CRIMINAL LAW - Conviction - Blackmail - Many counts referable to one complainant and single count referable to second complainant - Prejudice to applicant born of risk of jury taking into account evidence concerning many counts referable to one complainant in relation to sole count referable to other complainant - Judge erred in refusing to sever single count to avoid such risk of prejudice - Whether judge's error productive of substantial miscarriage of justice within meaning of s 276 of Criminal Procedure Act 2009 - Application for leave to appeal previously refused on basis of reasoning in Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300; Application remitted for reconsideration following successful appeal by applicant to High Court of Australia - Application of s 276 of Criminal Procedure Act 2009 in accordance with decision of High Court in Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469 - Application for leave to appeal refused - Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469, interpreted and applied - Andelman v R [2013] VSCA 25, referred to - Criminal Procedure Act 2009, s 276.

1 Following a 19 day trial in the County Court, the applicant was found guilty of 36 counts of blackmail on a presentment preferring 16 counts against him, 20 counts against his co-accused, Arafan, and a further 32 counts against them jointly.

2 On 5 October 2011, we upheld the applicant's appeal against conviction on count 50 (blackmail against the complainant, Srour ('the Srour count')) on the ground that the trial judge's refusal to sever the Srour count from the other counts (all of which alleged blackmail against another complainant, Rifat ('the Rifat counts')) resulted in evidence relating to the Rifat counts, which was inadmissible in relation to the Srour count, being put before the jury.[1] We were persuaded that the judge's failure to sever the Srour count was thus productive of a substantial miscarriage of justice in relation to the Srour count.

3 At the same time, we rejected the applicant's application for leave to appeal against conviction on the Rifat counts because we considered that, even if the Srour count had not been included on the presentment, most of Srour's evidence would have been admissible in relation to the Rifat counts and thus that, even in the absence of the inadmissible Srour evidence - which at its highest was to the effect that the applicant had described himself as a standover man and that he, Srour, was subject to an unwarranted demand with menaces - the Crown case on the Rifat counts would have been overwhelming. We were, therefore, not persuaded that the receipt of so much of the Srour evidence as was inadmissible in relation to the Rifat counts was productive of a substantial miscarriage of justice in relation to those counts.

4 Ashley JA delivered the principal reasons for judgment. After noting that the proviso to section 568(1) of the Crimes Act 1958 had been held capable of application to cases in which failure to sever was productive of a miscarriage of justice,[2] his Honour observed[3] that the proviso had since been replaced by s 276 of the Criminal Procedure Act 2009; as a result, that an applicant must now satisfy the court that 'there has been a substantial miscarriage of justice'; and that, in Weiss v The Queen,[4] the High Court had directed appellate courts, in relation to application of the proviso, to undertake the consideration of whether there has been 'a substantial miscarriage of justice':

in the same way an appellate court decides whether 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. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty.[5]

5 We assumed[6] that appellate courts were required to approach the question of a substantial miscarriage of justice under s 276 of the Criminal Procedure Act in substantially the same way as the High Court held in Weiss that appellate courts were required to approach the question of a substantial miscarriage of justice for the purposes of the proviso (albeit recognising that the onus under s 267 is upon the applicant rather than the Crown). Hence, we approached the matter in accordance with Weiss.

6 From that decision, the applicant appealed to the High Court and a majority of the High Court held that we had erred in following the approach in Weiss. The majority said that:

It follows that, contrary to at least some of the argument in this Court, consideration of s 276(1)(b) does not begin with this Court's decision in Weiss v The Queen. Weiss concerned the application of the common form criminal appeal provision derived from the Criminal Appeal Act 1907 (UK). That form

of appeal provision did not govern the appeal to the Court of Appeal in this matter; s 276 of the Act did. And while extrinsic material indicates that s 276 was enacted to meet perceived problems with the common form criminal appeal provision, it is to be borne in mind that, to adopt what was said by Brennan J in a different context, s 276 "must be construed according to its own terms rather than by reference to constructions placed on its statutory predecessor". This is not to say that observations made in Weiss about the application of the common form criminal appeal provision cannot also apply to s 276. The same or similar observations may be made about s 276 but only if the statutory text so permits.[7]

