Last criminal appeal to the Privy Council

The final criminal appeal from New Zealand to the Privy Council is expected to be heard early next year. The Court of Appeal decision, R v Howse (2003) 20 CRNZ 826 has already been noted in this blog for its unrestricted view of the jurisdiction of that statute-based court to hear appeals based on claims of a miscarriage of justice. That point, of course, will not be the subject of the forthcoming appeal. The appeal will hinge, we may anticipate, on whether the accused had a fair trial. If he did not, the next question will be whether an unfair trial can be cured by the proviso that notwithstanding the unfairness there was no miscarriage of justice.

On the first, and threshold, issue, whether the accused received a fair trial, the Court of Appeal was less than forthright. It found that several errors had occurred, and that these could be regarded, "…prima facie at least, as having occasioned a miscarriage of justice" (para 43). The errors concerned the admission of evidence that should have been ruled inadmissible, and the failure of the trial judge to direct the jury on how evidence of what the murdered victims had said could be used by the jury. In effect, the appellant will have to persuade the Privy Council that the errors amounted to breaches of the right to a trial according to law by an unbiased jury; in other words, the right to a fair trial. The Court of Appeal was less than forthright because it did not say directly that these errors amounted to breach of the accused’s right to a fair trial. In calling the position a prima facie miscarriage of justice, the Court treated the concept of fair trial as being subject to whether there was a miscarriage of justice.

The second question, whether an unfair trial is necessarily a miscarriage of justice, can only be treated as open if one is prepared to acknowledge that, if a court thinks that the evidence against an accused is overwhelming, trial fairness does not matter. Most people, we venture to suppose, would baulk at reaching such a conclusion. A breach of the right to a fair trial should of itself amount to a miscarriage of justice.

The usual test for whether a miscarriage of justice has occurred is whether the accused has been wrongly denied a real possibility of an acquittal through an error or errors at trial. That requirement should not apply where the trial has been unfair to the accused.