Conway v The Queen

Conway v The Queen - [2002] HCA 2 - HCA 2002 case summary — Zoe

[9]

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.
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.
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].
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".
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].
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.
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.
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 Alleyne[9], 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.
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 Queen[13] 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].
The use of the writ of error declined once the Court for Crown Cases Reserved - which had operated informally[15] before 1848 - was given a statutory basis[16]. That Court decided questions of law referred to it by other judges and courts and consisted of all the judges at Westminster, of which five were a quorum. If any of the five dissented, he could require the whole body of judges to hear the question referred[17]. Stephen described[18] its procedure as follows:

[14]

The remedy of arrest of judgment was also defective. Between the conviction and imposition of sentence, or immediately at assizes, an accused person might move the Court in arrest of judgment[24]. But the motion could only succeed for objections that appeared upon the face of the record whether they appeared in the indictment or otherwise[25]. No defect in the evidence could found a motion in arrest of judgment[26]. Moreover, after sentence, the defendant was confined to the writ of error although it appears that the Court in its discretion might arrest the judgment, notwithstanding that judgment had been given[27]. Once the judgment was arrested, all the proceedings were set aside and judgment of acquittal entered. Nevertheless, the judgment of acquittal was no bar to a subsequent prosecution upon the same matter[28].
In addition to the remedies of error and arrest of judgment - remedies that were available in respect of any conviction in any court - the King's Bench had jurisdiction to order a new trial after conviction in that Court for a misdemeanour. In 1660, the Court declared "that new trials may be [had] in criminal cases at the prayer of the defendant, where he is convicted"[29]. However, a new trial could not be ordered after a conviction for felony or treason[30], "but after a conviction for a misdemeanour, a new trial may be granted, at the instance of the defendant, where the justice of the case requires it"[31]. If an indictment for a misdemeanour had been presented in the King's Bench, it had jurisdiction to set aside a conviction on the indictment and order a new trial whenever it appeared that to do so would further the ends of justice[32]. It also had jurisdiction to order a new trial in respect of a conviction where the indictment had been removed into the King's Bench by certiorari before the trial of the charge. In cases of complexity pending before Commissioners of Oyer and Terminer at the Assizes or at Quarter Sessions, the King's Bench would remove the proceedings into that Court and have the case tried at Westminster or have it sent for trial at the Assizes or in the City of London[33]. However, the application for removal had to be made before verdict. The King's Bench would not "after verdict remove the case by certiorari, with a view to granting a new trial."[34] This was a serious defect in the administration of criminal justice because inferior courts had no jurisdiction to order a new trial except for irregularity[35].
The remedy of a motion for a new trial had other defects. No motion for a new trial was allowed unless the defendant was present in court when the motion was made[36]. When the motion was based on the facts or evidence in the case, it had to be supported by an affidavit of the relevant circumstances[37] and "made … within four days exclusive after the entry of a rule for judgment"[38]. Failure to move for a new trial within that period prevented the defendant from obtaining a new trial. This rule applied in criminal as well as civil cases although in a criminal case occasionally the Court might order a new trial when convinced that "substantial justice has not been done"[39]. Furthermore, as a general rule, a party could not move for a new trial after moving in arrest of judgment[40].
Upon granting a motion for a rule nisi for a new trial, the Court would make the rule absolute if it appeared that the conviction had been improperly obtained. A verdict might be set aside on the ground that it was contrary to the evidence, or evidence had been improperly rejected or admitted in the trial, or the jury had been misdirected or had misbehaved, or the accused had been taken by surprise[41]. Speaking generally, once an error or wrong of any of these kinds was identified, the Court would order a new trial of the charge[42] unless it could not reasonably be supposed that the error or wrong had influenced the result[43]. It may be that at common law the onus was on the accused to show that the wrong or error affected the result[44]. But however that may be, long before the enactment of the common form statutes, the King's Bench had jurisdiction to order a new trial after a criminal conviction but would not do so if it was unreasonable to suppose that the wrong or error had affected the result. Chitty said[45]:

[28]

