Jury Deliberations and Procedural Fairness

This assignment involves analyzing the case of Smith v The Queen [2015] HCA 27, which deals with jury deliberations and procedural fairness. The student is required to discuss the principles of procedural fairness and how they apply in the context of jury trials. The student must also examine the concept of jury deliberations and how they are affected by the principle of secrecy. Additionally, the student should consider the importance of maintaining confidence in the jury process and protecting the finality of verdicts.

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Legal Writing and Research
Assignment 2
14-Mar-18
(Student Details: )

Legal Writing and Research
Part A
1 (a)
This research task is based on the analysis of prescribed case of Smith v The Queen1. As this is an
Australian based criminal law case, its jurisdiction was Queensland, where this case was
initiated. The area of law is criminal law, particularly the Jury Act of Queensland2. The only
limitation of this research is that it restricts the sources which can be researched upon for
conducting the research, as the full ruling of the cases are not available at a number of places.
1 (b)
Concept Search terms Alternative/related
terms
Connect search terms
together
Procedural
fairness
Fairness in court
procedure; fair
procedure; court
procedure being
unfair; limitations
to fairness
Jury pool, fairness of
decision
Jury verdict Unanimous
decision; uncertain
decision
Majority verdict;
jury pool decision
Jury decision through
guidance
1 (2015) 255 CLR 161; 89 ALJR 698; [2015] HCA 27
2 Jury Act, 1995 (QLD)
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Legal Writing and Research
2
Database or
other resource
used
Overview of search process
(methodology, search terms etc)
Overview of results
Looseleaf
commentary
In using the Carter’s Criminal Law of
Queensland the key was to look for
Jury Act, which provided the details
on jury process. The search terms
included the quoted sections of the act
in the prescribed case.
This source helped in
getting clarity on the
provisions of Jury Act,
particularly section 59A.
Scholarly journal
article
The journal by Thomas Hurley was
the only journal I could find where the
selected case had been discussed. I
made used of LawCite and Google
Scholar to search for a journal on this
case. I used different citations of this
case to search for this case
After a lot of time and
efforts being spent, I found
this journal and used it for
reading on the case.
Website resource Austlii and Jade were the most helpful
sources for me as these were easily
accessible by putting the case name on
The result of this was that I
got to read the full reading
of the case; and the
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Legal Writing and Research
Google search. Further, this source
allowed me to get full ruling of this
case, to read the case thoroughly.
approach adopted by the
judges became clear to me.
3
AGLC footnote reference Brief evaluation of the source
Source 1:
Looseleaf
commentary
service
paragraph
M. J. Shanahan, S. M Ryan, A. J. Rafter, J. J.
Costanzo, and A. Hoare, Carter's Criminal
Law of Queensland (21st ed, LexisNexis
Butterworths, 2016)
As this source had been
suggested by the tutors, I used
this for searching the Jury Act.
This book is helpful in
understanding the criminal law
of Queensland.
Source 2:
Scholarly
journal article
Thomas Harley, ‘Thomas Hurley case notes’
(2015) 42(9) Brief 47.
This source provides case notes
of different cases. It allows for
the case to be easily understood
and helps in understanding the
base of such case.
Source 3:
Website
resource
Austlii, Smith v The Queen [2015] HCA 27 (5
August 2015)
<http://www6.austlii.edu.au/cgi-bin/viewdoc/
This is the most useful case and
the most easily accessible one
also. It provides details on
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Legal Writing and Research
au/cases/cth/HCA/2015/27.html#fnB33> different case laws and
legislations.
4
This case, even though is a new one, but offers a major precedent. It has been cited in 23
different cases till now. This shows that in the span of three years, this ruling has been given a lot
of significance in the matter of procedural fairness when it comes to the jury verdict.
5
I loved working on this research task, as I got an understanding on how the rulings have to be
deciphered and have to be properly read. This was a small ruling so I could go through it easily,,
without getting bored. However, a problem which I discovered and which acts as a possible key
area for improvement for me is finding relevant journals on case laws. I had the most difficulty
in researching for that, and would try to improve this aspect.
