Networked Knowledge - Appeal Court Responses to Errors at Trial

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

Discussions of the law on miscarriages of justice in Australia, the UK and the USA

Introduction to the law of Australia and the UK

Introduction to the Criminal Justice System
Outline: general principles - Miscarriages of Justice
Outline: general principles - Miscarriages of Justice - R v Mallard 2005 HCA

Post-conviction Reviews in Criminal Cases - the UK and Australia

By Bibi Sangha. This article argues that where fraud is asserted to have occurred in the securing of a criminal conviction, there is a right to be heard and to have the conviction set aside, even in the absence of a right of appeal. This article forthcoming in the Australian Bar Review

The Law of the UK - Part One - Miscarriages of Justice
The Law of the UK - Part Two - References
The Criminal Cases Review Commission UK
"Stolen Innocence" – The Story of Sally Clark by John Batt
Summaries of UK murder cases overturned 1947 - 1986
Summaries of UK murder cases overturned 1987 to date

USA Law on Miscarriages of Justice

Discussion of the law on error at trial in the USA

Part 1 - The Law of Australia - Miscarriages of Justice
Part 2 - References

The Australian Cases

1905 - Ah Yick v Lehmert - Jurisdiction of High Court and other courts

1931 - Edwards (No 2) - South Australian Supreme Court - no right to reopen appeal once determined

1931 - Victorian Stevedoring - regulations ultra vires?

1938 - Grierson - High Court - no right to reopen appeal once determined

1940 - Cabassi v Vila - High Court - fraud

1949 - Bugg v Day - High Court - expert witness

1956 - Mraz - High Court - issue estoppel - inconsistent verdicts - rape and manslaughter

1963 - Plomp - High Court - circumstantial evidence - drowning at sea

1974 - Ratten - High Court - appeals in criminal cases - acquittal or retrial - fresh evidence

1974 - Collins - High Court - Leave to Appeal to High Court

1983 - Giannarelli - High Court - perjury - immunity - issue not raised previously

1983 - Whitehorn - High Court - fair trial, confession, judge calling witness

1984 - Davern - High Court - double jeopardy, appeal against acquittal

1985 - McIntee - South Australian Supreme Court - reception of fresh evidence

1985 - Metwally - High Court - re-opening of appeal

1986 - Gallagher - High Court - false confession - can appellate court dismiss without retrial?

1987 - Kural - High Court - Mens rea - proviso

1988 - Wilde - High Court - scope of the proviso

1989 - Jones - High Court - criminal appeal - powers to require retrial or an acquittal

1989 - Pantorno - High Court - criminal appeal - power to re-open appeal

1989 - Mickelberg - High Court - can High Court hear new evidence?

1989 - Ainsworth v CJC - High Court - Procedural fairness

1993 - Walton v Gardiner - High Court - abuse of process

1993 - Autodesk v Dyason - High Court - copyright - re-open appeal

1994 - M - High Court - powers of appellate court in criminal appeal

1994 - Rogers - High Court - abuse of process

1994 - Ship "Shin Kobe Maru" - High Court - new argument on appeal

1997 - Green - High Court - homosexual advance - provocation - proviso

1997 - KBT - High Court - sexual offences, minor - proviso

1997 - Postiglione - High Court - power to re-open appeal - sentencing principles

1997 - McNamara - Victorian Court of Appeal - power to re-open appeal

1998 - Gipp - High Court - sets out powers of appellate court in hearing criminal appeals

1998 - Penney - High Court - poor investigation may not lead to verdict being unsatisfactory

1998 - Osland - High Court - appellate court not to usurp the role of the jury

1998 - Von Einem - Supreme Court South Australia - Decision of AG on petition not reviewable

2000 - Eastman - High Court - reception of fresh evidence in High Court appeal

2001 - Grey - High Court - failure to disclose going to credibility of Crown witness

2001 - Sinanovic - High Court - Jurisdiction of High Court - application for leave to appeal

2002 - Piggott NSW CCA - should govt lab experts follow the manual?

2002 - Button - WASC - murder Rosemary Anderson - Edgar Cooke confessed

2002 - Velevski - High Court - murder suicide or murder - conflicting expert opinion

2003 - Eastman v Director of Public Prosecutions (ACT) right to review of conviction

2003 - Heron - High Court - Judicial error, proviso, provocation

2003 - Gillard - High Court - murder / manslaughter, common purpose, proviso

2003 - Heuston - NSW CCA - police corruption - delay - acquittal or new trial?

