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The Law of Australia - Miscarriages of Justice

Authors of this page: Dr Robert N Moles and Bibi Sangha
Underlining where it occurs is for editorial emphasis]

Part Two - References

Article on UK Miscarriages of Justice

Australian legal cases homepage
A state of Injustice - table of contents
Losing Their Grip - The Case of Henry Keogh - table of contents

Bibi Sangha: BA Law (Hons), LLM (Lond), Barrister-at-law (Lincoln’s Inn), Barrister and Solicitor (SA and ACT), Advocate and Solicitor (Malaysia), Lecturer, Law School, Flinders University of South Australia

Abstract

This article examines some of the recent High Court decisions and their articulation of the principles relating to miscarriages of justice. There are recent statements to the effect that the criminal trial must be such as to assure public confidence in both the process and outcome. This impacts on the way in which the concepts of “fresh” and “new” evidence are applied in the context of the basic principle which is to determine whether there has been a miscarriage of justice. The article looks at the role of the prosecution, in the light of this principle and the way in which the “prosecution” includes the police and others involved in the investigation and presentation of the case on behalf of the Crown. It asks if the High Court should extend its role to include the reception of fresh evidence.

Statutory basis of appeals

The appellate jurisdiction in criminal cases in Australia is statute based. The standard legislative provisions which apply throughout Australia state that if the court:

"… is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice." [6]

That is, there are three levels of analysis:
1. That the decision is unreasonable, having regard to the evidence;
2. That the decision is based upon a wrong decision of a question of law;
3. Or on any ground whatsoever, there was a miscarriage of justice

The whole issue can however be simplified by going back to the earlier stage of the legislative provision. Callinan J in Gipp v The Queen (1998) 155 ALR 15 at 48; [1998] HCA 21 at [121] pointed out that in speaking of the Criminal Appeal Act 1912 (NSW), Isaacs J in Hargan v The King (1919) 27 CLR 13 at 23 had said:

"If [the appellant] can show a miscarriage of justice, that is sufficient. That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance."

The language used in the judgments on these matters is often that the decision was “unreasonable” or that it was “unsafe or unsatisfactory”, “unjust or unsafe”, or “dangerous or unsafe”. [8] This is a reflection of the "unsafe or unsatisfactory" criterion included in the Criminal Appeal Act 1968 (UK).

"In Australia, the statutory provisions are differently expressed and it is those provisions which must be applied. [9]

The type of issues taken into account

So, what factors are to be taken into account in making that assessment? The criteria were expressed in M v The Queen (1994) 181 CLR 487 at 494; [1994] HCA 63 at [9] where the High Court said that:

"If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. [15]

It is important to appreciate that it is the jury which determines what the facts are and based upon those judgments it then has the responsibility to determine guilt or innocence. [17] After all, it is the jury which has had the benefit of having seen and heard the witnesses. “If a trial has miscarried, a guilty verdict cannot be upheld on a basis not left to the jury because that would be to trespass on the constitutional function of the jury.” [18] “If the conviction is to be upheld, it can only be upheld on the basis that was left to the jury …”. [19]

It follows then that it is not appropriate to speculate on what might have happened if the prosecution had presented the case on some other basis. It is not for the appellate courts to speculate about the impact of potentially exculpatory evidence which had not been disclosed. Equally, it is not for a “… Court of Criminal Appeal to seek out possibilities, obvious or otherwise, to explain away troublesome inconsistencies which an accused had been denied an opportunity to explain and exploit forensically”. [20]

In order for there to be a fair trial the prosecution is obliged to disclose to the defence all material that is available to it which is relevant or possibly relevant to any issue in the case. [22] The duty of disclosure includes the obligation to make enquiry to ascertain whether discoverable matter exists and to ensure its preservation. [23] This obviously includes material which goes to the credit of prosecution witnesses. It may include for example, a previous inconsistent statement, or any other matter which is adverse to the character of a prosecution witness. [24] In Mallard it was said that the prosecution must disclose all relevant evidence to an accused. [25]

In Cooley, the relevant evidence which went to the credit of the expert witness was on the public record:

"At the date of trial, the material upon which Cooley seeks to rely, namely the findings of the Board given in September 2003, are neither "new", nor "fresh" evidence … That material was in existence and available to Cooley by reasonable diligence; indeed the proposition that it was in the public domain is not challenged the question is always whether or not what occurred has resulted in a miscarriage of justice…. [26]

The court held that on the basis of other Australian authorities, the principles in English cases of R v Keane [1994] 2 All ER 478 and R v Brown (Winston) [1998] AC 367 should be taken as applying in New South Wales and Western Australia. There, the duty of a prosecutor to disclose information was defined in the following way:

