No, you decide ...

When should a court of second appeal remit the question of whether to apply the proviso to the appellate court below?

The proviso allows an appellate court to dismiss an appeal on the basis that an error that had occurred at trial did not amount to a “substantial” miscarriage of justice.

In Mahmood v Western Australia [2008] HCA 1 (30 January 2008) the High Court of Australia remitted to the Court of Appeal of the Supreme Court of Western Australia the question of whether the proviso should be applied. The error at trial, the occurrence of which the Court of Appeal had not accepted, was held by the High Court to have been a failure by the trial judge to give the jury a direction, when all she had given was a comment.

Directions are binding on the jury, whereas comments may be ignored: para 16 of the joint judgment of Gleeson CJ, Gummow, Kirby and Kiefel JJ (with which Hayne J agreed).

In this case, part of a video tape made a week after the murder of the accused’s wife, showing the accused reconstructing for the police his movements at the scene, was shown to the jury at the request of the defence. This was to show how the accused got blood on his clothing. The defence was willing to have the jury shown the whole tape, but the prosecution objected on the ground that the tape was self-serving. The only judge to deal with this point in the High Court, Hayne J, held that the whole tape was no more self serving that an ordinary police interview which included denials of guilt: there were aspects of an inculpatory nature, such as admissions of presence at the scene, opportunity, and so on. The prosecution should adduce all the admissible evidence that it has that incriminates the accused (para 38 – 41).

A problem arose at trial because the prosecutor in closing suggested to the jury that the accused’s demeanour in the part of the video they were shown disclosed a lack of emotion consistent with a cold-blooded intent to kill. The judge declined a defence request to have the whole tape shown, saying she would deal with the matter in her summing up to the jury.

The Court of Appeal had held that what the judge told the jury was sufficient to rectify the unfairness that arose from the prosecutor’s comments. The High Court disagreed, and remitted the question of the application of the proviso to the Court of Appeal.

What would an ordinary bystander expect the Court of Appeal to do? Probably, to conclude that the failure to give the jury a direction did not matter because the comment was sufficient to rectify the unfairness.

Only the comments of Hayne J could draw the Court of Appeal away from their earlier stance. From his approach it is clear that much evidence (the two hour video tape, of which only a few minutes had been shown to the jury) that should have been adduced by the prosecution was not, and that this included evidence that could have assisted the defence.

The way the proviso is to be approached in Australia has been considered most recently in Evans v R (blogged here 20 December 2007). There, since the defence was not able to be fully put at trial (alibi evidence was not permitted to be called), and because inadmissible evidence had been allowed, the proviso could not be applied. Mahmood seems to be a case where the proviso should not be applied because a significant amount of evidence in this purely circumstantial case had not been received by the trial court.

The approach to the proviso is still obscure, even though there have been numerous considerations of it by the High Court. In declining to address the difficulty further in this case, and in remitting the question to the lower appellate court, the High Court has left the impression that it may be getting a bit tired of wrestling with the problem of when to apply the proviso.