Weiss v R

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gummow,Kirby,Hayne,Callinan,Heydon JJ.
• Judgment Date: 15 December 2005
• Neutral Citation: 2005-1215 HCA B,[2005] HCA 81
• Docket Number: M50/2005
• Date: 15 December 2005
• Court: High Court

[2005] HCA 81

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gummow, Kirby, Hayne, Callinan AND Heydon JJ

M50/2005

Bohdan Weiss

Appellant

and

The Queen

Respondent

Crimes Act 1958 (Vic), s 568(1).

Weiss v The Queen

Criminal Law — Appeal — Application of ‘proviso’ that no substantial miscarriage of justice has actually occurred — Appellant convicted of murder — Evidence led at trial that should not have been adduced — Appellant appealed against conviction — Appeal court to review the whole case — Utility of reference to what a jury, the actual trial jury or a hypothetical reasonable jury, would have done.

Words and phrases — ‘proviso’, ‘substantial miscarriage of justice’, ‘substantial miscarriage of justice has actually occurred’.

1 Gleeson CJ, Gummow, Kirby, Hayne, Callinan AND Heydon JJ. The important issue in this appeal concerns the operation of the proviso to s 568(1) of the Crimes Act 1958 (Vic) (‘the Crimes Act’) and how that provision is to be applied in criminal appeals conformably with the language and purpose of the statute which appears in common form throughout Australia.

Gleeson CJ

The facts and disposition in the Court of Appeal

2 On 24 November 1994, Ms Helen Elizabeth Grey was murdered. She was beaten to death. In November 2000, the appellant was charged with Ms Grey's murder.

3 At the appellant's trial in the Supreme Court of Victoria, Ms Jean Horstead, with whom the appellant was living in 1994, was an important witness against the appellant. She swore that, on the night of the murder, the appellant had confessed to her that he had killed Ms Grey. Ms Horstead gave evidence that, although she had at first provided the appellant with a false alibi, some years after the murder, and after she had left the relationship with the appellant and moved to America, she had decided to tell the truth. Evidence was led that, some time after Ms Grey was murdered, the appellant formed and thereafter maintained a sexual relationship with a woman other than Ms Horstead. Over the objection of the appellant's counsel, the prosecution was permitted to adduce evidence in cross-examination of the appellant that at the time the appellant began his relationship with the other woman (whom it is convenient to refer to as Renée) she was not yet 15 years old. It is not now disputed that evidence of Renée's age should not have been adduced.

4 To have intercourse with a girl under 16 years of age and to maintain a sexual relationship with her were serious crimes1. None of the criminal consequences of the appellant's conduct with Renée was mentioned to the jury. All that they were told was that she was not yet 15 and a suggestion was made in the course of the prosecutor cross-examining the appellant, but not adopted, that Renée's age had been given as part of the reasons for Ms Horstead terminating her relationship with the appellant. The prosecution did not later suggest that maintaining a sexual relationship with an under-age girl was a matter that went to the appellant's credit.

5 The appellant was convicted. On his appeal to the Court of Appeal of Victoria, the Court (Callaway and Batt JJA, Harper AJA) held unanimously2 that the evidence of Renée's age had been wrongly admitted. Callaway JA (with whose reasons the other members of the Court agreed) rightly held3 that the evidence of Renée's age was not relevant, that it could not be led to bolster the credit of Ms Horstead and that, if it did have any significant probative value, it was outweighed by its prejudicial quality because ‘[t]he jury became aware, in effect, that the [appellant] had had carnal knowledge of a girl of 14’.

6 The Court of Appeal nonetheless dismissed the appellant's appeal, holding that the proviso to s 568(1) of the Crimes Act applied.