7 In the result, the High Court remitted the matter to us for reconsideration in accordance with the reasons of the majority.[8]

8 It is as well to begin by setting out our understanding of the majority decision. As we respectfully apprehend their Honours' path of reasoning, it proceeds by the following steps:[9]

1. Ultimately, the question of what constitutes a miscarriage of justice for the purposes of s 276 of the Criminal Procedure Act is a question of statutory construction.[10] Paraphrases of the statutory language are apt to mislead. They cannot and do not stand in the place of the words used in the statute.[11]

2. The possible kinds of miscarriage of justice with which s 276(1) deals include, although they are not limited to, cases like the present where there has been an error or an irregularity in or in relation to a trial [but] the Court of Appeal [can] be satisfied that the error or irregularity did not make a difference to the outcome of the trial.[12]

3. In determining whether there has been a substantial miscarriage of justice in such a case, the Court of Appeal must consider whether the verdict was inevitable,[13] although an affirmative answer to that question will not always conclude the issue.[14]

4. So to say is not to reintroduce the proviso to the common form criminal appeal provision or impose on an appellant an onus of proving his or her innocence.[15] Nor is it to say that 'observations made in Weiss about the application of the common form criminal appeal provision cannot apply to s 276 ... , but only if the statutory text so permits'.[16]

5. The inquiry which must be made, however, is whether a guilty verdict was inevitable, not whether the verdict was open.[17]

6. If the Crown contends that a guilty verdict was inevitable, an appellant may meet the point by showing no more than that, had there been no error, the jury may have entertained a doubt as to his or her guilt.[18]

7. If the Crown contends that a guilty verdict was inevitable (which is to say a verdict of acquittal was not open), the Court of Appeal must decide that question on the written record of the trial recognising 'the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record'.[19]

8. The fact that the jury has returned a verdict of guilty may assist in answering the question but, in cases like the present, where evidence has wrongly been admitted, and in cases where evidence has wrongly been excluded, the Court of Appeal cannot 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.[20]

9. In deciding whether it was not open to the jury to entertain a doubt as to guilt, the Court of Appeal must determine whether 'the result at trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made'.[21]

10. That determination is not to be made by 'by speculating about what a jury, this jury or a reasonable jury might have done but for the error'.[22]

11. 'Nothing short of satisfaction beyond reasonable doubt will do'. The Court of Appeal 'can only be satisfied, on the record of the trial, that an error of the kind which occurred in this case did not amount to a "substantial miscarriage of justice" if the ... court concludes from its review of the record that conviction was inevitable'.[23]

9 The High Court did not state expressly whether, by 'inevitable', their Honours meant to convey the sense of inevitability which applied under the proviso to s 568 of the Crimes Act 1958. We also note their Honours' admonition that, for the purposes of s 276 of the Criminal Procedure Act, the requirement that the Court of Appeal consider whether a verdict was inevitable is not to be taken as the reintroduction of the proviso to the common form criminal appeal provision.[24] Even so, however, we assume with respect that, in posing the question of whether a verdict may have been different, their Honours meant: may have been different for the jury if acting reasonably on the evidence properly before them and applying the correct onus and standard of proof.[25] That appears to be implicit in their Honours' statement that the approach to the application of s 276 which they essayed 'accommodates fundamental tenets of the criminal justice system in Australia'.[26]

10 We proceed, therefore, on the basis that it is not open to be satisfied on the record of the trial that the admission of the inadmissible Srour evidence did not amount to a 'substantial miscarriage of justice' unless we are able to conclude from our review of the record that, if the inadmissible Srour evidence were excluded, the jury acting reasonably and applying the correct onus and standard of proof could not properly have been left with a reasonable doubt as to the applicant's guilt on those of the Rifat counts on which the jury returned a verdict of guilty.

11 It was effectively conceded by the Crown that the applicant had met the burden of showing that prima facie the error in question may have affected the verdict. The High Court appeared to assume that was the case in its judgment and did not otherwise explore the applicant's onus.

