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The Law of Australia - Miscarriages of Justice

Authors of this page: Dr Robert N Moles and Bibi Sangha

Part One - Article

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

References

[1] “Why Has the High Court Become More Involved in Criminal Appeals?” The Hon Justice Michael Kirby (2002) 23 Australian Bar Review 5.

[2] Gallagher v The Queen (1986) 65 ALR 207 at 209; (1986) 160 CLR 392 at 395; [1986] HCA 26 at [3] per Gibbs CJ citing Green v The King (1939) 61 CLR 167 at 175.

[3] Emphasis added.

[4] High Court of Australia Act 1979 (Cth) s 11 and Schedule (emphasis added).

[5] Lord Denning, The Discipline of Law, Butterworths, London 1979 p 292 (emphasis added).

[6] In this article we will use the South Australian examples of legislative provisions; Criminal Law Consolidation Act 1935 (SA) s 353.

[7] Gipp v The Queen (1998) 155 ALR 15 at 52; [1998] HCA 21 at [135] per Kirby J. Judiciary Act 1903 (Cth), s35A(b).

[8] Gipp v The Queen (1998) 155 ALR 15 at 60; [1998] HCA 21 at [169] per Kirby J referring to Davis & Cordy v R (1937) 57 CLR 170 at 180 and Ratten v R (1974) 131 CLR 510 at 515,

[9] Gipp v The Queen  (1998) 155 ALR 15 at 49; [1998] HCA 21 at [126] per Kirby J.

[10] Gipp v The Queen (1998) 155 ALR 15 at 60; [1998] HCA 21 at [169] per Kirby J referring to M v The Queen (1994) 126 ALR 325 at 328; 181 CLR 487 at 492-3.

[11] Mallard v The Queen (2005) 224 CLR 125 at 131.

[12] See for example Criminal Law Consolidation Act 1935 (SA) s 369

[13] Mallard v The Queen (2005) 224 CLR 125 at 129; [2005] HCA 68 at [6] per Gummow, Hayne, Callinan and Heydon JJ.

[14] Mallard v The Queen (2005) 224 CLR 125 at 132; [2005] HCA 68 at [13].

[15] (Emphasis added) The High Court referred to Chamberlain v The Queen (No.2) (1984) 153 CLR at 618-619; and Chidiac v The Queen (1991) 171 CLR 432 at 443-4). See also Gaudron J in Gipp v. The Queen (1998) 155 ALR 15 at 28; [1998] HCA 21 at [49] citing Jones v The Queen (1997) 72 ALJR 78.

[16] Per McKechnie J (emphasis added).

[17] Clearly these considerations do not apply where the accused elects to be tried by a judge alone.

[18] Osland v The Queen (1998) 159 ALR 170 at 176; [1998] HCA 75 at [20] per Gaudron and Gummow JJ.

[19] Osland v The Queen (1998) 159 ALR 170 at 177; [1998] HCA 75 at [21] per Gaudron and Gummow JJ.

[20] Mallard v The Queen (2005) CLR 125 at 135: [2005] HCA 68 at [23] per Gummow, Hayne, Callinan and Heydon JJ.

[21] Cooley v The State of Western Australia [2005] WASCA 160 at [67] per Roberts-Smith JA (emphasis added).

[22] Grey v The Queen (2001) 75 ALJR 1708 at 1717; [2001] HCA 65 at [46] per Gleeson CJ, Gummow and Callinan JJ  referring to the consideration of this matter by the Court of Criminal Appeal of New South Wales in Grey (2000) 111 A Crim R 314 at 322 noted that there it was observed that Rule 66 of the New South Wales Bar Association provided: "A prosecutor must disclose to the opponent as soon as practicable all material available to the prosecutor or of which the prosecutor becomes aware which constitutes evidence relevant to the guilt or innocence of the accused, unless such disclosure, or full disclosure, would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person."

