In MFA v The Queen, McHugh, Gummow and Kirby JJ drew a distinction between the test as enunciated in M v The Queen and the test formulated by Dawson J in Chidiac v The Queen, a case decided three years before M v The Queen. The latter formulation was in these terms:
If upon the whole of the evidence a jury, acting reasonably, was bound to have a reasonable doubt, then a verdict of guilty will be unsafe and unsatisfactory.
Their Honours described this as a 'stronger or more stringent test' than the test in M v The Queen and in Jones v The Queen, which the appeal court in MFA v The Queen had expressed as follows:
I am of the opinion that it was reasonably open to the jury to be satisfied beyond reasonable doubt as to the guilt of the applicant.
With great respect, I am unable to see that there is any difference between the two tests. In my view, a guilty verdict can only be said to have been 'reasonably open' to the jury if there was no aspect of the evidence which obliged - as distinct from entitled - the jury to come to a different conclusion. This accords with the view expressed recently by a majority of the High Court in Libke v The Queen. In that case, Hayne J (with whom Gleeson CJ and Heydon J agreed) said in relation to the 'unsafe and unsatisfactory' ground of appeal:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
In other words, the question posed in M v The Queen, namely:
Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused's guilt?
requires the court of criminal appeal to decide
whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard.
To adopt some helpful metaphors from recent interstate appellate decisions, the question is whether there was a 'solid obstacle to reaching a conclusion beyond reasonable doubt' or whether, instead, the 'path to a conviction was open'.
Again, to conclude that a guilty verdict was not reasonably open on the evidence is equivalent to saying that no reasonable jury could have returned that verdict on the evidence as presented in the trial. This was the approach of the South Australian Court of Criminal Appeal in R v Shueard, cited recently by that Court in Shah, as follows:
To establish that a verdict is unreasonable or that it cannot be supported having regard to the evidence, it is not enough merely to show that the evidence given at the trial is open to criticism. If there was evidence which, if fairly regarded, could have led a reasonable jury to return a verdict of guilty, a conviction will not be quashed on the ground that the verdict was unreasonable, even if the members of the Court of Criminal Appeal do not feel that they themselves would have regarded it as necessarily establishing guilt. In order that the appeal should succeed on this ground the verdict must be such that no reasonable jury could properly have returned it upon the evidence given. This Court must not usurp the functions of the jury. (Citations omitted.)[38]