12 The Crown contended, however, that upon examination of the whole of the record it was apparent that, as a matter of logic, the error could not have affected the verdict.

13 The applicant submitted that the error in this case was so fundamental that the verdict could not stand, even if a guilty verdict was inevitable; and submitted also that this was not the type of case where the error in question and its influence on the rest of the case could be properly separated out from the other, properly admissible evidence. Unless such a separation could be made the Court would not be in a position to consider whether the verdict was inevitable. The applicant submitted that his case was analogous to Andelman[27] in those respects.

14 We do not accept either of those submissions. As to the first of them, in contrast to the Srour count, the error in relation to the Rifat counts was not so fundamental that the verdict should not be permitted to stand. As to the second, the facts of this case are very different to those in Andelman.[28] The impugned evidence had very little to do with the case against Rifat.

15 The applicant further submitted that the error may have affected the verdict as the impugned evidence improperly corroborated Rifat's evidence, made the applicant's defence unlikely and gave rise to impermissible tendency-type evidence. We do not accept that submission.

16 On the last occasion, Ashley JA summarised our reasons for concluding, in accordance with the test prescribed by Weiss, why, on the basis of our own independent assessment of the evidence, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the applicant was proved beyond reasonable doubt to be guilty of those of the Rifat counts on which the jury returned a verdict of guilty. His Honour said that:

... in my view, the jury was entitled to conclude, as I do, that the Crown case was overwhelming. The following are some of the matters supporting that conclusion: (1) Rifat's evidence went as far as it sensibly could. For that reason, it had credibility; (2) Rifat gave evidence of the applicant's threat to change sides. The applicant said in his record of interview that Hakim had made him offers. He denied a threat to change sides. Rifat learned of Hakim's offer. It must have been from the applicant. An inference was surely available that Rifat learned of the offer from the applicant in the context of a threat to change sides; (3) It is grossly improbable that Rifat would willingly have transferred a major interest in Telkom to two people, one of whom he scarcely knew, and neither of whom knew anything about the telecommunications industry; (4) The terms of settlement gave a disproportionate benefit to the applicant for any work that he might have done, and for his supposed interest in Telkom, and it gave a benefit to Arafan, who had done no work for Telkom, and whose supposed interest in Telkom had even less sensible explanation; (5) Rifat continued to make payments to the applicant even after the terms of settlement had been signed; (6) Rifat's belated complaint was consistent with his account that he had earlier been given no help by the police in the face of Hakim's alleged threats. Rifat might well have viewed the proceeding instituted by the applicant, as Nettle JA suggested in argument, as 'the last straw'.[29]

17 That was written in the context of a ground which contended that the verdicts were unsafe and unsatisfactory. Hence the form of some of the language used. But the matters there identified were incorporated by reference into his Honour's consideration of the substantial miscarriage of justice issue,[30] and that consideration was informed by the requirement stated in Weiss that the Court must be satisfied for itself, on consideration of the whole of the record - but excluding the inadmissible evidence - that the accused was proved beyond reasonable doubt to be guilty of the offences charged.

18 As the reasoning of the majority of the High Court on appeal now enables us to understand, that was the wrong way in which to approach the matter. It was not enough that, based upon our own independent assessment of the evidence, we considered the Crown case (excluding the inadmissible Srour evidence) to be overwhelming and therefore to establish guilt beyond reasonable doubt. What was required was to ask whether, based upon our own independent assessment of the evidence, a verdict of guilty was inevitable in the sense that the jury acting reasonably on the evidence properly before them (excluding the inadmissible Srour evidence) and applying the correct onus and standard of proof, would have been bound to convict.

19 Upon reconsideration of the matter according to that test, however, we find that, for the same reasons we concluded that the applicant was proved beyond reasonable doubt to be guilty of those of the Rifat counts on which the jury returned a verdict of guilty, we are satisfied beyond reasonable doubt that a verdict of guilty was inevitable in the sense that the jury acting reasonably on the evidence properly before them (excluding the inadmissible Srour evidence) and applying the correct onus and standard of proof, would have been bound to convict.