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Legal Writing and Research
Part B
Citation
Smith v The Queen (2015) 255 CLR 161; 89 ALJR 698; [2015] HCA 273
Court
High Court of Australia- full court
Material Facts
In this case, the appellant had been criminally tried in the Queensland District Court on one
count of rape. After the jury had retired for some time, they informed that trial judge of their
inability in reaching any verdict. This is the reason why the jury had been asked to continue with
the deliberations. Once they had undertaken more discussion and had clarified on the legal
issues, for instance the meaning of the term “beyond reasonable doubt”, there was an inability on
part of the jury in reaching the unanimous verdict. This was informed to the judge of the case by
way of a note. This also covered the details on the interim votes of the jury and on their voting
patterns. Once the trial judge read this, he informed the counsel that there was an inability of the
jury in reaching a consensus. The trial judge also informed the counsel that he had no intentions
of publishing the interim voting patterns of the jury as they had not been in total agreement. At
that time, no objections had been made by the lawyers4.
3 Supreme and District Court Benchbook, Majority Verdict (2017)
<http://www.courts.qld.gov.au/__data/assets/pdf_file/0006/86055/sd-bb-55-majority-verdict.pdf >
4 Austlii, Smith v The Queen [2015] HCA 27 (5 August 2015)
<http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2015/27.html#fnB33>
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Legal Writing and Research
Once the jury had deliberated for eight hours, the counsel was informed by the trial judge
regarding his intent of questioning the jury on whether they thought that they would be able to
reach a majority verdict. This was based on the Jury Act, 1995 (QLD), where the trial judges are
allowed to ask the jury to reach a majority vote where they have not reached a unanimous verdict
after eight hours. This was agreed to by the jury. No application was made by the counsel of any
side, for the jury to be discharged at this point of time. This led to the appellant being found
guilty by 11:1 majority vote. It was alleged by the appellant that the precise interim voting
pattern of the jury should have been disclosed by the trial judge. This led to an appeal being
made by Smith in the High Court. This was done on the basis that he had been denied a fair trial
as per the law as the interim voting patterns of the jury had been withheld from the counsel5.
Procedural History
The matter began in the District Court of Queensland in 2014, where the matter was presented
before a single judge, i.e., the trial judge. He had disclosed two of the notes, but chose not to
disclose the third note. After the material facts highlighted above were undertaken, the verdict
was reached by the jury, where they voted for the appellant being guilty by 11:16.
On this decision, an appeal was made against this conviction in the Court of Appeal of the
Supreme Court of Queensland. There, the appellant contended that he had been denied the
procedural fairness when the trial judge did not disclose the exact contents of the third note of
the jury. It was argued by the appellant that the interim voting pattern of thee jury had been
relevant to the discretion of the trial judge in allowing the majority verdict or to discharge the
jury; and this was required to be disclosed to the counsel. This appeal was dismissed by the
5 Jade, Smith v The Queen (5 August 2015) <https://jade.io/article/402565>
6 Martin Clark, Smith v The Queen (05 August 2015)
<https://blogs.unimelb.edu.au/opinionsonhigh/2015/08/05/smith-case-page-2/>
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Legal Writing and Research
Court of Appeal and they held that the voting information which had been provide to the trial
judge, had neither been capable nor been relevant in influencing the exercising of discretion by
the judge, when they allowed for a majority verdict7.
From this decision, an appeal was made by the appellant, through the grant of special leave, to
the High court8.
Grounds for Appeal / Issues to be Decided
The matter in this case which had to be decided and which also formed as a grounds of appeal
was the denial of procedural fairness. The court considered this case on the following issues:
Whether the disclosure of the interim votes and the voting patterns of the jury were
required for proper performance of the functions of jury? In other words, whether it was
required for determining the guilt had been established beyond reasonable doubt?
The next issue was whether the appellant had been given a fair trial as per the law after
the point where the jury had retired for considering the verdict?
Whether there was any relevance of the interim votes of the jury to the issue which was
presented before the court?
What was the capacity held by such disclosure on influencing the exercise of discretion
by the trial judge regarding the dismissal of jury, or in allowing the majority verdict9?
