Ratten v The Queen

Lodged with the petition were a number of affidavits, twelve in all. These were sent to the Supreme Court at the time of the reference of the whole case. Section 584 says that the Supreme Court shall hear the whole case as upon an appeal by the petitioner. The Full Court, having fully considered the matter, rejected the appeal and refused to set aside the conviction and to order a new trial of the indictment [1] . The Full Court saw no occasion to express any separate opinion in response to the question whether there had been a miscarriage of justice. It is against the decision of the case by the Full Court that the applicant now seeks this Court's special leave to appeal.

It has been decided that, in considering the whole case pursuant to such a provision as s. 584, a Supreme Court is acting judicially, so that this Court is in a position to grant special leave to appeal and, if granted, to hear an appeal from the Supreme Court's decision.

The facts of the case, including the contents of the affidavits lodged with the petition and the evidence taken before the Full Court, are fully indicated in the decision of the Full Court from which it is now sought to appeal. The facts as evidenced at the trial may be found in the published reports of the earlier proceedings (Ratten v. The Queen [2] ). I therefore have no need to recite the details of this material.

The applicant submits that the manner in which the Full Court dealt with the material supporting his petition raises a question of such general public importance as to warrant the grant of special leave to appeal. Broadly, the submission is that the Court was in error in acting upon its own view of that material and of the material which supplemented it, namely, affidavits filed on behalf of the Crown and oral evidence given in examination and cross-examination, rather than submitting the whole of it to a jury for its consideration upon a new trial. Should special leave be granted, the applicant wishes to submit that upon the whole of the material presented to the Supreme Court at least a new trial of the indictment ought to have been ordered.

In accordance with its own procedure frequently followed the Court allowed the applicant fully to develop his case as upon an appeal. He has done so. Thus, should special leave be granted, the Court is in a position to deal with the case as if an appeal pursuant to that leave had been lodged and fully argued.

As the Full Court was required to treat the reference to it under s. 584 as an appeal, it was bound in dealing with it to act upon legal principles appropriate to an appeal. Thus, although all the material supporting the applicant's petition formed part of the whole case to be considered by the Court, the ordinary principles as to admissibility of evidence must be applied in the consideration of that material, so much of it as would be inadmissible being ineffective to influence the resolution of the matter.

The only ground which the petition suggests for displacing the verdict of the jury is that the material supporting the petition, when read with the evidence given at the trial, requires the conclusion that the conviction should be absolutely quashed or, at the least, that a new trial should be had. Thus, the consideration of the reference in this case will not require the reconsideration of anything which has so far been judicially determined. Neither the decision of the Court of Criminal Appeal nor that of Her Majesty in Council will be open to review on the reference.

The application for special leave to appeal does raise, in my opinion, a matter of general public interest, namely, what is the correct course to be adopted by a court of criminal appeal in considering an appeal against conviction based upon the production of evidence not given at the trial. This matter has had judicial consideration on occasions when what might be thought to be diverse approaches or tests have been enunciated. It is not my purpose, however, to discuss the reported decisions which are referred to in the Full Court's reasons for judgment. Since their delivery, Stafford v. Director of Public Prosecutions [3] has been decided. But that case was decided on a different formulation of the powers of the court of criminal appeal to that contained in the Victorian Crimes Act. There is in any case, in my opinion, room for a definitive pronouncement by this Court of appropriate principle so far as Australian courts are concerned, the relevant legislation throughout Australia being in substantially the same form as that of the Victorian Crimes Act. Accordingly, I would grant special leave to appeal to enable consideration of that matter.

It is convenient first to observe the powers given to the court of criminal appeal by s. 568 of the Crimes Act. This provision is in the same terms as s. 4 of the Criminal Appeal Act 1907 U.K.. Apart from lack or deficiency of evidence or misdirection in point of law, the court is to allow an appeal if, on any ground there is a miscarriage of justice, just as it may yet reject an appeal, though there was error in the proceedings of the trial, if in the court's view there was no miscarriage of justice. The use of the expression "miscarriage of justice" in this context has given to the court of criminal appeal a function of independent judgment on the facts of the case which a court of appeal hearing an appeal from the verdict of a jury ordinarily does not have. "That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance." (Hargan v. The King [4] , per Isaacs J.; also R. v. Baskerville [5] , per Lord Reading C.J.).

1. (1919) 27 C.L.R. 13, at p. 23. 2. [1916] 2 K.B. 658, at p. 664.

