What happened
The appellant, an experienced solicitor practising in the Griffith area, was telephoned early on 1 April 1990 by Mrs Barbaro and attended a police interview with her son Pasquale Barbaro at the Griffith Police Station. Detectives showed Barbaro documents including a lease said to link him to a cannabis crop. The lease had been treated with ninhydrin, producing a characteristic pink stain, and yellow stickers marked fingerprints later identified as Barbaro's. The appellant later gave evidence at Barbaro's 1991 trial that the documents shown on 1 April 1990 had no pink staining, that Barbaro had handled them, and that they included a plan of the leased property. These statements became the foundation of four perjury charges: two under s 327 of the Crimes Act 1900 (NSW) and two alternative counts under s 328 alleging intent to procure Barbaro's acquittal.
At the appellant's own trial before James J the Crown led extensive evidence recapitulating the police handling of the lease, its treatment with ninhydrin on 5 January 1990, the identification of fingerprints on 17 January 1990, and the characteristic pink colour by 18 January 1990. The appellant gave evidence maintaining his recollection but, at the very end of cross-examination, conceded the theoretical possibility of an "innocent mistake" while insisting he did not believe he had made one. Character witnesses, including a Queen's Counsel who had briefed the appellant in hundreds of cases, testified to his integrity and offered the observation that "a person who is making a true mistake carries that mistake through with his conviction that he is correct".
The jury returned verdicts of not guilty on the s 328 counts but guilty on the s 327 counts. James J imposed concurrent sentences of 12 months penal servitude (minimum nine months). The Court of Criminal Appeal (Gleeson CJ, Mahoney JA, Studdert J) dismissed the appellant's appeal, holding the verdicts reconcilable and the convictions neither unsafe nor unsatisfactory. It also considered that James J had adequately directed on mistake by repeatedly telling the jury conviction required ruling out inadvertence. The High Court granted special leave. By the time the appeal was heard the appellant had served his custodial sentence.
The bench (Dawson, Toohey, Gaudron, Gummow and Kirby JJ) unanimously allowed the appeal on the second ground while rejecting the inconsistent-verdict ground. Orders were made setting aside the Court of Criminal Appeal's order, upholding the appeal to that Court, quashing the convictions and sentence, and directing a new trial.
Why the court decided this way
The court divided its reasoning into two distinct questions. On inconsistency, both the joint judgment and the separate reasons of Dawson and Toohey JJ concluded the verdicts could stand together. The joint judgment reviewed authorities including R v Kirkman (1987) 44 SASR 591 and R v Stone (unreported, CCA(Eng), 13 December 1954) and extracted propositions that appellate courts must respect the jury's constitutional role, must reconcile verdicts if any logical basis exists, and may accept that a jury gave the accused the benefit of the doubt on an additional element such as intent under s 328. The court noted the appellant had come to give evidence unexpectedly at Barbaro's trial, had expressly denied the requisite intent, and that the trial judge had directed on the separate elements. These considerations supplied a reasonable basis for the jury to be satisfied of deliberate falsehood yet entertain doubt about the aggravated intent. The court expressly approved King CJ's observation that juries sometimes apply an "innate sense of fairness" and that appellate courts should be cautious before inferring unreasonableness from apparent inconsistency.
On the directions ground the court was satisfied a miscarriage had occurred. Dawson and Toohey JJ traced the sequence: James J had initially directed that the statements must be made "deliberately and intentionally and not through inadvertence or mistake"; he had repeated the fourth element as requiring knowledge of falsity or absence of belief in truth; counsel then sought a redirection that a mistake need only be genuine, not reasonable. The subsequent redirection attempted to link mistake to the concepts of actual knowledge and absence of belief but was withdrawn after counsel complained it was confusing. What remained when the jury retired was a direction that the Crown must prove actual knowledge or absence of belief, with the explicit instruction to disregard the confusing elaboration. Dawson and Toohey JJ held that "the possibility of mistake had virtually disappeared" and that the final direction failed to meet the standard articulated by Cussen J in R v Lowe [1917] VLR 155 at 162: the jury had to be satisfied beyond reasonable doubt that the statement was wilfully false and not merely mistaken.