"... the prosecution must disclose documents which are material ... documents are material if they can be seen on a sensible appraisal by the prosecution, (a) to be relevant or possibly relevant to an issue in the case, (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case, or (c) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going to either (a) or (b). [27]

Even an “innocent failure to disclose relevant material may nonetheless constitute a miscarriage of justice”. [28] If after conviction the Crown discloses that it “had in its possession or available to it documentary material” which had been “requested, but which had been innocently denied by the Crown, that is a situation which could lead to a miscarriage of justice”. [29] “A miscarriage of justice will occur if evidence” which has become “available and was not led at the trial was such that, if given, a jury acting reasonably must have entertained a reasonable doubt so as to entitle the accused to an acquittal”. [30]

“The prosecution” includes police and others

In Cooley it was said that if material was available to the Crown, on the basis that it was known to the police, for example, then Cooley was entitled to it, whether or not its existence was known to prosecuting counsel.[31] In such a case, it is not necessary for the appellate court to determine whether there was any fault on the part of the prosecutor in this respect. Innocent failure to disclose relevant material may nonetheless constitute a miscarriage of justice. In some of the cases it is said that the prosecution includes the police and “any others who are of assistance to the prosecution”, and this would, of course, include expert witnesses.

Public confidence in the trial process

The central question is whether in the absence of material evidence the accused received a fair trial, understood as a trial resulting in a verdict “worthy of confidence”; the “fruits of investigation” are the “property of the public to be used to ensure that justice is done”. [35] The fundamental issue is whether the exculpatory evidence which was not presented to the jury led to a conclusion that the trial cannot enjoy “public confidence”. [36] As Kirby J said in Antoun The Queen (2006) 224 ALR 51 at 63; [2006] HCA 2 at [47]:

It might always be possible to say that a prosecution witness was willing to divulge the information, but was simply not asked. However, the defence lawyer should not be put in the position of having to try and find out “in front of the jury” if such material exists. If the defence is unaware of what evidence is available, a lucky (if extremely risky) question of the witness might have elicited an answer which revealed the existence of the problems relating to the witness’s credibility. However, there was no reason why the defence in a criminal trial should be obliged to “fossick for information” of this kind and to which it was entitled. [37] As Kirby J said in Mallard, “I would accept this as a statement expressing the common law rule in this country” [38]. He pointed out that it is also the rule in Scotland, Ireland and New Zealand.

In Grey, Kirby J stated that to treat that type of disclosure issue as one amenable to the rules governing “fresh” or “new” evidence following a criminal trial is effectively to convert the prosecutor's duty to disclose into an accused's obligation to find out. [39] An essential question is whether, if the jury had known about the additional material, it would have cast doubt on the essential features of the prosecution case. Or, to put that another way, was the body of evidence which was not presented to the jury potentially significant? [40]

The point of appellate review is not to discover whether there was misconduct by the prosecution. It is to determine whether the non-disclosed material was relevant to the credibility and reliability of the prosecution witnesses or the prosecution case.

In Mallard, the specific issue was non disclosure to the defence. However, the judgments clearly show that the fundamental question is whether there has been non disclosure “to the jury”. For example, there may have been in existence facts or evidence which were either ignored or overlooked by the defence. In this respect, it is important to bear in mind that where a miscarriage of justice is said to arise from a failure of process, it is the process that is judged, not the performance of the participants in the process. Where the conduct of counsel is said to give rise to a miscarriage of justice, it is what was done or omitted that is of significance, rather than why that occurred. [41]

In some cases, those convicted of crimes might suggest that the fault was not theirs but of the way in which they were defended by their counsel at trial. In such cases, “the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome”. [43] The general rule is that a client is bound by counsel's conduct. However, there is a qualification. Where the client might have suffered some injustice as a result of conduct incapable of rational explanation on forensic grounds the conviction may be quashed. [44] It is possible for a miscarriage of justice to arise from the combined effect of various errors of trial counsel and of the trial judge.

It is important to note the significance of any combination of the errors involving trial counsel and the judge. This type of cumulative error can provide a good illustration of the way in which the adversary system can lead to a failure of the trial process. [46] In Nudd, Gleeson CJ referred to a number of cases in the Criminal Division of the English Court of Appeal in the late 1980s “where tactical decisions made by counsel without instructions from the client were claimed to have given rise to miscarriages of justice”. [47]

However, it must be borne in mind that the adversary system means that criminal trials are conducted as a contest. The adversarial system does not require that the adversaries be of equal ability. Opposing counsel may be mismatched, but this does not make the process relevantly unfair. “The reluctance of courts of criminal appeal to enter upon an assessment of the performance of trial counsel is well-founded in considerations both of principle and of pragmatism.” [48]