[23] In Cooley v The State Of Western Australia [2005] WASCA 160 at [57] it was said by Roberts-Smith JA [in reference to the earlier case of Bradshaw v The Queen, unreported; CCA SCt of WA; Library No 970228; 13 May 1997, Malcolm CJ. with whom Pidgeon and Owen JJ. agreed] “The Chief Justice observed that it was noted in par 4.273 of Archbold that the above was by no means an exhaustive list and went on to say (at 11):‘it was submitted that the duty of disclosure included the obligation to make enquiry to ascertain whether discoverable matter existed and to ensure its preservation: Archbold, para 4.268. Further, if material was available to the Crown, on the basis that it was known to the police, for example, the accused was entitled to it, whether or not its existence was known to prosecuting counsel’ R v Ward (1993) 93 Cr App R1. I accept these submissions.”

[24] Cooley v The State of Western Australia [2005] WASCA 160 at [65] per Roberts-Smith JA.

[25] Mallard v The Queen (2005) 224 CLR 125 at 133; [2005] HCA 68 at [17] per Gummow, Hayne, Callinan and Heydon JJ: “At this point it is relevant to note that the recent case of Grey v The Queen in this Court stands as authority for the proposition that the prosecution must at common law also disclose all relevant evidence to an accused, and that a failure to do so may, in some circumstances, require the quashing of a verdict of guilty. As will appear, the evidence which was not produced before or at this trial, was certainly no less cogent than the evidence which was not disclosed in Grey.”

[26] Cooley v The State of Western Australia [2005] WASCA 160 at [53] per Roberts-Smith JA (emphasis added).

[27] Cooley v The State of Western Australia [2005] WASCA 160  [58] per Robert-Smith JA observed.that the relevant law discussed by Hodgson JA in R v Reardon (No 2) (2004) 60 NSWLR 454 at [54].

[28] Button v The Queen (2002) WAR 382 at 405; [2002] WASCA 35 at [58] per Malcolm CJ  citing Clarkson v DPP (1990) VR 745 at 755 and R  v Apostilides (1984) 154 CLR 563.

[29] Button v The Queen (2002) 25 WAR 382 at 405; [2002] WASCA 35 at [58].

[30] Button v The Queen(2002) 25 WAR 382 at 405; [2002] WASCA 35 at [58].

[31] Cooley v The State Of Western Australia [2005] WASCA 160; Roberts-Smith JA [57]; citing citing Malcolm CJ in Bradshaw v The Queen (unreported) CCA SCt of WA; Library No 970228, 13 May 1997.

[32] Grey v The Queen (2001) 75 ALJR 1708 at 1719; [2001] HCA 65 at [55].

[33] Grey v The Queen (2001) 75 ALJR 1708 at 1712; [2001] HCA 65 at [16-18] Gleeson CJ, Gummow and Callinan JJ.

[34] Grey v The Queen(2001) 75 ALJR 1708 at 1713; [2001] HCA 65 at [23].

[35] Mallard v The Queen (2005) 224 CLR 125 at 152; [2005] HCA 68, Kirby J discussing the provisions of the Canadian Charter of Rights and Freedoms.

[36] Mallard v The Queen (2005) 224 CLR 125 at 157; [2005] HCA 68 at [98] per Kirby J. In Antoun v The Queen (2006 224 ALR 51 at 58 [2006] HCA 2 at [28] Kirby said that “the manifest observance of fair procedures is necessary to satisfy the requirements not only of fairness to the accused but also of justice before the public so that they may be satisfied, by attendance or from the record, that the process has followed lines observing basic rules of fairness.”

[37] Mallard v The Queen (2005) 224 CLR 125 at  [2005] HCA 68 at [66]; Kirby J  citing Grey v The Queen [2001] HCA 65.

[38] Mallard v The Queen (2005) 224 CLR 125 at 153; [2005] HCA 68 at [76]

[39] Grey v The Queen (2001) 75 ALJR 1708 at 1718; [2001] HCA 65 at [50] Kirby J.

[40] Mallard v The Queen (2005) 224 CLR 125 at 130-32; [2005] HCA 68 at [23-4]  Gummow, Hayne, Callinan and Heydon JJ.

