Wednesday, August 10, 2022

How much of the work should a final appeal court do? Two remittal and retrial decisions of the High Court of Australia.

Sometimes one wonders why an ultimate appeal court orders new trials or refers issues back to lower courts. Why not decide cases finally, since they have arrived at the final appeal court?

Two decisions of the High Court of Australia today prompt these questions.

First, whether the High Court should have decided the issue itself instead of pointing out the error of the court below and remitting the case for reconsideration by that court. In Dansie v The Queen [2022] HCA 25 (10 August 2022) the Court corrected a view that had been held on the approach to appeals brought on the grounds that the verdict of the tribunal of fact - whether a judge alone or a jury - was unreasonable.

Having pointed out the error and having said what the lower appellate court should have done, the High Court remitted the case back to that court for it to follow the method set out. Couldn’t the High Court have saved time and expense by applying its own statement of the correct method?

Ironically, the error had been one of deferring to the assessment of the evidence by the fact-finder, instead of the first appellate court assessing the evidence for itself and making up its own mind on whether there was a reasonable doubt about guilt that could not be dispelled by taking into account advantages that the fact-finder may have had in assessing the evidence.

In this case there was no evidence that gave the fact-finder an advantage over an appellate court, so there was no reason to have any deference for the fact-finder’s assessment of the evidence.

This was one of those heart breaking cases about whether the death of the defendant’s spouse had been accidental. There was little dispute about the evidence, and the issue was what inferences could be drawn.

The High Court has clarified the law at [15]-[16], and has usefully referred to Pell at [13].

Secondly, on whether a new trial should have been ordered: O’Dea v Western Australia [2022] HCA 24 (10 August 2022): Here the issue was whether the liability of the person who actually commits an offence includes liability of someone who doesn’t actually commit the offence.

Simple, you might say, and simple it was - at least for the majority of the Court in a 3-2 split.

The prosecution had been brought on the basis that the defendant had been sufficiently involved to the extent that he was guilty even though it could not be proved that he did the act that was a necessary element of the offence, because of a sort of agency. There were alternative and proper ways of alleging guilt, but the prosecution case eschewed those and opted for the (incorrect) “actually does the act” but by way of agency basis for the alleged liability.

Having decided that the chosen basis means what it says, and that therefore the jury had not been left with the correct issues, the Court ordered a new trial. Wasn’t this double jeopardy? Why give the prosecution a second opportunity, after carefully spelling out at [79] what the prosecution needed to do? Could the High Court have done what it has recently decided it can do: assess the evidence for itself and decide whether there was a reasonable doubt about guilt under the law as correctly applied? In view of the prosecutor's stance at trial (see [41]) - accepting that it could not be proved beyond reasonable doubt that the criminal acts were done by Mr O'Dea - should a verdict of not guilty have been entered on this appeal?