Notwithstanding the statement in Gibson, therefore, it seems clear enough that at common law a new trial would not be ordered in a civil cause if the error - whatever it was - could not reasonably be supposed to have affected the result of the trial. With the exception of evidence wrongly admitted and perhaps evidence wrongly rejected, a similar view was taken in criminal cases upon a motion for a new trial[73]. Why the wrongful admission or rejection of evidence should be an exception is not easy to see. The reason given by the first Windeyer J for the exception is equally applicable to other legal errors such as a misdirection. Moreover, the exception had the result that, even if the admissible evidence was conclusive of guilt, a new trial had to be ordered. In that event, the administration of criminal justice would be frustrated and made hostage to "outworn technicality"[74].
It is not surprising then that the Judicial Committee of the Privy Council, this Court and the Federal Court should refuse to apply such an exception in determining whether a new trial should be ordered in an appeal heard under a statute in a form different from the common‑form criminal appeal statute. It is not surprising that, in the exercise of their discretion to order a new trial, those Courts should refuse to order a new trial where a legal error had not led to any miscarriage of justice.
In criminal appeals and applications for leave to appeal against criminal convictions, the Judicial Committee has always refused to allow the appeal or grant the application unless it is satisfied that the legal error - whatever it was - has brought about a miscarriage of justice[75]. In Lejzor Teper v The Queen[76], the Judicial Committee said that "it is a principle of the proceedings of the Board that it is for the appellant in a criminal appeal to satisfy the Board that a real miscarriage of justice has occurred." Their Lordships referred to an earlier decision[77] of the Judicial Committee where it was said that "in a case where this Board had no ground for doubting that the appellant had been properly convicted, that the mere admission of incompetent evidence, not essential to the result, is not a ground for allowing an appeal against conviction."[78]
Prior to the passing of the Federal Court of Australia Act, this Court had also taken the same view about criminal appeals from convictions in the Australian Capital Territory. Before the passing of that Act, criminal appeals from convictions in the Australian Capital Territory and the Northern Territory were brought to this Court. Section 52 of the Seat of Government Supreme Court Act 1933 (Cth) (the short title of which was later amended to the Australian Capital Territory Supreme Court Act) gave this Court jurisdiction to hear a criminal appeal from a judgment of the Supreme Court of the Australian Capital Territory. In Sparre v The King[79], this Court held that s 52 together with s 36 of the Judiciary Act 1903 (Cth) authorised the Court to order a new trial after quashing a conviction on the ground of misdirection of the jury. In Stokes v The Queen[80], the Court held that the common law rules concerning new trials in civil cases applied to a criminal appeal under s 52 of the Australian Capital Territory Supreme Court Act 1933 (Cth). After finding error on the part of the trial judge, Dixon CJ, Fullagar and Kitto JJ said[81]:

[30]

The Court applied this rule and refused to order a new trial.
Thus, immediately before the Federal Court was given jurisdiction in criminal appeals from the Australian Capital Territory, an application for a new trial after conviction in that Territory might be refused on the ground that the error could not reasonably be supposed to have influenced the verdict of the jury. It would be surprising indeed if the Parliament in enacting the Federal Court of Australia Act intended the Full Court of the Federal Court to have a more limited power in hearing appeals from the Australian Capital Territory than that exercised by this Court in hearing criminal appeals from that Territory.
It is true that, before the enactment of the Federal Court of Australia Act, doubt had been expressed whether this Court had power to refuse a new trial in an appeal from the Northern Territory on the ground that no substantial miscarriage of justice had occurred. In Da Costa v The Queen[82], Owen J thought that, when evidence was wrongly admitted, the Court could not refuse to order a new trial. But in the same case, Windeyer J took a different view[83]. In Pemble v The Queen[84], Barwick CJ also seems to have been of the view that, because of the statutory framework, a new trial could not be refused on appeal from the Northern Territory on the ground that no substantial miscarriage of justice had occurred.
However, the powers of the Federal Court are expressed in different terms from those that governed appeals to this Court from the Northern Territory. Section 28(1)(f) of the Federal Court of Australia Act empowers the Federal Court to allow an appeal "on any ground upon which it is appropriate to grant a new trial." This power is expressed in wide terms and should be given a liberal construction. It is a power that must, of course, be exercised judicially[85]. But there is nothing unjudicial, arbitrary or capricious in refusing to order a new trial when, although error has occurred, no miscarriage of justice has occurred. The common law courts applied such a rule in civil proceedings for more than a century. The King's Bench and the Court for Crown Cases Reserved applied it in criminal cases for a long period until 1887 when it was held in Gibson[86] that the rule did not apply where evidence had been wrongly admitted. The Judicial Committee applied it in criminal appeals and applications for leave to appeal against criminal convictions[87]. And this Court applied it in appeals from the Australian Capital Territory before the enactment of the Federal Court of Australia Act.
Very early in the history of the Federal Court, a Full Court of that Court held that the general rule referred to in Stokes[88] applied to s 28(1)(e) of the Federal Court of Australia Act. In Duff v The Queen[89], Brennan, McGregor and Lockhart JJ said that in a criminal appeal the grounds under this paragraph are not to be taken as identical with the grounds in the common‑form criminal appeal statutes, a view later rejected by this Court in Chamberlain v The Queen [No 2][90]. Nevertheless, their Honours accepted[91] that:

[33]