Fresh or new evidence

One of the criteria for the reception of fresh evidence is that it must be capable of belief.[49] The other provision in relation to the reception of fresh evidence on appeal is that in order to be “fresh” it must be something which could not “with reasonable diligence” have been discoverable before or at the time of trial. [50] In certain cases, this will be more obvious than others. For example, in Mallard the High Court said that it was self-evident that the evidence relied upon could not, with reasonable diligence, have been produced by Mallard at the trial, because it had been in the possession of the prosecution and not disclosed to the defence. In Christie the Western Australian court stated:

Where the evidence is clearly of importance the “appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand”. [52]

As we have seen, the court in both Christie and Cooley took the view that the categorisation of evidence as either “fresh” or “new” was not as important as determining if there had been a miscarriage of justice.

The cases make it clear that where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice. As Gleeson CJ said in Nudd:

"“Every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed”. If there is a failure in any of those respects and the “appellant may thereby have lost a chance which was fairly open to him of being acquitted, then there is a miscarriage of justice”. That well-known passage relates the failure of process to the loss of a chance of acquittal. [53]

The cases refer to the applicant who may have lost a chance which was fairly open to him of being acquitted or “a real chance of acquittal”. [54] Where an accused person has lost such a chance, then that is a miscarriage of justice. [55] It is said that the loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice:

The proviso

The statutory provision does provide an exception to what has been discussed above. This provision provides that the court may dismiss the appeal if it considers that “no substantial miscarriage of justice” has actually occurred. This is referred to as “the proviso”.

"Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. [67]

This does not authorise the Australian courts to allow an appeal on an intuitive or speculative basis, sometimes referred to as the “lurking doubt” referred to by Lord Widgery in the UK cases. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. [73] So, in any of the cases, a question is bound to arise whether, despite any apparent miscarriage of justice, the proviso should be applied.

Kirby J pointed out in Grey that the proviso appears in a section that does not negate the fundamental principle of the administration of criminal justice in Australia, namely, that no person should be convicted of a serious crime except by the verdict of a jury after a fair trial held according to law. If the trial ceases to be a fair trial according to law, the verdict of guilty, and the criminal conviction that follows it, is intrinsically flawed. [74]

"It is not the purpose of the proviso to substitute for trial by jury, in effect, trial ‘with the Court of Criminal Appeal as the tribunal of fact’. [76]

The High Court and the reception of Fresh Evidence

In opening his judgment in Mickelberg 1989, Mason CJ stated:

"The applicants sought to place before this Court additional evidence which was not before the Court of Criminal Appeal. Over the years this Court has consistently maintained that it has no power to receive fresh evidence in the exercise of its appellate jurisdiction. The applicants argued that the relevant decisions are wrong and should not be followed. [79]

As the Chief Justice summarised the position in Mickelberg:

The authorities in this Court stand clearly for the proposition that the reception of fresh evidence is not a part of the appellate jurisdiction of the Court. The applicants challenged the reasoning on which these authorities are based on the ground that the reasoning depended on old English authorities which have been overtaken by more recent decisions.  The applicants made the point that, at a time when an appeal lay from this Court to the Privy Council, the Court was influenced by the circumstance that the Court of Appeal and the House of Lords did not receive fresh evidence.  As it is now clearly established that both the Court of Appeal and the House of Lords receive fresh evidence, there has been a material development which justifies reconsideration of the existing authorities. [83]

Conclusion

If the work of the Criminal Cases Review Commission in the UK is any guide, then it is likely that the numbers of convictions which may subsequently appear to be miscarriages of justice has not been fully recognised in Australia. The UK experience so far is that some fifty murder convictions which otherwise had exhausted all appeals have been overturned there in recent years. As at 30 September 2006, the CCRC had received 9044 applications for the review of cases. This has produced 341 referrals to the Court of Appeal of which 291 had been heard. This has resulted in the quashing of 199 convictions

However, there is one significant problem. The intermediate appellate courts, supported by the High Court have said that once an appeal has been heard by the Court of Criminal Appeal, that court has no jurisdiction to consider a further appeal. [84] In combination with the existing principle that the High Court considers that it is unable to hear fresh evidence, then there could, at least in theory, be significant obstacles in the way of achieving justice. This author has argued elsewhere that the principles of Edwards and Grierson are due for reconsideration by the High Court. [85] If the current position were to be maintained, then it means that where there has been a manifest miscarriage of justice, a reference back to the Courts via the Attorney-General is the only recourse available. This author takes the view that it is better that the judiciary maintain the independence and integrity of the legal system by being able to reconsider decisions when required, by being able to receive fresh evidence, and not be dependent upon a process which could be subject to political influence.

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