R v Madigan

R v Madigan - [2005] NSWCCA 170 - NSWCCA 2005 case summary — Zoe

[10]

The Listening Device at the Appellant's home 10 Evidence was led from police that a listening device had been installed in the premises, where the Appellant and Ms Walker lived, at 7/4 Parsons Road Lisarow on 9 January 2002, pursuant to a warrant, and had remained there until 25 January 2002. A listening post was established some distance away and continuously manned by two police officers. Several officers listened (in real time) to the conversations which were intercepted. The sound that was captured by the listening device was also recorded on a "master" tape (180 minute VHS) which recorded continuously, and which was then replaced with another tape of the same type. They were numbered sequentially. Additionally, the listening post had the facility to record portions of what was picked up onto a compact disk. 11 There was no visual identification by the police who monitored the listening post, or otherwise, of any occupants of the premises, or of anyone coming or going from the premises. 12 A log was maintained at the listening post, which was completed by the police on duty with details of what they heard, and of the times that the tapes were changed. 13 This log book was tendered, unedited, as evidence of the system of surveillance adopted, and of the times and dates when certain things were done, but not as evidence of what was said or as identification of the speakers. Its admission into evidence gives rise to one ground of appeal. The admission into evidence of some of the intercepts gives rise to a separate ground of appeal, which rests upon the proposition that there was insufficient evidence of the identity of the speakers. 14 These intercepts were important to the Crown case, in so far as it was asserted that they revealed that the Appellant and Woods had discussed committing the offence, and also in so far as they provided the reason for the physical surveillance which was coordinated during the late afternoon and evening of 21 January. It is necessary to refer to these intercepts in a little detail, by reason of the voice identification issue. 15 In the first of the several intercepts of conversations on 20 January 2002, one speaker, who was said to be the Appellant, referred to himself as "Andrew", which was in fact his first name. In the second conversation at 17:00, the female speaker, who was said to be Alison Walker, addressed the other man involved as "Andrew", and raised some complaints about his conduct the previous night with another girl "Amy", including the fact that he had come back and had intercourse with her after engaging in fellatio with Amy. The male speaker referred to himself as "Madigan". 16 In the third conversation at 21:40 one male speaker who was said to be Woods, identified himself as "Woods" and said that he was at "Madsy's house" (where the listening device was located). The other male referred to the first speaker as "Woods" and addressed the female speaker as "Alison". 17 In the fourth conversation at 22:25, the female speaker who was said to be Alison Walker, at one point made reference to "Andrew". The two males who were said to be the Appellant and Woods engaged in a conversation which includes the following exchange: "MADIGAN We might have to go through the gate. Like with the wire fencing. WOODS: you know what I reckon. I reckon we should do that place that Josh… … MADIGAN: …the park. WOODS: Hey. MADIGAN: The park. WOODS: Yeah. Yeah just start off there again like we did the other night. MADIGAN: Yeah up there."

[11]

18 At about 17:15 on 21 January 2002 a conversation was intercepted by means of a listening device, in which the speakers, who on the Prosecution case, were the Appellant and Woods discussed stealing a safe. In the course thereof one of the speakers addressed the other as "Woods". The relevant portions of the conversations were as follows: "WOODS: …were gonna be tired for the next hour and a half til we've really woken up. Man we're not gonna be fucking tired til four o'clock in the morning. We're gonna be up all thieving night. MADIGAN: (Laughs) I've got one for tonight. WOODS: Oh do ya? MADIGAN: Uh huh. It's still these. They just put another one in and they had a fucking big one last time. WOODS: Where? MADIGAN: But we need to blow something up. The one I told you about last night. WOODS: Yeah. MADIGAN: The one in Wyong. WOODS: I reckon we're going up Somersby again. MADIGAN: To start it off. WOODS: Hit off up there again. We did that last. We've walked away with $500 each time. MADIGAN: … WOODS: You know what I mean fucken shit. MADIGAN: Yeah but I don't know if there's another one up there. WOODS: I do. MADIGAN: Do ya? WOODS : Yeah. You know that little cul de sac where um we went there that night. You me and Pete you bolt cutted through that fence with all them cameras and all that. Down that little street there. MADIGAN: Oh yeah. WOODS: We can just hit one of them. You hit one, I hit one and Josh hits one. All three of us hit one at once. " 19 At about 01:45 on the following morning, a further conversation was intercepted by the listening device, which on the prosecution case similarly involved the Appellant and Woods. In the course of this conversation one male speaker addressed the other as "Woods", and complained of having a "sore gut". This conversation included the following exchanges: "MADIGAN: Fuck I am sore. WOODS: It was a heavy fucking thing wasn't it? MADIGAN: Fucking oath. WOODS: … MADIGAN: I just looked at it and I knew what it was exactly… WOODS: …same time too. WOODS: And trust me… money safe it wouldn't be that easy to fucking carry out. MADIGAN: The second it moved I knew it was because…Dad's was so light. WOODS: … MADIGAN: You know. WOODS: ….none. MADIGAN: There has to be another one. You know why? No bullets. WOODS: Yeah, yeah that's it. MADIGAN: Because the bottom of the cabinet. WOODS: It's against the law to keep your bullets in the same safe as your gun. MADIGAN: Yeah but the fuckin one like my old mans got. Its got a separate like a little safe door. WOODS: Yeah. MADIGAN: I hit that twice and that busted it. Its not hard to get into that…don't make em very strong. WOODS: You sure it wasn't part of another part of our safe. MADIGAN: An. WOODS: No. MADIGAN: There's only two…sections should have seen them fucking… WOODS: You know fuckin them guns. That's it. MADIGAN: But you should see fucking two of em. They're brand new fucking graphites. WOODS: … MADIGAN: Um I think they're bolted. Bolt ones. WOODS: They've both got them in em? MADIGAN: I think so yeah."