[41] Nudd v The Queen (2006) 225 ALR 161 [2006] HCA 9 at [8] Gleeson CJ.

[42] Mallard v The Queen (2005) 224 CLR 125 at 152; [2005] HCA 68 at [70].

[43] Nudd v The Queen (2006) 225 ALR 161 at 166; [2006] HCA 9 at [13] Gleeson CJ  citing Strickland v Washington 466 US 668 at 669 (1984).

[44] Nudd (2006) 225 ALR 161 at 167; [2006] HCA 9 at [16] citing Lord Lane CJ in R v Ensor UK [1989] 1 WLR 497 at 502.

[45] Antoun v The Queen (2006) 224 ALR 51 at 62; [2006] HCA 2 at [41].

[46] Nudd v The Queen (2006) 225 ALR 161 at  ;[2006] HCA 9 at [18] Gleeson CJ citing R v Birks 1990 (1990) 19 NSWLR 677.

[47] Nudd v The Queen (2006) 225 ALR 161 at  ;[2006] HCA 9 at [16].

[48] Nudd v The Queen (2006) 225 ALR 161 at  ;[2006] HCA 9 at [12].

[49] Ratten v The Queen (1974) 131 CLR 510 at 518; (1974) 4 ALR 93 at 100; [1974] HCA 35 at [21] per Barwick CJ  and Gallagher v The Queen (1986) 65 ALR 207 at 209-10; [1986] HCA 26 at [4] per Gibbs CJ. 

[50] Ratten v The Queen (1974) 131 CLR 510 at 518; (1974) 4 ALR 93 at 100;[1974] HCA 35 at [21] Barwick CJ  and Gallagher v The Queen (1986) 65 ALR 207 at 209-10; [1986] HCA 26; Gibbs CJ [4].

[51] Christie v The Queen [2005] WASCA 55 at [237] per Le Miere and Jenkins JJ.

[52] Gallagher v The Queen (1986) 160 CLR 392 at 394;(1986) 65 ALR 207 at 209; [1986] HCA 26; Gibbs CJ [3] referring to King CJ in Reg v McIntee (1985) 38 SASR 432 at p 435.

[53] Nudd v The Queen (2006) 225 ALR 161 at 163; [2006] HCA 9 at [6] Gleeson CJ citing Fullagar J in Mraz v The Queen (1955) 93 CLR 493 at 514.

[54] For example, Wilde v The Queen (1988) 164 CLR 365 at 369; (1988) 76 ALR 570 at 574; [1988] HCA 6 at [9].

[55] Mraz v the Queen (1955) 93 CLR 49; Wilde v The Queen (1988) 164 CLR 365; Grey v The Queen (2001) 75 ALJR 1708; KBT v The Queen [1997] HCA 54; Beamish v The Queen [2005] WASCA 62.

[56] Beamish v The Queen [2005] WASCA 62 at [319]; Steytler, Wheeler and Mclure JJ  citing Wilde and Grey above.

[57] Gipp v The Queen (1998) 155 ALR 15 at 21; [1998] HCA 21 at [18] Gaudron J citing M v The Queen (1994) 181 CLR 487 at 494; Mason CJ, Deane, Dawson and Toohey JJ referring to Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 618-9; Chidiac v The Queen (1991) 171 CLR 432 at 443-4; Jones v The Queen (1997) 72 ALJR 78.

[58] Gipp v The Queen (1998) 155 ALR 15 at 47; [1998] HCA 21 at [119] per Kirby J. (emphasis added).

[59] Gipp v The Queen (1998) 155 ALR 15 at 22; [1998] HCA 21 at [23] Gaudron J citing Griffith CJ in Ah Yick v Lehmert (1905) 2 CLR 593 at 601.

[60] Gipp v The Queen (1998) 155 ALR 15 at 22; [1998] HCA 21 at [23]. Justice Gaudron cited the following cases in support of the proposition; De Jesus v The Queen (1986) 61 ALJR 1; Bahri Kural v The Queen (1987) 162 CLR 502 at 512; Robinson v The Queen (1991) 180 CLR 531 at 536; KBT v The Queen (1997) 72 ALJR 116 at 119; Stirland v Director of Public Prosecutions [1944] AC 315 at 327-8.