7 Having discussed the state of the authorities about the proviso and its application, Callaway JA concluded4 that a distinction should be drawn between an appellate court asking whether, without the wrongly admitted evidence, the jury at the appellant's trial would inevitably have convicted him, and asking whether, without that evidence, any reasonable jury, properly instructed, would inevitably have convicted him. On the former test (the ‘this jury’ test) Callaway JA concluded5 that the appellant's conviction was inevitable; on the latter test (the ‘any reasonable jury’ test) his Honour was of the opinion that it could not be said that the appellant's conviction was inevitable. That was so because6:

‘Another jury might have taken a different view of Ms Horstead's evidence or the reliability of the [appellant's] confession, for this was a case that largely turned on the credibility of the two principal witnesses.’

Having regard to some earlier Victorian decisions7, Callaway JA concluded that the relevant test was the ‘this jury’ test and that the appeal should be dismissed.

8 By special leave, the appellant now appeals to this Court on grounds confined to the application of the proviso. Issues debated in the Court of Appeal, but for which special leave to appeal to this Court was refused, about the effect that trial counsel's behaviour at trial may have had on the fairness of the trial, were said to be indirectly relevant to the application of the proviso. They do not arise directly and, for reasons that will become apparent, the possible effect of trial counsel's conduct need not be considered in deciding this appeal.

Some fundamental propositions

9 The questions that are to be decided in the appeal must be considered against some fundamental, if obvious, propositions. First and foremost, the root question is one of statutory construction8. It is the words of the statute that ultimately govern, not the many subsequent judicial expositions of that meaning which have sought to express the operation of the proviso to the common form criminal appeal provision by using other words. Section 568(1) of the Crimes Act provides:

‘The Court of Appeal on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal:

Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.’

10 The task of construing this section is not accomplished by simply taking the text of the statute in one hand and a dictionary in the other9. Especially is that so when note is taken of some particular features of this provision. What is to be made of the contrast between the provisions in the body of the section that the court ‘shall allow the appeal’ if certain conditions are met and the proviso that the Court ‘may … dismiss the appeal’ if another condition is met? What is to be made of expressions like ‘if it [the Court] thinks that the verdict of the jury should be set aside …’? What is to be made of the reference in the body of the section to ‘a miscarriage of justice’ compared with the reference in the proviso to ‘no substantial miscarriage of justice’? How is the proviso to operate when it is cast in terms that the Court ‘may … notwithstanding that [the Court] is of opinion that the point … might be decided in favour of the appellant … dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred’? What is the intensity to be given to the words ‘may’, ‘might’, ‘considers’? What, if anything, turns on referring, in the first kind of ground of appeal specified in the body of the section, to the verdict of the jury but referring, in the second kind of ground, to the judgment of the Court?

11 Not all of these particular questions must be considered in this appeal. But none of them, and none of the more general questions of construction presented by the statute, can be answered without understanding the context in which what is now the common form of Australian criminal appeal statute was drafted and enacted.

The history of the adoption of the proviso

12 Examination of the history of the common form of criminal appeal statute often begins by noticing its origin in theCriminal Appeal Act 1907 (UK) (‘the 1907 English Act’). It is, of course, correct to note that the language of s 568(1) of the Crimes Act, and its equivalents in other States, was taken directly from s 4(1) of the 1907 English Act. It is necessary, however, to look beyond that fact in order to understand why s 4(1) of the 1907 English Act took the form it did. In particular, it is essential to put both s 4(1) of the 1907 English Act, and its Australian equivalents, in their proper contexts, both historically and otherwise.

13 The 1907 English Act replaced the old procedure for Crown Cases Reserved10. It was enacted more than 30 years after the Judicature Act reforms, but against a background where the understanding of when a new trial would be ordered was that the ‘Exchequer rule’ prevailed. Before 1835 an erroneous admission or rejection of evidence was not a sufficient ground to set aside a jury's verdict and order a new trial unless upon all the evidence it appeared to the judges that the truth had not been reached11. In 1835, however, Crease v Barrett12, a decision of the Court of Exchequer, was taken as establishing a new rule: the Exchequer rule. The language actually used by Parke B in Crease v Barrett13 may not suggest the adoption of a new rule but in other cases decided in and after 1835 the rule was taken to be14...