[12]

The basis for the voice identification of the Appellant 20 At the conclusion of the audio surveillance operation, Senior Constables Pilon and Cassar listened to the master tapes and/or CD's and prepared transcripts of the recorded conversations. They attributed the speakers variously as Michael Woods, Alison Walker and the Appellant. In doing so they had the benefit of the fact that the speakers used the names "Andrew", "Madsy", "Madigan", "Woods", "Woodsy" and "Alison", during these conversations. 21 Senior Constable Pilon said that he spent "maybe 50 hours, maybe more" listening to the CD's. He replayed some tracks up to 20 times in an attempt to make out the words. He also listened to some of the master tapes "maybe a dozen times, maybe more" as well as a tape recording of an interview with Woods. As he was doing so, he wrote down what he heard. Over the course of this exercise, he said, he became familiar with the voices. 22 He said that he was also assisted by the fact that he had met the Appellant, on more than one occasion before first listening to the recordings, having known him from 1998. He asserted that his voice was familiar, but conceded that he could not say whether he would have been able to recognise his voice on that basis alone. 23 In cross-examination he said that the log book had not suggested to him that "it was necessarily those people", adding "I didn't use the log as a guide for the transcript. I used it as a guide to the CD's". He denied that the male voices he attributed to the Appellant and Woods could have belonged to two other males who frequented the premises, but accepted that there was nothing distinctive about either of the two male voices. 24 Senior Constable Cassar said that she spent the majority of a week listening to, and transcribing the CD's, sometimes in the company of Senior Constable Pilon. As she transcribed the conversations, she played them up to 20 times to ensure that she could hear properly. After the transcripts had been prepared, she checked their accuracy against the audio record a further four or five times. 25 She said that she had spoken to the Appellant on 7 February at about 11:30 for two or three minutes while she fingerprinted him at Gosford Police Station. On the same day she said, she played back some of the CD's and recognised that the voice which she had heard when fingerprinting him was the same as the voice on the CD's. She stated that "after 7 February I was confident that I knew his voice", although she agreed in cross-examination that there was nothing particularly distinctive about it. She also said that she had conducted an ERISP with Woods on 7 February 2002. 26 She accepted that she would not have been as confident as to the Appellant being the speaker had she listened to the CD's without Senior Constable Pilon and the log book. 27 Senior Constable Crowther said that he had spoken to Woods on 26 November 2003 for about 30 minutes, on 23 December 2003 for about 10 minutes, and again on 21 January 2004 for about 15 minutes. Additionally he had viewed and listened to Wood's ERISP of 7 February 2002. He said that he had identified Wood's voice on the transcripts, with the benefit of these events. 28 Although Alison Walker gave evidence of never having referred to Wood as "Woodsy", and also said that she had not identified his voice on the tapes, she did however identify her own voice. Somewhat surprisingly, she was not asked whether she could, or could not, identify the Appellant's voice on the tapes.