The amendment in 1966 in the United Kingdom of the formulation of the jurisdiction of the court of criminal appeal now appearing in s. 2(1) of the Criminal Appeal Act 1968 U.K., as interpreted by the House of Lords in Stafford v. Director of Public Prosecutions [6] would seem to have increased the scope for the exercise by the court of its own assessment of the evidence in a case, though it has had no opportunity to hear the witnesses called before the jury. This amendment has not been made in Australian legislation, but this Court has recently reiterated the view that under the Australian provisions a court of criminal appeal in Australia should allow an appeal if on its own view of the evidence it would be dangerous or unsafe in the administration of the criminal law to allow a verdict of guilty to stand (Hayes v. The Queen [7] ). This decision may not have disclosed as great a discretion in a court of criminal appeal in Australia, as the decision of the House of Lords in Stafford v. Director of Public Prosecutions [8] has done for the United Kingdom. But the Court's decision is founded on the existence of the function of independent assessment of the evidence by the court of criminal appeal. This function is of particular importance when considering what a court of criminal appeal should do when asked to disturb a jury's verdict on the production of new evidence.

1. [1974] A.C. 878. 2. (1973) 47 A.L.J.R. 603. 3. [1974] A.C. 878.

Miscarriage is not defined in the legislation but its significance is fairly worked out in the decided cases. There is a miscarriage if on the material before the court of criminal appeal, which where no new evidence is produced will consist of the evidence given at the trial, the appellant is shown to be innocent, or if the court is of the opinion that there exists such a doubt as to his guilt that the verdict of guilty should not be allowed to stand. It is the reasonable doubt in the mind of the court which is the operative factor. It is of no practical consequence whether this is expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution; as I have said it is the doubt in the court's mind upon its review and assessment of the evidence which is the operative consideration.

That is one instance of a miscarriage: another is where the appellant has not had a fair trial. There is no need here to refer to the various circumstances in which a trial may become unfair. Some of these are mentioned in the reasons of the Full Court. But it may be that even where there have been irregularities at the trial there may be no miscarriage of justice if the court forms the opinion that no jury of reasonable men, properly instructed and alive to their responsibilities, would fail on the evidence to convict the accused.

There is lastly the situation where the miscarriage is that the jury did not have before it evidence not available to the appellant at the time of his trial which, if believed by the jury, was likely to lead to an acquittal, the jury not being satisfied beyond reasonable doubt of guilt. This may be regarded as an instance in which the accused has not had a fair trial.

It will be observed that I have limited the last of these instances of miscarriage to the case of the production of evidence not available to the appellant at his trial. The rule in relation to civil trials is that evidence, on the production of which a new trial may be ordered, must be fresh evidence; that is to say, evidence which was not actually available to the appellant at the time of the trial, or which could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case. However, the rules appropriate in this respect to civil trials cannot be transplanted without qualification into the area of the criminal law. But the underlying concepts of the adversary nature of a trial, be it civil or criminal, and of the desirable finality of its outcome are valid in relation to the trial of a criminal offence.

As Smith J. rightly said in expressing the reasons of the Full Court in this case, "Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing on the question of guilt or innocence" [9] . It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the judge's directions, the jury is to decide whether the accused is guilty or not. Consequently if the proceedings are not blemished by error on the part of the judge, whether it be on a matter of law or in the proper conduct of the proceedings, or by misconduct on the part of the jury, there has been a fair trial. It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial. Great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial, and it will probably be only in an exceptional case that evidence which was not actually available to him will be denied the quality of fresh evidence. But he must bear the consequences of his own decision as to the calling and treatment of evidence at the trial.

Thus, there will be no miscarriage simply because evidence which was available to him actually or constructively was not called by the accused, even though it may appear that if that evidence had been called and been believed a different verdict at the trial would most likely have resulted. The accused, nevertheless, will have had a fair trial. But if the new evidence does qualify as fresh evidence it can be said that the trial was not fair. Of course, if by reason of new evidence accepted by it though it may not be fresh evidence, the court is either satisfied of innocence or entertains such a doubt that the verdict of guilty cannot stand, the fact that the trial itself has been fair will not prevent the court upon that evidence quashing the conviction.

I turn now to consider what a court of criminal appeal should do in relation to each of these situations in which there may be a miscarriage and in which new evidence is tendered for the court's consideration.

In every situation the court must decide on the relevance of the new evidence, even in the case of a reference by the Attorney-General such as the present. It must decide its credibility, that is to say whether or not it is capable of belief, both as to veracity and competence in the case of oral evidence, and as to authenticity in the case of documentary evidence. But in some situations, as I shall point out, the court will decide whether it believes the evidence. In other situations it will be enough that, whatever its own view, the evidence is capable of belief, and likely to be believed, by reasonable men.