It is not necessary to describe fully the elaborate body of evidence that was called at trial. In order to explain the corroboration questions that arose, it is, however, necessary to say a little more about the prosecution's case.
In 1997, the year in which the murder occurred, Williams was aged 21. He was unemployed, and a substantial heroin addict. Steer, then aged 29, was not a user of heroin but had a substantial cannabis habit. He too was unemployed. Williams, Steer and McFie each lived in flats very close one to the other.
The appellant, a police officer, met McFie in the course of his duties. The appellant's relationship with his wife had then been unhappy for some time. By March 1997, the appellant and his wife had separated, and the appellant, who had some time earlier commenced a sexual relationship with McFie, went to live with her. There were proceedings in the Family Court of Australia between the appellant and his wife concerning the custody of their son and Mrs Conway obtained an interim order for his custody.
During April and May 1997, Mrs Conway was very depressed and there was a deal of evidence at the trial of her speaking about taking her own life and of events consistent with her preparing, if not attempting, to do so.
According to the evidence given by the co‑offenders, at some time in March or April 1997 the appellant and McFie asked Williams to kill Mrs Conway and told him that it had to look like a heroin overdose. Evidence was called at trial from which it would have been open to the jury to conclude that on 25 April 1997 the appellant gave Mrs Conway a cup of coffee containing heroin. This evidence was disputed and it is not possible, or necessary, to form any view about its truth. There was, however, undisputed evidence that on the next day, 26 April 1997, the appellant handed to police, two foils which he said he had found at his wife's house and which, on analysis, revealed traces of heroin. Why he should do this was never satisfactorily explained.
Mrs Conway was killed on 3 May 1997. There was evidence that both shortly before and after this time Williams had sums of money larger than normal. In the course of their investigations, the police interviewed the appellant and McFie. It is accepted that, in those interviews, each told lies, including making denials of any sexual relationship between them. About three weeks after Mrs Conway's death the appellant and McFie moved into the house where Mrs Conway had lived.
On 27 July 1997, police arrested the two co‑offenders. In the early hours of the next morning, at the request of police, they went to the house where the appellant and McFie were living. Steer wore a listening device. It was not disputed at the trial that Steer and Williams had a conversation with the appellant and McFie. The authenticity of the tape recording, to which we listened in the course of oral argument, and the accuracy of the transcription that was made of that tape recording were not challenged. Not surprisingly, when the appellant gave evidence in his defence at his trial, he was cross‑examined extensively about what was said and done at this meeting.
What emerged from the cross‑examination of the appellant and from the tape recording of the meeting can be summarised as follows. At his trial, the appellant claimed that he had been devoted to his wife. The visit by Steer and Williams at four o'clock in the morning of 28 July 1997 had not been sought by the appellant or by McFie and it was, so far as the appellant's evidence and the conversation itself revealed, an unsolicited and unexplained visit in the early hours of the morning. On one view of what was said, McFie expressed concern to Steer and Williams about where the taxi, which they said had brought them, had dropped them but that, if it stood alone, could be put aside as equivocal and, perhaps, to be explained by the surprising nature of the visit so early in the morning.
Early in the conversation, Steer and Williams admitted that they had murdered the appellant's wife and the appellant gave evidence that he had realised early in the conversation that this was what they were saying. Yet the appellant said and did nothing at the time that expressed surprise or even curiosity at this remarkable revelation. During the conversation, Steer and Williams asked for money described as "a couple of grand" which was money they asserted the appellant and McFie owed them. Again, there was no denial and no expression of surprise. During the conversation, it was said to the appellant that police were then alleging that he and McFie had employed Steer and Williams to commit the murder and the appellant acknowledged in cross‑examination that at the time of this conversation he knew that he was a suspect. Again, he expressed no denial. At the end of the conversation he gave Steer and Williams $50 for a taxi fare and he agreed, during the conversation, that he would pay Steer and Williams more money later, agreeing that he would telephone Steer and Williams for the purpose of arranging this payment.
The appellant's explanation for what was said and done during this conversation was, in effect, that he was an innocent observer of events, the unfolding of which he did not try to influence in any way, and that he had intended to report what was said and done to police. Because police arrested the appellant and McFie within minutes of the conversation concluding, he had no opportunity to do that. The appellant did not suggest in his evidence at the trial (and there was nothing in what was said in the meeting that suggested) that he had acted as he had during the meeting in order to shield McFie. Indeed, the conduct of his case at trial was wholly hostile to her interests and inconsistent with a suggestion that having discovered, after the event, that she had contracted to have his wife killed, he had thereafter sought to protect McFie from the consequences of her actions. At trial he suggested that McFie alone had contracted Steer and Williams to kill his wife but he did not suggest that, whether for love or other reasons, he had tried to protect her from the consequences of what she had done.

[50]

It may well be, as the Full Court suggested[100], that directing the jury that it would be dangerous to convict the appellant upon the evidence of Steer and Williams unless that evidence was confirmed in some material way by other evidence went beyond what was required by s 165. Even if it did, however, the giving of the warning was not a misdirection of law. Neither s 164 nor s 165 of the Evidence Act forbids a judge warning the jury that it would be dangerous to convict on uncorroborated evidence. Such a warning would constitute a misdirection only if the facts of the case could not admit of such a conclusion and, given that it is a warning which favours an accused, the giving of such a warning is unlikely to occasion appellate intervention.
Neither the appellant nor the respondent contended, whether at trial or on appeal, that telling the jury that it would be dangerous to convict on the uncorroborated evidence of Steer and Williams was a misdirection. Rather, the appellant submitted the judge misdirected the jury when he went on, as he did, to identify what evidence might constitute corroboration.
The trial judge referred to 18 matters which he told the jury were capable of constituting corroboration of the evidence of Steer or Williams or both and which, in the Full Court, the appellant contended could not constitute evidence confirming evidence of Steer or Williams implicating the appellant in the crime with which he was charged.
In this Court, particular attention has been given to four of the 18 items of evidence with which the Full Court dealt. In that Court, the respondent conceded that three of these four items of evidence were not capable of constituting corroboration. In the view of the Full Court, each concession was rightly made[101]. A fourth item of evidence was held by the Full Court not to have been capable of constituting corroboration[102]. Each of the four pieces of evidence would, if accepted, have tended to confirm that Steer and Williams had been implicated in the murder of Mrs Conway. Their particular detail does not matter for present purposes. Perhaps one or more of the pieces of evidence could have been understood as going further and suggesting that the co‑offenders had done so as contract killers. But none of the four pieces of evidence to which we have referred confirmed any evidence which Steer or Williams had given implicating the appellant. Nor did the respondent contend that these pieces of evidence had that effect. Rather, the respondent contended that because the evidence confirmed some detail of evidence of Steer or Williams it supported the overall case mounted by the prosecution against the appellant. So much may readily be accepted, for in essence it is a contention that the evidence was relevant to the issues arising on the trial of the appellant, but that is not an answer to the appellant's contention that the jury were misdirected.
The Full Court concluded that none of the four items of evidence was of more than minimal importance and that two of them might even be described as "nebulous"[103]. These conclusions about the importance of the evidence do not sit easily with the fact that the judge commented to the jury that one of the four items of evidence, if accepted, could constitute "very strong" corroboration[104]. Again, however, the importance of the evidence is not a matter that goes to whether there was a misdirection. At most it is a factor that may be relevant to whether there has been a miscarriage of justice.
Some items of evidence identified by the trial judge as being capable of constituting corroboration consisted of acts and declarations on the part of McFie which took place in the absence of the appellant. The Full Court concluded that these acts and declarations had been admissible against the appellant under principles of the kind dealt with in Tripodi v The Queen[105] and Ahern v The Queen[106] and that, accordingly[107]:

[54]

The evidence of what was said and done by and in the presence of the appellant when Steer and Williams called on him and McFie in the early hours of 28 July was rightly described by the Full Court as "devastating"[109]. His explanation of his conduct was incredible. Had he suggested at any time that he had acted out of a misguided attempt to protect McFie from the consequences of her unsolicited conduct he might have had some basis for suggesting that the matter should go back for retrial. But that has never been his case and he should not now have an opportunity to go back for trial on an altogether different footing from that upon which he chose to attempt to meet the prosecution case that was put against him. His conviction was inevitable. The appeal to this Court should be dismissed.
KIRBY J. This appeal, brought by special leave from a judgment of the Full Court of the Federal Court of Australia[110] was said ultimately to concern whether that Court ought to dismiss the appellant's appeal on the basis that no substantial miscarriage of justice had actually occurred[111].
In several recent appeals it has been observed[112] that some who have the responsibility of construing statutory language appear to shy away from the legislative text. It is as if they find that aspect of their task "distasteful"[113]. They will go to second reading speeches. To law reform reports. To academic commentary and histories. To sociologists' musings. And above all to the words of long-forgotten judges - usually writing in a different country, decades or even centuries before the applicable statutory text was enacted. This is an approach to the task that turns legal analysis on its head. It should be resisted.
Where, as here, the text is found in a statute enacted by an Australian Parliament there is a sound constitutional reason why the text must have primacy. Such a law has legal legitimacy because it has democratic credentials. This is why, for my own part, I approach the powers and duties of the Full Court of the Federal Court (and hence of this Court) in these proceedings, involving an appeal against a criminal conviction, by reference to the statute that confers the applicable powers and duties on the appellate bench of the Federal Court[114]. Not the common law. Not legal history. And certainly not statutory provisions applicable in other parts of Australia that have no application to the Federal Court or to this case.
My approach to the governing legislation causes me to adopt a criterion for appellate intervention in the conviction of the appellant somewhat different from that expressed in the joint reasons and in the arguments of the parties in this appeal. In the end it does not produce a different outcome. But it obliges me to go about the task of analysis differently. I will explain why this is so. Then, by reference to the statutory provisions that are actually applicable, I will indicate why I too consider that this appeal must be dismissed.

[59]