[16]

Blue Ford Falcon, TUF 508 35 While Senior Constables Pilon and Cassar were positioned in their covert vehicle outside the Central Coast Leagues Club, a 1970's model blue Ford Falcon, TUF 508 with a white roof, came to Senior Constable Pilon's attention. Shortly afterwards, at about 22:00 Senior Constable Pilon said that he saw this vehicle leave the Donnison Street premises with the Appellant and Woods on board as it drove towards him at the intersection of Baker Street and Georgianna Terrace. It stopped at the intersection to give way, turned right and was 3 metres away from his parked vehicle as it drove past. Senior Constable Pilon radioed the other officers to caution them as to the movements of this vehicle surveillance was continued by Officers Pilon, Marks and Carmichael. 36 The vehicle was followed from Donnison Street and back twice. Just after 22:00 Sergeant Carmichael said that he saw the Appellant at the Mobil Service Station, on the corner of the Pacific Highway and Healy Street, West Gosford, a short distance away from Donnison Street, standing at the back of the vehicle near the petrol bowsers. He could not however recall whether this had occurred on the first or second occasion that the vehicle was followed from Donnison Street. 37 On the first occasion that the Blue Ford Falcon was followed from Donnison Street, it travelled along the Pacific Highway where it turned into Debenham Road and headed west up Kariong Hill to the Somersby industrial area. Senior Constable Marks said that he followed the vehicle into Myoora Road, Somersby, where he saw it perform a u-turn adjacent to the back gates to the Australian Reptile Park. He continued past the vehicle and lost sight of it. 38 After a conversation with Senior Constable Pilon, Officer Marks drove to Kariong. The Appellant was there seen standing beside the vehicle, at the Shell Service Station, by both Senior Constable Marks and Senior Constable Presland together with Woods and York. 39 Senior Constable Marks drove past the service station in his vehicle and parked on Woy Woy Road, Kariong. A little while later, he said, he saw the blue Ford Falcon drive past him in an easterly direction along the Pacific Highway. He followed it back to Gosford where it was seen by Officers Pilon and Carmichael to be parked in the vicinity of the Donnison Street premises. 40 On the second occasion that the vehicle was followed from Donnison Street, it was seen again by officers Pilon, Marks and Cassor to travel west before returning to the same vicinity. 41 There was evidence to show that between 22:35 and 22:45 the Blue Ford Falcon was followed for a third time from Donnison Street. Senior Constable Pilon and Senior Constable Cassar said that they followed it out of Gosford and along Debenham Road, continuing underneath the freeway and through the roundabout on Wisemans Ferry Road to Somersby Falls Road. After passing through the roundabout, at the intersection of Somersby Falls Road and Pile Road, it pulled up about 200m away on the left hand side of Somersby Falls Road. 42 Officers Pilon and Cassar said that they turned right into Pile Road, and drove some way down that road before performing a u-turn, and parking their vehicle about a car's length away from the roundabout. Senior Constable Pilon estimated that the time was about 22:45. Senior Constable Cassar estimated that it was 22:50 or 22:55. Senior Constable Pilon marked the spot where they parked with a green dot on Exhibit A. They said that they remained in that position for about 45 minutes but did not see the vehicle again that night. 43 In cross-examination, Senior Constable Pilon agreed that in his duty book he had recorded losing sight of the vehicle at 11:15 PM. 44 Senior Constable Presland said that, with Senior Constable Dodd, she had also followed the Ford Falcon along Debenham Road to Somersby Falls Road at about 22:45. She described seeing its brake lights operate after it passed through the Somersby Falls Road - Pile Road intersection. She turned left onto Pile Road and waited near the intersection with Warringah Close. She saw another covert police vehicle veer off to the right. She marked the spot where she and Senior Constable Dodd had waited with a yellow dot on Exhibit A. 45 She said that a short time later the Ford Falcon drove into Pile Road and around Warringah Close, pulled up next to her vehicle for a few seconds, and then continued back up Pile Road to the roundabout and turned left onto Somersby Falls Road. This she said was at about 22:55. She said that she clearly saw the Appellant Woods and York inside the Falcon when it pulled up beside her. She lost sight of it after it turned left onto Somersby Falls Road. 46 Senior Constable Marks said that he had similarly followed the blue Ford Falcon along Debenham Road, but had lost sight of it at the top of Debenham Road. When it was put to him in cross-examination that it was 11:15 PM when he lost sight of it in Debenham Road, he agreed that it was approximately that time, but also said that he was not certain of the time. 47 Senior Constable Marks said that he had driven to the Somersby industrial area, attempting to locate the vehicle. He said that, at about 23:30, as he drove down Myoora Road, he saw the Falcon parked adjacent to the rear gates of the Australian Reptile Park which were in a cul-de-sac. He slowed down and put his headlights onto high beam as he approached. He said that he had a full view of the driver's side of the vehicle and saw three males inside, including the Appellant who was seated in the back seat. The Appellant, he said, appeared to look directly at his vehicle. He indicated that he had passed within metres of the Falcon, making a sharp right hand turn onto the road leading to the water treatment plant. He marked the spot where he passed the Falcon with a blue dot on Exhibit A. A sketch by him of the position of the vehicles was also tendered, as Exhibit S. He said that, after he turned right, he saw in his rear view mirror the Falcon pulling away from the gate area and proceeding in the direction of Somersby Falls Road. By the time that he had turned around and returned to Myoora Road, the Falcon was out of sight. 48 Sergeant Carmichael also said that he had followed the Falcon up Debenham Road, before making his way to the intersection of Wisemans Ferry Road and Howes Road, where he positioned himself, facing south, for the purpose of covering that exit. This was at about 23:00. He estimated that he remained there for about 20 - 30 minutes before seeing the blue Falcon come out of Howes Road, and drive past him before turning left onto Wisemans Ferry Road towards Mangrove Mountain. 49 He had a short conversation with Senior Constable Pilon over the radio, which the latter estimated had occurred at about 23:45. A couple of minutes later, Sergeant Carmichael turned his lights on, and drove north on Wisemans Ferry Road but did not see the Falcon again.