Having considered relevance and credibility, the court will weigh the cogency of the evidence, having in mind always the evidence produced at the trial. That evidence will be taken in that sense in which, having regard to its verdict, the jury must have accepted it.

For all these purposes the court may see and hear the witnesses of the new evidence, both Crown and appellant being entitled to examine and cross-examine as the case may be. Further, the court will be entitled to receive evidence which tends to support, contradict or weaken the new evidence or the inferences which might be drawn therefrom.

It is now necessary to differentiate the use which the court may make of the new evidence according to which of the instances of miscarriage it is considering. If the court is considering whether the verdict of guilty should be set aside outright for the reason that innocence is shown, or the existence of an appropriate doubt established, the court will consider all the material itself, forming and acting upon its own belief in, or disbelief of, the evidence, and upon its own view of the facts of the case including the evidence at the trial, though, as I have said, taking the facts as proved at the trial in the sense which having regard to its verdict the jury must have taken them. Of course, if it is concluded that there was a miscarriage in the sense that the court itself is satisfied of innocence or entertains a reasonable doubt as to guilt, there will be no question of a new trial. The verdict of guilty will be quashed and the appellant discharged.

Further, when the material before the court satisfies the court of a miscarriage of this kind, it will not matter that the new material or some part of it is not fresh evidence, in the sense that it was not or could not have been available at the time of the trial. Thus, until the court decides that there is no miscarriage of this kind, it will not need to consider whether or not any part of the new evidence satisfied the criterion of fresh evidence. The court's acceptance that guilt beyond reasonable doubt is not established, means inevitably that to maintain the verdict of guilty would be a miscarriage of justice. Also, as I have already said, it will not matter in such a case that the trial was fair and without blemish.

But if the material before the court of criminal appeal does not convince the court of such a miscarriage, or if the appellant's claim is only for a new trial, the fact that the new material is not wholly fresh evidence in the sense I have described will be material. I have already pointed out that the non-production by the accused of evidence available to him at the trial - available actually or constructively in the sense I have mentioned - will not make the trial in any sense unfair.

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.

To sum up, if the new material, whether or not it is fresh evidence, convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict will be quashed without more. But if the new material does not so convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that new material is not fresh evidence. But if there is fresh evidence which in the court's view is properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered as a remedy for the miscarriage which has occurred because of the absence at the trial of the fresh evidence.

The present applicant asks for an outright quashing of his conviction, or alternatively its quashing to enable a new trial to take place. He thus seeks to call in aid two of the situations of alleged miscarriage to which I have referred. As I have pointed out different considerations apply to those situations. But in presenting his case to this Court, and I apprehend also in presenting it to the Full Court, little stress was laid upon the claim to an outright quashing of the jury's verdict. Rather the emphasis has been upon the claim for a new trial. In support of this claim, it was submitted that the new material need go no further than to satisfy the Court that, placed before the jury, there would be a reasonable possibility that it would raise in their minds a reasonable doubt of the applicant's guilt. It will be plain from what I have already written that I do not accept that view of the law. It is not enough that there is a reasonable possibility that a doubt be raised: there must be a likelihood of a different verdict.

The Full Court received oral evidence both from the applicant and from the Crown: it allowed cross-examination of the witnesses produced by the applicant and the Crown. The Court's course in doing so, was challenged by the applicant. But in my opinion the Full Court was not in error in the course it took. In the first place the Full Court was entitled and indeed bound to satisfy itself whether, upon all the material available to it, there was such doubt as to the guilt of the applicant as would make the maintenance of the jury's verdict a miscarriage of justice. In the second place, in the alternative situation in which a new trial was sought, the court had to satisfy itself as to the credibility and cogency of the fresh evidence in order to decide whether, if it were believed, it was likely to bring about a different verdict.

It is clear from the reasons of the Full Court that the Court did not consider that there was a doubt as to the guilt of the applicant produced by the new material read with the evidence given at the trial. The Court did not err in my opinion in holding that view.

I agree with the Full Court in thinking that the evidence of the expert witnesses as to the passing of the charge from the gun through the body of the deceased was not fresh evidence. In particular, there had been a conscious decision on the part of the applicant not to explore by evidence the line now taken by those experts otherwise than by cross-examination of the witnesses called by the Crown.

I also agree with the view of the Full Court that the new material was not likely to have brought about a different verdict. If I had not formed the view that there should be some clarification of the role of the Court of Criminal Appeal in the consideration of new evidence, I would have concluded that this was not a case for special leave to appeal. However, in the circumstances of the case, I shall briefly canvass the new material, treating it as if it were in truth fresh evidence.