In some Australian jurisdictions, the common form enactment is not expressed in terms of a proviso. However the substance is the same. And it is usual for lawyers in those jurisdictions to describe the local provision as "the proviso"[122]. There are reasons of principle for avoiding, so far as possible, disparities in the treatment of criminal appeals in different parts of the country, unless such differences are clearly grounded in statute[123]. In Australia, the constitutional provision of appeals to this Court against "judgments" and "sentences"[124] has afforded an important means of developing a consistent body of authority to guide courts of criminal appeal, and their equivalents, in disposing of appeals where a demonstrated error of law in the conduct of a criminal trial attracts the operation of the "proviso". Fundamentally, the purpose of the "proviso" is to defend the administration of criminal justice from being "plunged into outworn technicality"[125].
However, in the case of the Australian Capital Territory there is an important distinction. Neither the Federal Parliament, when it exercised general legislative responsibility for the Territory, nor the Legislative Assembly since self-government, has enacted a criminal appeal statute, whether in the common form or otherwise. After the establishment of the seat of government in the Australian Capital Territory in 1927, provision was made for appeals to this Court in respect of criminal convictions on indictment[126]. The statute afforded appellate jurisdiction and power expressed in general terms. With the creation of the Federal Court of Australia, provision was made for an intermediate appeal to that Court. However, such provision likewise made no express mention of a criminal appellate jurisdiction. The general appellate provisions of the Federal Court's statute had to do service both for civil and criminal appeals[127]. Those provisions permit orders for a new trial after a jury verdict. They do so "on any ground upon which it is appropriate to grant a new trial"[128].
The last-mentioned phrase has been construed to enliven a power to set aside a conviction resting on a guilty verdict of a jury where the appellate court concludes that it would be unsafe or dangerous to allow the verdict to stand[129]. Into the generality of the statutory language governing the Federal Court there was introduced an elaboration of the circumstances in which an appeal should be allowed or dismissed and a new trial granted or withheld. Where an error of law, misdirection or the like had occurred in the trial an appeal might nevertheless be dismissed where the demonstrated error "could not reasonably be supposed to have influenced the result"[130].
There are understandable reasons why this Court would be reluctant to treat criminal appeals from the Supreme Court of a Territory in a way significantly different from appeals from other Australian courts. Indeed, that reluctance has been expressed[131]. However, it is a fundamental tenet of the law that courts must obey the provisions of an applicable statute where the statute is constitutionally valid and governs the case[132]. Just as there is a modern "distaste" for studying the text of applicable legislation[133], so there is another tendency to read legislation as incorporating all of the nuances of pre-existing judge-made authority. In my view, both of these tendencies are erroneous and have to be resisted. Whilst the common law adapts to the Constitution[134] and to any relevant statute law[135], it is an elementary mistake to approach the construction of applicable legislation as if it expresses long-standing and familiar principles. Unless the language and obvious purpose of the legislative text clearly require that approach to be adopted, it should be avoided.
If it had been the purpose of the legislature to provide for criminal appeals in the Australian Capital Territory in the exact terms as the common form for criminal appeals enacted elsewhere in Australia, it would have said so. So far it has not. Instead, jurisdiction and powers have been conferred on the Federal Court in language of broad generality.
I am willing to accept that the appellate discretion conferred on the Federal Court might be harnessed so as to require that an appeal be allowed only in a case where, relevantly, a demonstrated error of law "could not reasonably be supposed to have influenced the result"[136]. This is so for the elementary reason that an appellate court would not exercise its powers to set aside a valid judgment (criminal or civil) for immaterial, irrelevant or insubstantial reasons. For this proposition it is enough to call upon the implications inherent in the language of the Australian statute. Australian courts do not make serious orders having serious consequences for reasons that are futile or purely hypothetical. It is unnecessary to resort to ancient legal history to derive that simple principle. But, with respect, I regard it as mistaken to import into the jurisdiction of the Federal Court the language, and exact concepts, of the common form of the "proviso" that the elected legislators for the Australian Capital Territory have not seen fit to enact to govern criminal appeals. Specifically, I regarded it as incorrect in principle to approach this appeal as if, somewhere between the lines of the Federal Court of Australia Act 1976 (Cth), one could discover the familiar words of the "proviso" excluding appellate relief for proved error of law on the grounds that "no substantial miscarriage of justice has actually occurred". This is not a proposition for which Chamberlain v The Queen [No 2][137] stands. That case was not concerned with a misdirection of law by the trial judge in his charge to the jury. It was concerned with whether the Federal Court had power to set aside a verdict where a miscarriage of justice had occurred in a case where it would be unsafe or dangerous to allow the verdict to stand. Any use by Gibbs CJ and Mason J[138] and Deane J[139] of language reminiscent of the "proviso" must be understood in the limited context in which that question fell to be decided by them.
For criminal appeals from judgments of the Supreme Court of the Australian Capital Territory, the Federal Court therefore has powers expressed in broad statutory language without a "proviso". On the one hand, this means that there is no explicit instruction to the Federal Court in criminal appeals to the effect that a demonstration of an error of law must result in relief ("shall allow the appeal") and the quashing of a conviction that followed such error. On the other hand, there is no express provision to save a criminal conviction from an error of law in the trial where the Full Court considers that no substantial miscarriage of justice has actually occurred. The applicable considerations have to be found, so far as is proper to do so, in the broad legislative powers granted to the Federal Court[140]. Nowhere else.
The present appeal was argued without reference to the foregoing considerations - still less the history of "appeals" in criminal cases in England dating back to the Statute of Westminster II 1285[141]. Indeed, it has to be said that it was argued as if the statute law applicable in the Australian Capital Territory contained a common form provision for criminal appeals and thus included the "proviso". This Court did not, therefore, have the advantage of argument addressed to the "radical[ly]"[142] different legislative provisions actually applicable to the case.
Within broad discretions, it is possible to incorporate some of the considerations taken into account under the "proviso", where it exists. However, it would be surprising, to say the least, if the applicable law were exactly the same, despite the significantly different statutory prescriptions. Given the novel departure from the common law which the common legislation for criminal appeals (including the "proviso") represented when it was enacted, it would be astonishing to discover that such legislation had not been required after all: that a general grant of appellate discretion to order a new trial after a jury verdict sufficed.
The true basis of the Federal Court's powers in a criminal appeal such as the present is thus to be found where one would normally look if not blinkered by legal habit or distaste, namely the governing statute. It is not to be found in statutes enacted for other courts in other jurisdictions, in different terms. To this extent, any dismissal of the appeal in the face of a misdirection at trial is controlled by the general rule that a court may dismiss an appeal if the error could not, on any reasonable hypothesis, have influenced the result[143]. I shall approach the present appeal from that perspective. I will put out of my mind the text of the proviso. No amount of legal history can put it there. Only the law-making activity of an Australian legislature can do so; and so far it has not.

