Fingered!

What makes fingerprint evidence interesting is the increasing unlikelihood that we all have different fingerprints. This, at least, is what ordinary old you and I might think. Fingerprints are not genetically determined: identical twins have different fingerprints. While their design falls broadly into a few types, at a finer level of detail they seem to be formed randomly.

There are more human fingers than there ever have been. Often, so-called identifications are made from incomplete prints left at the scene of a crime. Part of the print of one finger, it is said, may be sufficient for an expert to say that it is from the accused. However many fingers there are, there are many more “parts of fingers”. Yet they are all, so it is said, sufficient to mark us out individually. This compression of information, in a small area of skin, is truly remarkable. Mathematicians can assert that there are something like 10 to the power of 20 different possible patterns in a small area of finger, so, if we accept that, our suspicions about the uniqueness of fingerprints are needlessly alarmist.

Let us assume, however, that the experts are not complacent and that they search with sustained vigour for people who have identical “parts of fingerprints”. This amounts to assuming that the experts, who have made a career in reliance on the theory that we all have fingerprints that are unique, are prepared to risk making a discovery that will undermine their livelihoods. I exaggerate, of course: even if many people on earth had the same fingerprints, the finding of one at a crime scene that was, after allowance was made for the distorting effects that occur in real life, not significantly different from the accused’s, would, on Baysean analysis, be highly probative.

Far from being suspicious, the courts are apparently becoming more relaxed about fingerprint evidence. There is judicial acceptance of a trend away from the basing of fingerprint identifications on the number of specified points of identity as between the accused’s print and the sample found at the crime scene. Instead of showing the court enlarged photographs with arrows specifying points on the prints that the court should accept as demonstrating identity, the fingerprint experts are now permitted to base their opinions on the “quality and quantity of information in the images”: R v Carter 19/12/05, CA155/05, a phrase used in a technical paper quoted by the Court at para 75.

Important, in this approach, is peer review of the expert witness’s opinion. This review must, in England and Wales, be carried out by three “independent” examiners.

In Carter the Court did not go so far as to say that three independent examiners are needed as peer reviewers before evidence of fingerprint identity will be admissible in New Zealand. Plainly, there would be difficulties finding people who are “independent”, let alone people who are sufficiently experienced to qualify as experts, in a pool of talent that is, presumably, rather small. Nevertheless, the Court did reiterate a requirement that Tipping J had made of expert witnesses in the well-known case of R v Calder 12/4/95, HC Christchurch T154/94 (where the accused was ultimately acquitted of poisoning), that the evidence needed to have a “minimum threshold of reliability” to be admissible.

So, the need for the judge to warn the jury to exercise caution before accepting evidence of fingerprint identification where there are relatively few points of comparison (R v Buisson [1990] 2 NZLR 542 (CA)) has apparently been replaced by a more relaxed approach. In Carter, the expert was unwilling or unable to indicate whether there were any points of comparison identified (para 60), but the Court of Appeal held that no particular direction to the jury was needed on this, because the defence, in its closing, had not suggested to the jury that the expert was wrong. Instead, the defence, when the time came to close its case, had merely suggested that there were innocent explanations for the accused’s fingerprint being at the scene.

Incidentally, the real question on which the expert’s evidence is relevant, is whether there are any significant differences between the print found at the scene and the accused’s fingerprint. As a prosecution witness, the expert will be expected to say there are none, and it is his explanations for apparent differences that are material.

One might wonder whether, in a case where defence counsel had apparently been discouraged (the judge having ruled the expert’s evidence admissible) from a full assault on the credibility of the expert, and where peer review witnesses were not called, the jury were given a proper opportunity to reject the fingerprint evidence.

This raises the question of when a decision made as a matter of trial tactics can be regarded as an error that caused a loss of a real chance of acquittal (assuming that if there was a doubt about the fingerprint identification then there would have been a doubt about guilt); as the Supreme Court held in Sungsuwan (blogged here, 26 August 2005), it is the effect of the error, not its magnitude, that matters.

