Jersey & Guernsey Law Review –
October 2011
The right of criminal appeal on the
facts in Jersey and Guernsey
John Kelleher
In 1961, Jersey and Guernsey
separately established by statute a right of appeal in criminal matters from
their Royal Courts to an appellate court, known in each island as the Court of
Appeal. In respect of the test to be applied to appeals against conviction,
both statutes took as their template s 4(1) of the Criminal Appeals Act 1907
(“CAA 1907”) which was then applicable to England and Wales. That test remains today.
However, even in 1961, this test on appeal had long been the subject of
criticism and dissatisfaction in England
and Wales
because of the risk and in certain cases the reality of miscarriages of
justice. In 1968, following a commission of inquiry into the law on criminal
appeal, the CAA 1907 was amended so that the test is now quite different.
Elsewhere in the Commonwealth, the courts of Australia, New Zealand and Canada
have managed to give equivalent wording to the CAA 1907 a more modern and
liberal interpretation. This article examines the options for Jersey and Guernsey and argues for a change to reflect current perceptions
of the role of the appellate court in the criminal context.
1 Let us start with a simple proposition.
In societies, like those of Jersey or Guernsey, which strive to be democratic and just, we would, surely, wish to
ensure that those who come before the criminal courts receive fair and proper
treatment, and that after due process the correct result is attained, whether a
verdict of guilty or not guilty. We would also recognise, would we not, that
criminal matters are often complicated, whether factually and/or legally, and
that, as a matter of probability, and with the best will in the world, mistakes
will happen.
2 The
right of appeal from a decision maker of first instance recognises that
probability. It is a fail-safe. In Jersey and Guernsey,
in serious cases, that right provides for a detailed review of a decision by
three senior and experienced judges. They are there to make sure that things
did not go awry at trial or at sentencing. They are there to make us sleep
easier in our beds at night in the knowledge that justice has been done.
3 However
the fail-safe is only as protective as we allow it to be. The powers of the
appellate court are defined by its jurisdiction. It can intervene only in
circumstances where and to the extent that the law allows it to intervene. The
power to intervene may be restricted by statute or by the
practice of the appellate court as evolved by the common law. In Jersey and Guernsey, our respective legislatures have been involved
in the former to a limited extent, but rarely if at all in the latter.
4 But
when we settle down for that night’s sleep, we would surely wish to be
certain that if that panel of senior and experienced judges in the appellate
court had a material concern about a guilty verdict reached at first instance,
it would have the power to intervene, to bring experience and knowledge to
bear, and right a wrong that had been occasioned.
Law Officers v Guest
5 Until
recently, Guernsey’s reporting of the
decisions of its courts has been somewhat lacking. One could have easily missed
the case of Law Officers v Guest.
It is a good place to start the analysis of the right of appeal in criminal
cases in Jersey and Guernsey.
6 In
2002, Heather Guest was convicted in the Guernsey Magistrate’s Court. Mrs
Guest had been for 18 years the licensee of a public house, “The Helmsman”,
in Cornet Street,
St. Peter Port. She was convicted of one count of being concerned in the
management of “The Helmsman” whilst she knowingly suffered the
smoking of cannabis resin, contrary to s 7(d) of the Misuse of Drugs (Bailiwick
of Guernsey) Law 1974. She was sentenced to 6 weeks’ imprisonment. She
appealed unsuccessfully to the Royal
Court. She was granted leave to appeal to the
Court of Appeal.
7 The
facts of the case, as recounted by the Court of Appeal (Clarke, JA presiding,
sitting with Southwell and Rokison JJA), are these. Essentially, the offence
charged concerned the allegation that Mrs Guest had permitted patrons to smoke
drugs on her licensed premises. The police called two under-cover police
officers from the UK
(referred to somewhat mysteriously as “Ted” and “Ed”).
Their evidence was that on a number of visits to “The Helmsman”
they had smelled cannabis in the bar and toilets. In addition, they had witnessed
cannabis being smoked in both locations. As to Mrs Guest’s knowledge of
this state of affairs, their evidence was that she must have been aware of the
drug’s use since the smell was so prevalent. Mrs Guest, for her part,
accepted that she knew the smell of the drug and that at times that smell was
evident at “The Helmsman”, but she gave “strong evidence” that whenever she
suspected its presence, she ejected the suspected users from the pub. This
policy and practice was supported by witnesses. She denied
ever saying otherwise to one of the police officers.
8 The
Court of Appeal was particularly troubled by the following aspects of the case—
(a) The apparent
implausibility of the alleged admission by Mrs Guest to one of the police
officers on their first meeting that she permitted the smoking of cannabis at
the premises.
(b) The fact that between
1998 and the date of the offence, the Guernsey police had for various reasons
entered “The Helmsman” on 45 occasions and seen Mrs Guest on 34 of
those visits without any complaint being made about cannabis.
(c) The strong evidence of
Mrs Guest’s policy, supported by “a substantial number of witnesses”,
as set out above.
(d) The unlikelihood of Mrs
Guest putting her licence and livelihood at risk in the manner alleged.
9 At
the outset, the Court of Appeal recognised that its powers under art 25(1) of
the Court of Appeal (Guernsey) Law 1961 meant that it could not quash the
verdict because the court would have reached a different conclusion on the
facts, or would have attached a different significance to some parts of the
evidence which had persuaded the Magistrate. The court concluded that, in its
view, there was evidence before the Magistrate on which he could convict the
defendant. However, it went on to say this—
“We do, however, think it right to say that, had
our jurisdiction been the same as that of the Court of Appeal in England, our
conclusion would have been different. In such circumstances the question would
have been whether the conviction was unsafe. As which Widgery L.J said in R v Cooper (1969) 53 CAR 2:
‘That means that in
cases of this kind the Court must in the end ask itself a subjective question
whether we are content to let the matter stand as it is, or whether there is
not some further lurking doubt in our minds which makes us wonder whether an
injustice has been done. This is a reaction which may or not be based strictly
on the evidence as such; it is a reaction which can be produced by the general
feel of the case as the Court experiences.’
