"Never mind your alibi, put the balaclava on …"

Where errors at trial meant that it could not be said that guilt was proved beyond reasonable doubt, the conviction had to be quashed and there was no question of whether the proviso should be applied: Evans v R [2007] HCA 59 (13 December 2007) at para 10 of the joint majority judgment of Gummow and Hayne JJ. A confusing aspect of this case is its references to the proviso. This is hardly surprising, given the state of the law. There were several differences between the judges on other points too.

The critical errors at trial were two, and they focused on two different sorts of evidence. The first was evidence of clothing that the accused was required by the prosecutor to wear while sitting in the witness box, and the second was evidence that the accused was not permitted to call in the nature of an alibi.

As to the clothing, the majority held that was an error, but Gummow and Hayne JJ (jointly) differed from the third member of the majority, Kirby J, as to what the error was. The joint judgment held that the evidence of what the accused looked like wearing the clothing was irrelevant and inadmissible for that reason. Kirby J found this reasoning objectionable because the point had not been argued and (para 84) “This Court does not enjoy a roving commission to create new grounds of appeal”. But, on this point of relevance, Kirby J agreed with Heydon J (with whom Crennan J also agreed) that the evidence was relevant. However, in Kirby J’s view, the evidence was inadmissible because its illegitimately prejudicial effect outweighed its probative value (para 108):

“…The complaint is that the prosecutor’s questions made him sit, in the jury’s presence, in a garb often associated with armed robberies; inescapably similar to the appearance of the offender shown on the video film and photographic stills; and necessarily looking sinister and criminal-like. Even if glanced at for a moment, such an image (like images of hijackers, terrorists and murderers in well-remembered films, documentaries and news broadcasts) would etch an eidetic imprint on the jury’s collective mind. It is an image unfairly prejudicial to the appellant.”

The second critical error, excluding the evidence of alibi (notice not having being given), was the subject of agreement between Gummow, Hayne and Kirby JJ. The error resulted in the defence not being able to be fully put at trial. The defence had to explain why a cap containing the accused’s DNA had been recovered from the scene of the robbery. The only innocent explanation, in the circumstances, could have been that it had been planted there by the actual robber. This possibility could have been raised if the jury had heard the alibi evidence, although it only went as far as establishing that at the relevant time the accused was routinely at a distant location and no departure from that routine could be remembered.

The dissenters, Heydon and Crennan JJ, approached this point differently, holding that there was no evidentiary support for the suggestion that the cap had been planted at the scene, so the absence of the alibi evidence did not matter. This, one might think, misses the point that it was the alibi evidence that would have been relied on to support an inference of planting.

Heydon J, in a passage (para 189 – 222) with which Kirby and Crennan JJ agreed, discussed the concepts of views, demonstrations and reconstructions at common law, and the statutory references to inspections, demonstrations and experiments in the uniform evidence legislation. Kirby J disagreed with Heydon J’s holding on the status of the in-court wearing of the clothing here: Kirby J held it to be a demonstration at common law (para 107).

There was some mention of how the proviso should be approached in the light of Weiss v R (blogged here 16 January 2006). Kirby J mentioned the aspects that seem to be uncontroversial (para 116 – 118):

“116 The central holding in Weiss, which followed suggestions to similar effect in relation to the role of appellate courts both in criminal … and civil … appeals, was that the appellate function must, in every case, be discharged by the intermediate court for itself. It must be done by reference to principles derived from the statutory language. It is not to be discharged by incantations involving speculation concerning what the jury or judge at trial (or a future jury or judge) would, or might, or should have done if this or that had happened or not happened. About this much, there is, I believe, unanimity in this Court. It has emphasised the very substantial role and duty of appellate courts to review the evidence and to reach conclusions for themselves by the application of the statutory tests.

“117 There is also unanimity (for the possibility is expressly reserved in Weiss …) that there may be cases where “errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the … proviso”.

“118 Beyond these points, there remain questions that I regard as still alive for final resolution if tendered to this Court in a suitable case. In a sense, those questions may be a product of the “conundrum” which the joint reasons in this appeal recognise as appearing on the face of the common form legislation in which criminal appeal jurisdiction is expressed throughout this country…. Elsewhere and earlier, the “conundrum” was described as “a riddle of the kind which Plutarch records caused Homer to die of chagrin”….”[footnotes omitted]

Part of the difficulty is the tangled language that is used to state the position. The joint judgment in the present case, at para 41 – 42, highlights and indeed endorses, a particularly complex passage in Weiss. Nonetheless, the position here was that (para 48 – 49):

“48 Because the alibi evidence was not called and was not tested at trial, the Court of Criminal Appeal could not decide from the record of the trial and the additional material received on the hearing of the appeal that the appellant was proved beyond reasonable doubt to be guilty of the offences on which the jury returned its verdicts of guilty. It could not do that because the material upon which it had to act was incomplete. An important element of the material had been excluded at trial and was necessarily presented to the Court of Criminal Appeal untested. Because it was untested the Court of Criminal Appeal could not say whether it could be taken at less than its face value. And at face value it left an issue about who took the cap to the scene and dropped it there not capable of resolution beyond reasonable doubt.

“49 The Court of Criminal Appeal could not determine beyond reasonable doubt that the appellant was the robber. The errors at trial both undermined his defence and in an important respect prevented him putting it fully. The sworn evidence the appellant had given may well have been undermined by having him dress as the robber. The alibi evidence it had to consider was necessarily incomplete.

“50 It is not then necessary to go on to decide what significance should be attached to the several features of the trial that suggest that the trial judge did not have sufficient mastery of the proceedings to ensure a fair trial. That is, it is not necessary to explore what kinds of failure in the trial process preclude the application of the proviso, beyond noting that in Weiss the Court said … that “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”. [footnote omitted]

“51 These issues need not be resolved in this matter. They need not be resolved because the errors made at trial undermined the appellant’s defence and prevented him putting it fully. The Court of Criminal Appeal ought not to have decided that the appellant had been proved beyond reasonable doubt guilty of the offences charged. The Court of Criminal Appeal ought not to have decided that there had been no substantial miscarriage of justice.”

This seems to mean that the appellate court should have decided that the miscarriage of justice here was substantial, and that therefore the proviso could not apply. If so, this contradicts claim in para 10 of the joint judgment, mentioned above at the beginning of this commentary, that no question arose as to whether the proviso should be applied. There was a question, and it should have been answered in the negative. I have noted many cases on the proviso (see Index), and no doubt will continue to do so. There are differences in the ways courts interpret it, and these tend to arise from the concepts of “miscarriage” of justice, and “substantial miscarriage” of justice. The juxtaposition of these concepts creates the conundrum mentioned here. In my view, the straightforward approach seems to be that the accused in the present case had not had a fair trial, because he was not allowed to present his defence, and because unfairly prejudicial evidence had been adduced. Those errors caused unfairness in that the determination of the facts was biased against the accused. Since the trial was not fair, the conviction could not be saved by the proviso.

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