Friday, December 07, 2007

Breach or miscarriage?

When should an appeal court acknowledge that an error at trial must be remedied by the granting of a re-trial? To uphold a conviction that was obtained at a wrongly conducted trial is, in effect, to turn the appellate court “into an instrument of injustice rather than a protection against miscarriages of justice.” That was how Kirby J put it in Gately v R [2007] HCA 55 (6 December 2007).

He was (one could almost say “of course”) dissenting. The errors in that case did not, according to the other Judges, amount to a miscarriage of justice. Often, in appeals, the focus is on whether a miscarriage of justice was “substantial”; if not, the proviso could be applied and the appeal against conviction dismissed. But here, the focus was on the prior question of whether the errors at trial amounted to miscarriages of justice.

The approach to an appeal against a conviction is set out in the appropriate statute in the relevant jurisdiction, and, as it happens, there is broad similarity in these provisions wherever the English law has been influential. In this case, the method was described by Heydon J as follows:

“…First, was there an irregularity? Secondly, if so, was it, or did it cause, a miscarriage of justice? Thirdly, if so, can it be said, after examining the whole trial record, that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned their verdict of guilty so that no substantial miscarriage of justice has actually occurred within the meaning of the "proviso" in [the relevant provision, here] s 668E(1A) [of the Criminal Code (Q)]? Fourthly, if so, does the case nonetheless fall within a category precluding the application of s 668E(1A) on the ground, for example, that there has been a significant denial of procedural fairness or a serious breach of the presuppositions of the trial[citing Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at 317 [45]- [46] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ, blogged here 16 January 2006]? On occasion it may be desirable to consider the fourth stage before the third.”

Here the trial errors were (1) not having the judge and counsel present when, after retiring to consider their verdict, the jury viewed again a video recording, that had, appropriately in the circumstances here, been prepared before trial as the method through which the young complainant was permitted to give evidence and be cross-examined, and, (2) failing properly to warn the jury about the weight they should give to a written statement made by the complainant to the police.

Whereas the majority attached great weight to the fact that at trial counsel for the accused had agreed to the procedure adopted for the jury’s re-viewing of the video, Kirby J pointed out that counsel had originally objected, and that the Judge and prosecuting counsel had a duty to follow the law as it had been established to be:

“47. Just as the failure of trial counsel to reserve points or to perceive and raise grounds of appeal is not fatal to the case of an accused person who comes to the judicature of the Commonwealth for protection against injustice[50], so the mistaken acquiescence of trial counsel in the proposals of the judge and the prosecutor is not, in the end, conclusive of this appeal. This is particularly so because trial counsel's initial objection to the course initiated by the judge was correct. That objection should have alerted the judge and the prosecutor to the applicable principles expressed and repeated in successive decisions of the Queensland Court of Appeal.

“48. What is the practical use of courts of criminal appeal laying down clear rulings to be observed in criminal trials if, when they are not observed by the judge or prosecutor, this Court (whilst substantially endorsing those rulings) does not proceed to afford the accused, who is adversely affected, the relief that he seeks? Apart from the injustice in the particular case, this approach, when it becomes a common practice of this Court, presents a serious question as to whether further appeal to uphold basic principles had any point. The best way that this Court can reinforce principle in such matters, where a miscarriage has occurred, is to order a retrial. That is when principle tends to be learnt and applied.”

On the other hand, here the trial was unusual in that the only evidence against the accused was from the complainant: there was no evidence of any statement made by the accused to the police, and he did not give or call evidence. The argument put to the jury by his counsel was that the complainant’s evidence was not reliable and this was indicated by its inconsistencies. Did the error in allowing the jury to see the video again in the absence of judicial supervision amount to a miscarriage of justice, or was it merely a procedural error? The majority held that there was no miscarriage of justice.

Nevertheless, Hayne J (with whom the other Judges, including on this point Kirby J, agreed) stressed that the video recording was not to be treated as real evidence: it was not an exhibit in the case, and the jury’s access to it during their deliberations was to be the same as its access to any other part of the record: the judge could read (play) it to them as necessary and with appropriate warnings. The trial process is essentially oral (para 88) and it is seldom appropriate to admit a record of it as an exhibit (para 93).

This unanimous view of the treatment of the record of the evidence in the case is contrary to an increasing trend, in some jurisdictions, of allowing the jury to have transcripts of the evidence available for use during their deliberations. For example, the New Zealand Law Commission, in its Report “Juries in Criminal Trials” (NZLC R69, at p 205 para A49), recommended that juries be given a copy of the notes of evidence when they retire to consider their verdicts. It has become acceptable for juries to be given copies of the previous day’s evidence at the start of the next day; see R v Taylor (2005) 21 CRNZ 1035 (CA); R v McLean (Colin) [2001] 3 NZLR 794; (2001) 19 CRNZ 362 (CA); R v H 23/6/03, CA436/02; R v Haines [2002] 3 NZLR 13; (2001) 19 CRNZ 331 (CA).

At para 88 of Gately, Hayne J referred to Butera v Director of Public Prosecutions (Vict) [1987] HCA 58; (1987) 164 CLR 180 at 189 per Mason CJ, Brennan and Deane JJ, and endorsed the following:

“The adducing of oral evidence from witnesses in criminal trials underlies the rules of procedure which the law ordains for their conduct. A witness who gives evidence orally demonstrates, for good or ill, more about his or her credibility than a witness whose evidence is given in documentary form. Oral evidence is public; written evidence may not be. Oral evidence gives to the trial the atmosphere which, though intangible, is often critical to the jury's estimate of the witnesses. By generally restricting the jury to consideration of testimonial evidence in its oral form, it is thought that the jury's discussion of the case in the jury room will be more open, the exchange of views among jurors will be easier, and the legitimate merging of opinions will more easily occur than if the evidence were given in writing or the jurors were each armed with a written transcript of the evidence.”

Of course views of what is appropriate for juries to have during their deliberations may change over time as experience grows and knowledge increases of the procedure as experienced by jurors. We may acknowledge that changes in procedural rules may be appropriate, but still wonder whether breaches of those rules should amount to miscarriages of justice, especially as the subsequent question on an appeal is whether any such miscarriage was “substantial”.

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