[60]

The facts of the case are set out in the joint reasons[144]. I accept the general description of the background circumstances, the conduct of the trial and the issue on appeal[145]. I agree with the analysis concerning the oversight at the trial of the Evidence Act 1995 (Cth)[146]. I also agree that, once it was rightly conceded in the Full Court that three items of evidence, identified to the jury by the trial judge, were incapable of constituting corroboration (and one more was identified as being in the same class) it followed that a material misdirection of the jury on a point of law had occurred. Without more, in a common form statutory regime, this would certainly enliven an appellant's entitlement to a new trial unless the prosecution could show that no substantial miscarriage of justice had actually occurred[147]. However, for the reasons stated, it is a mistake to proceed as if the common form provisions were applicable here either in terms or substance.
In judging whether, within its statutory powers, the Federal Court "may, in the exercise of its appellate jurisdiction" and should in the particular case "set aside the verdict and judgment in a trial on indictment" and "grant a new trial"[148], it is necessary in every case to take into account the entirety of the judge's instructions to the jury. Only in that way will the direction complained of be seen in context. When this is done in the present case, it is clear that the jury were warned about the danger of convicting Mr John Conway ("the appellant") on the basis of the evidence of Mr Barry Steer and Mr Daniel Williams ("the accomplices") alone[149]. The jury were told why accomplice evidence was potentially unreliable[150]. They were specifically directed that they should approach the evidence of the accomplices "with great scrutiny and care". They were firmly instructed that they could only convict the appellant in reliance on the accomplices' evidence alone if, after "careful scrutiny and having looked at all the circumstances", they were "fully convinced beyond reasonable doubt that their evidence [was] totally reliable".
The jury were encouraged to look for supporting material before acting on the accomplices' evidence. They were told to look for such material "from a source independent of the accomplices … which implicates the accused in the crime by tending to show not only was the crime committed but it was these accused who were a party to it"[151]. The jury were also told that corroboration might lie in circumstantial evidence inconsistent with innocence. They were directed to consider the cases of the appellant and Ms Kathy McFie separately. They were reminded that the appellant's case had included his evidence that he had had nothing to do with any common enterprise between Ms McFie and the accomplices. The trial judge also informed the jury that, in a number of material respects, the evidence relating to Ms McFie confirmed the accomplices' evidence, to that extent enhancing its reliability[152].
These were strong, clear and accurate directions. The significance of the judge's mistaken specification of the four items of corroborative evidence as illustrations must be considered in the foregoing context. Appellate courts should avoid attributing excessive importance to over-subtle distinctions in judicial directions to juries. That is why such directions must be read as a whole and demonstrated mistakes considered in the context of the entire charge[153].

[61]

It is exceptional for oral evidence to be heard in this Court, particularly when exercising its appellate jurisdiction. In part, this is because appellate jurisdiction of its nature is ordinarily exercised on the basis of the printed record. In part, it is because this Court has established[154], and reaffirmed[155], the rule, that new evidence may not be received in an appeal to it, however cogent that evidence might be to the issues or to demonstrating that a miscarriage of justice has occurred. Yet, in this case, this Court heard a segment of oral evidence. It was not "fresh" because it had been adduced at the appellant's trial. Indeed, it was part of the trial record. It consisted of a recording of a conversation, procured by a listening device fitted to one of the accomplices. It captured the voice of the appellant responding, after the alleged offence, to inculpatory suggestions in ways that appear incompatible with his lack of involvement in the murder of his wife.
In its forensic setting, the recorded conversation was extremely powerful. The four persons accused of planning, procuring and effecting the homicide participated in it. The recording conveys, as no printed transcript could, the desperation of the accomplices. The listener knows that they had made an arrangement with police to secure, and record, the responses of the appellant and Ms McFie. Awakened from their sleep at 4 am, the latter appear equally desperate to placate their unwanted visitors and to rid themselves of them. The drama is heightened by the fact that the listener also knows that, waiting in the street outside, were police officers, one-time colleagues of the appellant. Within minutes of the return of the accomplices with their recording equipment safely in police possession, together with evidence of money given to them by the appellant, there was another knock at the door. The appellant and Ms McFie were confronted, arrested and charged with murder.
The Full Court described the evidence, recorded in this way, as "devastating"[156]. So indeed it is. On the face of things, it appears to establish, in the most direct way possible (from the mouth of the appellant himself) that he had agreed to pay the accomplices for effecting the murder of his wife. If a court came to the conclusion that this established that the appellant was guilty of the murder it might seem to justify, in a common form regime, the application of the "proviso", notwithstanding a demonstration by the appellant that material misdirections of the law had occurred in the course of the trial judge's summing up to the jury. Would it matter, ultimately, that some mistake had happened on the way to the jury's verdict of guilty, if it could be shown with certainty, that the appellant was indeed guilty of the offence of which he had been convicted[157]? If that were so, no miscarriage of justice would have resulted from any such misdirection. The appellant would not have lost a chance, reasonably open to him, of acquittal of the offence[158]. His conviction would be classified as "inevitable"[159]. The misdirection would be treated as an immaterial one which could not have affected the result. The appellant's conviction would stand. Does the same reasoning apply in the present case where the statutory regime is different?