[17]

Broadcast of the break and enter over police radio 50 After speaking with Sergeant Carmichael, Senior Constables Pilon and Cassar switched their radio to channel 87, the open police radio channel, whilst driving along the freeway. They heard a report being broadcast about a break and enter at the Australian Reptile Park and a call for a dog to track the offenders. Other police vehicles responded as did they, after which they drove to the Australian Reptile Park. 51 In cross-examination, Senior Constable Pilon agreed that, in a letter to one of the instructing solicitors, he had advised that, "all police involved in surveillance became aware of the break and enter at approximately the same time", that is, at about 23:40 to 23:45. He also accepted that the CIDS report, a computerised record of broadcasts over channel 87, accurately reflects that his vehicle actioned the broadcast at 23:40. As a result, he said that his conversation with Sergeant Carmichael must have occurred earlier than 23:45, and that the times which he had given were estimates. 52 In cross-examination Sergeant Carmichael also acknowledged that the CIDS report reflected that Senior Constable Pilon had actioned the break and enter at about 23:40 and indicated that he must have advised Senior Constable Pilon that the vehicle had driven past him on Wisemans Ferry Road before 23:40, and that the times which he had given had similarly been estimates. 53 Senior Constable Marks said that it had been about midnight when Senior Constable Pilon had radioed him about the break and enter but conceded in cross-examination that it was possible that this had occurred at 23:40, although he maintained his belief that it was midnight. 54 Senior Constable Presland said that she had been radioed about the break and enter by Senior Constable Pilon before midnight but could not be any more precise about the time. 55 After learning of the break and enter, Senior Constable Marks and Senior Constable Presland, with Senior Constable Dodds, each attended the back of the Australian Reptile Park at about midnight and conducted a search of the area without success. 56 Senior Constables Presland and Dodd, however, said that at around midnight, together with Senior Constable Dodd, she had seen the Ford Falcon again, near the freeway interchange on Wisemans Ferry Road, although she could not see who had been in the vehicle. She agreed in cross-examination that the time of this sighting which she had recorded in her duty book was 0:30 on the following morning. She marked the spot where she saw the Ford Falcon for the last time with a white dot on Exhibit A.