The joint judgment reached the same conclusion by a slightly different route. It emphasised that the appellant's final testimony had expressly raised "innocent mistake" and that a character witness had given evidence that honest error can produce dogmatic certainty. The joint judgment noted that repetition of certainty is "equally consistent with the giving of false evidence innocently and mistakenly as distinct from the giving of such evidence dishonestly". Because the point had been raised by counsel, because the judge had recognised a deficiency and attempted a redirection, and because that redirection was withdrawn without any substitute direction tying the concept of genuine mistake to the negation of mens rea, the jury retired without the assistance the law required. The court concluded the appellant had lost a chance of acquittal fairly open, citing Mraz v The Queen (1955) 93 CLR 493 and Wilde v The Queen (1988) 164 CLR 365. The proviso could not be applied.
Both sets of reasons stressed that the ground was not that the verdicts were unsafe under M v The Queen (1994) 181 CLR 487 but that the trial had miscarried through inadequate direction. The court was careful to ground every proposition in the transcript of the summing-up, the exchanges with counsel, and the appellant's own evidence that "if my memory has not served me well, that would be an innocent mistake".
Before and after state of the law
Before MacKenzie the law on inconsistent verdicts was settled in broad terms by English and Australian authority but lacked the detailed synthesis later provided. Cases such as R v Stone and R v Hunt [1968] 2 QB 433 had established that factual inconsistency required the appellate court to ask whether the verdicts could stand together as the product of a reasonable jury. Australian courts had added the practical caution expressed in R v Kirkman that juries sometimes temper strict logic with fairness. The law on perjury directions required proof that the statement was false and made with knowledge of falsity or without belief in its truth (R v Lowe), yet trial judges were not always reminded of the need to tie the concept of honest mistake explicitly to the mental element, especially where the accused's testimony was dogmatic.
MacKenzie did not change the underlying statutory elements of ss 327 and 328. It did, however, reinforce and illustrate two propositions with greater clarity. First, the reconciliation of apparently inconsistent verdicts on alternative counts must be undertaken with an appreciation that a jury may accept deliberate falsehood while harbouring a reasonable doubt on the additional intent required by the aggravated offence. Second, where the evidence raises the realistic possibility that false testimony resulted from genuine mistake rather than dishonest intent, the trial judge must ensure the jury understands that honest mistake negatives liability even if the mistake appears unreasonable or is expressed with certainty. The joint judgment's acceptance that "a person who is making a true mistake carries that mistake through with his conviction that he is correct" supplied a psychological insight that trial judges are now expected to convey when the facts warrant it.
After the decision, the requirement for clear directions on the distinction between honest mistake and deliberate falsehood became more insistently applied in perjury and false-statement cases. The emphasis on the sequence of summing-up, requests for redirection, and the precise content left with the jury when they retire has heightened judicial sensitivity to the risk that a confusing redirection followed by withdrawal can leave an essential issue in obscurity. The case also confirmed that the unsafe-verdict test in M v The Queen is distinct from the miscarriage-of-justice test arising from misdirection, a distinction that continues to guide appellate analysis.
Key passages with plain-English translation
The joint judgment contains several passages that repay close attention.
At the conclusion of the factual narrative the court observed: "There is another explanation. It is one which was suggested by the evidence of a character witness … 'a person who is making a true mistake carries that mistake through with his conviction that he is correct'." In plain English this means that a witness who is honestly wrong can sound utterly sure of himself; dogmatism is not proof of lying.
Later the court stated: "people who are [honestly] mistaken can, nevertheless, be extremely confident, and unwilling to admit even the possibility of error." This translates to a warning that repeated, emphatic assertions do not automatically prove the mental element of perjury; they may reflect the psychology of someone reinforcing a genuine but erroneous memory.
Dawson and Toohey JJ concluded: "the direction given to them just before they retired was inadequate and confusing." Stripped of legal jargon this means that after all the to-and-fro with counsel the jury's final marching orders left out the critical idea that an honest mistake, even an unreasonable one, required acquittal.
The approval of Cussen J's direction in R v Lowe—"In order that you should convict the defendant on this indictment you ought to be satisfied beyond reasonable doubt that the statement was not only untrue, but was wilfully false; for if you should think he made it mistakenly, it would not be within the Statute"—remains the benchmark. In everyday language the jury must be told: if you think he was simply wrong but not dishonest, you must acquit.
The joint judgment's summary of the redirection episode ends: "This left the identified deficiency unrepaired." Plain English: the judge knew the original direction was not good enough, tried to fix it, realised the fix was confusing, took the confusing part back, but never supplied a clear replacement, so the jury never got the help the law says they needed.
