Unappealing confusion

The High Court of Australia’s attempt in Weiss v R (2005) 224 CLR 300 (blogged here 16 January 2006) to clarify the law concerning the application of the proviso has not prevented differences of opinion as to the results of appeals. The same Court, indeed, a Bench of judges who had all participated in the Court’s judgment in Weiss, has divided 3 – 2 on whether to apply the proviso in Libke v R [2007] HCA 30 (20 June 2007). The majority decision in Libke was to dismiss the appeal.

Weiss held that the appellate court is to apply the words of the legislation that enacts the proviso, and is not to introduce considerations of what a jury would do in the absence of the error that had occurred at trial. I suggested in January 2006 that this means that “ … the appellate court acts as a substitute jury, albeit one that has not seen or heard the witnesses.”

In Libke the point decided in Weiss was summarised by Hayne J (with whom Gleeson CJ and Heydon J concurred) at para 115 as:

“…the unanimous decision of this Court in Weiss v The Queen … warned against attempting to describe the operation of the statutory language in other words, lest such expressions mask the nature of the appellate court’s task in considering the application of the proviso. The Court expressly discountenanced [para 35] any attempt to predict what a jury (whether the jury at trial, or some hypothetical future jury) would or might do. Rather, the Court said [para 35] that “in applying the proviso, the task is to decide whether a ‘substantial miscarriage of justice has actually occurred'”. Unless, and until, a majority of this Court qualifies what is said in Weiss, the intermediate courts of Australia must continue to apply that decision.”

Application of an authority at the same time as mentioning the possibility of it being overturned is hardly a sign of great confidence in its correctness. Indeed, it is virtually impossible for an appellate court to assess whether a substantial miscarriage of justice may have occurred without reference to what a jury might have decided in the absence of the error at trial. Hayne J does this himself (para 113):

“…the question for an appellate court is whether it was open [Hayne J’s emphasis] to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must [Hayne J’s emphasis], as distinct from might [Hayne J’s emphasis], have entertained a doubt about the appellant’s guilt [footnote citing M v The Queen (1994) 181 CLR 487 at 492-493]. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant’s guilt.”

Aside from references to a jury (or, “the” jury), this looks like a burden on the appellant (and, of course, on appeal there is a burden on the appellant) to show not just that there was a miscarriage of justice but also to show that it was substantial so as to prevent the application of the proviso. The minority of the Court, Kirby and Callinan JJ, held that, once a miscarriage of justice had been demonstrated, the burden was on the respondent to show that it was not substantial (para 44, citing Mraz v The Queen (1955) 93 CLR 493 per Fullagar J at 514, a passage that received a bit of a knock in para 27 of Weiss).

The minority emphasised its rehabilitation of Fullagar J’s dictum in Mraz by citing Stokes v The Queen (1960) 105 CLR 279 at 284-285 per Dixon CJ, Fullagar and Kitto JJ, saying (para 45):

“As it is put in Stokes v The Queen …, an appellate court should only apply the proviso if the irregularity “could not reasonably be supposed to have influenced the result”. If this cannot be ruled out, it may be impossible for a court to be satisfied that a substantial miscarriage of justice has not occurred. …”

Even while differing in its interpretation, the minority in Libke did not seek to modify Weiss. On occasions such as this, where the time is not quite right to modify an earlier decision, a minority can at least emphasise the salvageable bits (para 43 – 44):

“In Weiss, after reviewing the history of the statutory demise of the Exchequer rule in criminal cases and pointing out that in consequence, an appellate court was not obliged in all cases in which irregularities had occurred to uphold an appeal, the Court said this [para 45]:

“Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt. What can be said, however, is that 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.”

“44. The foregoing statement must be read with the several others [footnote citing: Driscoll v The Queen (1977) 137 CLR 517 at 524-525; Festa v The Queen (2001) 208 CLR 593 at 627 [110]; and TKWJ v The Queen (2002) 212 CLR 124 at 144-145 [68]] made in this Court which emphasise that, once it is shown, as it has been to all members of this Court, that irregularities disadvantageous to the appellant occurred at his trial, it is for the prosecution to satisfy the appellate court that such irregularities have caused no substantial miscarriage of justice. This is clear from the oft cited passage of Fullagar J in Mraz v The Queen …”


There are clear points of contrast here with the approach to the proviso in New Zealand: see, for example Bain v R (New Zealand) [2007] UKPC 33 (blogged here, 11 May 2007) at paras 34 – 38, referring to well settled principles which were not challenged on that appeal. The error in Bain was that the appellate court had substituted its judgment about the appropriate verdict for that of the jury. Perhaps most of the judges on the High Court of Australia would not have seen that as objectionable.

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