In this case, the members of this Court do entertain a
lurking doubt as to whether the conviction is safe but, on the law which we are
bound to apply, this does not entitle us to set aside the decision of the
Magistrate.” (paras 16 and 17)
10 And so it was that Mrs Guest’s conviction remained
undisturbed. Notwithstanding that a panel of three senior and experienced judges
retained a “lurking doubt”
about the correctness of the finding of guilt, they considered themselves
powerless to intervene.
11 In
recent times, one Jersey States member has taken an interest in the nature of Jersey’s right of criminal appeal. The interest was
first expressed as a question on 28 April 2009 which received the reply from
the Chief Minister that “I do not regard this as a high priority at this
time”. The
member persisted and six months later followed up his question with a request
for an update. The answer he received included these words:
“It is not apparent to me that the cumulative
effects of the grounds set out in the Jersey law are, in substance, very
different from the United
Kingdom position and I have seen no case to
support the proposition that the English position which, in any event, was not
as stated in the original question, is necessarily better than ours.”
12 One
assumes those advising the Chief Minister were unaware of the Guest case. That is perhaps
understandable, for the reason already suggested. However that would not excuse
their lack of awareness of Jersey case-law
which, as we shall see, tends to the same conclusion as the Guernsey Court of
Appeal in Guest. The reality is that
there is a material difference between the Jersey and Guernsey tests on appeal
when compared with the position in England
and Wales and that the
difference does restrict the power of the appellate courts of the Islands to intervene in relation to a conviction.
13 As
will become clear from that which follows, this author is not suggesting that
the laws of England and Wales should be viewed as some form of binding guide on
what the laws of the Islands should be. Far from it. We should be justifiably
proud of differences and have confidence in our own ability to operate as
sophisticated jurisdictions. However, the position is obviously more
complicated where the Islands have based their relevant statutes on an earlier
English statute which, even at the date of the promulgation in Jersey and
Guernsey, was the subject of widespread criticism and within a short time
thereafter was repealed and replaced. To expand on these points, it is
necessary to go into somewhat more detail.
The
right of appeal in criminal matters
14 A
convicted person’s right of appeal to the Court of Appeal in Jersey is
set out in art 24 of the Court of Appeal (Jersey) Law 1961 (the “1961
Jersey Law”)—
“24 Right of
appeal
(1)
A person convicted on indictment by the Royal Court, whether sitting with or
without a jury, may appeal under this Part to the Court of Appeal—
(a) against
the person’s conviction, on any ground of appeal which involves a
question of law alone;
(b) with
the leave of the Court of Appeal, or upon the certificate of the judge who
presided at the person’s trial that it is a fit case for appeal, against
the person’s conviction, on any ground of appeal which involves a
question of fact alone, or a question of mixed law and fact, or on any other
ground which appears to the Court to be a sufficient ground of appeal; and
(c) with
the leave of the Court of Appeal, against any sentence passed on the person for
the offence (whether passed on his or her conviction or in subsequent
proceedings), unless the sentence is one fixed by law:
Provided that …”
This goes on to
set out specific provisions relating to the Inferior Number of the Royal Court which
are not relevant for present purposes.
15 In
Guernsey, a similar position pertains to that in Jersey.
Section 24 of the Court of Appeal (Guernsey) Law 1961 (the “1961 Guernsey
Law”) is materially similar to art 24 of the 1961 Jersey Law save for the
opening words which allow for differences in terminology and court structures
between the Islands—
“24.
A person convicted on indictment or summarily convicted in the Royal Court sitting
as a Full Court
on or after such day as shall be appointed in that behalf by Ordinance of the
States may appeal under this Part of this Law to the Court of Appeal …”
Questions
of law/Questions of fact
16 As
the reader will have observed, art 24 and s 24 distinguish between where leave
may or may not be required. Leave is required where the appeal against
conviction involves a question of fact or a question of
mixed fact and law. No leave is required where the appeal against conviction
involves a question of law. A question of law refers to any question within the
province of the judge and not the jury. In Att
Gen for Northern Ireland’s
Reference (No. 1 of 1975)
the definition of a “point of law” was considered in the judgment
of Diplock LJ:
“I know of no other satisfactory definition of a ‘point
of law’ arising in a criminal case than that it is a question that under
this mode of trial would fall to be decided by the judge, not by the jury.
