Webb and Hay v R (1994) 181 CLR 41

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Facts

  • Webb and Hay were accused of murdering a man in Mount Gambier, South Australia.
  • They both pled not guilty and elected a jury trial.
  • After the evidence had finished but before the judgment had been handed down, one of the jurors brought some daffodils from her garden and arranged for them to be given to the victim’s mother.
  • It was a spontaneous decision; she had meant to give them to another juror but felt suddenly compelled to give them to the victim’s mother.
  • The prosecutor told the judge, who stated that if there was a ‘real danger’ the position of the accused had been prejudiced then he should discharge the jury.
  • He determined the conduct was not such to give rise to prejudice/bias, and it was usual for jurors to feel sympathy towards the victim’s family, regardless of what they thought of the accused.
  • He issued a strong warning to the jury and the juror and continued on with the trial.
  • An appeal ocurred on the basis of bias.

Issue

  • Were the actions of the juror such to create bias?

Held

  • In a narrow 3:2 decision, the appeal was dismissed and it was determined that bias did not undermine the trial.
  • Mason CJ and McHugh J held that the trial judge had applied the wrong test. The “real danger” test may have been common in the UK, but it was not the position in Australia. The Australian test was “whether, despite the warning that he proposed to give to the jury, the circumstances of the incident would still give a fair-minded and informed observer a reasonable apprehension of a lack of impartiality on the part of the juror.”
  • They held that it would have been reasonable for the Judge to determine that the act of giving the flower showed an element of bias, and in particular that the juror may not have been applying an objective and unemotional look at the evidence.
  • However, it is important that the “fair-minded” observer is also informed. They held that the warning that was given by the Judge was sufficient to displace the apprehension of bias.
  • Also of note was Deane J’s recognition of four categories of bias:
    • Disqualification by interest;
    • Disqualification by conduct;
    • Disqualification by association; and
    • Disqualification by erroneous information.

Quotes

“The test that his Honour should have applied was whether, despite the warning that he proposed to give to the jury, the circumstances of the incident would still give a fair-minded and informed observer a reasonable apprehension of a lack of impartiality on the part of the juror.” [1]

“The fair-minded and informed observer would also consider the effect of the judge’s warning on the juror and the judge’s assessment of the character of the juror. ” [19]

Full Text

The full text of this case is available: https://jade.io/article/67834 


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