REGINA v GIBSON

The application of the test was explained as follows (181 CLR at 494) - "In most cases, a doubt experienced by an appellate court will be doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."

In Jones, Gaudron, McHugh and Gummow JJ point out (191 CLR at 452) that the "open to the jury" test is significantly different to that implied by asking whether the jury must have had a reasonable doubt or whether the evidence for the prosecution was so weak or flawed as to make it wrong for the jury to accept it, which was the formulation applied in the judgments under appeal. These latter tests were described by their Honours as a misapprehension of and "much stricter" than the test formulated by the majority in M (191 CLR at 452, 453). 41 As I have already mentioned, I accept that there were reasonable grounds for declining to consider that the witnesses who incriminated the appellant were sufficiently reliable to justify convicting him. However, my reading of the transcript has led me to conclude that the advantage enjoyed by the jury in all the circumstances of this case in observing the Crown witnesses as well as the appellant and his witnesses was very substantial indeed and that, considered as a whole, it was open to them to convict the appellant despite the weaknesses to which I have referred. 42 Accordingly, I propose that this ground of appeal should be rejected. **********