Apart from questions of admissibility of evidence, it is a function of the
judge to decide what are the constituent elements, both physical (actus reus)
and mental (mens rea), of an offence with which the accused is charged and to
instruct the jury accordingly. It is the function of the jury to decide whether
each one of those elements has been proved to have been present in the conduct
or mind of the accused. This is because the definition of a crime is always a
question of law …” (p 132)
17 The
passage from Lord Diplock’s judgment above was cited by the Privy Council
in Smith v The Queen
and it was observed that the passage did not deal directly with the distinction
between questions of mixed law and fact and questions of law alone, which is
the test for whether leave is required in relation to the relevant ground or
grounds of appeal. In Smith, the
Privy Council considered that a similarly worded section to art 24(1)(a) and s
24, which allowed the Attorney General of Bermuda to appeal an acquittal on a “question
of law alone”, applied only to a pure question of law, and observed—
“It is now possible to apply this view to the type
of situations which may arise on a no case submission. Counsel for a defendant
may invite a ruling on a no case submission that a statutory offence contains
an ingredient of mens rea and that there is no evidence of mens rea. The prosecution may dispute the legal question. That
would be a pure question of law which may be appealed under [an equivalently
worded section to art 24(1)(a) and s 21] by the Attorney General. On the other
hand, most no case submissions will simply involve an assessment of the
strength of the evidence led by the prosecution. A certain amount of weighing
of evidence is unavoidable at this stage because the trial judge has to form a
view whether the evidence could potentially produce conviction beyond
reasonable doubt: Zuckerman’s The
Principles of Criminal Evidence (1989), p. 54. The
present case is in this category. It is clear that the judge accepted an
argument that the circumstantial evidence was an insufficient basis for a jury
to convict the defendant. It was no doubt a surprising view for the judge to
have taken but it was nevertheless a view as to the quality of the evidence
against the defendant. It was a decision arrived at on matters of fact and
degree, namely the inferences which could be drawn from the evidence before the
jury. The argument, the decision of the judge and the ground of appeal did not
involve a question of law alone.” (p 1653)
18 Both
of these decisions would be of persuasive assistance in interpreting the Jersey
and Guernsey appeal statutes.
The
jurisdiction of the Jersey and Guernsey Courts
of Appeal
19 The
jurisdiction of the Jersey Court of Appeal in a criminal appeal is set out in art
26 of the 1961 Jersey Law:
“26 Determination of appeals in ordinary cases
(1) Subject to the following
provisions of this Part, on any appeal against conviction, the Court of Appeal
shall allow the appeal if it thinks that the verdict should be set aside on the
ground that it is unreasonable or cannot be supported having regard to the
evidence, or that the judgment of the court before which the appellant was
convicted should be set aside on the ground of a wrong decision of any question
of law or that, on any ground, there was a miscarriage of justice, and in any
other case shall dismiss the appeal:
Provided
that the Court may, notwithstanding that it is of opinion that the point raised
in the appeal might be decided in favour of the appellant, dismiss the appeal
if it considers that no substantial miscarriage of justice has actually
occurred.
(2)
Subject to the following provisions of this Part, the Court of Appeal shall, if
it allows an appeal against conviction, quash the conviction, and direct a
judgment and verdict of acquittal to be entered.”
20 The
jurisdiction of the Guernsey Court of Appeal in a criminal appeal set out in s
25 of the 1961 Guernsey Law is in materially similar terms.
The law of England and Wales on criminal appeal
21 Article
26(1) of the 1961 Jersey Law and s 25(1) of the 1961 Guernsey Law reflect s
4(1) of the Criminal Appeals Act 1907 (“CAA 1907”) which was
applicable to England and Wales. The CAA 1907 was first
amended by s 2(1) of the Criminal Appeals Act 1968, only seven years after its
terms had been adopted in Jersey and Guernsey, then by s 44 of the Criminal Law
Act 1977, and then by s 2(1) of the Criminal Appeal Act 1995.
22 The
Criminal Appeals Act 1968 (as originally enacted) allowed the Court of Appeal
under s 2(1)(a) to allow the appeal if “the verdict of the jury should be
set aside on the ground that under all the circumstances of the case it is
unsafe or unsatisfactory”. The
two further limbs of s 2(1) allowed the Court of Appeal to allow the appeal on
the grounds of error of law and on the basis of a “material irregularity”
in the course of the trial. The proviso in the 1968 Act (as enacted) was
identically worded to the proviso in the CAA 1907, save for the deletion of the
word “substantial” in the reference to miscarriage of justice.
23 Section
44 of the Criminal Law Act 1977 modified s 2(1)(a) by substituting the word “conviction”
for the words “verdict of the jury”.
24 The
test on appeal was again modified by the Criminal Appeal Act 1995. This saw the
removal of the three limbs of the test under s 2(1) and of the proviso. It
appears that the 1995 reformulation was not intended to change the existing
practice of the Court of Appeal (see for example Davis, Johnson and Rowe).
Following the amendment to the wording by the Criminal Appeal 1995, the wording
under s 2(1) of the Criminal Appeals Act 1968, which is the current wording,
became:
“(1)
Subject to the provisions of this Act, the Court of Appeal—
(a) shall
allow an appeal against conviction if they think that the conviction is unsafe;
and
(b) shall
dismiss such an appeal in any other case.”
The Jersey jurisprudence
Introduction
25 There
is a body of Jersey case-law on the
interpretation of art 26(1) of the 1961 Jersey Law. Following established
practice in the Jersey jurisdiction, where a Jersey
statute is based on an English statute, recourse has been had to English
jurisprudence on s 4(1) of the CAA 1907 as an interpretive guide to art 26(1).
Some of the Jersey case-law has focused on the differences
between art 26(1) and the now different position in England
and Wales.
26 Article
26(1) comprises three (alternatively four) grounds on which a verdict “should
be set aside” (and the same applies to s 25(1) of the 1961 Guernsey Law):
(a) the verdict
is unreasonable or cannot be supported having regard to the evidence;
(b) a wrong
decision of any question of law; and
(c) on any ground
there was a miscarriage of justice.
27 The
first ground can, grammatically at least, be read as two separate and distinct
grounds. A conclusion on any of these grounds that the verdict should be set
aside is subject to the proviso contained in the last paragraph of art 26(1)
(again the position is the same for s 25(1) of the Guernsey Law 1961).