Index to these blog entries

To access my Index to all the entries on this blogsite, up to the end of the last month, click on the link on the right.

Recklessness

What does “reckless” mean? Where a person can be guilty of a crime if he has acted with a state of mind called “recklessness”, we need to know whether recklessness is to be given a subjective or an objective meaning.

As all criminal lawyers know, the meaning of recklessness was a matter of huge debate in the latter part of the 20th century. This occurred first in relation to the crime of rape. It was clear that having sexual intercourse intending to do so knowing that the woman did not consent was sufficient for guilt, because “intention” is the usual mental requirement for liability. But what about intending to have sexual intercourse, knowing that there was a risk that the woman was not consenting, but hoping that she was? This state of mind, the deliberate taking of a known risk, is recklessness with a subjective meaning. It is “subjective” because the man knew of the risk.

An illustration of the objective meaning of recklessness is where a man has sexual intercourse, thinking that the woman is consenting, but in circumstances where any reasonable person would have been aware of the risk that she was not. This is “objective” because it refers to what the reasonable person would have known, not what the man himself knew.

Although it was not done with great clarity, it seems that the subjective meaning of recklessness was applied by the House of Lords in R v Morgan [1976] AC 182, where the offence in question was rape. It was felt, however, that policy required an objective interpretation of recklessness for some offences, such as arson: R v Caldwell [1982] AC 341 (HL). This view was changed, and Caldwell was overruled, in R v G [2004] 1 AC 1034 (HL). Lord Bingham put it this way, in para 32:

“conviction of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable… . The most obviously culpable state of mind is no doubt an intention to cause the injurious result, but knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such risk would be readily accepted as culpable also. It is clearly blameworthy to take an obvious and significant risk of causing injury to another. But it is not clearly blameworthy to do something involving a risk of injury to another if … one genuinely does not perceive the risk. Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment.”

In New Zealand, the subjective meaning of recklessness is applied: R v Harney [1987] 2 NZLR 576 (CA), R v Tihi [1989] 2 NZLR 29 (CA).

This whole topic was aired recently in the High Court of Australia, considering New South Wales legislation in Banditt v R [2005] HCA 80 (15 December 2005). This was a case of rape, and the majority judges (Gummow, Hayne and Heydon JJ) held that the subjective meaning of recklessness applied: it was necessary, for the accused to be guilty, that he be proved to have been aware of the risk that the complainant was not consenting. Callinan J, although agreeing in the dismissal of the appeal, thought that the legal wrangling over the meaning of recklessness was so complex that the legislature must have intended simply that the ordinary meaning, as determined by the jury, should apply. This, with respect, is plainly wrong, for the ordinary meaning of recklessness can include (COD) “disregarding the consequences or danger, etc; lacking caution; rash.” When one remembers that sexual intercourse is often indulged in rashly, it is plain that this approach would cast the net too far.

Illegal acquittals

Objections to the power proposed to be given to the prosecution, in some circumstances, to appeal against acquittals, are usually advanced on the grounds that the finality of an acquittal is a fundamental common law right, a matter of “due process”.

The Privy Council has considered this in The State v Boyce (Trinidad and Tobago) [2006] UKPC 1 (17 January 2006). The judgment notes different usages of the term “due process”: there is a broad sense, (para 13):

“In this sense, the concept of due process incorporates observance of all the mandatory requirements of criminal procedure, whatever they may be.”

And there is a narrow, constitutional, sense (para 14):

“… those fundamental principles which are necessary for a fair system of justice.”

