David Szach Petition – (continued) Legal Principles

This is Part Two of the Petition - Link to Part One

The Law Relating to Miscarriages Of Justice in Australia

1. The law in relation to miscarriages of justice has been clearly stated by the High Court of Australia in Gipp v The Queen 1998:

[i]f 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.

2. Dr Manock’s forensic report and evidence at the trial of the Petitioner stated opinions with regard to the timing of the death. Those opinions displayed inadequacies, were tainted or otherwise lacking in probative force and they have led to a significant possibility that an innocent person has been convicted.

3. In the Western Australian case of R v Beamish (2005)] the basic principle was stated as follows:

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 if the applicant has thereby lost a chance which was fairly open to him of being acquitted.
Or,
a real chance of acquittal.

4. It was said in that case that the loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice.

5. In R v Grey, the witness was presented by the Crown as a reliable witness. The High Court found that, ‘this was a disingenuous basis upon which to present [the witness]’. As a result, the accused was prevented from opening up a fertile ground of cross-examination. In the light of what is now known about Dr Manock and the  ways in which he worked, and his drawing of inferences relating to the manner and cause of death in suspected cases of homicide, it must he accepted that his evidence is and has been inherently unreliable.

6. The Chief Justice of South Australia has stated:

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.
[King CJ in Reg v McIntee (1985) as cited in R v Gallagher (1986)]

7. As Malcolm CJ said in R v Button (WA):

It is also accepted that a miscarriage of justice will occur if evidence which is now available and 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.

8. Chief Justice Malcolm pointed out that it is necessary that the evidence relied upon could not, with reasonable diligence, have been produced by the accused at the trial (although this is not an inflexible requirement). It is clear that the evidence relating to the incompetence of Dr Manock, in this and other cases could not have been known by the Petitioner at the time of his trial.

9. The court is then required to consider if there is a ‘significant possibility’ of a wrongful conviction. This obviously means that the mere existence of such a possibility is sufficient. If it exists, then the court is bound to set aside the verdict. This means that it then has no choice other than to set it aside. This point was reinforced in the judgment of Kirby J in Gipp when he said:

Once the appellate court comes to the conclusion that any of the pre-conditions to the exercise of its jurisdiction is made out under [the statutory provision - which is similar in all States], it is obliged to (‘shall’) allow the appeal.

10. Justice Gaudron in Gipp also referred to a substantial possibility that the jury was ‘mistaken’ or ‘misled’ in the manner in which they reached their decision. She said that this question, ‘which really subsumes the issue of credibility’, has been stated in the authorities in different ways and with different degrees of emphasis. Sometimes it is said that the question is whether the evidence would ‘probably’ have affected the verdict.
[Gaudron J in Gipp cited Arnold v The King (1946); R v Wakefield (1957); R v McIntee as cited in R v Gallagher].

11. Justice Gaudron also pointed out in Gipp that when an appeal is lodged, the ‘entire matter’ is before the court to which the appeal is brought and, unless there is some statutory provision to the contrary, the court can entertain ‘any matter’, ‘however arising’, which shows that the decision of the Court appealed from is erroneous.

12. Kirby J also made it clear in Gipp that where a challenge is raised to a verdict, having regard to the evidence, the courts of criminal appeal are required by authority to undertake ‘an independent assessment of the evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused.’ An independent assessment of the evidence clearly means that the court is permitted to hear new evidence which will serve to cast doubt upon the authenticity of the evidence which was given at trial.
[Kirby J cited Morris v The Queen (1987)].

13. As Kirby J said in Gipp, the Court is not obliged to ignore a manifest miscarriage of justice demonstrated to it simply because the grounds to demonstrate it were not earlier raised. Ultimately, said Kirby J, what is under review in the High Court is not the ‘reasons’ of the Court of Appeal, but its ‘order’ and ‘judgment’.

Defensive of the liberty and other rights of those convicted of criminal offences, courts of criminal appeal in Australia have always been ready (more so than in civil matters) to take a lenient view of procedural failures where that course is deemed appropriate and just. In exceptional cases, where serious error is brought to light, such courts regularly allow a ground to be raised belatedly which concerns a ‘manifest miscarriage of justice’.

14. He said that it was his view that any other rule would give priority to form over substance. It would permit procedural rules to defeat the correction of a serious miscarriage of justice that has come to the notice of a court of justice.

But where an argument is raised which appears to involve a manifest miscarriage of justice, it should not be ignored because the argument ought properly to have been expressed earlier.

15. From the earliest days, in the determination of appeals, he said, the Court has asserted a jurisdiction, held in reserve, to avoid an injustice brought to its notice, although not raised at the trial or in the court of appeal.
[He referred to Scott Fell v Lloyd (1911); Pantornov The Queen (1989)].