The test on
criminal appeal applied in Jersey
28 There
are a number of Jersey Court of Appeal decisions which have focused on the
language of art 26(1). Several of these have addressed the threshold that must
be reached in order for an appeal to be successful. That analysis has included
discussion of the test in Jersey as compared with that which now prevails in England and Wales which is perceived as setting
a lower hurdle or, at least, one which allows a more interventionist approach
by the appellate court. However it cannot be said that the Jersey Court of
Appeal has provided any expansive explanation as to the test it will apply on a
criminal appeal.
29 The
position under Jersey law as to a criminal appeal was described by the Court of
Appeal in Barette v Att Gen
as “more robust in regard to the upholding of a jury’s verdict than
the law which now exists on the mainland” (p 434, para 87). Observing
that the language of the relevant provisions of the Jersey statute is “not
altogether happily drafted”, the Court of Appeal defined the appeal
threshold by reference to the proviso in art 26(1): “notwithstanding some
error in the conduct of the trial, a verdict will only be set aside if the
miscarriage of justice consequent upon that error can properly be described as ‘substantial’”
(p 434, para 88).
30 The same court described R v Haddy
as the locus classicus of the English
Court of Appeal on the operation of the proviso (p 434, para 89) Haddy cited R v Cohen—
“If, however, the court in such a case comes to the
conclusion that, on the whole of the facts and with a correct direction, the
only reasonable and proper verdict would be one of guilty, there is no
miscarriage of justice, or at all events no substantial miscarriage of justice
within the meaning of the proviso.”
31 Haddy continues—
“That statement of the law has stood for
thirty-five years and, so far as we are aware, has never been the subject of
adverse comment, though Judges in giving the decisions of the Court of Criminal
Appeal have used varying language and many different expressions.” (Cited
at Barette, p 434, para 89)
Verdict
unreasonable or cannot be supported having regard to the evidence
32 There
has been a particular focus on the ground which enables a verdict to be set
aside if it is unreasonable or cannot
be supported having regard to the evidence. In Bell v Att Gen the Court of Appeal stated—
“On any view, a jury verdict is not lightly to be
displaced; and a contention that a jury verdict admittedly unaffected by
misdirection of law or other material irregularity is unreasonable or
unsupported by evidence is no easy one for an appellant to sustain.” (p
403, para 9)
33 The Jersey court’s
position on this ground is encapsulated in the following citation in Evans v Att Gen
which, having cited R v Hopkins &
Husson
with approval, turned to extracts from Halsbury’s
Laws on appeals to the Privy
Council—
“In dealing with evidence from the Court below or
questions of inferences to be drawn from such evidence, the Judicial Committee
as a general rule considers that the Court below before whom the witnesses
appeared is a better judge than itself and the conclusion of a jury on matters
of fact should be upheld although different from that which
the judge of a Court of Appeal might have reached.” (p 531)
34 In
McGuffie v SG,
the court gave some insight into how it may assess whether a jury could have
reached an unreasonable verdict or one unsupported by the evidence. On the
facts, the court concluded there was ample evidence that the accused could have
committed the crime, but not sufficient evidence to satisfy the heavy burden
which lies with the prosecution. There was grave suspicion, nothing more. McGuffie does not appear to have been
followed.
35 More
recently, the Court of Appeal in Waite v
Att Gen
stated—
“The form of appellate jurisdiction which exists in
Jersey confers what has been described by the
Privy Council as a ‘limited right of appeal which precludes the court
from reviewing the evidence and making its own evaluation thereof’: Aladesuru v R [1956] AC 49 at 54–55.
The Court of Appeal may allow an appeal if there was no case to answer or if
there was no evidence which a reasonable jury could have accepted. Otherwise,
it may allow an appeal only on the ground of error of law or miscarriage of
justice.” (p 1, para 2)
Wrong
decision on any question of law
36 As to an appeal on the ground of a wrong decision on any
question of law, such appeal will turn on the nature and effect of that wrong
decision, subject always to the proviso.
Miscarriage
of justice
37 As
to an appeal on the ground of a
miscarriage of justice, reference has already been made to the comments
in Barette. In Simao v Att Gen the Court of Appeal cited Bingham LJ in
R (Mullen) v Home Secretary—
“‘[M]iscarriage of justice’ is an
expression which, although very familiar, is not a legal term … and has
no settled meaning. Like ‘wrongful conviction’ it can be used to
describe the conviction of the demonstrably innocent. But, again like ‘wrongful
conviction’, it can be and has been used to describe cases in which defendants, guilty or not, certainly should not have
been convicted.” (p 385, para 32)
The Court of
Appeal also repeated the statement in Swanston
v Att Gen
where the court said—
“the question as to whether or not there has been a
miscarriage of justice should be determined by asking the question whether it
can be said that no reasonable jury could have come to the conclusion it did,
having regard to the totality of the evidence.” (p 3, pre-penultimate para)
The proviso
38 As
to the proviso, reference has already been made to the observations in Barette. In Ferguson v Att Gen,
the Court of Appeal defined “a substantial miscarriage of justice”
within the proviso as meaning—
“where, by reason of a mistake, omission, or
irregularity in the trial, the appellant has lost a chance of acquittal which
was fairly open to him. The court may apply the proviso and dismiss the appeal
if they are satisfied that, on the whole of the facts and with a correct
direction, the only reasonable and proper verdict would have been one of
guilty.” (p 7, pre-penultimate para)
Time for a
contemporary interpretation
39 Beyond
these statements in the local authorities, the Court of Appeal has not provided
any further detailed analysis of the basis of appeal or of the terminology used
in art 26(1), or the role of the appellate court in considering an appeal. This
state of affairs reflects the judicial approach taken in England and Wales to the CAA 1907 between 1907
and 1968.
