Whose verdict?

Appeals against conviction require consideration of whether there has been a substantial miscarriage of justice. This, in turn, can raise two questions: whether the trial was fair, and, whether the accused was wrongly deprived of a real chance of an acquittal. These are independent questions. The latter is often (and wrongly) taken to be an opportunity for an exacting judicial analysis of the evidence, notwithstanding the oft-repeated claim that it is not for the appellate judges to substitute their verdict for that of the jury. R v Bain [2004] 1 NZLR 638, (2003) 20 CRNZ 637 (CA) is a prime example of applying the trained judicial mind to the analysis of the evidence, rather than considering how the jury might have reacted to proposed new evidence.

An interesting observation on the fact that jurors may not apply linear logic to their task of coming to a verdict was recently made by Kirby J (happily siding with the majority) in R v Stevens [2005] HCA 65 (21 October 2005), para 82:

"One assumes that the human mind, and even more the collective mind of a jury, operates in serious decision-making, rationally and reasonably. But the mind does not necessarily act according to linear paths of strict logic. At any time in a criminal trial, several issues are in play. As Callinan J correctly points out [at para 158: "Nor do I think it is an answer in this case to say that one defence, or a direction in respect of it, subsumed another to the extent that the latter needed not to be mentioned or put to the jury in appropriate terms. Different people may have different perceptions of facts. Certain words, or language, or expressions of concepts, may provoke different responses in different people"], different people, especially a group of people, may have different perceptions of facts and of words, expressions and language (such as on being told of the substance of the Code's provisions on accident). The appellant, who was facing, if convicted, the heaviest penalty known to the law, was entitled to have the chance of a favourable response of the jury to the exemption provided by the Code from criminal responsibility for accident, properly explained. The trial judge ought not to have deprived the appellant of that chance."

An example of acute judicial analysis of the trial evidence, this time with a view to discovering whether the accused had been deprived of the right to adequate facilities to prepare a defence, is the judgment of Thomas J in R v Griffin [2001] 3 NZLR 577, (2001) 19 CRNZ 47 (CA). He concluded that on the evidence, lack of opportunity to have a defence expert examine the complainant did not adversely affect the result, and therefore there was no unfairness. That was, with respect, an incorrect melding of the two questions set out above. He may well have been correct to conclude that there had been no loss of a real chance of an acquittal, on the evidence adduced at trial. But, if the trial was unfair there should have been (as the majority held) a substantial miscarriage of justice. Thomas J treated procedural fairness as irrelevant if the verdict appeared to be correct. He allowed pragmatism (or, as he calls it, substantialism) to override the formal requirements of a fair trial. The majority of the Privy Council did the same in R v Howse [2005] UKPC 31 (19 July 2005), blogged here on 23.7.05. In Griffin, the majority held that had it could not be said that, had the error not occurred, the jury would inevitably have convicted, and a new trial was ordered. They did, however, recognise that this consideration of the second question was probably unnecessary, as they had found that the trial had been unfair. They said, para 40, that it was difficult to imagine a case where there would not be a substantial miscarriage of justice after a breach of the relevant right.