Smith v The Queen [2015] HCA 27: Procedural Fairness and Majority Jury Verdicts

Yesterday (5 August 2015), the High Court unanimously dismissed an appeal from a decision of the Queensland Court of Appeal on procedural fairness and majority jury verdicts in the case of Smith v The Queen [2015] HCA 27.

Background to Case

The appellant was tried on one count of rape in the District Court of Queensland in February 2014.  During its deliberations, the jury sent three notes to the trial judge.  The trial judge disclosed to counsel the precise contents of the first two notes.

The jury’s third note indicated that the jury could not agree on a unanimous verdict.  It also stated two iterations of the jury's interim votes for and against conviction. The trial judge informed counsel that the jury could not agree and that the note contained the jury’s interim voting patterns, but decided not to disclose the interim votes or voting patterns to counsel.  Neither counsel objected.

At this point, the judge proposed to permit the jury to consider a majority verdict.  Under s 59A of the Jury Act 1995 (QLD) (“the Jury Act”), a trial judge has a discretion to permit a jury to return a majority verdict if, after a prescribed period of deliberation, the judge is satisfied that the jury is unlikely to reach a unanimous verdict.  A trial judge also has a discretion to discharge a jury at any time under s 60 of the Jury Act.

The trial judge asked the jury if further time for deliberation would assist the jury to return a majority verdict.  The jury indicated that it might.  Accordingly, the trial judge permitted the jury to retire to consider a majority verdict.  Neither counsel objected.  The jury subsequently returned a guilty verdict by a majority of 11 to 1.

On Appeal in Queensland

The appellant appealed against his conviction to the Court of Appeal of the Supreme Court of Queensland.  He contended that he was denied procedural fairness when the judge failed to disclose the precise contents of the jury's third note.  He argued that the jury's interim voting patterns were relevant to the trial judge’s discretion either to allow a majority verdict or to discharge the jury, and so ought to have been disclosed to counsel. The Court of Appeal dismissed the appeal and 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.

Special Leave to Appeal to the High Court

By grant of special leave, the appellant appealed to the High Court, which unanimously dismissed the 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 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]).

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Smith v The Queen [2015] HCA 27