The case against the applicant was very strong. Undoubtedly he, by the exertion of at least seven pounds pressure on one of the triggers of a double barrelled gun held by him, caused the discharge of one of its barrels when his wife was about five feet or less from its muzzle. The charge killed her instantly. There was ample motive for the pressure on that trigger to have been deliberate. The applicant was infatuated with another woman to the point that he had agreed on her pressing suggestion to leave his wife and children and set up house with her. Other details of his relationship with this woman, into which I need not enter but which are referred to in the Full Court's reasons for judgment, strengthen rather than lessen the significance of this infatuation as a strong motive for the removal of his wife, then advanced in pregnancy. No explanation of the loaded condition of the gun, undoubtedly loaded with cartridges from the applicant's possession, or of the failure to examine its condition in that respect before handling it in such close proximity to his wife, was forthcoming. No explanation was offered as to how its barrel was discharged otherwise than by appropriate pressure on the trigger. No more was said by the applicant than that whilst cleaning it, it discharged. The issue for the jury was simply whether the trigger was pulled accidentally or deliberately. It is not surprising that they did not accept that the trigger was accidentally pulled. They were well entitled to conclude that the gun had been loaded by the applicant and deliberately fired after being aimed at his wife.

The new evidence was of four kinds which I briefly and compendiously describe. Evidence as to the angle the charge passed from the gun into the body of the deceased; evidence as to the safety of accepting the telephonist's identification of the voice of the caller; evidence as to the distance of the deceased from the muzzle of the gun when hit by the charge; and evidence as to the likelihood of the trigger of the right-hand barrel of the gun having been pulled.

I see no need for a detailed discussion of that evidence. It is covered in the reasons of the Full Court in a manner which I find convincing. Their Honours had the advantage of observing the witnesses, and indeed have expressed their doubts as to the objectivity of some of them. My comments will therefore be brief.

As an incident in describing what he observed on autopsy, Dr. Charlton expressed the view that the charge from the gun had passed into the body of the deceased at an angle of the order of forty-five degrees to the vertical plane of her body. Her actual position at the time of receiving the charge is unknown; thus the angle of entry of the charge in relation to the planes of the room is unknown. This conclusion expressed by Dr. Charlton gained significance in the trial because the applicant in demonstrating the scene at the time of the discharge of the gun, placed his wife standing vertically some five feet from the muzzle of the gun held by him at hip height and pointed slightly above the horizontal. Dr. Charlton's conclusion from his observation on autopsy cast doubt upon the veracity of the applicant's demonstration. But, in my opinion, it had no other significance in the trial. The new evidence in this connexion consisted of opinion evidence of distinguished persons to the effect that the proper conclusion to be drawn from what Dr. Charlton would have seen on autopsy was that the path through the body of the deceased of the charge from the gun was horizontal or perhaps slightly upward from the horizontal to the body planes.

There can be no criticism in my opinion of the Full Court for preferring the evidence and conclusions of Dr. Charlton to those of these expert persons, none of whom had been present at the autopsy and only one of whom had attended a subsequent examination of the body of the deceased on exhumation. In any case, the opinion of these experts, even if accepted, would neither establish nor help in my opinion to establish the accuracy of the applicant's demonstration, nor bear in any respect on the question of whether the pressure undoubtedly applied by the applicant to the trigger of the left-hand barrel of the gun was deliberate or accidental.

In my opinion, the Full Court was not in error in concluding that the assumptions of fact made by the experts and their opinions were unacceptable.

Other new evidence was directed to explain the mark on the undischarged cartridge in the right-hand barrel of the gun. The evidence was to show that it may have been made otherwise than by pressure on the trigger of that barrel: But in my opinion, so far from doing so, it confirmed the evidence given at the trial that the trigger had been subjected to sufficient pressure to cause the pin of the hammer to come forward and mark the cartridge. It was established that the cartridge bore a drag mark indicative of the fact that the pin was in contact with it under pressure from the hammer when the gun was broken for inspection after the event. The expert giving this new evidence, though he saw double discharge or inertia as possibilities to account for this mark on this cartridge, quite clearly and definitely expressed his opinion that that mark was caused by the pulling of the trigger of the right hand barrel.

It might be mentioned here that if it be concluded, as well it might be, that the left-hand trigger was deliberately pulled it almost inevitably follows that so was the trigger of the right-hand barrel. There is no room for the view that both triggers were pulled successively by inadvertence. It should also be remembered that the applicant said he heard a click, the cause of which he did not seek to find. It seems to me that the new ballistic evidence confirms rather than questions the verdict.

A laboured endeavour to establish that the deceased was closer than five feet from the muzzle of the gun when shot not only lacked acceptability but in truth presented a matter having peripheral significance in the case. Neither by itself nor in combination with any other of the new material is it of a kind upon which a new trial could be ordered.