[62]

A number of considerations suggest caution before answering the last question in the affirmative. First, it was not the approach taken by the Full Court from which this appeal comes. That Court did not, in the end, dispose of the appellant's appeal on the basis of the "proviso" or its "equivalent". Although the Full Court mentioned the leading authorities on the point and expressed satisfaction that any misdirections had not led to any miscarriage of justice[160], its primary conclusion appears to have been that the misdirections were of "minimal importance" or "nebulous"[161]. The trial judge's instructions to the jury were found to have been adequate and accurate when viewed as a whole.
Secondly, in several recent cases it has been said that this Court is now less inclined than in earlier times to apply the common form "proviso" where an appellant can prove that a misdirection has occurred in the trial judge's instruction on the law or in the application of the law to the evidence[162]. Although this is merely a trend, and each decision must depend on its own facts, it is a trend that accords with my own impression and inclination[163].
A high store is placed on the accuracy of judicial instructions to a criminal jury about the law and the evidence relevant to such law. In a sense, this principle recognises that a criminal trial that has departed from such accuracy is not one that has been entirely conducted according to law. The strictness observed in such matters reflects an acceptance that, in one sense, a single misdirection can amount to a form of miscarriage of justice. The strictness also accepts that a jury is normally as enigmatic as the sphinx[164]. While it is assumed, for practical reasons, that a jury obeys the judge's directions on the law and its application to the evidence[165], the precise effect of a particular instruction can never be known. The weight given to particular directions, found to have been legally erroneous, is therefore a matter of appellate speculation.
Thirdly, I remind myself of a need to guard against over-reaction to the recorded conversation now propounded as conclusive of the guilt of the appellant. Self-awareness obliges an acknowledgment that the exceptional rendition of a dramatic recording, that inculpates an accused, may have a disproportionate impact on the mind of an appellate judge, normally cocooned from such dramas. The practice may change in the future as sound and video recordings are made available to appellate courts[166]. But hearing such evidence is most exceptional in this Court. Objective analysis of its content is therefore obligatory.
In Doggett v The Queen[167], this Court found a material misdirection by the trial judge. There too, there was a secret recording of a conversation with the appellant. It contained statements that were arguably inculpating and confirmatory of sexual misconduct of which the appellant had been convicted. This notwithstanding, a majority of this Court refused to apply the "proviso", which was available in that case[168]. Intercepts and secret recordings must always be considered in their context. They can only ever represent a fragment of the relevant evidence. Unless, in the recording, the accused makes a clear admission of guilt of the offence charged, particular care needs to be taken not to enlarge the significance of the fragment so that it overwhelms all other evidence and issues in the trial.
Fourthly, there was a very large body of evidence in the trial of the appellant that tended to inculpate him in the murder of his wife, quite apart from the recorded conversation. The prosecution presented a detailed circumstantial case. Nowhere in the recorded conversation did the appellant expressly admit direct involvement in the murder of his wife. For a part of the recorded conversation he was out of the room. He was procuring a $50 banknote for a taxi fare, that he paid to the visitors in order to get them to leave. In fact, the appellant's recorded statements are rather circumspect, as if he suspected that he might have been the subject of a trap. In an earlier recorded telephone conversation with Ms McFie, he had, not too subtly, warned her about the risk of secret recordings of their conversations. They were indeed being intercepted.
In a recent decision of the Victorian Court of Appeal[169], Winneke P, correctly in my view, reminded trial courts of the care that must be taken where the prosecution relies on "post-offence conduct". After citing decisions of this Court[170] and of the Supreme Court of Canada[171], Winneke P pointed out that:

[80]

The purpose of the scrutiny by an appellate court in a challenge to a conviction (and in the consequent consideration of whether a miscarriage of justice has occurred) is to afford a safeguard against a real possibility, that our courts would regard as intolerable, that a convicted person, innocent of an offence, should suffer criminal punishment. Where, as here, the punishment is prolonged imprisonment, reflecting the nature of the crime of which the appellant has been convicted, it is essential, in my view, for the appellate court to be vigilant against a risk of a wrongful conviction.
The burden of any such wrongful conviction falls upon the appellant personally. That is why, ultimately, mistakes of tactics, erroneous decisions or forensic choices and false testimony cannot stand in the way of an order for retrial in a case where an established misdirection is proved unless it could not reasonably be supposed to have influenced the result. In applying that standard, the focus of appellate attention is not upon how the appellant or his representatives played the forensic game in the trial at which he was convicted. It is upon whether a retrial can be dispensed with, notwithstanding an established legal error, because the appellate court properly exercises its power ("may … set aside the verdict"; "may … grant a new trial") to uphold or dismiss the appeal.
Sometimes in a criminal trial a mistaken direction is so significant that the "trial" is regarded as "fundamentally flawed". The "irregularity" in such a case is treated as sufficiently serious to warrant the conclusion that the accused has not had a proper "trial" at all. In such an event, without considering other matters, there will be judged to have been a substantial miscarriage of justice[178]. The present is not a case of that kind.
If I considered that there was a real possibility that the appellant had suffered a wrongful conviction of murder, I would not be justified in denying him an order allowing the appeal because, at a second trial, he might present his case in a somewhat different way. The "miscarriage of justice" with which an appellate court is concerned in a criminal appeal is addressed to matters of substance and not just procedure. Courts of criminal appeal, and ultimately this Court, must be guardians against wrongful convictions of persons accused of crimes. Recent notorious cases of convictions, later shown by scientific and other evidence to have been mistaken[179], demand rejection of an appellate principle which is complacent and formalistic. Courts of criminal appeal are not mere referees of a game that can only be played once in accordance with a single game plan. Practical considerations ordinarily necessitate holding parties to the way in which they conducted their trial, normally through the lawyers who represent them[180]. But an appellate court should not allow that principle to divert it from its fundamental responsibility. There will be cases where there is no procedural injustice (because of the way the trial was conducted) and yet a substantive injustice is shown (because a real possibility exists that the prisoner is innocent of the crime in respect of which a conviction has been entered).
Nothing in the recorded conversation involving the appellant is inconsistent with the hypothesis that he only became involved in the payment of the accomplices after the murder of the deceased, for example out of love for, or a sense of obligation to, Ms McFie. At no time in the recorded conversation does the appellant admit to personal involvement in the murder. He is simply concerned in the payment. No accusation of direct involvement in the acts leading up to the death of the deceased is put to the appellant in the conversation. He is merely told of the police suspicions. In short, the conversation could be compatible with the proposition that Ms McFie conceived, planned and arranged the murder by the accomplices, involving the appellant only after the event to pay, or help to pay, the fee that she had promised them.
Consistent with the view that I take of the appellate powers of the Federal Court and of the care that the law exercises in the use of post-offence conduct as proof of complicity in an offence, it is not therefore sufficient for me to say that the appellant should not have a second chance to contest his guilt of murder in a way different from that presented at his trial[181]. Because the appellant has established a material error in the directions given to the jury by the trial judge, a new trial should be ordered unless an affirmative conclusion can be reached that the misdirection "could not reasonably be supposed to have influenced the result"[182]. Is that the conclusion that this Court should reach in this appeal?