[24]

Alison Walker's Evidence 58 Alison Walker gave evidence that at the relevant time, she was in a relationship with the Appellant and was residing with him at Unit 4/7 Parsons Road Lisarow. They were the only permanent residents although Woods also stayed there from time to time. 59 On 21 January 2002, she worked from about 12:00 to 20:00 at the Fernwood Fitness Centre, Gosford. She drove to work in her Holden Barina, WTE 323, and parked it at the rear of the premises. She said that the Appellant regularly went to her workplace and borrowed this vehicle, although she could not remember whether he had done so on that day. 60 She said that at about 23:30 her mobile phone rang and the word "Andrew" appeared on the screen. This indicated that the caller was the Appellant, whose number was programmed into her mobile phone. She said that he had asked her to pick him up from the airstrip at Mangrove Road, Narara which she then did at about 23:45. He was at that time alone. They arrived home at about 0:30 on the following morning after stopping at a bakery at Wyoming. 61 In cross-examination, she accepted that the appellant's telephone records do not record a call from his mobile phone number to her mobile at 23:30 or thereabouts, and that her own telephone records similarly do not record a call at that time from her mobile phone number to his. She maintained that she did speak to him on the telephone at that time, after which she left to pick him up. She also accepted in cross-examination that she had lied, when she was initially spoken to by police on 25 January 2002, in so far as she had then said that the Appellant had been at home in bed with her this night. 62 Her evidence at the trial was supported by master tape 50 commencing at 23:33:40, which records a mobile telephone ringing which she answered, followed by the sound of the closing of a door, a car starting, a garage door closing and a car driving off. She accepted that she may have been mistaken as to whether the Appellant had used his mobile to call her. 63 Consistent with her evidence, that she picked the Appellant up from the airstrip, is the fact that, in a conversation intercepted by the listening device, at about 15:18 on 23 January 2002, she is heard to tell an unidentified person over the telephone that she "picked 'em up from the airstrip in my car". Her contributions to this conversation were captured by the device as follows: "WALKER: They want to take me in for questioning. WALKER: About what they did in my car the other night. WALKER: Yep. WALKER: Well I picked em up. WALKER: I picked em up from the airstrip in my car. This is the night. WALKER: Yep. WALKER: Yeah the night and they had been followed everywhere before that and they still went and fucking stole a safe and then I went. WALKER: No in Josh's car. WALKER: Then he rang me and told me there's no one around and to pick em up from the airstrip. WALKER: They got we got followed from the airstrip to where they went and dropped all the stuff off. WALKER: Dropped all the stuff off at some guys house and he WALKER: …he knew… he saw there was a ute that was following them and he saw it sitting there and he just didn't give a fuck WALKER: And now because the cops can't find him they've been following me for the last four days and want to charge me with being an accomplice. WALKER: Guns out of the safe yep." The case for the appellant 64 The Appellant did not give evidence at the trial but submitted that the Crown had failed to establish its case beyond reasonable doubt. 65 In substance his case depended upon the circumstances that:

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Ground 1 - His Honour erred by admitting into evidence the surveillance log book (Exhibit M) in its entirety. 68 The principal objection taken during the voir dire was that the log book attributed the names of the accused to the summarised versions of the conversations which were intercepted at the premises of the Appellant. The Crown Prosecutor said that the log was only being tendered for the purpose of showing the system which had been used by the police to record when, and how, particular recordings had been made. In delivering his judgment on its admissibility his Honour said: "I think the log book is admissible as evidence of the system adopted but not as evidence of anything written in it and I would restrict its use on that basis". 69 When Senior Constable Pilon gave evidence before the jury about the log book the Crown Prosecutor repeated: "I don't press the tender of the contents of the document, but the document in the sense that it does record the dates and the times and the tracks and CDs…" 70 Counsel for the Appellant responded: "Your Honour, I know there's been a ruling. From my point of view, there is no issue that there was a log book, and at times when CDs were changed and tapes were changed that's conceded. The rest of what is contained in it, though, is what I have a problem with. That's the problem." 71 Counsel for the co-accused also objected to the log book, submitting that it was "not relevant in its entirety…". When his Honour asked the Crown whether the log book was pressed given the concession of Counsel for the Appellant, the tender was maintained. 72 His Honour admitted the log book and directed the jury: "I expressly direct that it is not to be regarded as evidence of the identification of the persons said to be speaking or of anything said by them." 73 Counsel for the co-accused then requested that the log book be edited to delete everything apart from those sections recording the mechanical aspects of the interception operation. 74 When his Honour asked the Crown Prosecutor if that could be done, the response was: "Not without a lot of ink, your Honour. The track numbers relating to the CDs are sprinkled throughout the document, and that is partly the aide memoire which is required by the various witnesses to navigate through the 16 days of tapes, your Honour." 75 His Honour found that there would not be any unfair prejudice to the accused in admitting the log book for the limited purpose for which it was tendered. To that stage of the trial there had been no cross-examination of the police involved in the surveillance that questioned any aspect of the system used, and accordingly, it was asserted, no reason for allowing the document, which contained material which the jury were directed to ignore, to be placed before them. If the system were to be attacked in subsequent cross-examination then, it was accepted, it may have become appropriate for the jury to see a suitably edited version of it. 76 It is now submitted that the log book should not have been admitted either in its entirety, or in an edited form. Instead, it was argued that it could have been marked for identification and used an "aide memoire", if need be, by those officers who were called to give evidence about the recordings. 77 The trial Judge, it was asserted, fell into error in not having considered the matter in the light of s 137 of the Evidence Act 1995; and in having given insufficient attention to the risk that the jury would misuse the document by assuming that the identification of the speakers, as recorded in the log book, were correct, and/or by forming the view that the Appellant was a person of bad character. 78 In this latter regard, attention was drawn to entries where:

