Citation: TWL v R (No 2) [2012] NSWCCA 93
Court: Court of Criminal Appeal, NSW
Date: 15 May 2012
Judge(s): Macfarlan JA, RA Hulme J, Garling J
Background
The appellant had been convicted of the manslaughter of a man on 20 February 2009. In February 2012, the Court of Criminal Appeal quashed that conviction, and in April 2012 it published its reasons and ordered a retrial. The earlier judgment had addressed a ground of appeal that the jury's verdict was unreasonable and unsupported by the evidence.
Within 14 days of the April 2012 judgment, the appellant applied to have the retrial order set aside. He argued the Court had not fully dealt with the unreasonable verdict ground and that, if it did so properly, it would enter a verdict of acquittal rather than send the matter back for retrial.
Legal Issues
- Whether the Court had conducted a full, independent assessment of the evidence under the unreasonable verdict ground, or had merely asked whether the evidence was capable in law of sustaining the verdict.
- Whether the Court was required, or ought, to go further and express a view on whether it was itself satisfied beyond reasonable doubt of the appellant's guilt.
- Whether the retrial order should be set aside and an acquittal entered.
Decision
The appellant's application rested on a misreading of the earlier judgment. Macfarlan JA clarified that the April 2012 judgment had not merely asked whether the evidence was legally capable of supporting the verdict. The Court had conducted a full and independent assessment of the trial evidence, ultimately concluding it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.
That conclusion satisfied the test stated by the High Court in SKA v The Queen [2011] HCA 13: namely, whether the evidence was such that it was open to the jury to find guilt beyond reasonable doubt. That finding was sufficient to disentitle the appellant to an acquittal and to support the order for retrial.
The Court declined, however, to take the further step identified in SKA of expressing its own view on whether the Crown had actually proved guilt beyond reasonable doubt. Macfarlan JA held that doing so would have been unfair to the appellant, given that the trial had been flawed and the correct directions had not been given to the jury. The appellant was entitled to the presumption of innocence at any future trial, and for the Court to declare him proved guilty on the evidence of an unfair proceeding would have brought the administration of justice into disrepute.
All three judges agreed the application should be dismissed.
Orders Made
- The appellant's application to set aside the retrial order was dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that satisfying the SKA test requires a full, independent appellate assessment of the evidence, not merely a conclusion that the evidence was legally capable of supporting a guilty verdict.
- Under SKA v The Queen (HCA), the threshold question for an unreasonable verdict ground is whether the evidence was such that it was open to the jury to find guilt beyond reasonable doubt; answering that question in the affirmative is sufficient to disentitle an appellant to acquittal.
- A separate and further question identified in SKA, being whether the appellate court is itself satisfied of the appellant's guilt, does not automatically require an answer simply because a retrial has been ordered.
- Where a trial has been procedurally flawed and a retrial ordered, expressing a positive view that the Crown proved guilt beyond reasonable doubt would be unfair to the appellant and would undermine the presumption of innocence at the retrial.
- In dismissing the application, the Court drew on Almeddine v R [2012] NSWCCA 63 as a comparable approach to the standard of review applied to jury verdicts on unreasonable verdict grounds.
Legislation and Cases Referenced
Cases:
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Almeddine v R [2012] NSWCCA 63
Rules:
- Rule 50C, Criminal Appeal Rules (NSW)