Weiss v The Queen

(4) Despite subsection (3), even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

1. Counsel for the appellant submitted that the italicised part of the Third Impugned Sentence necessarily involved a 'wrong decision on a question of law by the judge,' and an irregularity in the trial that amounted to a 'miscarriage of justice'. He submitted that the question of whether the misstatement could have affected the verdict arose only under the 'proviso' in s 30(4) of the Criminal Appeals Act, when the court decided whether 'no substantial miscarriage of justice' has occurred.[128]
2. I accept, for the reasons explained by Beech JA (with whom Pritchard JA agreed) in OKS v The State of Western Australia,[129] that a wrong direction of law to the jury will be a 'wrong decision on a question of law' irrespective of whether objection is taken to the direction or a redirection is sought. I also accept that a 'miscarriage of justice' for the purposes of s 30(3)(c) comprehends any departure from trial according to law, regardless of the nature and importance of that departure.[130]
3. However, it is at least arguable that any 'wrong decision on a question of law' or 'miscarriage of justice' must arise from the trial judge's direction taken as a whole.[131] It may be said that, if the direction taken as a whole is correct, and carries no risk of misleading the jury, a misstatement in one part of the direction will not constitute a 'wrong decision on a question of law' or a 'miscarriage of justice'. Further, it is at least arguable that the question of whether a trial judge's direction constitutes a departure from a trial according to law is also to be assessed by reference to the direction taken as a whole, as a jury listening to the direction might understand it. That is consistent with the approach illustrated by the decision in La Fontaine, referred to above.
4. Even if the misstatement in the present case, considered in isolation, constitutes a 'wrong decision on a question of law', it is at least arguable that the court would only allow the appeal under s 30(3)(b) if in its opinion the convictions should be set aside because of that decision.[132] This at least arguably imports a requirement of materiality at this stage of the inquiry. A wrong decision on a question of law, where there is no reasonable possibility that the decision could have had any effect on the jury's deliberations, will be immaterial and will not justify setting aside the convictions. On that view, the materiality of the wrong decision arises under s 30(3)(b) as well as s 30(4) of the Criminal Appeals Act.
5. While the italicised part of the Third Impugned Sentence was in error, the direction taken as a whole was not. For the reasons I have explained, there was no real risk that the direction would deflect the jury from their proper task. On the view suggested at [208] - [209] above, in those circumstances, the court would not reach the opinion that the appellant's convictions should be set aside because of a wrong decision on a question of law by the trial judge, constituted by the misstatement. Nor, on that view, would the misstatement constitute or give rise to any miscarriage of justice.
6. However, the ultimate result in this appeal does not turn on the acceptance or rejection of the propositions summarised at [208] - [210] above. Counsel for the appellant accepted that his submission on the second issue would fail if the only reasonable way the jury could have understood the direction, taken as a whole, was that they could not simply put aside the appellant's evidence if they had a doubt about it. Counsel accepted that, if the court rejected the appellant's submissions on the first issue (summarised at [156] - [158] above) and the third issue (summarised at [161] - [1[133]] above) the proviso could be applied in those circumstances.133 I have rejected the appellant's submissions on the first and third issues. I have concluded that the only reasonable way the jury could have understood the direction taken as a whole was that they could not simply put aside the appellant's evidence if they merely had a doubt about it.
7. In these circumstances, it is unnecessary to determine whether the approach suggested at [208] - [210] above should be adopted, as such a determination would not affect the ultimate result in this appeal. Cases dealing with materiality in this context do not always consistently and clearly distinguish between the operation of s 30(3) and s 30(4) of the Criminal Appeals A[134]or their equivalents.134 The absence of any detailed submissions dealing with the manner in which materiality of an error may be considered under s 30(3) of the Criminal Appeals Act in the circumstances of this case makes it undesirable to resolve that question here.
8. I will therefore proceed assuming (without deciding) that the italicised part of the Third Impugned Sentence would lead the court to allow the appeal under s 30(3)(b) and/or s 30(3)(c) of the Criminal Appeals Act, subject to the application of the proviso in s 30(4) of that Act. On that assumption, favourable to the appellant, I would accept the concession made by counsel for the appellant at [166] and [211] above and apply the proviso in s 30(4) of the Criminal Appeal Act.
9. The High Court has considered the application of the proviso in four recent cases: Kalbasi v The State of Western Australia,[135] Collins v The Queen,[136] Lane v The Queen,[137] and OKS v The State of Western Australia.[138] At least a majority of the court have accepted the following propositions in those decisions:

(1) The task of determining whether, notwithstanding an error, there has been no substantial miscarriage of justice within the meaning of s 30(4) of that Act is committed to the appellate court.[139]

(2) It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is satisfied that the guilt of the appellant was proved, beyond reasonable doubt, on the admissible evidence on the trial that was had.[140] That is because the conviction of a person whose guilt has not been proved, beyond reasonable doubt, on admissible evidence will always be a substantial miscarriage of justice.[141]