The remaining item of new evidence is that of an expert who said that it would be unsafe to act upon the telephonist's impression of the sex of the speaker on the telephone because it was said she did so from the pitch of the voice. This witness completely overlooks the most important part of the telephonist's evidence, namely, her clear recollection of the text of the message and that she did not herself place her evidence in any respect on the pitch of the voice of the caller. The possibility of confusing a call for an ambulance as a call for the police is small to the point of being negligible. The immediate action of the telephonist in calling the police and passing on the address given by the caller is strongly confirmatory of the telephonist's evidence as to the message she received.

In any case the evidence of the expert was inadmissible. The deponent does not qualify as an expert in respect of the statements he makes. It cannot be denied, and the deponent is not denying, that the identification of the sex of a person speaking over a telephone can be made by a telephonist who has been so employed over a period of time. It is simply said that in the opinion of the deponent it would not be "safe" to rely on such an identification in so serious a matter as a charge of murder. But that does not appear to me to lie within the area of expertise of the witness or, for that matter, of any witness. It is a matter of general experience whether it can be accepted that the sex of the speaker over the telephone has been identified by a witness. The jury were well able to decide that question for themselves, and, in my opinion, expert evidence could not be given to endeavour to tell them that they ought not accept evidence which otherwise they may be prepared to accept.

In my opinion special leave to appeal should be granted but the appeal should be dismissed.

I have read the reasons which the Chief Justice has just published. I agree to them. There is nothing which I could usefully add.

Leith McDonald Ratten was convicted of the murder of his wife at their home in Echuca on 7th May 1970. His appeals to the Court of Criminal Appeal and to the Privy Council were dismissed. On 28th April 1973 he presented to His Excellency the Governor of Victoria a petition for the exercise of Her Majesty's mercy. Pursuant to s. 584 of the Crimes Act Vict., the Attorney-General referred the whole case to the Full Court of the Supreme Court of Victoria. The duty of the Full Court was then to hear and determine the case "as in the case of an appeal by the person convicted". The Crimes Act, s. 568, requires the Full Court, upon such an appeal, to allow the appeal if it thinks, inter alia, that the judgment of the court before which the appellant was convicted, should be set aside on the ground that there was, for any reason, a miscarriage of justice. The Full Court, finding that this ground had not been made out, dismissed the appeal as it was then required to do by s. 568 [11] . This is an application for special leave to appeal from that dismissal in the course of which counsel were invited to, and did, present argument as though upon an appeal.

The whole case for the petitioner was that evidence had become available, which was not available at the trial, and, which showed that the conviction of the petitioner at his trial was a miscarriage of justice. The additional evidence related to: (1) the line upon which the shot which killed the deceased entered her body; (2) the distance between the muzzle of the gun and the deceased at the time that shot was fired; (3) the characteristics of the gun from which that shot was fired; and (4) a telephone conversation between somebody in the house in which the deceased was shot and the telephonist at the Echuca Exchange which occurred either immediately before or immediately after the shot was fired.

For the petitioner it was contended that the existence of a miscarriage of justice within the meaning of s. 568 is established when an appellant produces before the Full Court evidence additional to that given at the trial and which is of such a nature that the Full Court considers that it could reasonably have raised in the minds of the jury a reasonable doubt as to guilt and so would have led to an acquittal. This contention the Full Court rejected. It distinguished between cases (1) where the absence at the trial of evidence subsequently available has deprived the accused of his right to a fair trial, so, without more, establishing a miscarriage of justice, and (2) where, notwithstanding the fairness of the trial that was had, the additional evidence makes the guilt of the accused appear to the Full Court to be too doubtful for it to be just to allow the conviction to stand, thus showing a miscarriage of justice. The Full Court examined the proceedings at the trial and additional evidence adduced before it and concluded that there had been no miscarriage of justice in either sense.

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).

There is ample authority to support what I, accepting the statement of the Full Court, have stated as the correct principle. See Craig v. The King [12] , per Rich and Dixon JJ.; Green v. The King [13] , per Latham C.J. and the cases there cited; Ross v. The King [14] , approving the decision of the Victorian Full Court [15] ; Reg. v. Hadland [16] , and R. v. James McCall [17] . I adopt without reservation the following statement from the judgment of Rich and Dixon JJ. in the case first cited:

A court of criminal appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. 1. (1933) 49 C.L.R. 429, at p. 439. 2. (1939) 61 C.L.R. 167, at pp. 174-175. 3. (1922) 30 C.L.R. 246, at p. 256. 4. [1922] V.L.R. 329, at p. 337. 5. [1969] V.R. 725, at pp. 729-730. 6. (1920) 20 S.R. (N.S.W.) 467, at p. 472.

