Conway v R

• Jurisdiction: Australia Federal only
• Judge: Gaudron ACJ,McHugh,Hayne,Callinan JJ,Kirby J
• Judgment Date: 07 February 2002
• Neutral Citation: 2002-0207 HCA A,[2002] HCA 2
• Court: High Court
• Docket Number: C11/2001
• Date: 07 February 2002

John Terence Conway

Appellant

and

The Queen

Respondent

[2002] HCA 2

Gaudron ACJ, McHugh, Kirby, Hayne and Callinan JJ

C11/2001

HIGH COURT OF AUSTRALIA

Conway v The Queen

Criminal law — Evidence — Evidence Act 1995 (Cth) — Unreliable evidence — Co-offenders — Corroboration — Directions to jury regarding corroboration of evidence given by co-offenders.

Evidence — Corroboration — Warning about acting on unreliable evidence — Directions to jury — Requirements of Evidence Act 1995 (Cth) — Misdirection to jury — Whether misdirection requires that appeal be allowed and new trial ordered in the absence of substantial miscarriage of justice.

Appeals — Federal Court of Australia — New trial — Misdirection — Grounds on which new trial may be ordered.

Words and phrases — ‘evidence’ — ‘on any ground upon which it is appropriate to grant a new trial’ — ‘substantial miscarriage of justice’.

Evidence Act 1995 (Cth), ss 164, 165.

Federal Court of Australia Act 1976 (Cth), s 28(1)(f).

Representation:

S W Tilmouth QC with J Pappas for the appellant (instructed by pappas j. — attorney)

P S Hastings QC with S J Odgers SC and P J de Veau for the respondent (instructed by Director of Public Prosecutions (ACT))

ORDER

Appeal dismissed.

1 Gaudron ACJ, McHugh, Hayne and Callinan JJ. The appellant was convicted in the Supreme Court of the Australian Capital Territory of the murder of his wife, Ulrike Conway. Kathy Marie McFie was also convicted of the murder of Mrs Conway. The appellant and Ms McFie had pleaded not guilty and had been tried together. Two others, Barry Steer and Daniel Scott Williams, had also been charged with the murder of Mrs Conway but each had pleaded guilty and had been sentenced before the trial of the appellant and McFie.

2 Mr Steer and Mr Williams admitted that they had entered Mrs Conway's home, late at night, and had injected her with a fatal dose of heroin. They told police that they had done this at the request of the appellant and McFie and that the appellant and McFie had agreed to pay them $15,000 for doing it. Both Steer and Williams gave evidence at the trial of the appellant and McFie.

3 The issues that arise on the appeal to this Court concern directions given to the jury by the trial judge about corroboration of the evidence given by the co-offenders, Steer and Williams. These reasons will seek to demonstrate that the trial judge misdirected the jury about these matters. There having been a misdirection of law the question then becomes whether notwithstanding that the points thus raised might be decided in favour of the appellant, the appeal should nevertheless be dismissed on the basis that no substantial miscarriage of justice has actually occurred 1.

4 This expression of the issue owes much to the familiar language of the criminal appeal statutes based on s 4(1) of the Criminal Appeal Act 1907 (UK). The adoption of this formulation is not, however, to be understood as assuming that the relevant statutory provision which governed the appellant's appeal to the Full Court of the Federal Court of Australia 2 contains such language; it does not. Section 28(1)(f) of the Federal Court of Australia Act 1976 (Cth), however, declares that in the exercise of its appellate jurisdiction, the Federal Court may grant a new trial ‘on any ground upon which it is appropriate to grant a new trial’.

5 What constitutes a ground appropriate for granting a new trial can only be understood by reference to the history of the law concerning the grant of new trials. Resort to legal history to explain a statutory enactment evinces no distaste

for construing the statutory language. When a statute enters a field that has been governed by the common law, the pre-existing common law almost invariably gives guidance as to the statute's meaning and purpose. That is because the meaning of legislation usually depends on a background of concepts, principles, practices and circumstances that the drafters ‘took for granted or understood, without conscious advertence, by reason of their common language or culture’ 3. So it is here. No one could know what is an ‘appropriate’ ground for granting a new trial unless that person knew why and upon what grounds courts have granted new trials in the past. Indeed, uninformed by legal history or at all events uninformed by legal instruction, a non-lawyer would find s 28(1)(f) meaningless. In particular, no dictionary, no English grammar and no logic primer could lead the legally uninformed reader of that paragraph to conclude that a new trial could be refused although the trial judge had made serious legal errors. There are no implications inherent in the language of s 28(1)(f) that leads to that conclusion. Only knowledge of the manner in which courts have historically dealt with applications for new trials can reveal when the grant of a new trial is ‘appropriate’ 4.

