First overview topic ...
Interpreting the proviso – what is a "substantial miscarriage of justice"?
For around 100 years courts have dealt with criminal conviction appeals by determining whether an error in the trial court amounted to a “substantial miscarriage of justice”, but very little of that time has been spent examining what that phrase means. It has been found to be a difficult concept. A miscarriage of justice is usually thought of as a result that is wrong in law, so the adjective “substantial” appears redundant. Some courts have tried to achieve clarity on a case-by-case basis, but the alternatives of legislative change (for example, in the UK since 1995 the criterion has instead been whether the conviction is “unsafe”), and of ignoring the recent judicial efforts by going back to fundamental statutory interpretation, have also been taken.
Courts that continue to address the meaning of substantial miscarriage of justice identify one characteristic as whether the error could have affected the outcome of the trial in a way adverse to the defendant. This leads to the further question: does the appellate court ask whether the jury at trial could have reached a different conclusion, or does it ask whether it – the appellate court – would have reached that different conclusion? There is a split between courts according to which answer they give to that question.
The Privy Council has remained faithful to the traditional view that the answer is that the appellate court asks whether the jury could have reached a different conclusion. The High Court of Australia has changed its approach (Weiss, noted 16 January 2006) and, scrapping the case law and returning to principles of statutory interpretation, it decided that the appellate court asks whether it itself could have reached a different conclusion. The Supreme Court of New Zealand reacted against the Privy Council’s traditional treatment of Bain (see, for example, note for 9 July 2009) by adopting (in Matenga 20 July 2009) much of the High Court of Australia’s new approach. In turn, on a subsequent appeal from New Zealand (Barlow 9 July 2009), the Privy Council has felt itself obliged to follow this new line but has emphasized that under it the result in Bain would have been the same. The lingering problem for subsequent would-be appellants is how to get a second appeal court to hear an appeal if it is based only on advocating a different interpretation of the evidence from that taken by the first appeal court.
Independent of the effect on the outcome of the trial, another source of a substantial miscarriage of justice is that the error at trial deprived the defendant of a fair hearing. The Privy Council made the right to a fair hearing absolute, and that is uncontroversial now, although before then another approach, in which the accused’s right to a fair hearing could have been balanced against the rights of victims and of society, was possible. It is one thing to hold that the right to a fair hearing is absolute, but what is a “fair” hearing?
The meaning of fair hearing will need to be consistent with the place of that concept in the “substantial miscarriage of justice” model. The model that has emerged, in Matenga, is that the appellate court first asks whether the trial was fair; if it was, the second question is whether the result of the trial may nevertheless have been different in the absence of the error. At first glance this Matenga model sounds fine: it places fairness of hearing as the primary requirement, and that looks like being an appropriate reflection of its quality of absoluteness. It requires the appeal to be allowed if the trial may have been unfair. But the difficulty is, what does fair trial mean if the trial was fair but also contained an error that amounted to a substantial miscarriage of justice? It may seem odd, without a definition of fair trial, to make the set of fair trials intersect with the set of trials involving a substantial miscarriage of justice.
A clearer concept of a fair trial might require a different relationship between fairness and substantial miscarriage of justice. For example, a fair trial could be one in which there was a result that was correct in law, and that means a trial in which the law was properly applied to facts that had been determined impartially. Here, an impartial determination of facts presupposes an unbiased tribunal and also a tribunal that is not deflected from impartiality by errors of law. There is thus room for some errors of law, and it is usual to recognize that perfection is not always attained, but errors of law that affect the impartial determination of facts are not permitted. Nor are errors of law in applying the substantive law to properly determined facts, if such errors may have affected the result in a way adverse to the defendant. Further, a trial may seem to have been fair but afterwards fresh evidence may cast doubt on the correctness of the verdict; in such cases there would be a substantial miscarriage of justice, albeit with the trial only having been retrospectively unfair, and the appeal would have to be allowed. Here, therefore, the set of unfair trials (including those held to have been unfair in the light of fresh evidence) is a subset of trials involving a substantial miscarriage of justice, which means a result that was wrong in law, and the set of fair trials would not intersect with the set of trials involving a substantial miscarriage of justice.
Update: In New Zealand the Criminal Procedure Act 2011, s 232, introduced a definition of miscarriage of justice without including the adjective substantial. A miscarriage of justice here can arise in three ways: unfair trial, affected outcome of trial, and nullity of trial. The absence of “substantial” as a qualifier has led to an expanded definition of miscarriage of justice. For application of s 232, see Haunui v R noted on 1 July 2021.
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