The foregoing authorities were relied upon by the Full Court but since it considered the matter there has become available a decision of the House of Lords dealing with a kindred matter: Stafford v. Director of Public Prosecutions [18] . The Criminal Appeal Act 1969, s. 2(1), provided that "the court shall allow an appeal against conviction if they think - (a) that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; " The appellants, after conviction, applied for leave to adduce further evidence. Their application and appeal were dismissed. Later, upon a representation that a miscarriage of justice had occurred, the Home Secretary referred the cases to the Court of Appeal under s. 17(1)(a) of the Criminal Appeal Act. The Court of Appeal, after taking fresh evidence, dismissed the appeal on the ground that, despite the additional evidence, the evidence of guilt was irresistible and that the verdict was not unsafe or unsatisfactory for the purposes of s. 2(1)(a). The House of Lords dismissed the appeal, holding that to allow it the House would itself have to come to the conclusion that the verdicts were unsafe or unsatisfactory. The House examined the whole case, including the fresh evidence, and found no ground for so concluding. As to the principle of law here in question the following statement of Lord Cross of Chelsea is most apposite [19] :

It was argued most strenuously by counsel for the appellants that the Court of Appeal ought to have asked itself expressly whether if the fresh evidence had been given at the trial together with the original evidence the jury might have had a reasonable doubt as to the guilt of the accused and that its failure to ask itself the question vitiated its judgment. I do not agree. Section 2 (1) (a) of the Criminal Appeal Act 1968 simply directs the court to allow an appeal against conviction if it thinks that under all the circumstances of the case the verdict is unsafe or unsatisfactory. In a fresh evidence case it is natural for the court to put itself in the position of the jury which convicted on the original evidence and to ask itself whether the addition of the fresh evidence might have induced a reasonable doubt in its mind. But that is only another way of asking whether it might have induced a reasonable doubt in the minds of the members of the court if they had constituted the jury. 1. [1974] A.C. 878. 2. [1974] A.C., at p. 907.

The court of appeal must reach an affirmative conclusion of its own upon the matter which the statute commits to its opinion. This decision, although upon different legislation, does indicate that the approach made by the Full Court to this case was correct.

Counsel for the petitioner relied upon R. v. McDermott [No. 1] [20] to support the principle which the Full Court rejected, but the judgment of the court in that case recognized that it is for a court of appeal, asked to set aside a conviction because of the availability of additional evidence, to evaluate that evidence. It was stated that the admission or rejection of additional evidence must depend upon the circumstances. In elaboration of this the Court said [21] :

One important matter to be taken into account is the character of the proposed new witness. If it is such that no reasonable jury would be likely to regard him as credible, this of itself supplies a strong reason for rejecting the proposed new evidence, since it would add nothing that would influence a reasonable jury: R. v. Stone [22] . So is the nature of the proposed new evidence. So, too, may be the fact that the evidence was available to the defence at the trial but it was thought preferable to conduct the defence on other lines: Green v. The King [23] . But in each case the question turns on the nature of the case, the evidence already given in it, and the nature and quality of the proposed new evidence. It was in light of such an examination of the evidence to be adduced that the court there decided that the additional evidence relied upon should not be received. The test adopted by the Court in that case [24] was "Would the addition of the new evidence to the other evidence of the case be likely to cause a reasonable jury to doubt the appellant's guilt?" This formulation, which, in my opinion, did not depart from what had been said earlier in R. v. Sichel [25] , does not, I think, differ in effect from the formulation I have adopted based upon the authorities already cited, and is one which does require the court of appeal itself to evaluate the weight of the fresh evidence in order to reach an affirmative opinion of its own. It is a formulation of the kind referred to by Lord Cross in the passage already cited where the court, in the course of arriving at its own conclusion, puts itself in the position of the jury. 1. (1947) 47 S.R. (N.S.W.) 379. 2. (1947) 47 S.R. (N.S.W.), at pp. 382-383. 3. (1926) 26 S.R. (N.S.W.) 394. 4. (1939) 61 C.L.R. 167. 5. (1947) 47 S.R. (N.S.W.), at p. 382. 6. (1913) 13 S.R. (N.S.W.) 259.

Accordingly I consider that the Full Court here did apply the law correctly in undertaking for itself an evaluation of the additional evidence adduced before it to determine whether or not there had been a miscarriage of justice at the trial.

