Gipp v The Queen

Gipp v The Queen - [1998] HCA 21 - HCA 1998 case summary — Zoe

[130]

Various reasons have been put forward to justify this exclusion. One reason is that it creates undue suspicion against the accused and undermines the presumption of innocence [55] . Another is that tribunals of fact, particularly juries, tend to assume too readily that behavioural patterns are constant and that past behaviour is an accurate guide to contemporary conduct [56] . Similarly, "[c]ommon assumptions about improbability of sequences are often wrong" [57] , and when the accused is associated with a sequence of deaths, injuries or losses, a jury may too readily infer that the association "is unlikely to be innocent" [58] . Another reason for excluding the evidence is that in many cases the facts of the other misconduct may cause a jury to be biased against the accused [59] . In the present case, for example, once the H evidence was admitted, it would require a superhuman effort by the jury to regard the appellant as other than a person of depraved character whose uncorroborated evidence, whether or not he was guilty, could not be acted upon except where it supported the prosecution case. Functional reasons also play a part in excluding evidence of bad character. Trials would be lengthened and expense incurred, often disproportionately so, in litigating the acts of other misconduct; law enforcement officers might be tempted to rely on a suspect's antecedents rather than investigating the facts of the matter; rehabilitation schemes might be undermined if the accused's criminal record could be used in evidence against him or her [60] . 1. (1995) 182 CLR 461 at 512-513. 2. Perry v The Queen (1982) 150 CLR 580 at 593-594, per Murphy J; R v Boardman [1975] AC 421 at 451, per Lord Hailsham; Piragoff, Similar Fact Evidence (1981), p 4. 3. Cowen and Carter, Essays on the Law of Evidence (1956), pp 144-145; Imwinkelried, The Use Of Evidence Of An Accused's Uncharged Misconduct To Prove Mens Rea: The Doctrines which Threaten to Engulf the Character Evidence Prohibition, Ohio State Law Journal, vol 51 (1990) 575, at pp 581-582 ; Ligertwood, Australian Evidence, 2nd ed (1993), pp 81-82; Palmer, The Scope of the Similar Fact Rule, Adelaide Law Review, vol 16 (1994) 161, at p 169 . 4. Perry (1982) 150 CLR 580 at 594, per Murphy J. 5. Perry (1982) 150 CLR 580 at 594, per Murphy J. 6. R v Bond [1906] 2 KB 389 at 398, per Kennedy J; Piragoff, Similar Fact Evidence, (1981), pp 4-5; Cross on Evidence, 2nd Aust ed (1991), par 21145; Ligertwood, Australian Evidence, 2nd ed (1993), p 81. 7. See Cross on Evidence, 2nd Aust ed (1991), par 21150.

[280]

Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as "unjust or unsafe" [127] , or "dangerous or unsafe" [128] . In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict [129] . Questions of law are separately dealt with by s 6(1) [of the Criminal Appeal Act 1912 NSW]. The question is one of fact which the court must decide by making its own independent assessment of the evidence [130] and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand" [131] . But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be "unreasonable" or incapable of being "supported having regard to the evidence". A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside. In speaking of the Criminal Appeal Act in Hargan v The King [132] , Isaacs J said: "If [the appellant] can show a miscarriage of justice, that is sufficient. That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance." And as the Court observed in Davies and Cody v The King [133] , the duty imposed on a court of appeal to quash a conviction when it thinks that on any ground there was a miscarriage of justice covers: "not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled."

[295]

It is important to take into account the statutory authorisation for briefer directions to juries of which Judge Court availed himself in this case. It is also necessary to remind oneself that a judge's direction to a jury must be considered in the context of the entire trial and in the light of the issues litigated and the submissions made [143] . This Court should exercise restraint before adding to the catalogue of warnings required of judges conducting criminal trials. If overlooked, or considered unnecessary in a particular trial, they may simply give rise to unmeritorious appeals. But, in certain fundamental matters, the judge carries an unavoidable obligation to provide directions which are necessary to prevent a perceptible risk of a miscarriage of justice [144] . The risk must be a real, and not a fanciful one to attract the intervention of an appellate court [145] . It is not enough that a conclusion is reached that a particular warning would have been desirable. It must be shown to have been necessary in order to avoid the risk of a miscarriage of justice. If directions on the jury's legal duties are incorrect or seriously inadequate a new trial will ordinarily be ordered unless the appellate court can affirmatively conclude that the error or omission was in favour of the appellant and that no jury could have failed to convict had they been properly instructed [146] . This was the conclusion which the Court of Criminal Appeal reached. With respect, I disagree. 1. BRS (1997) 191 CLR 275 at 330-331. 2. R v Tripodina & Morabito (1988) 35 A Crim R 183 at 191-192, per Yeldham J; R v Lawrence (1996) 86 A Crim R 412 at 424-425, per Callaway JA. 3. Pemble v The Queen (1971) 124 CLR 107 at 116-118, per Barwick CJ. 4. R v Johnson (unreported; Court of Appeal (Vict); 27 February 1997) at 17, per Callaway JA. 5. Pfennig v The Queen (1995) 182 CLR 461 at 542, per McHugh J; R v Zorad (1990) 19 NSWLR 91 at 108-109, per Hunt, Enderby and Sharpe JJ; cf Odgers Case and Comment - Martin, Criminal Law Journal, vol 15 (1991) 57, at p 59 .

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