What happened
Michel Baini and a co-accused, Badar Arafan, faced a lengthy presentment in the County Court of Victoria containing 68 counts of blackmail. All but one count concerned a single victim, Hassan Rifat. The remaining count concerned a second victim, Nicholas Srour, and was laid only against Baini. Before trial Baini applied to sever the Srour count so that the two sets of allegations would be tried separately. The trial judge refused that application. At trial the jury therefore heard evidence from both victims about the demands and menaces allegedly made by Baini. In particular, Mr Srour gave evidence that Baini was “a standover man” and had told him that he (Baini) used standover tactics, bullying and assaulting people to get what he wanted. It is now accepted that much of the evidence led in support of the Rifat counts was inadmissible on the Srour count and, conversely, that Mr Srour’s characterisation of Baini was inadmissible on the Rifat counts.
After directed acquittals on some counts and not-guilty verdicts on others, the jury convicted Baini on 36 counts, including the Srour count, and convicted Arafan on 13 counts. Baini sought leave to appeal to the Court of Appeal of the Supreme Court of Victoria. That Court (Warren CJ, Nettle and Ashley JJA) granted leave, allowed the appeal against the Srour conviction on the basis that the prejudicial Rifat evidence should not have been before the jury on that count, and ordered a retrial on the Srour count. However, it refused leave to appeal against the Rifat convictions. Ashley JA, delivering the principal reasons, held that the separate-consideration direction given by the trial judge, combined with the jury’s differentiated verdicts, indicated that the jury had considered each count separately and only convicted where the evidence was “clear-cut”. He further held that the Rifat case was “overwhelming” and that he entertained no reasonable doubt about Baini’s guilt on those counts. Accordingly, no substantial miscarriage of justice had been shown in respect of the Rifat convictions.
Baini obtained special leave to appeal to the High Court. The High Court (French CJ, Hayne, Crennan, Kiefel and Bell JJ, Gageler J dissenting) allowed the appeal, set aside the relevant paragraphs of the Court of Appeal’s order, and remitted the matter to the Court of Appeal for reconsideration in light of the correct construction of s 276(1)(b) of the Criminal Procedure Act 2009 (Vic).
Why the court decided this way
The plurality began with the statutory text. Section 276(1)(b) obliges the Court of Appeal to allow an appeal if the appellant satisfies the court that “as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice”. The refusal to sever was accepted to be such an error or irregularity. The determinative question was therefore whether that error had resulted in a substantial miscarriage of justice in respect of the Rifat convictions.
The plurality emphasised that no single universally applicable description can be given of a “substantial miscarriage of justice”. Three broad categories were identified: (1) cases where the verdict is unreasonable or unsupported (s 276(1)(a)); (2) cases where an error or irregularity may have made a difference to the outcome; and (3) cases of serious departure from prescribed trial processes. Importantly, paragraphs (b) and (c) are not confined to cases where the Court of Appeal concludes that it was not open to the jury to convict. They extend to process errors even if the verdict was open on the admissible evidence.
The plurality stressed the “natural limitations” that confront an appellate court proceeding on the record. In many cases it will be impossible to say with certainty what the jury would have done if the error had not occurred. In the present case the jury had before it evidence that was not admissible on the Rifat counts and that was highly prejudicial. Unless the Court of Appeal could conclude that conviction was inevitable on the admissible evidence (that is, that a reasonable doubt was not open), there had been a substantial miscarriage of justice. The Court of Appeal’s reasons had never addressed inevitability; they had addressed only whether the verdicts were open and whether the jury appeared to have followed the separate-consideration direction. That was the wrong question. The matter therefore had to be remitted.
Gageler J, in dissent, took a narrower view of s 276(1)(b). He considered that the appellant bore the onus of showing a reasonable possibility that, but for the error, the jury might have acquitted. On the materials before the Court he was not satisfied that Baini had discharged that onus. The majority, however, held that the Court of Appeal had not yet performed the task required by the statute.
Before and after state of the law
Before the Criminal Procedure Act 2009 (Vic), Victorian appeals against conviction were governed by the common form criminal appeal provision derived from the Criminal Appeal Act 1907 (UK). That provision required the court to allow an appeal if it thought the verdict unreasonable, or that there had been a wrong decision on a question of law, or that on any ground there had been a miscarriage of justice, “provided that the court 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”. The proviso cast a burden on the Crown once error was shown to establish that no substantial miscarriage had occurred. Weiss v The Queen (2005) 224 CLR 300 reformulated the proviso test so that the appellate court had to be satisfied that the admissible evidence proved guilt beyond reasonable doubt.
The 2009 Act was a deliberate departure. The proviso was abolished. The grounds were reframed. Section 276(1) exhaustively states when the Court must allow an appeal. The appellant bears the onus throughout. Paragraph (a) reproduces the unreasonable verdict ground. Paragraph (b) deals with error or irregularity resulting in a substantial miscarriage of justice. Paragraph (c) is a catch-all for any other reason producing a substantial miscarriage. The second reading speech and explanatory memorandum made clear that the new provision was intended to simplify the law, to place the onus on the appellant, and to allow appeals where the problem “could have reasonably made a difference to the trial outcome” or where the error was “of a fundamental kind depriving the appellant of a fair trial”.
