Procedural Fairness Requires that Relevant Information Known to the Trial Judge Must Be Disclosed to the Parties: The High Court of Australia

Communication and notes from jurors are fairly common in the United States. The safest (and frequently required) response from the trial judge is give the lawyers a copy of the note, solicit their input and then do what you, as a judge, think is right. But how do other courts deal with this issue?

In Smith v. The Queen [2015] HCA 27, August 5, 2015, the issue of procedural fairness  and disclosure of information by a trial judge arose in the context of a trial before a judge and jury.

In Smith, the accused was charged with the offence of rape. The High Court of Australia noted that after “the jury retired to consider its verdict, the trial judge received a note from the jury which disclosed interim votes of the jury and the voting pattern for each disclosed interim vote. The trial judge told counsel that the note indicated that the jury was not in total agreement but the trial judge did not disclose to counsel those interim votes or interim voting patterns.”

The High Court then asked the following question:

Did the failure of the trial judge to inform counsel of those interim votes and interim voting patterns constitute a denial of procedural fairness?

The High Court provided the following answer:

The answer to that question is no.

Procedural Fairness and a Fair Trial:

The High Court indicated, at paragraph 39, that one “of the requirements of a fair trial is that the accused be accorded procedural fairness.” At paragraph 40, the Court referred to its earlier decision in R v Wise, in which it noted that it “explained one part of procedural fairness in these terms”: “It is an elementary rule, whether in relation to civil or criminal proceedings, that a judge shall not determine any question without affording counsel for each party an opportunity to see and comment upon any material relevant to the issue before the court which is available to the judge and known not to be available to counsel“. (the High Court’s emphasis added)

The High Court of Australia concluded that procedural fairness mandates a judicial obligation to disclose relevant information (at paragraphs 41 and 42):

There are two related aspects of this rule. First, information relevant to issues before the court which is available to the judge and known not to be available to counsel must be disclosed to counsel. The second aspect is that the accused and the prosecution must be afforded an opportunity to make submissions which bear upon questions about the future conduct of the trial. For these reasons, as Chernov JA rightly said in Ucar v Nylex Industrial Products Pty Ltd:

“[T]he general rule [is] that a party should be given the opportunity to respond to matters prejudicial to its interests that are known only to the court and which might be taken into account in the determination of issues that may affect the party’s property, rights or
legitimate expectations.”

It follows that if information made available to a judge is not relevant to an issue before the
court, nor regarded by the judge as relevant, then its non-disclosure to counsel cannot be a denial of procedural fairness.


In the context of this case, the High Court of Australia concluded that the trial judge was not obliged “before determining whether to permit a majority verdict or to discharge the jury to disclose to counsel the precise contents of that note” to counsel “because a jury’s votes can and do change, a statement of what a jury’s votes were at a time prior to verdict is not relevant. It is a statement which adds nothing to the knowledge that the jury is deadlocked or has not yet reached a verdict” (at paragraph 52).



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