Webster & Ors v The King

Factual and Procedural Background

Five defendants (referred to in this summary as the 1st to 5th Appellants) were tried together before Judge Reid at The Court. The two-week trial began on 19 February 2024 and verdicts were returned on 1 March 2024. The indictment charged a single count of destroying property contrary to section 1(1) of the Criminal Damage Act 1971, alleging the destruction of glazed windows and panels belonging to Company A on 1 September 2021.

Extensive CCTV footage and admissions showed the appellants caused the damage using tools. The only contested issue at trial was whether each appellant had a lawful excuse under section 5 of the Criminal Damage Act 1971, namely an honest belief that those entitled to consent to the damage (which the appellants said were the shareholders of Company A) would have consented in the circumstances.

Sentences (imposed 12 June 2024) varied across the appellants, including immediate custodial terms and suspended sentences with unpaid work or prohibited activity requirements. Each appellant received a victim surcharge; the court directed a variation to the surcharge for the 3rd Appellant.

On appeal: leave to appeal was granted to the 3rd–5th Appellants by a single judge. The 1st Appellant applied for an extension of time and to vary her notice to adopt the common ground; the 2nd Appellant renewed her application for leave. The appellate court granted the extension and leave for the 1st and 2nd Appellants to rely on the common ground (limited to that ground). A representation order was made for Attorney McMinn.

Legal Issues Presented

1. Whether the trial judge misdirected the jury by stating it would be a criminal offence for a juror to return a verdict of not guilty "according to conscience", in effect referring to section 20C of the Juries Act 1974; and
2. Whether, by giving that direction and other comments (including references to possible arrest or imprisonment for those who sought to influence jurors), the judge improperly pressured the jury such that there was a real concern jurors may have feared imprisonment unless they convicted the appellants, rendering the convictions unsafe.

Arguments of the Parties

Appellants' Arguments (as advanced by Attorney Blaxland and by the 2nd Appellant)

• The judge's direction that it would be a criminal offence for jurors to acquit "according to conscience" was wrong in law because it misstated the law about juror freedom (often labelled "jury equity") and therefore curtailed the jury's ability to acquit on conscience.
• Even if the description of criminality was legally correct, the judge's formulation and additional remarks (including references to arrest and imprisonment for those outside court and comments about committing jurors' employers to prison for contempt) placed improper pressure on the jury and could have caused jurors to fear imprisonment if they acquitted, thereby making the convictions unsafe.
• The 2nd Appellant also relied on lived submissions and an open letter about the importance of conscience, and on comparative protest cases where juries have failed to reach verdicts, as evidence that the direction could have changed the outcome.

The opinion does not contain a detailed account of any contrary submissions by the Crown in argument beyond the court's adoption of statutory materials and established authorities in its reasoning.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the challenged directions in context. It identified the common ground of appeal as two propositions: (1) that the judge misdirected the jury by stating it would be a criminal offence for a juror to return a verdict according to conscience (the judge had in mind section 20C of the Juries Act 1974), and (2) that the judge's wording and additional comments (including references to arrest/imprisonment of persons outside court and of employers) could have produced fear in jurors that they would be imprisoned if they acquitted, undermining fairness.

The court examined statutory materials and practice directions (including the juror notice and CrimPR/CrimPD provisions) and considered relevant authority on jury freedom and judicial direction (Bushell's Case, Wang, Stonehouse, Galbraith, Chandler). It assessed the decision in Warner (Saini J) but concluded Warner was not binding and did not properly address the effect of section 20C.

Applying section 20C's language and the context of the trial (posters and placards advising jurors of an "absolute right" to acquit on conscience; protestors present near The Court; a juror's note expressing anxiety), the court concluded:

• The judge's paraphrase of section 20C in his written direction conveyed the statutory sense and was not wrong in law. He did not say returning a not guilty verdict was itself prohibited conduct; he described the offence in terms of conduct from which it may reasonably be concluded a juror intends to try the issue other than on the evidence.
• Statements that the posters/placards "misstated the law" and that those outside might be committing an offence were more debatable, but were given in context to focus jurors on trying the case on the evidence rather than external material.
• References to arrest or imprisonment of protestors or employers were made in context as reassurances or as attempts to address juror anxiety; they did not amount to threats to jurors or create a real risk that jurors concluded they would be imprisoned if they acquitted.
• Viewed in the full context of the summing up (which repeatedly told jurors the verdicts were theirs to decide and to decide on the evidence), the judge's directions did not render the trial unfair. The defence relied on implausible, jointly fabricated beliefs about consent, and the court found the evidence overwhelmingly supported conviction.

Holding and Implications

APPEALS DISMISSED

Result: The appeals were dismissed. The court held the convictions were safe following a fair trial.

Direct consequences identified in the opinion:

• The leave and extension applications for the 1st and 2nd Appellants to rely on the common ground were granted at interlocutory stage (as recorded earlier in the opinion).
• The representation order in respect of Attorney McMinn was granted.
• The victim surcharge for the 3rd Appellant was varied to reflect the appropriate earlier surcharge amount.

The court noted that no new legal principle was established beyond application and clarification of existing authorities; the decision affirms that context and the overall summing up are critical in assessing whether directions to a jury render convictions unsafe.