40 In
Swanston the Court of Appeal opened
the door to a more contemporary interpretation of statutory language that
derived from the early twentieth century—
“For our part we consider that it may well be
desirable, in an appropriate case, for this Court to consider carefully
whether, and to what extent, the English authorities relating to the 1907 Act
should remain to be applied uncritically in relation to the 1961 Jersey Law and
to what extent, if at all, it is permissible to apply the approach of modern
English Criminal Law, when it is interpreting and applying
different statutory language, to the interpretation to be placed upon the provisions
of the 1961 Jersey Law, having regard to more modern conditions and thinking on
the operation of the criminal justice system.” (op cit, p 2)
41 Swanston was not considered an
appropriate case for such a consideration, perhaps because the case was one “involving
a simple question of fact in relation to an incident, depending largely on eye
witness evidence.” (Swanston, who was found guilty of a grave and criminal
assault, had “glassed” another party in a public house full of
customers.) (p 3, pre-penultimate para)
42 In
Bayliss v Att Gen,
a differently constituted Court of Appeal rejected the suggestion that English
authorities on the application of the “unsafe or unsatisfactory”
test could be applied or utilised in relation to the Court of Appeal’s
function under art 26 (1).
It did so on the basis that, firstly, the wording of art 26(1) did not admit of
such an interpretation, secondly, the weight of the Jersey authority in Hall v Att Gen
and Bell v Att Gen
was against such an approach, as was Guernsey authority on the equivalent
provision and, thirdly, the relevant changes in England and Wales had occurred
by legislation and the same would be required in Jersey (p 415, para 21).
43 The
case of Att Gen v Edmond-O’Brien
brought these different views to something of a head. Mr and Mrs O’Brien
(the latter’s married surname took the prefix ‘Edmond’) had operated a number of
Jersey-based businesses, including a butcher’s shop. Over a period of
years he had trafficked in illegal drugs, importing the drugs in shipments of
meat. For reasons which do not concern us, Mr O’Brien was, in the first
instance, charged and convicted in England on a number of counts of
conspiracy to supply drugs. He was subsequently charged and convicted in Jersey of related offences concerning the transfer of the
proceeds of criminal conduct. Mrs Edmond-O’Brien was charged and
convicted of assisting her husband to retain the proceeds of drug trafficking
contrary to art 17(1)(a) of the Drug Trafficking Offences (Jersey) Law 1988.
44 Unusually, the Court of Appeal in its judgment
subjected the evidence against Mrs Edmond-O’Brien to a thorough forensic
analysis (paras 34–65). In essence, that evidence was that she was the
banker for her husband’s businesses and must have realised that the funds
were coming from illegitimate sources given the increased quantum once he
commenced his drug trafficking, the frequency of the payments and the nature
and quantum of actual deposits. The Court of Appeal concluded—
“We have separately and together reviewed all the
evidence against Mrs O’Brien. It is our judgment that on the totality of
that evidence the Jurats could not properly decide that Mrs O’Brien knew
or suspected (i) that her husband was trafficking in drugs, or (ii) that the
moneys, or part of them, which she paid into the bank accounts were proceeds of
drug trafficking. In our judgment the verdict ‘cannot be supported having
regard to the evidence’. The prosecution did not ask the Court to apply
the proviso in art 25(1), but in any event it could not be applied because a ‘substantial
miscarriage of justice’ did occur. We add for completeness that if the
English test applied in Jersey we would have
concluded that the verdict was clearly not ‘safe’. Accordingly we
set aside the conviction of Mrs O’Brien and acquitted her. We also set
aside the confiscation order and the sentence in default.” (p 29, para
65)
45 The
Attorney General appealed to the Privy Council which overturned the decision of
the Court of Appeal.
Lord Hoffmann delivered the judgment of the court—
“23 Their Lordships were told that no
other case had been found since the establishment of the Court of Appeal in
Jersey in which a verdict of the Jurats had been set aside solely on this
ground. In Aladesuru v. R. (1) ([1956] A.C. at 54–55),
Lord Tucker, speaking of a Nigerian statute in similar terms to the Jersey Law,
said that it conferred only the right to ‘a limited appeal which
precludes the court from reviewing the evidence and making its own valuation
thereof’ and added that the cases in England in which a verdict had been
set aside ‘as one which no reasonable tribunal could have found’
were exceptional. As Lord Goddard, C.J. said in R. v. Hopkins-Husson (3)
(34 Cr App R at 49):
‘.
. . [T]he fact that some members or all the members of [this] Court think that
they themselves would have returned a different verdict is
. . . no ground for refusing to accept the verdict of the jury, which is the
constitutional method of trial in this country. If there is evidence to go to
the jury, and there has been no misdirection, and it cannot be said that the
verdict is one which a reasonable jury could not arrive at, this Court will not
set aside the verdict of Guilty which has been found by the jury.’
24 The
reason why such an event in Jersey appears to
have been not merely exceptional but previously unknown may be because the
Jurats, unlike an English jury, are not chosen at random. As the European Court
of Human Rights recorded in Snooks v. United Kingdom (4) (2002 JLR 475, at para. 19):
“19 Jurats
are . . . elected by a special electoral college whose members include the
Bailiff, the Jurats, advocates and solicitors of the Royal Court and members of Jersey’s legislature, the States Assembly. Jurats
do not necessarily have a legal qualification but are usually individuals with
a known history of sound judgment and integrity, which has been consistently
demonstrated throughout a lengthy professional, business or civic life.”
