court, to the trial judge’s direct questions about whether a majority verdict might resolve the situation was relevant to the future conduct of the trial, and not any information about interim votes or voting patterns (at [6]). The Jury Act 1995 (Qld) did not contain any provisions that should displace the general principle that interim votes or voting patterns should not be disclosed, and disclosure of those patterns was not necessary either for the jury to properly perform its role or for the judge to advise them on majority verdicts ([47]–[49]). Nor was the general principle against disclosure displaced by the accused’s right to a fair trial because the information about the interim votes and voting patterns was not relevant to an issue before the court: the ‘information was not made relevant by the Jury Act. And because of the protean and changeable character of the jury’s deliberations, it was not otherwise relevant’ (at [52]). Following the delivery of the third note, the relevant considerations were the jury speaker’s responses to the questions on majority verdicts, as well as the length and complexity of the trial and the deliberation time already spent: the information on interim voting patters was not relevant (at [53]). Gordon J also held that the Victorian Court of Appeal decisions in LLW v The Queen [2012] VSCA 54 and HM v The Queen [2013] VSCA 100 reached conclusions contrary to the High Court’s in this case and consequently should not be followed (see [57]).

High Court Judgment [2015] HCA 27 5 August 2015
Result Appeal dismissed
High Court Documents Smith
Full Court Hearing [2015] HCATrans 143 12 June 2015
Special Leave Hearing [2015] HCATrans 84 17 April 2015
Appeal from QCA [2014] QCA 277 7 November 2014
Trial Judgment, QDC
Unreported 24 February 2014
This entry was posted in Case Pages, Decided Cases, Opinions by Martin Clark. Bookmark the permalink.

About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.