6 To construe s 28(1)(f) as authorising the dismissal of appeal on the basis that no substantial miscarriage of justice has actually occurred gives effect to the long established rule of the common law that a new trial is not ordered where an error of law, fact, misdirection or other wrong has not resulted in any miscarriage of justice. Historically, the common law may have made an exception to this rule in the case of evidence wrongly admitted in a criminal trial. But, if it did, this Court and the Federal Court have recognised that the exception no longer has a part to play in the administration of criminal justice in cases where a statute gives a general right of appeal against conviction. Those Courts have self-evidently taken the view that this exception, if it exists at common law, should not shackle the power to dismiss an appeal under a statute conferring a general right of appeal in criminal cases. It is an exception that has little to recommend it in principle and it is hardly conducive to the proper administration of the criminal justice system to set aside a conviction where there has been no miscarriage of justice. To explain why this is so, it is necessary to trace briefly

the remedies for setting aside a conviction at common law and the defects of those remedies.

7 Appeal is not a common law proceeding 5. But that did not mean that the common law was always powerless to set aside a verdict, civil or criminal, that was the result of legal error. It could do so by the writ of error, by a motion in arrest of judgment and by an order made upon a motion for a new trial 6. In addition, until 1848 the common law judges often met informally to discuss convictions in the King's Bench that may have been affected by legal errors. Where there was no remedy to set aside a conviction that was the result of error, the judges would recommend that the convicted person be pardoned 7. From 1848, this practice was put on a statutory basis and a judge or chairman or recorder at Quarter Sessions was empowered to refer a question of law to the Court for Crown Cases Reserved which could set aside the conviction and ‘make such other Order as Justice may require’ 8. All these procedures were far from satisfactory. They compare unfavourably with the rights that the common-form criminal appeal statute now gives to convicted persons. Nevertheless, in many cases — particularly those concerned with misdemeanours — the common law remedies enabled a convicted person to have a conviction set aside and have a new hearing of the charge.

8 The writ of error was the principal method for challenging convictions for treason and felonies. But it was only available for errors on the face of the record — which ordinarily prevented it being used to challenge the directions or legal rulings of the trial judge. Although c 31 of the Statute of Westminster II 1285 (13 Edw I stat 1) required a judge to include in the record, any ‘exceptions’ to the judge's rulings, the common law courts confined c 31 to civil proceedings. In R v Alleyne9, Lord Campbell CJ said ‘[a] bill of exceptions could not lie for the statute of Westminster 2 is confined to civil causes.’ As a result, the ‘bill of exceptions’ — which enabled the parties to use the writ of error in civil cases to

challenge the trial judge's directions and legal rulings — played no part in criminal law procedure. In most cases, challenges were confined to the terms of the indictment and procedural matters appearing in the record. However, as Mr D M Gordon has pointed out, the record could be supplemented by assignment of ‘error[s] in fact’. These ‘error[s] in fact’ arose ‘from matters which are not only outside the issues before the trial Court, but as to which ordinarily that Court does not inquire at all.’ 10 They might therefore enable an accused person to challenge a conviction for jury misbehaviour or for bias.

9 But in those cases where legal errors were most frequently made — legal rulings and directions — the writ of error was of no use to a convicted person. Where it applied, the effect of the writ of error was to quash the conviction. But the King's Bench had the power in an appropriate case to grant a venire de novo — a new hearing of the case. The trial that followed the award of venire de novo was ‘not to be considered in the nature of a new trial, but the first trial is to be considered a mis-trial, and therefore a nullity 11.’ The grant of a venire de novo was common in the case of misdemeanours 12. In 1844, Gray v The Queen13 decided that a venire de novo could also be granted in the case of felonies. Even when a venire de novo was not granted, the accused might be tried again on the same charge. The original conviction was regarded as a nullity with the result that neither the plea of autrefois acquit nor the plea of autrefois convict could be pleaded in bar to the indictment at the further trial 14.

10 The use of the writ of error declined once the Court for...