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99 Moreover, there was a clear and unambiguous direction not only as to the limited use to which the logbook could be put, but also as to the care, which needed to be given to the voice identification evidence, as follows: "Another issue in this case concerns the identification of the voices of the two accused on the surveillance tapes and discs. Again I must caution you that such evidence may be unreliable where it was constituted by police officers expressing their opinions. You should be similarly cautious in reaching your own conclusions on the material before you. Mistakes are sometimes made even in the recognition of the voices of close relatives and friends. You should bear in mind that the familiarity of the police officers and of yourselves with the voices of the two accused has been very limited. In the case of Mr Maddigan you have not heard him speak at all except when he pleaded to the charge. With Mr Woods you have the benefit of his record of interview with Senior Constable Cassar and the words said to be spoken by him on video, and his voice as you heard it in court during his evidence. But you would take into account the fact that those occasions were somewhat different from the occasions when the surveillance tapes and discs were recorded. I particularly also direct you to bear in mind the less than perfect clarity of the surveillance tapes, the fact that there may be a distinction between a live voice heard for instance in court and a recorded voice, and the fact that according to the evidence neither accused had a voice with any particularly unusual or distinctive characteristic. You should consider whether there was or is sufficient material of adequate quality to enable either the police officers or yourselves to make a worthwhile comparison. These factors may render the voice identification evidence unreliable. As with the directions I gave you in relation to visual identification, I do not suggest that I have formed any view one way or the other as to the reliability of the voice identification evidence. Again, you are not required to consider the voice identification evidence in a vacuum. You are entitled to take into account such other facts in the case which you find to be proved. They could include the fact according to the unchallenged evidence of Alison Walker that Andrew Maddigan lived with her at the relevant time in the Lisarow Unit, the fact that on his own evidence Mr Woods visited the unit on occasions and was apparently quite happy to sleep there on the night of 21 January 2002 and the various references on the tapes to Andrew, Madsy, Michael Woods and Woodsy."

[81]

121 Those passages from the judgments of Barwick CJ, which were cited by McHugh J in Festa, were as follows: (a) Storey : "If error be present, whether it be by admission or rejection of evidence, or of law or fact in direction to the jury, there remains the question whether none the less the accused has really, through that error or those errors, lost a real chance of acquittal. Put another way, the question remains whether a jury of reasonable men, properly instructed and on such of the material as should properly be before them, would have failed to convict the accused: or were the errors such that if they were remove a reasonable jury might well have acquitted"; (b) Driscoll : "It is noticeable that the proviso to s 6(1) speaks in terms of "substantial miscarriage of justice". The word "substantial" in this connection denies, as it seems to me, the proposition that of necessity the existence of any of the enumerated circumstances in the sub-section amounts to a miscarriage of justice. No doubt the oft quoted passage from the reasons for judgment of Sir Wilfred Fullagar in Mraz v R (1955) 93 CLR 493 at 514; [1955] ALR 929 at 940, rightly emphasizes that it is for the Crown to satisfy the court that occasion exists for resort to the proviso: but that passage ought not to be read as saying that every departure in the course of a trial from compliance with the relevant law or rule of procedure results of necessity in a miscarriage of justice. Indeed, in my opinion, the very terms of s 6(1) and its counterparts would seem to deny that proposition. The important words, in my opinion, in the passage from the judgment of Sir Wilfred Fullagar in that decision and at that page are "may thereby have lost a chance which was fairly open to him of being acquitted". Of course, if the Court of Criminal Appeal on its review of the facts and circumstances of the case concludes that before a jury, properly directed, the appellant can be said fairly or reasonably to have had a chance of acquittal, it will not be warranted in concluding that there was no miscarriage of justice. The error or errors of the trial may then, because of that view, be regarded as having produced a substantial miscarriage of justice. It is for the court itself to be affirmatively satisfied in this respect, and for this purpose the court will consider for itself the evidence and the inferences properly available therefrom."