The absolute prohibition at common law of a challenge to the finality of an acquittal was not, the Judicial Committee held, part of the narrower meaning of due process (para 15). This conclusion required classifying the finality of an acquittal as a “broad principle”:

“…the broad principle that a person who has been finally convicted or acquitted in proceedings which have run their course should not be liable to be tried again for the same offence is a fundamental principle of fairness. It is recognised as such in many constitutions (see, for example, section 20(8) of the Constitution of Jamaica) and in international human rights instruments: see for example article 14.7 of the UN International Covenant on Civil and Political Rights and article 4 of Protocol No 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. But [their Lordships] do not think that the principle is entirely without exceptions (see, for example, article 4.2 of Protocol No 7) and they certainly do not think that it is infringed by the prosecution having the right to appeal against an acquittal. The possibility of such an appeal is accommodated in the qualification of the principle (“save upon the order of a superior court made in the course of appeal proceedings relating to the conviction or acquittal”) in all the Caribbean constitutions to which their Lordships were referred (Jamaica, Barbados, The Bahamas, Grenada, Dominica, Saint Lucia, Saint Vincent and the Grenadines, Guyana, Antigua and Barbuda, Belize, Anguilla, St Christopher and Nevis, Turks and Caicos Islands, Monserrat) as well as the international instruments which their Lordships have mentioned.”

Thus, the proceedings may not have “run their course” until any right that the prosecution may have to appeal against an acquittal has been exercised. Once it has, the broad principle of finality would apply.

It is sensible, of course, to permit an appellate court to correct errors that have occurred in the application of the law during a trial, whichever side they may have favoured. This point was made in para 16:

“…There is nothing particularly unfair or unjust about a statutory rule which enables an appellate court to correct an error of law by which an accused person was wrongly discharged or acquitted and order that the question of his guilt or innocence be properly determined according to law. Such a rule exists in many countries. It is true that in Davern v Messel (1984) 155 CLR 21 the High Court of Australia said that the common law rule was so ancient and well settled that a statute giving a right of appeal in general terms against the decisions of a court would not be construed as allowing the prosecution to appeal against a decision in favour of an accused person. Express language was needed. But the court did not suggest that the absence of a right of appeal formed part of fundamental due process and in the present case the language of section 65E [of the Supreme Court of Judicature Act] is clear enough.”

Other interesting points made in this case are:

  • Proceedings on indictment start with the filing of an indictment; where an information is laid indictably, that is just a preliminary to indictable proceedings but does not form part of them (para 22).
  • An “error of law” can arise wherever the judge had made a wrong determination, regardless of whether it concerns pure law, or a mixture of fact and law. It thus can include rulings on admissibility of evidence and on whether there is a case to answer (para 24).
  • In deciding whether a witness qualifies as an expert, it is wrong (and this was one of the errors made by the judge in this case) to focus only on the witness’s paper qualifications. The judge was also wrong to call another witness solely to comment on whether another witness should qualify as an expert (para 25, 26).
  • Where an error of law has occurred, and an acquittal has resulted, the question whether a new trial should be ordered can depend on whether a fair trial is still possible. Here, the error of law was corrected (ie the provision creating the right to challenge an acquittal was held to be constitutional), but the appeal was dismissed because it could not be said that a new trial would be fair, 9 years having elapsed since the events in question (para 26, 27).

Three major themes

Three topics of general interest were touched upon by the Privy Council in Grant v R (Jamaica) [2006] UKPC 2 (17 January 2006): (1) the interrelationship between the right to a fair trial, and the balancing of constituent rights; (2) the discretion to exclude evidence where its prejudicial effect exceeds its probative value, and the relationship of this discretion to the right of the accused to a fair trial; and (3) whether the proviso can be applied to dismiss an appeal when potentially significant evidence was never before the jury (including, on the facts of this case, an illustration of what is “potentially significant” evidence).

Right to a fair trial, and balancing

The Privy Council referred to laws similar to those in effect in Jamaica, including decisions of the European Court of Human Rights. The established model is that the accused’s right to a fair trial is absolute, but rights that are subsidiary to that are subject to balancing against each other. See Mathias, “The Accused’s Right to a Fair Trial: Absolute or Limitable?” [2005] New Zealand Law Review 217.

