Ratten v The Queen

Ratten v The Queen - [1974] HCA 35 - HCA 1974 case summary — Zoe

[29]

But there is the situation where, although the trial so far has been fair, evidence is discovered after the verdict which could not reasonably have been available at the trial: that is to say, fresh evidence is produced to the court of criminal appeal. The claim on behalf of the appellant, whether as an alternative to a claim to the absolute quashing of the conviction, or as his sole claim, is that without the consideration of the fresh evidence by the jury a miscarriage will have occurred: the trial will not have been a fair trial. In this situation, the court must as before decide the credibility and the cogency of the fresh evidence in order to determine whether, when the fresh evidence, if believed by the jury, is taken with the evidence given at the trial in that sense most favourable to the accused which reasonable men might properly accept, it is likely that a verdict of guilty would not have been returned. In considering the material before it for this purpose, the element of credibility will be satisfied if the court is of opinion that the evidence is capable of belief and likely to be believed by a jury. The court in this instance will not be directly acting upon its own view of the evidence but rather upon that view most favourable to an appellant, which in the court's view a jury of reasonable men may properly take. Of course, it may be said, as was said in Stafford v. Director of Public Prosecutions [10] that the view of the court must be taken to be a reasonable one, and a contrary view, by whomsoever held, to be an unreasonable one: and no doubt at times this must be so. But I conceive that there may be reasonable views of facts which do not commend themselves to the court which do not become unreasonable because the court does not entertain them. In the situation with which I am presently dealing, namely of fresh evidence not claimed to establish innocence but to be of such credibility and cogency as to be likely to influence a jury away from a verdict of guilty, it is what a reasonable jury might reasonably make of this evidence which is the dominant consideration. Of course, if the court thinks that there is no doubt that its own view of the evidence is the only reasonable view, it will act upon that view as one upon which the jury would be bound to act.

[52]

The first task of this Court is to consider the circumstances in which the absence at a trial of evidence subsequently available may be said to have resulted in a miscarriage of justice. After giving the problem the fullest consideration I am satisfied that the Full Court was correct in stating the law as it did. A miscarriage of justice of the first kind mentioned by the Full Court, i.e. the absence of a fair trial, is not a conception that, so far as I am aware, has previously been applied to the discovery of fresh evidence, but, having been stated as it was by the Full Court, the conception commands acceptance on fundamental grounds. If an accused did not have a fair trial his conviction was a miscarriage of justice. No criticism was made of this conception but its application did not lead to the Full Court thinking that there had been a miscarriage of justice. It could be but rarely that a miscarriage of this sort could follow from the defence deliberately adopting a particular course at a trial, e.g. by not calling available evidence. It is the second conception of a miscarriage of justice adumbrated by the Full Court that was criticized by counsel for the petitioner, who argued that it was not for the Full Court to evaluate the fresh evidence adduced beyond the judges satisfying themselves that such evidence was credible and could, in conjunction with the evidence given, cause a jury to entertain a reasonable doubt about the guilt of the convicted accused. In my judgment the absence at the trial of evidence subsequently available works a miscarriage of justice in the second sense only if the court of appeal concludes that additional credible evidence, in conjunction with the other evidence in the case, ought to have resulted in a verdict of not guilty rather than a verdict of guilty because, if believed, it would at least raise a reasonable doubt of guilt. The absence of such evidence which, if given, ought, in the opinion of the court, to have led to an acquittal constitutes an acceptable basis for concluding that there was a miscarriage of justice at the trial; the absence of evidence which, if given, might perhaps have led to an acquittal does not provide any basis for an affirmative conclusion that there was a miscarriage of justice at the trial. If a conviction is set aside on the ground that there was a miscarriage of justice, it is then for the court to decide further, whether in the circumstances, there should be a new trial or an acquittal: see s. 568(2).

[63]

The deceased was killed by a shot fired from the left-hand barrel of a gun which the petitioner was holding. That barrel could only be discharged by the pressure of seven pounds upon the appropriate trigger. The petitioner must have applied that pressure. His evidence was that he was cleaning the gun - not knowing that it was loaded nor having any explanation of how it might have come to be loaded - and that, as he had not applied pressure to the trigger deliberately, he must have done so accidentally in a manner which he could not explain. The petitioner and his wife were about the same height. His evidence was that, when the gun was discharged, he was standing with his back to the sink on one side of the kitchen, holding the gun about hip high in a horizontal position with the barrels pointing diagonally across the room. The gun was held in his right hand and he was cleaning the outside of the barrel with a piece of steel wool which he held in his left hand. His account of the position of his wife was not precise but it was to the effect that she was standing near the stove which was against the side of the room, which was at right angles to the wall with the sink and that she was up to six to seven feet away from him with her left side towards him. The deceased was shot in the left chest by a charge which entered her heart. The petitioner's evidence was that after the shooting he rang the telephone exchange at Echuca and called for an ambulance. The evidence of the telephonist at the Echuca Exchange was that the only call from the petitioner's number was at 1.15 p.m. and a woman's voice said "Get me the police please", and that as she was doing so the caller yelled "59 Mitchell Street". The telephone was hung up immediately. The telephonist after consulting her superior, telephoned the police and told them they were wanted at 59 Mitchell Street. The police arrived at 59 Mitchell Street about three minutes after the telephonist's call. In the meantime a policeman, Bickerton, called the petitioner's number. He gave evidence that as soon as the telephone was picked up a voice said "Help me. Help. For God's sake come quick. For God's sake come quick". He said "What address?"; the voice replied "59 Mitchell Street". When the police arrived the petitioner's wife was already dead and was lying upon the kitchen floor. There were in the kitchen a rifle, a gun and gun-cleaning equipment. The gun from which the fatal shot had been fired was lying in an adjoining room with its fore-piece off. In that gun there was a fired cartridge in the left barrel and an unfired cartridge in the right barrel bearing the mark of a firing pin. When the police arrived at the house the petitioner was inside and a child was outside crying.

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Judgment (78 paragraphs)

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Cases Cited (1)