Verdicts on appeal - and appeal verdicts - in Victoria

The interpretation of "substantial miscarriage of justice" in s 276(1)(b) of the Criminal Procedure Act 2009 [Vic] was the subject of Baini v The Queen [2012] HCA 59 (12 December 2012).

The decision will be of only limited interest where legislation differs, as for example it does in s 232 of the Criminal Procedure Act 2011 [NZ]. Here there is a definition of the required "miscarriage of justice", and what the appellate court needs to be satisfied of is that an error, irregularity or occurrence in relation to or affecting the trial has created a real risk that the outcome of the trial was affected.

But back to Baini, where the High Court of Australia split and two judgments were delivered. The majority, French CJ, Hayne, Crennan, Kiefel and Bell JJ, allowed the appeal and remitted the case to the Court of Appeal for it to determine whether, having regard to the whole of the evidence at trial, there could have been no reasonable doubt about the appellant's guilt.

Gageler J, dissenting, would have dismissed the appeal because the appellant had not shown that there was a reasonable possibility that the guilty verdicts would not have been returned if the error at trial had not occurred.

Those different conclusions reflect different interpretations of s 276(1)(b). The majority took a fresh start approach to the words of the enactment, whereas Gageler J read it in the context of the common law and its interpretation of common form appeal legislation. The difference between the judges was not merely in the application of s 276(1)(b), but in its meaning.

Central to the difference is the gritty problem of the extent to which appellate judges should act like jurors (see, for discussion, here, and links therein). Obviously in some appeals they have to, if it is submitted that a verdict was unreasonable. But here that was not the submission. When an appellate court is persuaded that an error at trial has given rise to a real possibility that a verdict was affected adversely to an appellant, should it thereupon quash the conviction or should it go on to look at the full record of the case and decide for itself whether the appellant was guilty?

Of course we are not considering different cases where an error at trial was sufficiently fundamental to make the trial unfair to the defendant. There is no doubt that if it did the court would quash the conviction. No, we are considering here lesser errors, but ones sufficient to give rise to a loss of a real chance of a more favourable outcome.

Whereas Gageler J found that the legislation changed the law so as to make the Weiss approach no longer appropriate in Victoria, the majority did not. Weiss, it will be recalled by the relatively few people who study this sort of thing, requires the appeal judges to in effect reach their own verdict. Although Gageler J thought that the legislative basis for Weiss had disappeared [46], [61], [67], the majority recognised that the new legislation left room for the Weiss approach by, as a matter of interpretation, including the inevitability of the verdict [15], [39].

The difference is between what the jury might have thought if the error had not occurred (Gageler J) and what the appeal judges think (majority) about the verdict despite the error.
I expect that our s 232 will be interpreted on its own terms without resort to the common law history concerning the method for deciding conviction appeals. The significant point is that the inquiry stops with a decision that an error (etc) has created a real risk that the outcome of a trial was affected, because that is all that this part of the definition of miscarriage of justice requires.