20 Counsel for the applicant drew the Court's attention to comments made by witnesses which he said reflected adversely on Rifat's credibility and that Rifat had a motive to lie. He also emphasised evidence which he said corroborated the applicant's version of events in his record of interview.

21 We consider that this evidence does not amount to anything resembling a successful attack on Rifat's evidence or as providing any real or effective corroboration of the applicant's version of events. Just as we perceived the Crown case (excluding the inadmissible Srour evidence) was so overwhelming that there was no room for reasonable doubt, we consider that the jury acting reasonably and applying the correct onus and standard of proof would have been bound to conclude that the Crown case (excluding the inadmissible Srour evidence) left no room for reasonable doubt.

22 Finally, counsel for the applicant submitted that the inadmissible Srour evidence was prejudicial to the applicant in that it tended to corroborate Rifat's testimony against the applicant's opposing testimony. Up to a point, that may be accepted. Despite the careful directions of the trial judge to the effect that the jury was to consider each count only by reference to the evidence which related to that count, it may be that some members of the jury were at least subconsciously influenced by the inadmissible Srour evidence. Especially is that so given that defence counsel cross-examined Srour extensively on his testimony and that is likely to have accentuated the inadmissible Srour evidence in the minds of the jury.

23 Consequently, if the test for the purposes of s 276 of the Criminal Procedure Act were whether it is open to exclude the possibility that the inadmissible Srour evidence had an effect on the jury, we would be bound to accept that it is not open to exclude that possibility; and so to conclude that the appeal should be allowed.

24 As we have said, however, in view of what the majority of the High Court has said on appeal, we respectfully understand that the test is not one of whether the inadmissible evidence may have had an effect on the jury but rather one which looks to what the situation would have been if the inadmissible evidence had not been before the jury. And, since we consider that the Crown case (excluding the inadmissible Srour evidence) was overwhelming, we are satisfied that the jury acting reasonably and applying the correct onus and standard of proof would have been bound to conclude that the Crown case (excluding the inadmissible Srour evidence) left no room for reasonable doubt. In that sense, we are persuaded beyond reasonable doubt that conviction was 'inevitable'.

25 Accordingly, except as was ordered on the last occasion, the application for leave to appeal will be dismissed.

[1] (2011) 33 VR 252.

[4] [2005] HCA 81; (2005) 224 CLR 300.

[6] See also Sibanda v R [2011] VSCA 285, [64]-[66] (Sifris AJA), [5] (Nettle JA).

[7] [2012] HCA 59; (2012) 246 CLR 469, 477 [15] (French CJ, Hayne, Crennan, Kiefel, and Bell JJ), citations omitted.

[8] We were informed by senior counsel for the Crown that there was no discussion before the High Court of the facts of the case or the evidence.

[9] We make no specific reference to the appellant bearing the burden of persuasion, which cannot be ignored, although it may be unlikely to affect the disposition of many appeals.

[10] [2012] HCA 59; (2012) 246 CLR 469, 476 [13].

[12] Ibid 479 [26]. This formulation differs from that of the majority in the High Court only by replacing a double negative on the affirmative proposition. The sense is unchanged.

[14] In a case in which the error or irregularity was such that there was no trial at all.

[15] [2012] HCA 59; (2012) 246 CLR 469, 480 [30].

[19] Ibid 481 [32] citing Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 125-126 [23] (footnote omitted).

[20] [2012] HCA 59; (2012) 246 CLR 469, 481 [32].

[24] [2012] HCA 59; (2012) 246 CLR 469, 480 [30].

[25] Andelman v R [2013] VSCA 25, [100]-[101] (Maxwell P, Weinberg and Priest JJA), citing Wilde v The Queen [1988] HCA 6; (1998) 164 CLR 365, 371-2.

[26] [2012] HCA 59; (2012) 246 CLR 469, 481-2 [33].

[27] [2013] VSCA 25.

[29] (2011) 33 VR 252, 273 [102].