Criminal Law, Appeals, Advantage of Jury
Facts; M was convicted on two counts of indecent need assaulting and three counts of having sexual intercourse with his daughter (who is 13 years old at the time). He appealed against his conviction to the New South Wales court of criminal appeal (CCA), which dismissed the appeal. He then appealed by special leave to the High Court, relying on section 6 of the criminal appeal act 1912 (NSW), which empowers the CCA to set aside a conviction in any case where it concludes that the conviction is, in fact unsafe or unsatisfactory. That should happen, M submitted, because of the poor state of evidence: they had been no corroboration of the complainant’s testimony, medical examinations contradicted her version of events, she had delayed reporting the incident for a month, she had made a complaint of the sexual nature previously about another member of her family, and circumstantial elements of her testimony had been factually disapproved, while other elements of it were improbable.
Application; Where not withstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty… But in answering that question the court must not disregard or discount either the consideration that the jury is the body in trusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay for regard to those considerations (Mason, Deane, Dawson & Toohey at 493).
In most cases adult experienced by an appellate court will be a doubt which are jury ought to have also experienced. It is only where a Jerrys advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experience by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself contains discrepancies, displays in adequacies, is tainted or otherwise lacks probative force in such a way as to leave the court of criminal appeal to conclude that, even making full allowance for advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and set aside a verdict based upon that evidence… In doing so, the court is not substituting trial by court of appeal for trial by jury, so that was my question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (at 494-5).
Holding; the High Court upheld the appeal quashing M’s convictions and entering the verdict of acquittal. The court entertained grave doubts about the complaints evidence which, applying the statement of the law extracted below, was sufficient to make good the appellants case. In other words, the court held that it had not been opened to the jury to be satisfied beyond reasonable doubt that M was guilty.
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