REGINA v NGUYEN

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 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." 25 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. These latter tests were described by their Honours as "much stricter" than the test formulated by the majority in M (181 CLR at 453). 26 In my judgment, the prosecution case here fell far short of being capable of proving beyond a reasonable doubt that the appellant was guilty of the crime charged against him. In my opinion, there was no evidence fit to go to the jury that the heroin found in the Hiace was in the appellant's possession nor, in my view, that the appellant was engaged in a transaction with Nghia to supply drugs, or to supply the heroin found in the Hiace. 27 I have therefore concluded that "the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence" and propose that a verdict of acquittal should be substituted.