In truly exceptional cases, to avoid the risk of a serious miscarriage of justice, to vindicate the law or to prevent the repetition of similar mistakes of law, the Court has upheld a prisoner's appeal although the point ultimately successful was never taken below, whether at trial or in the court of criminal appeal.

16. Where the accused has thereby, ‘lost a chance, which was fairly open, of being acquitted’, such failures are, in the eye of the law, a miscarriage of justice.
[Mrazv The Queen (1955); KBTv The Queen (1997); Wilde, Grey and Beamish supra]

17. Justice Callinan in Gipp said that where a Court of Criminal Appeal sets aside a verdict on the ground that it is ‘unreasonable’ or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is – ‘unsafe or unsatisfactory’ – ‘unjust or unsafe’ - or ‘dangerous or unsafe’. However, he said that in reaching such a conclusion, the court does not consider ‘as a question of law’ whether there is evidence to support the verdict. The question is one of ‘fact’ which the court must decide by making its own independent assessment of the evidence.

18. Callinan J in Gipp said that there may well be circumstances where there is still evidence upon which a jury might convict; ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.
[Citing Hayes v The Queen (1973)]

19. He said that a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be ‘unreasonable’ or incapable of being ‘supported having regard to the evidence’. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside.

20. Callinan J pointed out that in speaking of the Criminal Appeal Act 1899 in Hargan v The King (1919), Isaacs J 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.

21. He went on to say that as the Court observed in Davies and Cody v The King (1937), the duty imposed on a court of appeal to quash a conviction when it thinks that on any ground there was a miscarriage of justice covers:

… not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.

22. Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a Court of Criminal Appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
[Whitehorn v The Queen (1983)].

23. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
[Chamberlain v The Queen No. 2 (1984)].

24. In R v Osland (1998), it was said that if a trial has miscarried, a guilty verdict cannot be upheld on a basis not left to the jury. That would be to trespass on the constitutional function of the jury. If the conviction is to be upheld, it can only be on the basis that was left to the jury. This is in common with Pendleton and the other UK cases.

25. It is noteworthy also, that it is not appropriate to speculate on what might have happened if the prosecution had presented the case to the court on some other basis:

… it is quite apparent that on a retrial the appellant would be called upon to meet a quite different case from that presented against him at trial. That would be unfair, particularly having regard to the sentence already served. In our view, these circumstances justify this court entering verdicts of acquittal,… by reason of the unfairness of the criminal process that would otherwise follow.

The Crown should not be permitted to present a quite different case through a new trial.
[Kirby J in Gipp citing Parker v R (1997) High Court]

26. Kirby J went on to say in Gipp:

It is an established appellate principle that a second trial should be refused where the first trial miscarried by reason of the conduct of the Crown or where a second trial is needed to allow the Crown a further chance to present a different case.

27. A question which is bound to arise is whether, despite any miscarriage of justice, the proviso should be applied. As Kirby J pointed out in R v Grey, the proviso appears in a section that does not negate the fundamental principle of the administration of criminal justice in Australia. This is 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. It is then no part of the function of a court of criminal appeal to hold that the accused is ‘so obviously guilty that the requirement of a fair trial according to law can be dispensed with’. As Kirby J pointed out, the proviso has no application to such a case.

28. He said:

… 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’.

29. If at the end of the consideration of an application in which a miscarriage of justice is shown there is a proper doubt that the conviction was ‘inevitable’ or that the accused may have lost a fair chance of acquittal, the impugned conviction cannot be sustained. These are the high standards that our system of criminal justice upholds. They are the standards reflected in the terms of the proviso itself.

30. The Petitioner states that the circumstances in which Dr Manock was ‘given’ his qualification by the Royal Australasian College of Pathologists, the erroneous inferences which he habitually drew from the information available to him, meant that the Petitioner was denied a fair trial.

31. Also the onus of proving the relevant facts is important. Kirby J said in Grey that once a miscarriage of justice is demonstrated, it is the prosecution that bears the burden of persuasion that the accused had not lost ‘a chance which was fairly open to him of being acquitted’ or ‘a real chance of acquittal’. Kirby J went on to explain inter alia that:

In cases where credibility is in issue and where the jury's assessment of the truthfulness of a vital prosecution witness might be important for their verdict [as was so with Dr Manock, in relation to his evidence at the trial of the Petitioner], then the unavailability of significant and relevant evidence that later comes to light [the extensive history of Dr Manock’s prior cases of incompetent and misleading evidence] may, in a particular case, occasion such a miscarriage of justice that a guilty verdict should not stand.

32. Kirby J went on to say in Grey that a conclusion of not guilty is not a conclusion that a jury would necessarily have reached. Perhaps it does not represent the most probable verdict of a reasonable jury. It is a definite possibility. It is one of which Grey was deprived because he did not have access to information that, forensically, would have strengthened his attack on the credit of the prosecution witnesses.

The prosecution should gain no such advantage from its conceded default in disclosing this important information to the defence.