In making its evaluation the Full Court both permitted cross-examination of the witnesses upon whose evidence the petitioner relied and admitted further evidence called by the Crown relating to the subject of the evidence adduced on behalf of the petitioner. This course was, I consider, correct. The Full Court was hearing an appeal on the ground that there had been a miscarriage of justice at the trial and, if it had to be satisfied that the evidence then tendered ought to have resulted in an acquittal, it was necessary to test that evidence both by permitting cross-examination and allowing witnesses called at the trial to support what the petitioner's additional evidence was directed to refute. Evidence cannot be evaluated simply by taking it at its face value and, as I have said, a careful evaluation of the additional evidence by the Full Court was necessary before it could conclude that additional evidence revealed a miscarriage of justice at the trial.

The conclusion that the Full Court was correct in its understanding of the test to be applied in determining whether or not there had been a miscarriage of justice at the trial would, of itself, be sufficient to warrant refusing special leave to appeal, for the Full Court, in applying the correct principle, had the advantage that this Court lacks of hearing the additional evidence upon which the petitioner relied. However, since argument was not confined to the question whether or not special leave to appeal should be granted, it is, I think, necessary to go further and say that I agree with the Full Court that the additional evidence adduced on behalf of the petitioner did not establish that there had been any miscarriage of justice at the trial.

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.

At the time of her death the deceased was more than eight months pregnant. The petitioner and a Mrs. Kemp, who lived with her husband and children in Echuca, were in love with one another. Mrs. Kemp had been pressing the petitioner to leave his wife and to go away with her. On the morning of the day of the shooting Mrs. Kemp had telephoned the petitioner telling him that at lunch time on that day she would leave her husband. The petitioner then visited her and endeavoured to persuade her not to leave home immediately but she had insisted that she would straight away put her house on the market. This she did later in the day. The petitioner told Mrs. Kemp that on the previous evening he had told his wife that he would leave her when the baby was born and that she had been distressed by this. The petitioner and Mrs. Kemp agreed that they would go away together after the birth of the deceased's baby. After this visit to Mrs. Kemp he returned to his home and had lunch with his wife and children. Notwithstanding that he had outside work to do - he was a surveyor - he remained at home after lunch, as he said, to finish repairing a hose upon a washing machine. He said that, while he was waiting for some glue to dry, he brought his guns into the kitchen to clean them. Between 1.09 p.m. and 1.12 p.m. the father of the petitioner was speaking to the petitioner upon the telephone from Melbourne and had a normal conversation with him. The father heard the voice of the deceased.

After their arrival the petitioner was interrogated by the police and in the course of that day made statements to the effect that the gun had been fired accidentally while he was cleaning it. The next morning the police took the petitioner and his solicitor to the house where the petitioner demonstrated his position, the deceased's position and the way in which he was holding the gun when it was discharged. Photographs were taken. Later that morning he volunteered a further statement relating to the mark of the firing pin upon the cartridge in the right barrel of the gun; it was to the effect that, at a time before the shooting, which he could not identify, he had heard a click inside the gun.

On the evening of 7th May an autopsy of the body of the deceased was conducted by Dr. Charlton who made a report including a finding that the path of the wound in the body was downward at an angle of forty-five degrees. It was to this finding that the additional evidence adduced by the petitioner before the Full Court was particularly directed. There was evidence of eminent medical men, who had not seen the body of the deceased, to the effect that the material in Dr. Charlton's report led to the conclusion that his finding about the angle of entry of the charge was wrong and that the path of the charge was horizontal into and through the body of the deceased.

The issue raised by this evidence was, I consider, really a false one. The evidence that the charge entered the body upon a descending angle did not, if believed, determine how the petitioner was holding the gun when it was fired. If the evidence were correct it could be that the descending angle was to be accounted for by the position of the deceased's body when she was struck by the charge. This Dr. Charlton recognized. If, however, the body of the deceased was upright when struck by the charge, the gun, when it was fired, could not have been held hip high in a horizontal position. To my mind the additional evidence, if believed, would prove nothing of real significance and was not of the character to warrant the conclusion that there had been a miscarriage of justice. However the Full Court considered that additional evidence carefully and rejected it, preferring the evidence of Dr. Charlton whose evidence was supported by the only other doctor who had seen the body of the deceased. In these circumstances it cannot be said that the additional medical evidence showed a miscarriage of justice at the trial.