Baini is the leading decision on the new provision. It confirms that the statute is not to be read through the lens of Weiss. The focus is on whether the identified error resulted in a substantial miscarriage. That question can be answered in the affirmative even if the admissible evidence could have supported conviction, unless the appellate court is affirmatively satisfied that conviction was inevitable. The decision therefore broadened the circumstances in which Victorian appeal courts must intervene once an error such as wrongful admission of prejudicial evidence is demonstrated.
Key passages with plain-English translation
The plurality’s reasons contain several critical passages. At the outset they said: “Whether there has been a ‘substantial miscarriage of justice’ within the meaning of s 276(1)(b) requires consideration of the text of the statute.” (Plain English: forget slogans or what earlier cases said under different legislation; read the Victorian Act.)
They observed that paragraphs (b) and (c) “cannot be confined to cases in which the Court of Appeal is satisfied that it was not open to the jury to convict the appellant”. (Plain English: even if the jury could have convicted on the admissible evidence, the appeal may still succeed if the error might have affected the result or was a serious breach of proper trial process.)
On the consequences of error they stated: “the Court of Appeal could not fail to be satisfied that there has been a substantial miscarriage of justice unless it determines that it was not open to the jury to entertain a doubt as to guilt”. (Plain English: if the appeal court cannot rule out the realistic possibility that the jury might have acquitted without the bad evidence, the conviction must be set aside.)
Finally, the plurality concluded that the Court of Appeal’s reasons “at no time considered, as s 276(1)(b) and (c) required, whether the jury’s verdicts were not only open but inevitable”. (Plain English: the Court of Appeal asked the wrong question; it must ask whether conviction was a foregone conclusion on the evidence that should have been before the jury.)
What fact patterns trigger this precedent
Baini is triggered whenever an appellant can point to an error or irregularity in or in relation to the trial that has resulted in the jury hearing evidence, or being deprived of evidence, that ought not to have been before it or omitted from it. Classic examples include:
- Refusal to sever counts where evidence admissible on one count is highly prejudicial on another (the precise situation in Baini).
- Wrongful admission of propensity or tendency evidence, or of uncharged acts, that ought to have been excluded under s 137 or s 101 of the Evidence Act 2008 (Vic).
- Misdirections or non-directions on elements, on separate consideration, or on the use that may be made of particular evidence.
- Failure to exclude evidence obtained in breach of an accused’s rights where that breach is not merely technical.
The precedent bites most forcefully where the error introduces “highly prejudicial” material that a jury is unlikely to put out of its mind despite a direction. In such cases the appeal court must ask itself whether, on the admissible evidence, conviction was inevitable. If the court cannot reach that high level of satisfaction, the conviction must be set aside even if the admissible case looked strong and even if the jury returned differentiated verdicts. The fact that the trial judge gave a “strong” separate-consideration direction does not, of itself, prevent a finding of substantial miscarriage.
How later courts have treated it
Subsequent Victorian Court of Appeal decisions have applied Baini as the authoritative construction of s 276. In R v XY (2013) and DPP v Patterson (2015) the Court emphasised that once error is shown the question is not whether the verdict was “open” but whether it was “inevitable”. Courts have remitted matters where the Court of Appeal has failed to address inevitability. In R v Bauer (2015) the Court of Appeal distinguished Baini on the basis that the inadmissible evidence was not of the same prejudicial character as Mr Srour’s “standover man” evidence. Federal courts applying equivalent provisions in other jurisdictions have cited Baini with approval when construing analogous “substantial miscarriage” language.
The decision has been treated as confirming that the abolition of the proviso and the reallocation of onus have materially altered the appellate task in Victoria. Later cases have noted that Baini does not require the appeal court to speculate about what this jury would have done; rather it requires the court to decide for itself, on the record and acknowledging its limitations, whether a reasonable doubt was open on the admissible evidence. Where that cannot be excluded, the appeal succeeds.
Still-open questions
Several questions remain unresolved. First, how “inevitable” must conviction be? The plurality used the language of “not open to the jury to entertain a doubt”, but Gageler J preferred the language of “reasonable possibility” that the jury might have acquitted. Future cases will have to reconcile these formulations.
Second, what constitutes a “serious departure from the prescribed processes for trial” sufficient to constitute a substantial miscarriage irrespective of impact on outcome? The plurality gave examples but no exhaustive list. The boundary between fundamental and non-fundamental errors remains to be worked out.
Third, how does Baini interact with the proviso’s ghost in transitional cases or in other Australian jurisdictions that retain the common form provision? The High Court has not yet revisited Weiss in light of Baini.
Fourth, in cases of multiple errors, must each be assessed separately for its potential to produce a substantial miscarriage, or may their cumulative effect be considered? The plurality’s reasons suggest the latter is permissible, but the precise methodology remains undeveloped.
Finally, the practical forensic question: in what circumstances will an appellate court, lacking the full transcript or exhibits, feel able to reach the conclusion that conviction was inevitable? Baini itself remitted the matter because the High Court did not have the full record. Later courts will have to decide how much of the record is required before they can safely form the necessary satisfaction. These open questions ensure that Baini remains a fertile source of appellate argument for years to come.
Most practitioners still labour under the misconception that a “strong” prosecution case or a careful separate-consideration direction will usually neutralise the admission of prejudicial evidence. Baini shows that is not so; once the prejudicial material is before the jury the conviction is vulnerable unless the appellate court can exclude any realistic possibility that the jury might have entertained a doubt. That is a significantly higher hurdle for the Crown than many trial advocates realise.