25 In
England,
the test laid down in R. v. Hopkins-Husson (3) was found
to be somewhat too restricted and was replaced (by s.2 of the Criminal Appeal
Act 1968) with a duty to allow an appeal where ‘under all the
circumstances of the case [the verdict] is unsafe or unsatisfactory.’ No
such change has been made in Jersey but their
Lordships would not exclude the possibility of a more liberal interpretation of
the old statutory language.
26 In the
present case, if the Court of Appeal was saying that there was no case to
answer after the prosecution evidence, not only was that not the ground of
appeal, it was without any basis; the prosecution’s evidence raised a
compelling prima facie
case, which could be dispelled only, if at all, by oral evidence from Mrs. O’Brien.
If the Court of Appeal was (as its references to Mrs. O’Brien’s
evidence suggest) looking at the matter after all the evidence, their Lordships
consider that the Court of Appeal simply usurped the function of the Jurats. It
tried the case on the written record and allowed the appeal because, on its own
somewhat imperfect understanding of the prosecution’s case, it would not
have convicted. Although it said that it had reviewed the evidence ‘separately
and together,’ there is little indication that it had regard to the
cumulative weight of the various items of evidence, to each of which it had,
sometimes not altogether plausibly, assigned a possible innocent explanation.
It is in the nature of circumstantial evidence that single
items of evidence may each be capable of an innocent explanation but, taken
together, they establish guilt beyond reasonable doubt. The Jurats also had the
opportunity to see Mr. and Mrs. O’Brien and the police witnesses give
evidence. They disbelieved Mr. and Mrs. O’Brien. The Court of Appeal did
not have the same advantages and their Lordships consider that it was not
entitled to disturb the verdict (compare Barlow Clowes Intl. Ltd. v. Eurotrust
Intl. Ltd. (2)).”
46 The
Privy Council decision in Att Gen v
Edmond-O’Brien is important for three reasons in the present context.
The first is the apparent reliance on the nature and composition of the office
of Jurat as distinct from the random composition of a jury and therefore,
presumably, less likely to make mistakes on the evidence. We shall return to
this point. The second is the recognition of the restrictions of the “old
statutory language” of art 26(1). That language, according to the court,
clearly did not allow for a detailed forensic analysis and the usurpation of
the Jurats’ role as judges of fact. The third is the proposition that the
Privy Council “would not exclude the possibility of a more liberal
interpretation of the old statutory language.”
It is clear from the judgment that the Privy Council did not consider that the
facts of the case merited such an interpretation.
47 In Att Gen v Bhojwani,
the Court of Appeal considered Lord Hoffmann’s obiter statement that the time could be ripe for a contemporary
interpretation of the statutory language in art 26(1), but declined to follow
its lead—
“This
Court has consistently and recently approached its role in a way which
recognises the difference between the Jersey
and the English statute: e.g. Hall v Att
Gen 1995 JLR 102 (notably it has been observed that the ‘unsafe and
unsatisfactory verdict’ is no part of Jersey Law, and Baylis v Att Gen 2004 JLR 409.”
(para 204)
48 The
court went on to cite from Guernsey authority which served to emphasise the
difference between the Jersey and English
tests on appeal—
“In
principle, the difference in statutory language ought rationally to lead to
different results and ought sensibly to be respected. If the States wished to
align Jersey to mainland law in this area,
they could have done so. Our researches suggest that the
issue of reform has never been seriously raised: the record shows that, even if
it had been raised, it was rejected.
Lord Hoffmann’s
dictum was obiter and provisional (‘would not exclude the possibility’)
and fell far short of a direction to this Court to abandon its long standing
jurisprudence. Nor did Lord Hoffmann clarify precisely what liberal
interpretation he would adopt.
The main thrust
of Lord Hoffmann’s remarks were to prevent this Court embarking on an
exercise of evidential evaluation which was for the Jurats alone (once the
trial Judge had decided that there was a case to answer).
…
We therefore
direct ourselves by reference to the following propositions and principles, as
set out in Taylor v Law Officers of the Crown 2007–08
GLR 207 at 214 [a Guernsey appeal]:
‘15 In
an appeal against conviction it is necessary to bear in mind at all times the
following matters:
(i) The jurisdiction of this
court is defined by the 1961 Law (the material parts of which we have already
recited).
(ii) The powers of this court
are therefore more limited than those currently enjoyed by the Court of Appeal
(Criminal Division) in England
and Wales,
which incorporates the concept of an “unsafe” verdict, and, by judicial
gloss, that of a lurking doubt.
(iii) Where an appeal is from
the verdict of Jurats, who are not “speaking,” i.e. do not disclose
the reasons upon which the verdict is based, “if the summing up is sound
the court may well not able to interfere unless the verdict is obviously wrong”
(Guest v. Law Officers (3))’.” (paras 208–10, 217)
49 Thus
the Court of Appeal declined the clear opportunity offered up by our most
senior appellate body that the restrictions of the “old statutory
language” of art 26(1) could be capable of “a more liberal
interpretation of the old statutory language.” This means very simply
that change is unlikely to be forthcoming in this respect from the Jersey Court
of Appeal in the foreseeable future.
The Guernsey
jurisprudence
The test on criminal appeal applied in Guernsey
50 In
Guernsey a similar position pertains to that in Jersey.
Article 25(1) of the Court of Appeal (Guernsey)
Law 1961 is materially similar to s 4(1) of CAA 1907.
Unreasonable
verdict
51 This
ground has received some limited scrutiny in Guernsey
case-law. In Law Officers v Ogier the Court of Appeal declined to
consider grounds of appeal which stated that the conviction was against the
weight of the evidence and that the verdict was unsafe and unsatisfactory on
the basis that those were not grounds under the Guernsey
appeal statute. It was unwilling to entertain arguments based on the new
wording embraced by s 4 of the Criminal Appeal Act 1968 and, subsequently, s
2(1) of Criminal Appeal Act 1968. Without expressly embellishing the test to be
applied in Guernsey, the court did however
refer to English jurisprudence on the CAA 1907: citing R v Hancock,
R v Hopkins-Husson
and R v Chalk.