(3) The appellate court is required to consider the nature and effect of the error in every case, as some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. In such cases, Weiss does not disavow the utility of the concepts of lost chance of acquittal or inevitability of conviction: regardless of the apparent strength of the prosecution case, the appellate court cannot be satisfied that guilt has been proved.[142]

(4) The appellate court's satisfaction that guilt has been proved to the criminal standard on the admissible evidence will in many instances support the conclusion that there has been no substantial miscarriage of justice notwithstanding a wrong decision on a question of law or a miscarriage of justice. (This confirms the negative proposition in Weiss as a necessary but not sufficient condition for the application of the proviso.) It is not possible to describe the metes and bounds of those wrong decisions of law or failures of trial process that will occasion a substantial miscarriage of justice notwithstanding the cogency of proof of the accused's guilt.[143]

(5) A misdirection that is apt to prevent the performance by the jury of its function, without more, will result in a substantial miscarriage of justice. The proviso is cast in terms which permit the appellate court to dismiss an appeal from a judgment of the court which gives effect to the verdict of the jury. The proviso does not permit the appellate court to exercise the function of the jury. The language of the proviso cannot be understood as if it were to the effect that an appeal in which the possibility that the jury has not performed its function of reaching a unanimous verdict may be dismissed on the basis that the appellate court is satisfied of the guilt of the accused.[144]

(6) Where proof of guilt is wholly dependent on acceptance of a complainant's evidence and a misdirection may have affected that acceptance, the court cannot accord the weight to the verdict of guilty which it otherwise might.[145]

(7) The fundamental question remains whether there has been a substantial miscarriage of justice. That question is not answered by trying to identify some classes of case in which the proviso can be or cannot be applied. Classifications of that kind are distracting and apt to mislead.[146]

1. The complainant's evidence, if accepted, established that the appellant committed the offences of which he has been convicted. It was open to the jury to reject the appellant's denials of the offending conduct. It was also open to the jury to reject the appellant's evidence that he was not capable of having an erection or ejaculating at all. That evidence was inconsistent with the complainant's observations, and the appellant's statements to Dr Spencer. Evidence as to the appellant's possession of pornographic material, and B's evidence of the appellant's sexual activity with the complainant, also counted against acceptance of the appellant's evidence that he was '100 per cent impotent'.
2. Given the conflict between the evidence of the complainant and the appellant as to the occurrence of the sexual conduct, this court can only be satisfied that guilt was proved to the criminal standard on admissible evidence by giving significant weight to the jury's verdicts. In the circumstances of this case, it would not be possible to give any significant weight to the jury's verdict if the italicised part of the Third Impugned Sentence misdirection may have affected the jury's acceptance of the complainant's evidence. However, significant weight can be accorded to the jury's verdicts where, having regard to the direction as a whole, there was no real risk that the misstatement would have affected the jury's verdict. That is so where, as I have concluded above:

(1) there is no real risk that a reasonable jury, having listened to the whole of the trial judge's direction, might have apprehended that they could put the appellant's evidence as to his sexual dysfunction aside if they merely had a doubt about it, and

(2) where no real risk of confusion arose from the directions considered as a whole.

1. These conclusions distinguish the present case from OKS. In that case, the impugned erroneous direction qualified other directions which the trial judge in that case had given.[147] The High Court held that the proviso could not be applied where the prosecution case was dependent on the credibility of the complainant in OKS, and the jury's assessment of her credibility was wrongly circumscribed by directions of law which precluded the jury from adopting a process of reasoning, favourable to the accused, that was open to it.[148] In the present case the trial judge's direction, taken as a whole, did not have that effect. When the direction is considered as a whole, the misstatement in the italicised part of the Third Impugned Sentence did not qualify other directions and could have had no effect upon the jury, acting reasonably, in its verdict.
2. Therefore, the misstatement in the italicised part of the Third Impugned Sentence is not such as to prevent this court from being able to assess whether the appellant's guilt was proved beyond reasonable doubt. Having regard to the evidence led at trial, and giving weight to the jury's verdict, I am satisfied that the appellant's guilt of the offences of which he was convicted was proved beyond reasonable doubt. There is nothing about the misstatement that would occasion a substantial miscarriage of justice, notwithstanding the cogency of proof of the accused's guilt. In those circumstances, assuming (without deciding) that the italicised part of the Third Impugned Sentence constituted a wrong decision on a question of law or a miscarriage of justice, I am satisfied that no substantial miscarriage of justice has occurred.

1. For the above reasons, in my view the appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.

[2] Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 [72] (Kirby J).

[3] R v Dookheea [2017] HCA 36; (2017) 262 CLR 402 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ).

[4] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [17] - [18] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).