What fact patterns trigger this precedent
MacKenzie is triggered whenever an accused is tried on alternative counts that share a common base offence but add an extra mental or purposive element, and the jury convicts on the base count while acquitting on the aggravated count. The case is especially relevant where the accused's testimony at the earlier proceeding was given in unexpected circumstances, where the accused has expressly denied the additional intent, and where the evidence leaves open the realistic possibility that the falsity resulted from honest but mistaken recollection rather than deliberate deceit.
The precedent applies with particular force in perjury or false-statement prosecutions where the accused's evidence at his own trial is dogmatic yet concludes with an acknowledgment of the theoretical possibility of "innocent mistake". It is engaged when counsel requests a redirection that mistake need only be genuine, not reasonable, and the trial judge's response produces a sequence of direction, attempted redirection, complaint, and withdrawal that leaves the issue of honest mistake obscure in the final instructions. The factual trigger is not the mere existence of mixed verdicts but the combination of those verdicts with a summing-up that fails to keep the possibility of honest mistake clearly before the jury as a complete answer to the mental element.
The case also speaks to any criminal trial in which identification or recollection of events occurring years earlier is central and the Crown invites the jury to treat the witness's certainty as proof of dishonesty. Whenever a character witness or the accused himself raises the psychology of "carrying a true mistake through with conviction", MacKenzie requires the judge to address that possibility expressly.
How later courts have treated it
The judgment has been treated as settling the approach to apparently inconsistent verdicts on alternative counts containing a common base and an additional mental element. Courts have repeatedly cited the synthesis of propositions set out in the joint judgment, particularly the approval of R v Kirkman and the insistence that appellate intervention is required only where the inconsistency rises to an affront to logic that cannot be reconciled by any reasonable view of the jury's function. The emphasis on the jury's advantage in seeing the accused give evidence, the possibility of giving the benefit of the doubt on intent, and the legitimacy of a "merciful" view have been applied in subsequent cases involving alternative charges of dishonesty with and without ulterior purpose.
On the directions issue the decision has been treated as reinforcing the duty to give clear, non-confusing instructions once a request for redirection on the distinction between honest mistake and deliberate falsehood has been made. Later courts have regarded the sequence of events at trial—the initial directions, the request, the attempted redirection, the withdrawal, and the final content left with the jury—as critical. Where that sequence leaves the jury without an unequivocal statement that genuine mistake negatives the mental element, the conviction is at risk of being set aside for miscarriage of justice even if the evidence could otherwise support it. The court's insistence that the unsafe-verdict test in M v The Queen is analytically distinct from the misdirection ground has also been followed.
The psychological insight that honest error can produce dogmatic certainty has been accepted as a matter that judges should convey to juries in appropriate cases, particularly where the passage of time or the brevity of the original observation makes mistake objectively plausible. The decision has been cited for the proposition that repetition of certainty is not inconsistent with innocent mistake, a point now routinely deployed in warnings about the fallibility of memory.
Still-open questions
The judgment leaves open the precise content of a redirection in cases where the Crown positively contends that the only explanation for the accused's certainty is deliberate falsehood. While the court held that the possibility of mistake must still be left to the jury, it did not prescribe a formula for directing that the Crown must negative honest mistake beyond reasonable doubt when the accused's own evidence is that he does not believe he is mistaken.
A further open question is the interaction between the present principles and cases in which the false statement is alleged to be so "inescapable and self-evident" that honest mistake is said to be impossible as a matter of law. The joint judgment noted that repeated assertion can sometimes establish criminal intention when falsity is self-evident, yet it did not decide the point at which a trial judge may withdraw honest mistake from the jury.
The court expressly left to the Director of Public Prosecutions the decision whether to proceed with a new trial, noting that the appellant had already served his sentence and that double-jeopardy principles would arise on any resentencing. The judgment therefore does not resolve how sentencing courts should treat time already served when a retrial is ordered years after the original conviction.
Finally, the decision assumes that the psychological evidence of a character witness (or the proposition itself) can be put to the jury as ordinary human experience. It remains open whether expert psychological evidence on memory distortion and confidence inflation must be led before such a direction is required, or whether the bare proposition articulated in MacKenzie is sufficient in every case.