At para 17 of Grant, the Privy Council put it this way:

“The Strasbourg court has time and again insisted that the admissibility of evidence is governed by national law and that its sole concern is to assess the overall fairness of the criminal proceedings in question: see, for example, Kostovski v Netherlands (1989) 12 EHRR 434, para 39; Windisch v Austria (1990) 13 EHRR 281, para 25; Lüdi v Switzerland (1992) 15 EHRR 173, para 43; Saidi v France (1993) 17 EHRR 251, para 43; Doorson v Netherlands (1996) 22 EHRR 330, para 67; PS v Germany (2001) 36 EHRR 1139, para 19. The specific rights set out in article 6(3) of the European Convention (and thus, by analogy, section 20(6) of the [Jamaican] Constitution [see below]) are “specific aspects of the right to a fair trial” (Kostovski v Netherlands, above, para 39) or “particular aspects of the right to a fair trial” (Doorson v Netherlands, above, para 66), and the right to a fair trial can never be compromised in any circumstances. But the constituent rights in article 6 and section 20(6) are not themselves absolute: Brown v Stott (Procurator Fiscal, Dunfermline) [2003] 1 AC 681, 704. The Strasbourg court has been astute to avoid treating the specific rights set out in article 6 as laying down rules from which no derogation or deviation is possible in any circumstances. What matters is the fairness of the proceedings as a whole.”

Section 20(6) provides:

“(6) Every person who is charged with a criminal offence—
(a) shall be informed as soon as reasonably practicable, in a language which he understands, of the nature of the offence charged;
(b) shall be given adequate time and facilities for the preparation of his defence;
(c) shall be permitted to defend himself in person or by a legal representative of his own choice;
(d) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before any court and to obtain the attendance of witnesses, subject to the payment of their reasonable expenses, and carry out the examination of such witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution; and
(e) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the English language.”


These, then, are capable of being compromised in the balancing exercise, which the Privy Council described in Grant (also in para 17) as follows:

“Just as section 13 of the Constitution recognises that individual rights cannot be enjoyed without regard to the rights of others, so the Strasbourg court has recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, and has described the search for that balance as inherent in the whole Convention: Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, para 69; Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, para 52; Brown v Stott, above, p 704. Thus the rights of the individual must be safeguarded, but the interests of the community and the victims of crime must also be respected. An example, not based on the present facts, illustrates the point. In Jamaica, as in England and Wales, as already noted, the statement of a witness may be adduced in evidence if he is shown to have absented himself through fear of the consequences to him if he gives evidence. In the case of a prosecution witness, such fear is likely to have been induced by or on behalf of a defendant wishing to prevent adverse evidence being given. As observed by Potter LJ in R v M(KJ) [2003] EWCA Crim 357, [2003] 2 Cr App R 322, para 59, echoed by Waller LJ in R v Sellick [2005] EWCA Crim 651, [2005] 1 WLR 3257, paras 36, 52-53, it would be intolerable if a defendant shown to have acted in such a way could rely on his human rights under article 6 (or section 20) to prevent the admission of hearsay evidence. Where a witness is unavailable to give evidence in person because he is dead, or too ill to attend, or abroad, or cannot be traced, the argument for admitting hearsay evidence is less irresistible, but there may still be a compelling argument for admitting it, provided always that its admission does not place the defendant at an unfair disadvantage.”

Obviously, where the need to ensure fairness to the accused is paramount, as clear a definition, as is possible, of fairness needs to be established. It is on this central point that further elaboration is needed. I have suggested, in the article referred to above, that a fair trial meets two essentials: (1) there is an opportunity for the jury properly to apply the law, and (2) that application of the law is to the facts determined without bias.

The concern in Grant was whether the admission of the hearsay evidence would create bias against the accused by undermining his ability to challenge that evidence; whether, in other words, admission of the hearsay statement created an inequality between the prosecution and the defence.