52 The
unreasonable verdict ground was also considered, as we have seen, in Law Officers v Guest.
Having approved the test as stated in Ogier,
that is a recital of the words of the statute, the court added—
“Usually this Court is considering the verdicts of
the Jurats in the Royal Court.
Such verdicts are not ‘speaking’ verdicts, and it is not,
therefore, possible to discern by what process of reasoning, or the lack of it,
the Jurats have reached their conclusions. In those circumstances, if the
summing up is sound, the Court may well not be able to interfere unless the
verdict is obviously wrong. But where as here, the verdict is one of a legally
qualified Magistrate it is a ‘speaking’ verdict because the
Magistrate has to state reasons for his verdict in his judgment. In such a case
it is possible for this Court to review the Magistrate’s process of
reasoning, and to consider whether, by that process, the Magistrate has reached
a verdict which is ‘unreasonable’, or one which ‘cannot be
supported having regard to the evidence’ or whether ‘on any ground
there was a miscarriage of justice’.” (p 6, para 12)
53 As we have also seen, the Court of Appeal concluded that
it could not quash a verdict simply because the court itself would have reached
a verdict different from that of the Magistrate, notwithstanding the lurking
doubt each member of the court felt as to the safety of the conviction.
The law of England and Wales
The test on appeal under the Criminal Appeals
Act 1907: English authority
54 A
ready way to test whether the basis of criminal appeal is fit for purpose is to
examine its statutory provenance, the CAA 1907, and discover why it is that UK
Parliament decided to amend that law in 1968.
55 A
useful introduction to the test on appeal which had evolved under the CAA 1907
until its amendment in 1968 may be drawn from Archbold (1966 Edition). Under the heading of “Grounds of
Appeal”, it categorises the case-law under the following headings—
(a) defects in the
indictment;
(b) wrongful admission of
evidence;
(c) wrongful exclusion of evidence;
(d) absence of corroboration;
(e) misdirection (as to law
and evidence);
(f) no case to go to the
jury;
(g) verdict unreasonable;
(h) construction of the
verdict;
(i) on any ground there was a
miscarriage of justice;
(j) any other ground which
appears to the court to be a sufficient ground of appeal.
56 We
shall examine a few of these in more detail. We turn first to “verdict
unreasonable”.
Verdict
unreasonable or cannot be supported having regard to the evidence
57 Discerning
the test that was applied here is not straightforward since there is not one
defining case. However it is clear that the threshold for a successful appeal
on this ground is not easy to achieve. Thus in Aladesuru v R,
a case referred to above, the Privy Council emphasised the necessity for strict
adherence to the wording of the statute. It was not a sufficient ground to
allege that the verdict is against the weight of the evidence (p 55). Not
dissimilarly, in R v McNair
the Court of Criminal Appeal stated that an appeal would not succeed merely
because the case against the appellant was a very weak one—
“This is an extraordinary case, but it falls within
the rule which we have stated,
that we are not here to re-try cases which have been heard by a jury . . .
An appeal cannot be allowed solely on the ground that the story is
extraordinary. This case is one of oath against oath, and there is no middle
course open, although it was suggested that the verdict was one which no twelve
reasonable men could have found.” (p 3)
As put in R v Simpson—
“The case [against the appellant] was not a strong
one. It would have been open to the jury to acquit, and no one could have
called the verdict perverse. But the verdict which the jury has given must
stand.” (p 130)
58 Thus,
even when the appellate court concluded that it would have possibly come to a
different conclusion or expressed surprise at the verdict, it would not
interfere: see also R v Graham,
R v Chalk.
59 R v Hancox
appears to have set the bar even higher, namely that the court would set aside
a verdict on a question of fact—
“only where the verdict was obviously and palpably
wrong. Such cases are rare. This case turned on the manner in which the
witnesses gave their evidence; there was a proper direction to the jury, and
the Court does not see that it can interfere with the verdict without
substituting itself for the Jury, which was the proper tribunal to decide the
matter. It is not necessary to say whether we should have given the same
verdict.” (p 197, final para)
60 There are a few cases which appear to suggest a more
interventionist approach. Thus in R v
Chadwick
and R v Hall
the Court of Criminal Appeal was prepared to examine the evidence before the
jury. According to one case, it did so to enable it to assess the need for the
jury to be satisfied “with that certainty which is necessary in order to
justify a verdict of guilty”, per
R v Wallace.
In addition, the ground of unreasonable verdict could be satisfied not only for
a specific and identified reason, but also where it was “just one of
those cases where it is difficult to say what is the exact piece of evidence
that leaves an unsatisfactory impression on the mind”, per R
v Barnes.
However such cases do not sit well with the general tenor of the authority.
