Far from its best work

I have long regarded (for example here, here, here, here, here, here) Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 as being far from the High Court of Australia's best work. Even that Court seems to be unenthusiastic about applying it. Support for this impression is to be found in Wednesday's decision in Cooper v The Queen [2012] HCA 50 (14 November 2012). Weiss requires an appeal court to apply the proviso if, on examination of the record, it is convinced beyond reasonable doubt that the defendant was guilty. That is, as Heydon J put it in Cooper at [85],

"...when the proviso is under consideration, the appellate court performs the role of the trier of fact."

In his dissenting judgment in Cooper Heydon J faithfully carried out that role and his detailed examination of the evidence and the conduct of the trial led him to conclude beyond reasonable doubt that the appellant was guilty.

The other judges, however, jointly held that there should be a retrial. Although they gave lip-service to Weiss, their approach was not that of acting as fact-finders. Looking at what the jury did is appropriate when considering the preliminary issue of whether there was a miscarriage of justice:

"[30] ... it cannot now be demonstrated that the jury must have rejected this alternative case. Demonstration of that conclusion depends upon the jury having rejected what the judge's instructions had identified as an available view of the facts."

This was the reason for rejecting the respondent's suggestion that the error was not a miscarriage of justice because it was immaterial. Then it was necessary to consider whether the miscarriage of justice was substantial. The proviso would apply if it was not substantial, and it would not be substantial, according to Weiss, if the evidence convinced the appeal court beyond reasonable doubt that the appellant was guilty. But the majority did not embark on the detailed consideration of the record that is required of fact finders. Instead it relied on concessions in argument [26], and it gave no reasons for concluding that an appeal court could not exclude a reasonable doubt about the appellant's guilt [27].

The error at trial had been, as was conceded on first appeal, giving the jury an alternative route to conviction that was not properly available. It seems elementary that in those circumstances the trial had not been according to law and a retrial was required. The defendant had not received a fair trial. Heydon J skirted around this point at [51]-[55] by saying the appellant had not cited authority for the proposition that this error was fundamental. Obviously this is mischievous:  the common law wouldn't have got started if authority was needed for every submission.

In legislation that will soon come into force in New Zealand we have abolished the proviso and established new criteria for allowing appeals against conviction: Criminal Procedure Act 2011, s 232. How would Cooper have been decided under that provision?

The short answer is that under s 232(4)(b) the trial was unfair and the appeal against conviction had to be allowed.

A longer answer is that under s 232(4)(a) the error at trial had created a real risk that the outcome of the trial was affected. Some jurors may have reasoned improperly, and there was a real risk that if they had applied the correct law they would have acquitted the defendant.

But how is this risk to be assessed? The legislation focuses on the outcome of the trial. The question is what the fact-finder at trial might have done, not what outcome appears appropriate to the appeal judges.

This approach to conviction appeals preserves the defendant's right to have guilt or innocence decided at a properly conducted trial. As everyone knows, appeal judges – confined as they usually are to the written record – make dreadful fact finders.