The Board carefully set out the safeguards that the law provided for accused persons faced with such hearsay evidence (para 21). These included strict criteria for establishing the unavailability of the witness as a precondition for admission of his written statement, enhanced rights of the defence to call evidence to challenge the truthfulness of the evidence, and a need for the judge to give special directions to the jury cautioning them on what weight to give the hearsay evidence. Also among these safeguards is the next topic to be considered here: the discretion to exclude the evidence where its prejudicial effect exceeds its probative value.

Probative value and prejudicial effect

I have recently written on this topic: “Probative value, illegitimate prejudice and the accused’s right to a fair trial” (2005) 29 Crim LJ 8. In essence, my point is that the discretion to reject evidence on this ground, which involves a so-called balancing of probative value against prejudicial effect, is flawed because the balancing, or weighing, notion suggests that only a high level of unfairness to the accused will outweigh highly probative evidence. That in turn suggests that trial fairness doesn’t matter so much if the accused is obviously guilty. The real question, I suggest, is whether the evidence has sufficient probative value to be admissible bearing in mind the law’s reluctance to allow hearsay evidence; if it does have sufficient probative value, then it is admissible, subject to the trial still being fair for the accused.

The Privy Council has taken this approach in Grant, para 21:

“Section 31L acknowledges the discretion of the court to exclude evidence if it judges that the prejudicial effect of the evidence outweighs its probative value. In R v Sang [1980] AC 402, some members of the House of Lords (notably Lord Diplock at pp 434, 437 and Viscount Dilhorne (pp 441-442)) interpreted this discretion narrowly, and in Scott v The Queen [1989] AC 1242, 1256-1257, the Board appears to have accepted that reading. It is not, however, clear that the majority in R v Sang favoured a similarly narrow interpretation (see Lord Salmon at pp 444-445, Lord Fraser of Tullybelton at p 449 and Lord Scarman at pp 453, 454, 457). In any event, it is, in the opinion of the Board, clear that the judge presiding at a criminal trial has an overriding discretion to exclude evidence which is judged to be unfair to the defendant in the sense that it will put him at an unfair disadvantage or deprive him unfairly of the ability to defend himself. Such a discretion has been recognised by the Court of Appeal in R v Donald White (1975) 24 WIR 305, 309, and R v Michael Barrett, above. It has been recognised by the Board in Scott v The Queen, above, pp 1258-1259 and Henriques v The Queen [1991] 1 WLR 242, 247: both these appeals concerned the admission of depositions, but the need for a judicial discretion to exclude is even greater when the evidence in question has never been given on oath at all. In England and Wales, the discretion has been given statutory force: see section 25(1) of the Criminal Justice Act 1988; R v Lockley [1995] 2 Cr App R 554, 559-560; R v Gokal [1997] 2 Cr App R 266, 273; R v Arnold [2004] EWCA Crim 1293, para 30. Conscientiously exercised, this discretion affords the defendant an important safeguard.”

Thus, whether one takes a broad or a narrow approach to the so-called balancing, or weighing, of probative value against prejudicial effect, doesn’t matter, because the overriding criterion is whether admission of the evidence would make the trial unfair for the accused.

In para 26 of Grant the Board analysed the circumstances of the trial and gave reasons for their conclusion that the admission of only one of two hearsay statements caused unfairness to the accused. Grant was accused of murder. He had been approached by the victim in a threatening manner while urinating by some bushes at night. He claimed the person had a gun. He took out his own gun and fired at the victim several times. The victim turned and ran. Grant chased him and fired several shots again. The evidence diverged crucially at this point: the hearsay statement that was admitted in evidence was of a witness, Bryant, who said he saw the victim lying face down on the ground when he was approached and shot several times. The victim died from wounds he had received in the back. Grant denied approaching the victim and shooting him like that, saying in evidence that he fired after him because he thought he was still at risk of attack: he relied on self defence. A hearsay statement by another person, Kinglock, was excluded from evidence. It would have confirmed the first part of the episode: someone approaching Grant while he was urinating, then shots being heard and the person running and throwing something (this, if Grant’s evidence had credibility, would have been a gun) away.