Part of the additional evidence adduced was directed to discredit the evidence of the telephonist that a female asked for the police. It was the evidence of an expert in voice and speech training to the effect that the evidence of the telephonist, that it was a female who spoke to her from the deceased's house, could not be relied upon because in the circumstances it would not have been possible for her to distinguish between a male and a female voice. In my opinion the capacity of the telephonist to distinguish between a male voice and a female voice was not a subject for the evidence of an expert at all. Moreover, in the circumstances, the evidence adduced had no weight. The telephonist did say that the voice was that of a female, but she also said that the request was for the police, not for an ambulance. It is plain that she called the police and gave them a message that they were wanted at 59 Mitchell Street. The police went to that address in response to that information. The call to the telephone exchange from 59 Mitchell Street was made either by the deceased or by the petitioner. There was nobody else. If the telephonist was correct in her account of what was said, the call was not made by the petitioner because his evidence was that he rang and asked for an ambulance. The strength of the evidence of the telephone operator did not, therefore, depend upon her identification of the voice which spoke as being that of a female. The evidence of the expert in voice and speech training, if admissible, afforded no ground for disbelieving the evidence of the telephone operator.

Finally there is what may be called additional ballistic evidence relating (1) to the distance between the barrel of the gun and the deceased when the shot was fired, and (2) the marking on the cartridge in the right-hand barrel of the gun.

The deceased was killed by a shot fired from the left-hand barrel of the gun held by the petitioner. The distance which the shot travelled before striking her is a matter which had no bearing whatever upon the question whether or not the trigger was pressed intentionally or accidentally. Any issue about the exact distance is, I consider, merely another facet of the endeavour to turn a peripheral matter into a critical matter, viz. the angle at which the charge entered the body of the deceased. The petitioner said that he was six or seven feet from the deceased when the shot was fired, and whether that was the distance or the distance was something less was a matter of small importance. As the Full Court said, the jury may well have arrived at its verdict without reference to the range at which the fatal shot was fired. Crown evidence was that the actual range was five feet. Further evidence was that it was not more than four feet and may have been as little as three feet. The evidence relating to the range does not, of course, bear directly upon whether or not the shooting was intentional and, in my opinion, it does not bear upon the correctness of the demonstration which the petitioner gave, particularly as the petitioner himself said that he was up to six or seven feet away from the deceased when the shot was fired.

Of the additional evidence adduced about the marking upon the cartridge in the right-hand barrel the Full Court said that this [26]

relates to expert evidence that the mark on the cartridge taken from the right barrel might have been made at the time the left barrel went off, and either because of inertia and recoil or because the firing mechanism of the right barrel was activated by the jolt from the firing of the left barrel.

It appears to us to be impossible to regard this item seriously as the basis for an allegation of miscarriage of justice while the petitioner's oath still stands, as it does, that some little time before the shot was fired from the left barrel he was standing facing the sink with the gun "cradled" and pointing along the side wall when he heard the definite click of a firing pin going forward, and that, because of the attitude he was in when he heard this, he believes he probably caused it by pulling the trigger.

Even if this answer to the fourth point could in some way be disposed of a further answer would remain. For, insofar as the point relates to the possibility of the mark being due to inertia and recoil, this is completely negatived by the existence on the misfired cartridge of radial marks which show that the firing pin was held against it by the hammer when the gun was opened after the shooting.

The evidence that the mark on the cartridge was caused by the firing pin while under pressure from the hammer was supported by the additional evidence and, insofar as that evidence attributed that pressure to a double discharge or inertia and recoil, it did no more than put forward a possibility which the Full Court rejected. 1. [1974] V.R., at pp. 221-222.

Section 568 commits to the Full Court the duty of allowing an appeal "if it thinks" there was a miscarriage of justice. After a careful examination of the fresh evidence adduced it did not, in this case, so think. Its reasons for coming to the conclusion that it did, convince me. Accordingly, in my opinion, special leave to appeal should be refused.

I would grant special leave to appeal but would dismiss the appeal. I have read the reasons for judgment of the Chief Justice and I agree with what is there said, both generally, concerning the course to be adopted by a Court of Criminal Appeal when considering an appeal founded upon the production of new evidence, and specifically concerning this present appeal.

I have had the opportunity of reading the reasons for judgment of the Chief Justice and I agree with them. I only wish to add a comment on the evidence concerning the telephone call made from the house at the time of the incident. The accused claimed throughout that he made the telephone call in question immediately after the shooting and that he asked for an ambulance. I agree with the analysis of this evidence and additional material which has been made in the Full Court and in this Court. But I wish to add that even if the accused's account should be accepted, the jury would be most unlikely to have concluded otherwise than it did. However deliberate this shooting was, of course the appellant would be distressed and overwrought at the course of events. The case for the Crown was that, although the shooting was deliberate, it was the act of a man who was at breaking point. The act was cold blooded in the sense that it was deliberate and planned but there is little comfort to the appellant in the fact that he was distressed, even hysterical, when the dreadful act had been done.