7 At 3
8 Jeremy Gans, Secret Votes in the High Court: Smith v The Queen (16 December 2015)
<https://blogs.unimelb.edu.au/opinionsonhigh/2015/12/16/secret-votes-in-the-high-court-smith-v-the-queen/>
9 Rule of Law, Case Note: Smith v The Queen [2015] HCA 27 – Procedural Fairness and Juries (09 August 2015)
<https://www.ruleoflaw.org.au/smith-the-queen-procedural-fairness-juries/>
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Legal Writing and Research
Court’s Analysis of Law
In order to understand why the jury had deliberated for over eight hours, reference had to be
made to the Jury Act, 1995 governing the juries in Queensland. When it comes to certain
categories of criminal trials, section 59A(2) of this act allows the trial judge to ask the jury to get
to a majority verdict where even after the prescribed period, the judge get satisfied that, the jury
would not be able to reach to a unanimous decision after undertaking further deliberation10. This
act provides that a majority verdict for a 12 juror’s jury would be one where a minimum of 11
jurors agreed. Under section 59A(6) the prescribed period means a period of minimum of eight
fours once the jury retires for considering their verdict11. This period does not cover the time
allowed for refreshments or means, the time where the juries were separated, and the time where
the juries were accommodated overnight. Based on the complexity of trial, other factors can also
be included12.
Application of the Law
In this case, the court was applying the principle of fair trial. The judges were looking at the
entire scenario for constituting that a fair trial was taking place for all the parties, which was
based on law. There is no single exhaustive list which covers the attributes of fair trial. In
general, it is expected that the information which is related to the issues which have been
presented before the court, have to be disclosed to the defence and prosecution lawyers. Further,
both the parties have to be given the opportunity of responding to the matters which are
10 Jury Act 1995, s59A(2)
11 Jury Act 1995, s59A(6)
12 High Court of Australia, Smith v The Queen (5 August 2015)
<http://eresources.hcourt.gov.au/downloadPdf/2015/HCA/27>
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Legal Writing and Research
prejudicial or against their interests. Included in this is the opportunity of making submission on
the pertinent matters which could have an impact on the future conduct of trial13.
Application to Facts
As the quoted legislation allowed the trial judge to ask t he jury on reaching a majority verdict,
this very provision was made use of in this case. And on this, none of the counsel had made the
application before the trial judge to get the jury discharged. The act provided that an individual is
not to make the jury information public. In this context, the trial judge noticed that the jury had
met for over eight hours and thus could be asked to reach a decision. This is the reason why the
trial judge told the jurors that a certain period had passed without their ability in getting to a
unanimous verdict.
Decision
Owing to the reasoning stated above, the trial judge gave the decision from the jury verdict of
11:1 saying that the appellant was guilty. In deciding on the fairness of trial matter, the leading
judgment of Justice Gordon provided that the interim voting patterns of jury had not been
relevant to the trial’s future conduct. What had been actually relevant to the trial’s future
conduct, in view of Gordon J, were the answers of the jury speaker, which had been given in the
open court to the direct questions of the trial judge, which were related to the allowing of
majority verdict being a solution to the present situation, and on the issue of considering is more
time was required by the jury in considering their verdict. The trial judge was not under the
obligation of disclosing the exact contents of the notes of jury, to the counsel, before they
determined on whether a majority verdict had to be permitted or not. The numerical split,
13 At 3
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Legal Writing and Research
particularly the extent of it, of the jury, was enough to tell the judge that there was a situation in
deliberations, where there was a lack of unanimous decision by the jury. However, this does not,
at any point of time, present that the jury was deadlocked, or that they had not attained a verdict.
Even when the trial judge knew that the jury had been deadlocked, their conduct had not been
affected by or dependent on what had been disclosed in the note of the jury14.
In context of procedural fairness, the five judges agreed that the appellant had not been denied
the procedural fairness under trial. The only information which they held was relevant here were
the answers given to direct questions of the trial judge by the jury in the open court regarding the
majority verdict solving the situation to the relevant future conduct of trial. There was no
relevance of the information regarding voting patterns or interim voting in procedural fairness.
The quoted legislation did not cover any provisions which could displace the general principle
regarding the voting patterns or interim votes to not be disclosed. Further, the disclosure of such
patterns was not a necessity for the judges in advising the jury on majority verdicts, or for the
jury in performing their role. It was required that the jurors were given enough freedom to
change their decisions15. This was particularly in context of case of Black v The Queen16, where it
was provided that the jurors have to listen to the views of each other, weight them properly and
the individuals can change their mind where they honestly persuade their preliminary view as not
being well founded.
