Benign irrationality

Juries don’t give reasons, so why should judges?

The latest case on the proviso, the High Court’s decision in AK v Western Australia [2008] HCA 8 (26 March 2008), is another example of when an error at trial amounts to a “substantial” miscarriage of justice. Miscarriages of such magnitude cannot be cured on appeal by application of the proviso. In AK the trial had been by judge alone, and the judge had not given reasons for his verdict. Statute required that reasons be given. This failure was held, by a 3-2 majority, to be a substantial miscarriage of justice and a new trial was ordered.

Two majority judgments were delivered. Gummow and Hayne JJ jointly held that Weiss v R (blogged here 16 January 2006) and Wilde v R [1988] HCA 6 were not exhaustive of the situations that can give rise to a substantial miscarriage of justice. Here, the failure to give reasons for the verdict meant that the trial was not conducted according to law and that the miscarriage was therefore substantial (para 58). It was not to the point to ask whether the evidence supported the verdict.

This does not quite explain why the miscarriage was “substantial” as opposed to one that could be cured by the proviso if inspection of the evidence showed that the verdict was reasonable. Minor errors can mean that a trial was not according to law without it being necessary to quash the conviction. The other majority judgment, by Heydon J, went into the meaning of a substantial miscarriage in more detail.

The judgment of Heydon J is a forceful reminder of the advantages of trial by jury, and the resulting need to compensate for loss of those when trial is by judge alone. Footnote 75 is well worth a glance, for phrases in derogation of juries, eg many jurors are “unaccustomed to severe intellectual exercise or to protracted thought”. But juries bring a “benign irrationality” (para 97) to the proceedings. Quoting from Lord Devlin’s Trial by Jury (revised ed, 1966), Heydon J lists the five advantages of jury trials (para 93 – 97), and holds that it is necessary closely to observe the safeguards provided in relation to judge alone trials (para 98). The present case was one of extreme non-compliance with the requirement for reasons, which went to the root of the proceedings (para 109).

Within this framework, Heydon J mentions the power of juries to return perverse verdicts (para 97, and see blog entries for R v Wang 14 February 2005; R v Wanhalla 25 August 2006; R v Krieger 26 October 2006), the dangers in fact-finding by judges (para 101), the twin safeguards for the accused in the burden and standard of proof and the need for jury unanimity or a very substantial majority (para 102), the mental discipline imposed on the judge by the requirement for reasons (para 103 – 105 and 108), and the advantage that appellate courts have in ascertaining the appropriate inferences from the primary facts that have been determined by the judge in the context of the evidence that has been given (para 106, 107).

This approach to the question of how to identify a miscarriage that goes to the root of the proceedings takes us further than did the joint majority judgment, by saying that an example of this sort of miscarriage is one that, as here, prevents the appellate court from carrying out the protective function that is designed to compensate for the loss of the jury.

But is this case an example of that sort of miscarriage? The dissenting judgment of Gleeson CJ and Kiefel J acknowledges (para 17) that the appellant correctly pointed to the breach of the statutory requirement that the judge must give reasons for the verdict. Nevertheless, the magnitude of this error had to be assessed by its effect on the verdict. Here, the issue was narrow: who had committed the offences, the defendant or his brother? There was no evidence suggesting the brother was involved, and the judge’s finding that the offender was the defendant was supported by the objective circumstances (para 27). The absence of reasons was not an obstacle to application of the proviso here. So the dissenters were able to carry out the function of identifying the appropriate inference from the evidence that had been given, without being hampered by the absence of reasons for the verdict.

It is thus not necessarily persuasive to argue that an appellate court must have the judge’s reasons before it can carry out its role of compensating for the loss of a jury. Also questionable are the advantages that Lord Devlin attributed to juries. His prose was, of course, a fine example of the kind of eloquent rhetoric that now seems rather florid, and each of his propositions needs to be tested by experiment.

This is not to suggest that non-compliance with a statutory requirement to give reasons can be brushed aside. There has been a recent example of a seemingly technical error in procedure rendering a trial void (see blog on R v Clarke 7 February 2008 but contrast with Ayles v R 29 February 2008). The upholding of formal constraints on the exercise of power has its place, but it is fair to ask whether every failure to give reasons will inevitably amount to a substantial miscarriage of justice.