[61] Gipp v The Queen (1998) 155 ALR 15 at 53; [1998] HCA 21 at [136] per Kirby J. (emphasis added)

[62] Gipp v The Queen (1998) 155 ALR 15 at 60; [1998] HCA 21 at [169] per Callinan J  citing Hayes v The Queen (1973) 47 ALJR 603 at 604.

[63] This abstract from Davies and Cody v The King (1937) 57 CLR 170 at 180 was referred to by Gleeson CJ in  Nudd v The Queen (2006) 225 ALR 161 at  163; [2006] HCA 9 at [4] (emphasis added).

[64] Gallagher v The Queen [1986] HCA 26; Gibbs CJ [7].

[65] Bounds v The Queen [2006] HCA 39; Kirby J [42] dissent.

[66] Mallard v. The Queen (2005) 224 CLR 125; [2005] HCA 68 per Kirby J. para 67ff.

[67] The proviso is set out in both the 1907 (UK ) Act and the current Australian legislation e.g. Crimes Act 1958 (Vic) s 568 (1); Criminal Law Consolidation Act 1935 (SA) s 353(1).

[68] This part of the discussion is taken from M v The Queen [1994] HCA 63 at [4]

[69] M v The Queen [1994] HCA 63 at [4-5].

[70] Weiss v The Queen [2005] HCA 81 at [10]; Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ  In this judgment the court undertakes an historical analysis of the proviso, noting its origins in the UK Act of 1907 and the strict rule which prevailed prior to that: In R v Gibson, Lord Coleridge CJ, speaking in 1887, stated the rule as being that "if any bit of evidence not legally admissible, which might have affected the verdict, had gone to the jury, the party against whom it was given was entitled to a new trial".

[71] Weiss v The Queen [2005] HCA 81 at [36].

[72] The points referred to in this paragraph are from Weiss v The Queen [2005] HCA 81; Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ [50].

[73] Darkan, Deemal-Hall and McIvor v The Queen [2006] HCA 34; Gleeson CJ, Gummow, Heydon and Crennan JJ [4]. 

[74] Grey v The Queen [2001] HCA 65; Kirby J [53].

[75] Grey v The Queen [2001] HCA 65; Kirby J [53]. However, in Nudd v The Queen [2006] HCA 9; Gleeson CJ [6] said that the proviso was considered recently by the High Court in Weiss v The Queen. It there cited Barwick CJ in Ratten where he indicated that some irregularities "may" involve no miscarriage of justice if the appellate court forms a certain opinion about the strength of the case against the appellant. In Nudd, the court said that trial counsel put some hopeless arguments. He had an erroneous view of the law on one point and the court took the view that nothing in the material before the Court of Appeal suggested there was any real doubt about Nudd's guilt.

[76] Grey v The Queen [2001] HCA 65; Kirby J [56].

[77] Grey [72].

[78] Grey v The Queen [2001] HCA 65; Gleeson CJ, Gummow and Callinan JJ [25] citing Reg v Storey (1978) 140 CLR 364 at 376.

[79] Mickelberg v The Queen [1989] HCA 35; Mason CJ [2]; (1989) 167 CLR 259.

[80] Mickelberg citing Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73, at p 87.

[81] Shin Kobe Maru v Shipping Co Inc [1994] HCA 5; (1994) 181 CLR 404 at 421 referred to in “Extending the scope of post-conviction reviews in criminal cases” Bibi Sangha.

[82] See Practice Statement (Judicial Precedent) [1966] 1 WLR 1234.

[83] Mickelberg [7]

[84] This proposition has been established by R v Edwards (No 2) [1931] SASR 376; Grierson v The King (1938) NSW CCA; Grierson v The King (1938) 60 CLR 431.

[85] “Extending the scope of post-conviction reviews in criminal cases”

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