In summary, the trial was unfair because (para 26):

“It is, in the Board’s opinion, plain that fairness required the admission of Kinglock’s statement. If admitted, it might not have been understood to exonerate the appellant. The proliferation of shots to the back of the deceased was a formidable problem for him to overcome. The jury might have convicted anyway, and been entitled to do so. But the jury should have known how, according to Kinglock, in large part corroborating the appellant, the incident began. The appellant was entitled to have his case assessed, and his own evidence evaluated, in the light of all the available evidence. … [the judge] could have invited prosecuting counsel to adduce Kinglock’s statement in evidence. Had that invitation, improbably, been declined, the judge could, on grounds of fairness, have declined to admit Bryant’s statement unless Kinglock’s statement were also admitted or could, in the last resort, have introduced the statement of Kinglock herself (R v Oliva [1965] 1 WLR 1028, 1035-1036). … The Crown having given the defence notice of its intention to adduce the statement of Kinglock as well as the statement of Bryant at the trial, defence counsel appears to have been taken by surprise when on the second day of the trial prosecuting counsel applied to adduce the statement of Bryant, but not that of Kinglock. … It was, however, the responsibility of prosecuting counsel and the trial judge to ensure that the proceedings were fair, and they failed to do so. This failure was compounded by an inadequate direction on Bryant’s evidence. The jury were given no encouragement to scrutinise it with particular care, and were not alerted to apparent discrepancies between it and the evidence of Constable Wynter (or, of course, the statement of Kinglock).”

These points illustrate the two aspects of trial fairness: the need to avoid bias in the opportunity the jury has to determine the facts, and the need to ensure the jury has an opportunity correctly to apply the law.

The proviso

Finally, Grant illustrates consideration of whether to apply the proviso. That is, whether to dismiss the appeal against conviction notwithstanding that errors at trial had occurred. The statutory criterion is whether errors had amounted to a “substantial miscarriage of justice”. The meaning of this phrase is critical, and it is still being worked out after over a century of consideration by courts in the common law countries.

As is usual, the proviso did not receive detailed treatment by the Board, which simply concluded, para 27:

“It would not be appropriate to apply the proviso in a case where potentially significant evidence was never before the jury.”

This means that, in the context of Grant, the evidence of Kinglock was “potentially significant”, even though “it might not have been understood to exonerate the appellant” (para 26, above). It was corroboration of Grant’s version of how the incident started that was “potentially significant”: “The appellant was entitled to have his case assessed, and his own evidence evaluated, in the light of all the available evidence” (ibid). This was so, even though the partial defence of provocation was not relied on. The second part of the incident, not covered in Kinglock’s evidence, would be most unlikely to be the basis for a successful defence of self defence, as the Board recognised: “The proliferation of shots to the back of the deceased was a formidable problem for him to overcome. The jury might have convicted anyway, and been entitled to do so” (ibid).

Plainly, the rationale for the application of the proviso, not elaborated by the Board, is that the trial was not fair. No matter how strong the case, an unfair trial cannot sustain a conviction.

Revising history

Where a trial has, in the opinion of an appellate court, involved a miscarriage of justice, the appeal against conviction should be allowed,

“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.”

These statutory words are copied in many jurisdictions throughout the common law world. The High Court of Australia has recently given its attention to their meaning in Weiss v R [2005] HCA 81 (15 December 2005).

One of the fundamental problems faced by those who have to interpret texts of any real vintage (this one is early 20th century), is whether to try to determine what those who used the language intended it to mean then, and to apply that meaning now, or, whether to give the text the meaning that best serves the interests of society now.

The High Court of Australia in Weiss used the former approach, on the rather spurious basis that this was necessary as a way of rejecting interpretations that would, in effect, result in all appeals being allowed wherever there was any error (miscarriage of justice) at trial, and interpretations that are based on a perceived need to protect a “right” to trial by jury by avoiding the appellate court’s substitution of its own verdict for that of the jury at a new trial. These reasons for the Court’s approach are spurious because the currently accepted approach to the proviso (albeit not fully worked out) does not require retrials merely because error is found to have occurred at the original trial: the requirement is that the error affected the outcome of the trial.