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"121. The question whether a jury, acting reasonably, would inevitably have convicted an accused ultimately falls to be determined by the relevant court according to its assessment of the facts of the case. The prevalence of dissenting views in cases dealing with the application of the proviso illustrates the largely subjective nature of the inquiry, resting as it does on factors such as the error alleged, the relative strength of the prosecution and defence cases and the court's characterisation of the hypothetical jury, "acting reasonably" and properly directed. As Brennan, Dawson and Toohey JJ stated in Wilde : 'In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances.' 122. But one important development has occurred since this court decided Mraz , Storey , Driscoll and Wilde . Courts of criminal appeal are now required to examine and analyse the evidence in criminal trials to a much greater extent than previously. This court has interpreted the "miscarriage of justice" ground of appeal as entitling a court of criminal appeal to examine the whole of the evidence and form its own opinion as to whether there is a reasonable doubt as to the accused's guilt. Even 30 years ago, such an approach would not have been contemplated. … 123. Although the term "miscarriage of justice" appears both as ground of appeal and as part of the criterion for determining whether a conviction should stand, the issue under each provision is different. In one, the issue is whether the jury must have had a reasonable doubt; in the other, it is whether the jury must have convicted. But that said, there is no reason why the role of a court of criminal appeal should differ in deciding these issues. In examining the evidence for the purpose of applying the proviso, the court should assume that ordinarily if it thinks that the accused must be convicted, so would a reasonable jury. Speaking generally, the court's view of the evidence should prevail except where the error has so affected issues of credibility that the court cannot determine what are the primary facts of the case. In cases of circumstantial evidence, for example, the court's view of the evidence should be regarded as the view of the reasonable jury unless proof of one or more circumstances has been affected by an error relating to credibility. Even when a particular circumstance involves a credibility issue, other circumstances may be admitted or proved which are sufficient to permit the court to sustain the conviction."

[86]

Secondly, the proviso to the common form provision can be seen as accepting that a basic premise of the common law is that an accused person is entitled to a trial according to law. For that reason, alone, any departure at trial from what the law requires is a miscarriage of justice. But the proviso recognises that not every departure, at trial, from the proper application of the law warrants setting aside a conviction. 225. Thirdly, both the framing and the subsequent application of the common form criminal appeal provisions, including the proviso, have had to take account of two other considerations: that the jury is the tribunal of fact in a criminal trial and that the prosecution must prove its case beyond reasonable doubt. In recent years, some prominence has been given to cases where a court of criminal appeal, having examined for itself the evidence given at trial, has formed its own opinion as to whether there was a reasonable doubt about the accused's guilt. …What is important for present purposes is that criminal appeals must be decided giving due recognition to the facts that it is for the jury to decide what evidence is persuasive and what is not, and that the degree of persuasion that must be attained to warrant conviction is very high. 226. It follows that for a court of criminal appeal to apply the proviso the court must conclude that the evidence properly before the jury would, if the jury had been properly instructed, have inevitably required the jury, acting reasonably, to return a guilty verdict. A court of criminal appeal must approach the consideration of the proviso in any particular case paying close attention to the nature and consequences of the error that has been identified in the trial. To take but one example, in some cases it may be possible to conclude that the jury could not have reached the verdict it did, unless it accepted some evidence and rejected other evidence. In such a case, could the error that has been identified have affected those conclusions? Often enough, that question will require an affirmative answer. If, however, the answer is no, what does that say about whether there has been a substantial miscarriage of justice? 227. By contrast, if evidence has been wrongly admitted at trial it may be more difficult to detect from the jury's verdict how it dealt with particular factual issues at trial. In such a case, of which the present is an example, it is necessary to direct attention to the uncontroverted facts and consider whether, on those facts, conviction was inevitable. … 229. … use of the formula of "lost chance, fairly open, of acquittal" must not be permitted to obscure the nature of the inquiry that must be made. That is an inquiry which seeks to identify whether, on the evidence that was properly admitted at trial, a jury acting reasonably and properly directed would have inevitably convicted."

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Cases Cited (11)