In R v Cooley it was held that on the basis of other Australian authorities, the principles in R v Brown (Winston) (1998) UK should be taken as applying in New South Wales and WA. The Petitioner asserts that the same principles should apply in South 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).

34. Again, this clearly encompasses the issues relating to the qualifications and experience of Dr Manock and the numerous adverse findings which have been made concerning his professional skill and conduct. The UK case of Keane (1994) approved of the following:

In a criminal case the Crown is under a duty to give disclosure of significant material which may affect the credibility of a Crown witness.

35.As the WA court pointed out in Christie:

There is a deeper issue. In a case of circumstantial evidence, the circumstances from which an inference of guilt may be drawn can only be drawn from proven facts. It is not necessary for the prosecution to establish every fact beyond reasonable doubt. However, before an inference adverse to an accused can be drawn from a material fact that fact must be proved beyond reasonable doubt.
[R v Christie (2005) WA]

36. Bearing this in mind, Dr Manock provided evidence at the trial of the Petitioner as to the circumstances of the death, which would have led to findings in relation to the timing cause and manner of death beyond a reasonable doubt.

37. It must now be accepted that such evidence given by Dr Manock was inherently unreliable. The court in Cooley went on to say:

The defence was entitled to assume that a professional expert witness called by the State was a witness of integrity and credibility and that if there was any material showing otherwise, the State would disclose it.

38. The Petitioner states that had he known about Dr Manock’s lack of formal training in forensic pathology, or the way in which he obtained his Fellowship of the Royal Australasian College of Pathology, he would have been enabled to cross-examine him with regard to his claims to expertise in forensic pathology.

39. If the Petitioner had been aware of Dr Manock’s understanding [subsequently evidenced in his statements to the Medical Board of South Australia] concerning his methods of diagnosing death which had never been subjected to peer review or testing, then he would have been able to cross-examine him with regard to his claims to expertise in this area.

40. If the Petitioner had been aware of Dr Manock’s clearly deficient work in relation to his conduct in other cases, in particular that of Frits Van Beelen 1972, [and others as subsequently revealed in Stefan Niewdach and Alan Ellis 1992, Emily Perry 198, John Highfold 1983, Kingsley Dixon 1987, Terry Akritidis 1990, Peter Marshall 1992, The Baby Deaths Cases 1994 and the case of Henry Keogh] he would have been able to cross-examine him with regard to his claims to expertise. 

41. Importantly, the standard which is to be applied in making any such assessment at the appeal, is the current standard of good investigation or good practice – not the standard which might have prevailed at the time of the trial of the Petitioner:

we judge the conduct of the investigation of the case, the conduct of the trial, the directions to the jury and the reliability of the evidence on which the jury acted in accordance with the standards that this court now applies … the practices followed and the reliability of evidence thus obtained are to be judged by present standards.
[R v O’Brien emphasis added].

The conduct of the trial and the direction of the jury must be judged according to the standards which we would now apply in any other appeal…
We must judge the safety of the conviction according to the standards which we would now apply in any other appeal…
Where, between conviction and appeal, there have been significant changes in the … standards of fairness, the approach indicated requires the court to apply legal rules and procedural criteria which were not and could not reasonably have been applied at the time.
[R v Bentley]

Principles to be applied in consideration of this Petition

42. The Petitioner avers that these principles are those which should be applied in the consideration of his Petition.

Mallard Principles

These principles are derived from Mallard v The Queen (2005) High Court of Australia.

The Petitioner

The matters which the petitioner now seeks to put before the Court of Criminal Appeal have not previously been put to that Court on behalf of the Petitioner.

On the grounds that in the interests of justice, and that your intervention is necessary to avoid a miscarriage of justice and to address a justifiable sense of grievance, the Petitioner seeks that this petition be granted.

THIS THE PETITIONER THEREFORE ASKS that on the consideration of this Petition for the exercise of Her Majesty’s mercy having reference to the conviction of the Petitioner on information, the Attorney General refer the whole case to the Full Court pursuant to Section 369 of the Criminal Law Consolidation Act, 1935.

DATED this                             day of                           2006

DAVID JOE SZACH

Petitioner..................................................................

CRIMINAL LAW CONSOLIDATION ACT 1935 - SECT 369

369 References by Attorney-General

369. Nothing in this Part affects the prerogative of mercy but the Attorney-General, on the consideration of any petition for the exercise of Her Majesty's mercy having reference to the conviction of a person on information or to the sentence passed on a person so convicted, may, if he thinks fit, at any time, either-

(a) refer the whole case to the Full Court, and the case shall then be heard and determined by that Court as in the case of an appeal by a person convicted; or 

(b) if he desires the assistance of the judges of the Supreme Court on any point arising in the case with a view to the determination of the petition, refer that point to those judges for their opinion and those judges, or any three of them, shall consider the point so referred and furnish the Attorney-General with their opinion accordingly.

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