Having gone that far with history, using it as justification for attacking a misperceived fault, the High Court then changed tack, emphasising (para 31) that it is the language of the statute, not secondary sources or materials that matters. However, the Court had, by its view of history, set itself on a new interpretative course. But this cannot disguise the real question, namely, which approach to determining the meaning of the statutory language is appropriate, historical meaning or current policy?

Three fundamental propositions were stated, para 39:

“Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt.”

These, it might be thought, are not particularly informative. They are intended to be borne in mind by appellate courts when they apply what may now be called the Weiss approach to the proviso: the court must make its own assessment of the whole of the record of the trial to decide whether it proved the accused’s guilt beyond reasonable doubt (para 41). The proviso can only be applied (ie it is a necessary, but not always a sufficient condition – as indicated next – for application of the proviso) if the court (para 44)

“… is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt …”

However, the proviso should not be applied in some cases (para 45):

“… there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant’s guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.”

Pursuant to this approach, the appellate court acts as a substitute jury, albeit one that has not seen or heard the witnesses. Compensating for that absence of contact with the witnesses, the appellate court is apparently to be particularly mindful of the high standard of proof.

Well, how did the High Court deal with the case before it in this appeal?

The issue, on this approach, came down to whether a reasonable doubt about the accused’s guilt could have existed in view of a contest between whether a confession by him in his (second) police interview was made as a result of improper inducement by a police officer. The miscarriage of justice at trial had been wrongful admission of evidence of the accused’s bad character. That is, could the accused’s explanation of why he made the confession have been rejected because of the miscarriage of justice?

Put this way, it would probably appear to most people that there should be a re-trial. However, the High Court remitted the case to the Court of Appeal (Victoria) so that it could carefully examine the record of the trial in the light of the approach to the proviso it laid down (para 57):

“… one question for the Court of Appeal was whether, considering all of the evidence at trial, these matters of character could be put aside as unimportant side issues when viewed in the context of the whole trial, particularly as the evidence in the trial included the powerful testimony of confessions to police which the appellant did not contest making, although he sought to explain how they came about. If they could, attention could focus upon whether the videotaped confession (which the appellant had undoubtedly made) established, beyond reasonable doubt, his guilt of murder. Or was there a reasonable possibility that he had made a false confession?”

With respect, it is difficult to imagine how evidence suggesting the accused has little appreciation of the difference between right and wrong can possibly be ignored in a contest in credibility between the police officer and the accused.

The cumbersome Weiss approach to the proviso may lead a court to overlook the obvious. It is an unnecessary rejection of a century of judicial progress, without a demonstration of any particular problem, let alone a search for a less drastic remedy.

If an appellate court does not apply the proviso, it may order a new trial. It therefore seems strange, given this ability to return the case to a jury, for Weiss to require the court to ignore what effect an error might have had (or, the absence of an error might have) on the jury – the current approaches – and instead focus (if “focus” is the word for such an obscure exercise) on the court’s perception, taking into account the guilty verdict, of the likelihood of guilt.

Furthermore, Weiss, perhaps unintentionally, emphasises the difference between the broad approach taken to matters that come before appellate courts pursuant to the royal prerogative (Mallard v R [2005] HCA 68 (15 November 2005), blogged here 24.11.05, not cited in Weiss), and the narrower approach to those that come pursuant to the ordinary criminal appeals procedure. Under both Mallard and Weiss, the court must consider all of the evidence. But under the Mallard (prerogative) approach, the court is not restrained by the view of the facts that must have been taken by the trial jury. One might wonder why, on an ordinary criminal appeal, as held in Weiss, the jury’s view should be a constraint. Whether it is good policy to maintain such a distinction is doubtful. Republican Australians might be surprised to learn that they get better quality justice via the Queen.