14 Ibid
15 Time Base, Smith v The Queen [2015] HCA 27: Procedural Fairness and Majority Jury Verdicts (06 August
2015) <https://www.timebase.com.au/news/2015/AT300-article.html>
16 [1993] HCA 71; (1993) 179 CLR 44 at 51
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Legal Writing and Research
Court Orders
The failure of trial judge in informing the counsel of interim voting patterns and interim votes of
jury did not constitute as a procedure fairness being denied. The key matter in this case which
had to be answered in getting to a conclusion was whether the information regarding the interim
voting patterns and interim votes was relevant to the matter presented before the court. None of
these were held as relevant by the court. This led to the court passing an order to dismiss the
appeal17.
Discussion
This case had been decided just three years back, and relates to the present day approach. This is
the reason why this judgment cannot be deemed as old fashion which is inappropriate in the
world today. This case follows the theme of criminal justice system across the years, which
continues to hold significance across the years.
The emphasis of the High Court on nondisclosure of the interim votes was based on the notion
that the deliberation of the jury had to be confidential. This is the principle which is given the
highest significance in criminal justice system. Through this principle, confidence is maintained
in the process followed by jury and also helps in protecting the verdict’s finality. Apart from this,
it allows for open and frank discussion amongst the jurors, where the jurors are assured that
whatever they say in the jury room would remain in that room only. Justice Gordon had
expressed that the process of getting to a verdict was not static and was a fluid one. The
changeable character of deliberations of the jury meant that till the time a final verdict was
attained, every juror had the right of changing their mind. The nature and the true complexity of
17 At 3
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Legal Writing and Research
division of reasoning of jury were not captured only through the figures of voting. This was
because the jurors individually do not reach a specific conclusion by going on a same route
necessarily. Where too much emphasis is given on these figures, it would result in the
deliberations of jury being second guessed18.
This is the reason why the disregard of the trial judge on the interim voting patterns of the jury
was correct. This case is particularly an important precedent in context that the jurors should
refrain from revealing their voting patterns or votes where they convey to the trial judge that they
were facing difficulties in getting to a verdict. The judges have to provide directions to the juries,
as had been given in this case, which indicate so, in order to make certain that the trial is
undertaken based on the rule of law and the principles of procedural fairness19.
18 At 9
19 Ibid
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Legal Writing and Research
Bibliography
Articles/ Books/ Journals
Shanahan MJ, Ryan SM, Rafter AJ, Costanzo JJ, and Hoare A, Carter's Criminal Law of
Queensland (21st ed, LexisNexis Butterworths, 2016)
Harley T, ‘Thomas Hurley case notes’ (2015) 42(9) Brief 47.
Cases
Black v The Queen [1993] HCA 71; (1993) 179 CLR 44
Smith v The Queen (2015) 255 CLR 161; 89 ALJR 698; [2015] HCA 27
Legislations
Jury Act, 1995 (QLD)
Others
Austlii, Smith v The Queen [2015] HCA 27 (5 August 2015) <http://www6.austlii.edu.au/cgi-
bin/viewdoc/au/cases/cth/HCA/2015/27.html#fnB33>
Clark M, Smith v The Queen (05 August 2015)
<https://blogs.unimelb.edu.au/opinionsonhigh/2015/08/05/smith-case-page-2/>
Gans J, Secret Votes in the High Court: Smith v The Queen (16 December 2015)
<https://blogs.unimelb.edu.au/opinionsonhigh/2015/12/16/secret-votes-in-the-high-court-smith-
v-the-queen/>
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High Court of Australia, Smith v The Queen (5 August 2015)
<http://eresources.hcourt.gov.au/downloadPdf/2015/HCA/27>
Jade, Smith v The Queen (5 August 2015) <https://jade.io/article/402565>
Rule of Law, Case Note: Smith v The Queen [2015] HCA 27 – Procedural Fairness and Juries
(09 August 2015) <https://www.ruleoflaw.org.au/smith-the-queen-procedural-fairness-juries/>
Supreme and District Court Benchbook, Majority Verdict (2017)
<http://www.courts.qld.gov.au/__data/assets/pdf_file/0006/86055/sd-bb-55-majority-
verdict.pdf>
Time Base, Smith v The Queen [2015] HCA 27: Procedural Fairness and Majority Jury Verdicts
(06 August 2015) <https://www.timebase.com.au/news/2015/AT300-article.html>
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