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 of 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.