[5] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [13] (French CJ, Bell, Keane & Nettle JJ).

[6] Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319, 327 - 328.

[7] KBT v The Queen [1997] HCA 54; (1997) 191 CLR 417, 424 (Brennan CJ, Toohey, Gaudron & Gummow JJ).

[8] King v The Queen [2012] HCA 24; (2012) 245 CLR 588 [53] (French CJ, Crennan & Kiefel JJ).

[9] AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 [47] (Gummow & Hayne JJ), [86] (Heydon J).

[10] Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 [19] (Gummow & Hayne JJ).

[11] Perara-Cathcart v The Queen [2017] HCA 9; (2017) 260 CLR 595 [38] - [40], [48] (Kiefel, Bell & Keane JJ).

[12] Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 92 ALJR 305 [57] (Kiefel CJ, Bell, Keane and Gordon JJ).

[13] DKA v The State of Western Australia [2017] WASCA 44.

[34] Trial ts 1486, 1563 - 1564, 1671 - 1672, 1673 - 1674.

[37] Trial ts 1497 - 1499, 1616 - 1617, 1676 - 1677.

[44] Trial ts 1489, 1497, 1500, 1515, 1525, 1657.

[45] Trial ts 1527 - 1528, 1574 - 1577.

[46] Trial ts 1666 - 1668, 1717 - 1718, 1722, 1728 - 1729, 1757 - 1758.

[47] Trial ts 1706 - 1707, 1765 - 1768.

[48] Trial ts 1466 - 1467, 1475 - 1476.

[64] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, 515.

[66] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 90 - 91.

[78] See trial ts 1911 - 1912, 1914 - 1915.

[96] Appellant's Submissions, pars 30 - 31, 34.

[101] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 579, 592 - 593.

[102] AJE v The State of Western Australia [2012] WASCA 185; (2012) 225 A Crim R 242 [5]; KMB v The State of Western Australia [2010] WASCA 212 [3]; MAS v The State of Western Australia [2012] WASCA 36 [49] ‑ [50]; Beasley v The State of Western Australia [2012] WASCA 80 [62] ‑ [64].

[105] Ruthsalz v The State of Western Australia [2018] WASCA 178 [191] - [192].

[106] Koushappis v The State of Western Australia [2007] WASCA 26; (2007) 168 A Crim R 51 [100], [104].

[107] R v Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116. See also Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19 [114] (Miller JA); Johnson v The State of Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531 [27] ‑ [31] (Buss JA).

[108] La Fontaine v The Queen [1976] HCA 52; (1976) 136 CLR 62, 73. See also, to similar effect, Gibbs J at 81, Mason J at 87. The High Court endorsed this approach in R v Dookheea [2017] HCA 36; (2017) 262 CLR 402 [37].

[109] Cooper v The State of Western Australia [2010] WASCA 190.

[112] Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 [72].

[114] Cox v The State of Western Australia [2011] WASCA 30; (2011) 205 A Crim R 503 [58] - [63].

[115] Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 [28] - [29].

[116] See [131] and [151] above.

[117] See [131] and [151] above.

[118] See [148] above.

[119] See [148] above.

[120] Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460 [58].

[126] R v Serratore (1999) 48 NSWLR 101; [1999] NSWCCA 377 [133], [246]; Hiemstra v The State of Western Australia [2006] WASCA 70 [1], [54], [59], [115]; Dailakis v The Queen [2018] VSCA 101 [90]; Romano v The Queen (a pseudonym) [2019] NSWCCA 49 [31] - [32], [35].

[127] To use the phrase adopted in La Fontaine (73).

[129] OKS v The State of Western Australia [2018] WASCA 48; (2018) 52 WAR 482 [188] - [253], [255].

[130] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [18]; Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 92 ALJR 305 [12].

[131] See, for example, Mule v The Queen [2005] HCA 49; (2005) 221 ALR 85 [24].

[132] Papadimitriou v The Queen [2011] WASCA 140; (2011) 214 A Crim R 50 [75] (Pullin JA).

[134] Compare Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319, 328, 332; Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322 [9] - [13]; Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362 [173]; Carney v The State of Western Australia [2010] WASCA 90; (2010) 201 A Crim R 537 [2], [41] - [47], [201]; Papadimitriou v The Queen [2011] WASCA 140; (2011) 214 A Crim R 50 [75], [99], [254] - [256], [323] - [329]; Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [15], [84]; OKS v The State of Western Australia [2018] WASCA 48; (2018) 52 WAR 482 [77], [205] - [206].

[136] Collins v The Queen [2018] HCA 18; (2018) 92 ALJR 517.

[137] Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689.

[138] OKS v The State of Western Australia [2019] HCA 10; (2019) 93 ALJR 438.

[140] This is the negative proposition stated in Weiss [44].

[142] Kalbasi [15]; see also Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 [34]; Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 [126] - [127] and Collins [36] - [37].