2003 - Ray - NSW CCA - direction regarding lies - inappropriate directions by judge

2004 - Milat - High Court - special leave - no right to oral submission

2004 - Mickelberg - West Australian Supreme Court - convictions overturned

2005 - Beamish - WASC - murder of Jillian Brewer - Edgar Cooke confessed

2005 - Cooley - WA - failure to disclose issue going to credibility of Crown witness

2005 - Christie - WA - distinction between "fresh" and "new" evidence

2005 - Stevens - High Court - summing up on "accident" and "proviso"

2005 - Mallard - High Court - non disclosure by prosecution - good summary of principles

2005 - Weiss - High Court - application of "the proviso" in appeal cases

2005 - Ali - High Court - incompetence of counsel not established as ground for miscarriage

2005 - D'Orta - High Court - immunity of barristers from suit

2005 - Kamleh - High Court - hearsay - adelaide shootings

2005 - Fingleton - High Court - judicial independence - immunity - magistrate

2006 - Antoun - High Court - apprehended judicial bias

2006 - Phillips - High Court - similar fact evidence

2006 - Nudd - High Court - incompetence of counsel at trial

2006 - Batistatos v RTA NSW - High Court - abuse of process

2006 - Darkan, Hall and McIvor - High Court - "a probable consequence" and "proviso"

2006 - Bounds - High Court - joinder of charges and "proviso"

2006 - Clayton Hartwick Hartwick - High Court - "accessory" and "joint enterprise"

2006 - Werribee - High Court - council powers

2007 - Folbigg v R 2007 NSW CCA - Power of court to re-open appeal

2007 - Fazzari, Martinez and Pereiras v West Australia 2007 CCA

2007 - R v Hillier [2007] HCA 13

2007 - SZFDE v Minister for Immigration and Citizenship[2007] HCA 35

2007 - Blessington and Elliot v The Queen [2007] HCA 51

2007 - Evans v The Queen [2007] HCA 59 - elements of a fair trial, application of the proviso

2008 - AK v The State of West Australia [2008] HCA 8 - Jury trial or judge alone trial

2008 - Burrell v The Queen [2008] HCATrans 221 - Transcript of High Court hearing

2008 - Burrell v The Queen [2008] High Court - discussion of Grierson power of Court of Appeal to re-open appeal

2008 - Cesan v The Queen; Mas Rivadavia v The Queen [2008] HCA 52 - sleeping judge High Court

The United Kingdom Cases

The following cases all involve convictions for murder which have been overturned by the UK Court of Appeal (Criminal Division) after a reference from the CCRC.

1949 - George Kelly (hanged) & Charles Connolly (now deceased) - non disclosure - false evidence by police.

1952 - Mattan (hanged)

1952 - Bentley (hanged) - inappropriate directions by judge

1970 - Cooper and McMahon - inadequate police investigation - prosecution disclosure

1973 - West Sussex Quarter Sessions - Court of Appeal can overturn conviction for fraud, collusion or mistake

1974 - Downing - breach of Judges Rules [PACE] - inappropriate confession

1975 - Nicholls - recent pathology evidence to suggest accident / natural causes - not foul play

1977 - Maynard and others - police statement unreliable - 4 convictions overturned

1977 - Charlie Smith - psychopathic condition not known of - confession unreliable

1978 - Leyland Magistrates - witnesses not dislcosed - conviction set aside

1979 - Steel - false confession and psychiatric evidence of suggestibility and compliance

1980 - Haddon - diminished responsibility - failure to adduce evidence of psychiatric / psychopathic disorder

1980 - Pinfold and MacKenney - evidence of psychopath / accomplice unreliable - unknown at trial

1981 - Kamara - identification evidence - failure to disclose 201 witness statements

1983 - Fell - false confession - desire to impress - impaired mental development

1984 - Campbell - honesty and integrity of police officers in doubt

1984 - Foster - A pardon does not remove conviction, only its effects

1985 - Goonatilleke - Quashing a conviction which has been obtained by perjury or fraud

1986 - James - confession unreliable if access to legal advice denied

1987 - Greeen - admissibility of statement, hypoglycaemic episode

1987 - O'Brien, Hall and Sherwood - unreliability of confession and police evidence

1988 - Shirley - DNA evidence inconsistent with other circumstantial evidence

1989 - Druhan - defence deprived of important opportunity to undermine credibility of witness

1989 - Guildford Four: Richardson, Conlon, Armstrong, Hill - unreliable police statements

1990 - Bolton Justices - quash conviction by certiorari on grounds analagous to fraud

1991 - Wickens - timing of death - pathology reports inconsistent with witness statements

1991 - McIlkenny - IRA bombing Birmingham 6 - unreliability of scientific and police witnesses

1991 - Maguire - IRA bombing Guildford - 4 conduct of forensic scientists - non disclosure "analogous to fraud"

1992 - Ward - IRA bombing - non disclosure to defence - unreliability of scientific witnesses

1992 - Christofides - misdirection by judge - jury deprived of evidence favourable to accused

1992 - Brannan and Murphy - non disclosure to defence - unreliability of witness

1994 - Samra - explosive personality disorder not disclosed at trial - diminished responsibility

1994 - Treadaway v Chief Const of Police for the West Midlands - Civil action against police for assault - plastic bagging

1995 - Gilfillan - diminished responsibility not revealed to or disclosed by expert witness