[81]

To answer that question, I must turn to consider the evidence against the appellant, beyond the recorded conversation, to ascertain whether, in combination, it establishes that he was not merely an accessory after the fact of the crimes of Ms McFie and the accomplices, but was an active participant in the plan that led to his wife's death. As with most contested cases of murder where there is no eyewitness testimony or reliable confession by the accused, the prosecution case depended upon circumstantial evidence tending to link the appellant to the crime. None of the elements, alone, establishes the appellant's guilt. However, in combination they achieve that result.
By August 1996, the appellant and Ms McFie had commenced a sexual and emotional relationship which continued. By mid‑February 1997, telephone conversations recorded by Ms McFie demonstrated the very close bond between the appellant and Ms McFie. This evidence also supported the motivation of the appellant to be free of the deceased. A second element in that motivation was the clear proof of the extremely unhappy relationship between the appellant and the deceased over a considerable period. On a number of occasions, police had been called to intervene in their matrimonial disputes. In 1996, the appellant had at first left his wife after his relationship with Ms McFie had commenced. Later, he returned to the matrimonial home. In March 1997 he again left his home, taking his infant son in April 1997 to live with Ms McFie, ostensibly as a baby sitter. Then, when an interim order of the Family Court awarded custody of the son to the deceased, the appellant moved into Ms McFie's flat. At this point, the relationship between the appellant and the deceased became extremely fractious. The evidence showed that the appellant was very upset with the ruling of the Family Court. For her part, the deceased had threatened to destroy the appellant's career in the police force and to take the house from him.
Portions of the recorded telephone conversations between the appellant and Ms McFie showed that they had acted in tandem in their dealings with the deceased in relation to the custody proceedings concerning the son of the appellant and the deceased. Whilst Ms McFie pretended to having a sympathetic relationship with the deceased, it is clear from the recorded conversations that she used that relationship as a tool to assist the appellant in the custody battle. She reported her conversations with the deceased back to the appellant, who was well aware of the deceit.
There was evidence of the parallel involvement of the appellant and Ms McFie in relation to the possession of heroin. On 26 April 1997, the appellant produced two foils containing traces of heroin which he claimed he had found at the deceased's home. He presented these to the police drug register. Meanwhile, the deceased had made a complaint to three people on 25 April 1997 and to a police officer on 27 April 1997 that the appellant had tried to poison her coffee on 25 April 1997. She kept a diary and incriminating entries in it were admitted at the trial recording her belief that the appellant had attempted to drug her. The appellant's provision of the foils to police was consistent with an endeavour on his part to establish a record that the deceased was a heroin user and thus prone to the risk of overdose.
Pathology and toxicology tests indicated that the deceased died on 3 May 1997 of a massive overdose of heroin administered by injection. There were no signs of previous intravenous use of drugs on her part. The signs were inconsistent with an inference that her death was the result of suicide. The circumstances were consistent with the later confession by Mr Williams of the manner in which he had administered a syringe of heroin to the deceased whilst Mr Steer had held his hand over her mouth in case she screamed. The heroin supplied at Mr Williams' flat, and allegedly used by the appellant in the deceased's coffee on 25 April 1997, was contained in foils similar in appearance to those handed to the police by the appellant.
Whilst it is theoretically possible that the appellant did not know what Ms McFie was up to, and was completely innocent of her dealings with the accomplices, the realities of their intimate relationship, objectively proved, strongly suggest the opposite. When to these realities are added the post-offence conduct of the appellant which was consistent with his prior association with the accomplices and his full involvement with Ms McFie in their payment, the possibility of his being an innocent pawn in a project exclusively of Ms McFie's devising and execution can safely be put out of account.
The appellant's failure, virtually until the end of his trial, to advance the case that he was no more than a post-offence supporter of Ms McFie is also compatible with the foregoing conclusion. Although love and loyalty can sometimes cause blindness to reality, by the time the appellant, an experienced police officer, was facing a trial for murder, he would have been well aware of where his personal interests lay. His delay in conducting a "cut throat" defence[183], so as to distance himself from Ms McFie, suggests an appreciation that this would have been unconvincing because of the circumstantial evidence that bound them together. Such involvement also confirmed the testimony of the accomplices.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (186 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (49)