Facts, fairness and the proviso

Once again the application of the proviso has come under the scrutiny of the High Court of Australia: Gassy v R [2008] HCA 18 (14 May 2008).

Previous efforts at clarification of when a miscarriage may be regarded as substantial have been noted here: see in particular Weiss v R (blogged 16 January 2006) and AK v Western Australia (blogged 27 March 2008), and there are others (see Index).

Before the appellate court can apply the proviso, and dismiss the appeal against conviction, it must be satisfied of two things: that the evidence properly admissible against the accused established guilt beyond reasonable doubt, and, if it did, that the trial was fair.

In Gassy, the three majority Judges differed in the routes they took to conclude that the proviso could not be applied here. Gummow and Hayne JJ jointly held that the evidence could not be regarded by an appellate as establishing guilt beyond reasonable doubt. Kirby J held that, although the evidence could well be held to establish guilt to that standard (I reflect here his Honour’s “cusp” remark, mentioned below), the trial was not fair.

Two miscarriages of justice were relied on by the appellant: the first, held not to be relevant because its result favoured the appellant, was refusal of the trial judge to permit the accused, who at all other times represented himself on the charge of murder, to have legal representation for the limited purpose of conducting a voir dire. The second was the “assistance” that the judge endeavoured to give the jury in overcoming an impasse after a lengthy period of deliberation. The supplementary directions lacked balance because they did not adequately mention the defence perspective on the relevant issues.

Interestingly, Gummow and Hayne JJ held that, although this supplementary direction was an error, the question of whether the evidence could be said on appeal to have proved guilt beyond reasonable doubt still had to be considered. This approach, reflected in para 31, is one of avoiding classifying some errors as “fundamental” (para 33). It was, on this view, necessary to examine what effect the error could have had on the outcome of the trial (para 34). These Judges, therefore, were not holding that the misdirection itself was unfair. They noted that the jury had, before the impugned supplementary directions, deliberated for more than a day and a half, and that therefore an appellate court would have to be careful before concluding that guilt had been proved beyond reasonable doubt (para 35). The inferences that the prosecution sought to persuade the jury to draw were not compelled by the evidence (para 37), and there should be a retrial.

Kirby J, agreeing in the result, reasoned that the evidence of guilt was (virtually) conclusive, but this was a case of trial unfairness and therefore the proviso could not be applied. He agreed (para 46-47) with Gummow and Hayne JJ that there had been miscarriages of justice in both the voir dire point (albeit that this was not determinative) and the supplementary direction point. But he held that the supplementary direction lacked impartiality (para 51) and that the question of the application of the proviso therefore arose (para 57). He did not consider that the miscarriage of justice here was one which involved “the presuppositions of a criminal trial” (para 61) - but at this point one must ask whether use of this classification is appropriate, notwithstanding the authority for it – and he proceeded to evaluate the strength of the evidence (para 69-91) and concluded that this case was “at the cusp”: a very powerful prosecution case. This should be read bearing in mind that, a retrial being ordered, it would be inappropriate for the appellate court to actually say it thought guilt had been established beyond reasonable doubt. However, it was clear form the events at trial that the impact of the supplementary direction on the jury was significant, as they returned the guilty verdict shortly afterwards.

Kirby J does not go so far as to say the proof of guilt was conclusive, and he acknowledges (para 99) that the jury had to make a number of factual judgments. The Judge’s assistance in the supplementary direction had, therefore, to be impartial and should have referred to the defence perspective more than it did. Kirby J summarised his approach by saying (para 105), after referring to the minority approach of Crennan and Kiefel JJ:

“…It is enough for me to say that I place the highest value on the principle of manifest judicial impartiality and neutrality. Those qualities were of cardinal importance given the impasse that the applicant's trial had reached. In the end, this case stands for the principle that, particularly in circumstances of jury disagreement after a long trial, the trial judge must balance "ways forward" that lead to conviction with a reminder of those that lead to the opposite outcome.”

But in remarks that indicate he considered the prosecution case strong enough to support the conviction, Kirby J concluded (para 106-107) by referring to dicta in Weiss and AK concerning fundamental trial defects (as found here) which prevent application of the proviso notwithstanding that the appellate court may consider guilt to have been proved.

It is unfortunate that the majority Judges differed in their approaches to the application of the proviso here. Gummow and Hayne JJ obscure the primary importance of the right to a fair trial by their treatment of the strength of the prosecution case, while Kirby J emphasises it.