1995 - James - vet - poisoned wife - suicide note found after death

1996 - Causley - information re credibility of Crown witness not disclosed to defence

1996 - Friend - failure to provide evidence of mental impairment

1996 - Farnell - misdirection with regard to "provocation"

1996 - Preddy [House of Lords] - mortgage fraud, property belonging to another

1996 - Treadaway - police fabricated evidence - bagging the suspect

1997 - R v. The Director Of Public Prosecutions ex parte Treadaway [1997] High Court QBD (Divisional Court)

1997 - MF (a juvenile) - failure to adduce evidence of diminished responsibility

1997 - Karimi - new psychiatric evidence - enduring personality change (EPCC)

1997 - Bowler - new evidence of accident hypothesis not thought of at trial

1998 - Nicholls - misleading pathology evidence

1998 - Stanton v Callaghan - expert report and witness immunity

1998 - Kebeline [House of Lords]- Human Rights Act

1999 - Twitchell - police officers behaving badly

2000 - R v Gilfoyle - standards for expert witnesses

2000 - Jerzy Boncza-Tomaszewski (George Fraser) v Her Majesty's Advocate - current standards applied in appeal

2001 - Pendleton - the appellate court is not to replace the function of the jury

2001 - Scottish Criminal Cases Review Commission - confidentiality of jury deliberations

2001 - Davis, Johnson and Rowe - failure to disclose witness as paid informant

2001 - Kansal - retrospectivity of change in common law on appeal

2002 - Bamber - murder or suicide? Part One Background Issues -

2002 - Bamber - murder or suicide? Part Two Appeal

2002 - Hanratty (summary) - non disclosure - fresh evidence

2002 - Hanratty (judgment) - non disclosure - fresh evidence

2002 - Irvine - abuse by West Midlands police - see also Twitchell and Treadaway

2002 - Smith - provocation in context of battered woman syndrome

2003 - Sally Clark - convicted of murder of young babies. Faulty scientific evidence

2003 - Poole and Mills - hearsay evidence improperly admitted - unreliable witness

2003 - Robert Haddon - new evidence of diminished responsibility

2003 - Anthony Steel - confession and admissions unreliable

2003 - Benedetto - jail confession, role of prosecutor

2004 - Cannings - EWCA - serious difference of opinion by experts - reasonable doubt?

2004 - Pollock - verdict of jury "safe"?

2005 - Puaca - Overview
2005 - Puaca - Judgment- unreliable forensic evidence - many similarities to the Keogh case issues

2005 - Harris, Rock, Cherry and Faulder - [General issues] baby deaths - conflicting expert evidence
2005 - Harris, Rock, Cherry and Faulder - [Harris case]
2005 - Harris, Rock, Cherry and Faulder - [Fauldner case]
2005 - Harris, Rock, Cherry and Faulder - [Cherry case]
2005 - Harris, Rock, Cherry and Faulder - [Rock case]

2005 - R v Wang House of Lords (Criminal Division) - direction to convict not permissible

2006 - Toth - expert evidence, conflict of interest, conflict between experts

2006 - CCRC - Revenue and Customs v CCRC - change of law appeal, regard to time limits of Court of Appeal

2006 - CCRC - Boston v CCRC - judicial review of decision not to refer to Court of Appeal

2006 - Adams - Northern Ireland - convicted person psychologically vulnerable

2006 - Bowman - conflicting expert evidence

2006 - Grindy - Northern Ireland - duty of police to properly investigate - power after jury dismissal

2006 - Mulholland - Northern Ireland - subsequent evidence of improper conduct

2006 - Boreman - Conflicting pathology evidence, Dr Michael Heath, Dr Stephen Corder, Australia

2006 - Coutts, House of Lords, lesser offence, jury duty to follow instructions

2007 - Adams - deficiencies in legal representation at trial - jury misconduct

2007 - Foster, Newman, Kempster, Birmingham - charging lesser offence

2007 - Meill - setting aside acquittal, double jeopardy, statutory provision for fresh charge

2007 - McMenamin - Appeal allowed after guilty plea

2007 - Brown - Northern Ireland: Inherent power of Court of Appeal to re-open appeal

2007 - Walsh - Northern Ireland: Inherent power of Court of Appeal to re-open appeal

2007 - Convery - stay of judgment pending appeal

2007 - Gilmour - confession by vulnerable accused unreliable

2007 - Gault - refusal of bail breach of human rights

2007 - Dowsett - judicial review of CCRC decision

2007 - Boyle - judicial review of CCRC decision

2007 - McCloy - West Midlands Major Crime Squad - Twitchell related case

R v G(G) and B(S) [2009] EWCA Crim 1077 overturning an acquittal

1963 - Fahy v Connecticut - erroneously admitted evidence not "harmless error"

2005 - Yates (Texas) - mother kills children - error in expert evidence

2004 - Camm v State of Indiana - Court of Appeals - Evidence relating to previous adulterous conduct is inadmissible in a trial for spousal murder

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