Simic v The Queen

Simic v The Queen - [1980] HCA 25 - HCA 1980 case summary — Zoe

The evidence established that the applicant, who was employed by the Melbourne and Metropolitan Board of Works, had for some months before May 1978 been working on the construction of a drain in Durrant Street. During that time he had formed a slight acquaintance with Mrs. Conabere. Early in May he was shifted to another job in Prahran. On 30th May, according to the evidence of some of his fellow employees, he left work about lunch-time - about a quarter to twelve or twelve o'clock - saying that he felt ill. The version of events presented by the applicant's statement from the dock and by the evidence of witnesses called on his behalf was that he had arranged to meet his wife that afternoon at Fitzroy for the purpose of borrowing money from one Dukic to enable him to travel to Yugoslavia where his brother was seriously ill. It was not in dispute that earlier in May one Kenney had bought some spumante on the applicant's behalf; Kenney gave evidence, which the applicant denied, that at the time when he was requested to make the purchase the applicant asked him what was a good champagne to get a woman drunk. The applicant, in his statement from the dock, said that on 30th May he decided to go down to see Mrs. Conabere and give her the champagne and tell her what he was doing. She had, he said, given him beer when he was working in Durrant Street. He said that he arrived at Mrs. Conabere's house shortly after midday, that he had a couple of glasses of spumante with Mrs. Conabere and stayed no longer than half an hour, and that he did not kill her or touch her in any way and that when he left there was nothing wrong with her. He explained his false statements to the police by saying that he was shocked to hear of her death and had panicked. He said that after leaving the house in Durrant Street he went to Fitzroy, and evidence given by his wife, by Dukic and by a Mrs. Friss, if believed, established that he reached Fitzroy by about a quarter past one at the latest. It should perhaps be added that Brighton is in quite a different direction from Prahran than Fitzroy.

[23]

In R. v. Wann [8] , Lord Alverstone C.J. stated the principle which was there accepted by the Court of Criminal Appeal as follows: "A mere misstatement is clearly not a misdirection when the case has been fully heard by the jury, and as to omission, we must be satisfied that it is such that it is reasonable and probable that the jury were misled, in which case there might be "a miscarriage of justice". But the objection of omission seldom succeeds. As I said in delivering the judgment of this Court: "One has to be very careful in dealing with a case of alleged misdirection to appreciate the lines on which a case is conducted, as omission to direct the jury on a point which was not taken at the trial may not matter if no injustice is done" (Meyer [9] ). The effect of the cases on this subject is stated in Ross on The Court of Criminal Appeal, at p. 113, as follows: "To have any effect in itself the misstatement of the evidence, or the misdirection as to the effect of the evidence must be such as to make it reasonably possible that the jury would not have returned their verdict of guilty if there had been no misstatements". With the alteration of the one word "possible" to "probable", we think that this statement is correct." However, when Lord Alverstone C.J., went on to apply the principle thus stated to the facts of the case he used the following words [10] : "In the summing up in this case there was no misstatement, but the jury were not fully directed as to the importance of the question whether the girl's visit to the surgery took place on the 8th or on the 22nd of September, and we have to consider whether we are reasonably satisfied that if there had been a fuller direction on this question, the jury would have returned a verdict of guilty." In conclusion his Lordship said [11] : "The verdict might not have been the same if those consequences had been sufficiently brought to their attention. It is more important that an innocent person should not be convicted than that a guilty person should go free." The Court then proceeded to quash the conviction. The language used in the concluding passages in the judgment suggests that the test which it applied in doing so - as distinct from the test to which it had earlier given formal approval - placed the onus on the Crown, or at least regarded a possibility that the verdict might not have been the same had it not been for the misstatement as enough to show that there had been a miscarriage of justice.

[33]

The fate of a criminal appeal should not depend on the application of rigid formulas. It is true that an appellant who claims that the trial judge misstated the facts to the jury must, if his appeal is to succeed, show that there was a miscarriage of justice. But since an accused person has a fundamental right to a fair trial, conducted in accordance with law, the fact that the case has not been properly presented to the jury will in some circumstances be enough to show that a miscarriage has occurred. However, the distinction between misdirection of law and misdirection of fact is fundamental and must always be borne in mind when evaluating the significance of a misdirection of the latter kind. In the case of the former, the jury is assumed to have observed and applied the directions that were given to them, and any mistake by the trial judge in his charge to the jury on matters of law is itself a ground for allowing an appeal, if, subject to the proviso, the Court of Criminal Appeal thinks fit to do so. In the case of the facts, the trial judge must tell the jury that the facts are for them, that their verdict must be grounded on the evidence that they have heard, and that although he will review that evidence and make some comments of his own relative thereto they are not bound to accept anything that he may say. The scope for a misstatement of the evidence will often be very wide, and the effect of such misstatement may vary a great deal. It is right and proper therefore that an onus rests upon an appellant to bring himself within s. 568 by showing that the misdirection which occurred in the instant case amounted to a miscarriage of justice. Nevertheless, it is putting that onus too high to require it to be shown that it was reasonably probable, rather than possible, that the misdirection affected the verdict. Of course minor inaccuracies and omissions will not be likely to make it possible that the verdict was affected. Bare and remote possibilities may be disregarded, but if it is considered reasonably possible that the misstatement may have affected the verdict and if the jury might reasonably have acquitted the appellant if the misstatement had not been made, there will have been a miscarriage of justice, and a substantial one. In considering a question of this kind, the appellate court must have regard to the gravity of the misstatement as well as to the strength of the case against the appellant.

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