61 More
consistent with the tenor of the leading cases such as Aladesuru, supra, are
those decisions which emphasize the advantage vesting in the jury which had
seen the relevant witnesses give evidence and were able to judge their
demeanour and integrity. As it was put in R
v Perfect—
“Substantially, the only evidence given was that of
the prosecutor and that of the appellant. It was for the jury to say which they
believed, and to decide accordingly, bearing in mind that a doubtful case must
result in a verdict of acquittal. In these circumstances it seems to us that we
must accept the decision of the jury on the facts, and that we are not in a
position to quash this conviction, unless we substitute ourselves as a tribunal
of fact when we do not have, as had the jury, the opportunity of hearing and
seeing the witnesses.” (pp 274–75)
62 The
same point was made in R v Hopkins-Husson
(a case which has found favour before the Jersey
and Guernsey Courts of Appeal)—
“. . . it has been held from an equally
early period in the history of this Court that the fact that some members or
all the members of the Court think that they themselves would have returned a
different verdict is again no ground for refusing to accept the verdict of the
jury, which is the constitutional method of trial in this country. If there is
evidence to go to the jury, and there has been no misdirection, and it cannot
be said that the verdict is one which a reasonable jury
could not arrive at, this Court will not set aside the verdict of Guilty which
has been found by the Jury.” (p 49, penultimate para)
63 The
unreasonable verdict ground and appeal under the CAA 1907 was also the subject
of comparative judicial comment following the statutory changes in 1968. The
approach adopted by the Court of Appeal of England
and Wales
to s 21 of the CAA 1968 was stated by Widgery LJ in R v Cooper
to be as follows—
“However, now our powers are somewhat different,
and we are indeed charged to allow an appeal against conviction if we think
that the verdict of the jury should be set aside on the ground that under all
the circumstances of the case it is unsafe or unsatisfactory. That means that
in cases of this kind the Court must in the end ask itself a subjective
question, whether we are content to let the matter stand as it is, or whether
there is some lurking doubt in our minds which makes us wonder whether an
injustice has been done. This is a reaction which may not be based strictly on
the evidence as such; it is a reaction which can be produced by the general
feel of the case as the Court experiences it.” (p 271, paras E–G)
64 In
Stafford v DPP,
a House of Lords decision, Viscount Dilhorne, who cited the above extract from Cooper with approval, observed—
“This section [s 4(1) of CAA 1907] was amended in
1966. Under the Act of 1907 it might not have been possible to say that a
verdict was unreasonable or not supported by the evidence or that a miscarriage
of justice had occurred and so quash the conviction although considerable doubt
was felt as to its propriety. So in 1966 a wider discretion was given to the
court by Parliament and section 4(1) was amended. It is now replaced by section
2(1) of the Criminal Appeal Act 1968, a consolidation Act.”
65 In
the same case, Kilbrandon, LJ took the view that the previous restrictive
approach derived not from the words of the statute, but from judicial policy—
“The difference between these words and the phrase
used in the Criminal Appeal Act 1907, ‘unreasonable or incapable of being
supported’ is important as indicating the erection of a standard for the setting aside of convictions which, until the new
phrase was introduced in 1966, it would not have been deemed possible to quash.
This is not truly a consequence of a different form of words necessarily and
from its own content demanding a standard different from that operative
theretofore. It would have been possible for the courts, after 1907, to have
said that if a verdict was unsafe or unsatisfactory it was not reasonable. But
this line was not taken; more emphasis was laid on the concluding part of the
phrase, and verdicts which were supported by evidence which in law the jury
could accept—and it was for the jury to say whether they would accept—were
held to be unassailable. A conviction depending solely on the fleeting
identification by a single stranger could, for example, have been upheld,
though on a different view of the statute of 1907 it would have been possible
to condemn it as unreasonable, just as today it would very probably be thought
unsafe or unsatisfactory, and be set aside on those grounds.” (p 911)
66 This
view draws an interesting comparison with the diplomatically written Report of the Interdepartmental Committee on
the Court of Criminal Appeal presented to the UK Parliament in August 1965,
known as the Donovan Report. In
February 1964, the UK Government appointed a Committee, chaired by Lord
Donovan, to review certain aspects of the criminal appeal process including the
then jurisdiction of the Court of Criminal Appeal.
67 In
relation to the power of the Court of Criminal Appeal to interfere with a
conviction, the Committee reported—
“From the outset the Court has acted upon the view
that its functions are circumscribed in appeals which raise issues of fact. Thus
in the first case which came before the Court (R v Williamson The Times 16/5/1908) the Lord Chief Justice in
giving judgment said:
‘It must be
understood that we are not here to re-try the case where there was evidence
proper to be left to the jury upon which they could come to the conclusion at
which they have arrived. The Appellant must bring himself within the words of
section 4 (1). Here there was evidence on both sides, and it is impossible to
say that the verdict is one to which the jury could not properly have arrived.’
Commenting in a leading article upon the first sitting of
the Court, The Times said:
‘It will be the
duty of the judges in the first few months of the life of the Act to make it
evident that they mean not to interfere with the findings
of juries unless where they are obviously unfounded.’
The Court has continued to act upon this general
principle. It was expressed by Lord Chief Justice Goddard in 1949 in the
following words:
‘Where there is
evidence on which a jury can act, and there has been a proper direction to the
jury, this Court cannot substitute itself for the jury and re-try the case. That
is not our function. If we took any other attitude it would strike at the very
root of trial by jury.’ (R v McGrath
[1949] 2 All E.R. 497)
The view that the Court cannot re-try cases is clearly
correct. What has been questioned in this context however is whether the Court
is, or should be, debarred from interfering with the jury’s verdict
because there was some evidence to support it and because it cannot therefore
be described as unreasonable.” (pp 31–32, paras 138–40)
68 In
contradistinction to the observations of Kilbrandon LJ in Stafford, the Donovan Report
inclined to the view that the interpretation of s 4(1) adopted by the court was
not “open to serious doubt”, and if there was a defect in the
prevailing basis for appeal on the facts, as suggested by “a large body
of informed opinion”, the defect lay in the language of the statute (p 32,
paras 141–42). Oddly, the Donovan
Report provides no details as to this “large body of informed opinion”
other than to note that it considered that there was a defect, as observed
above, and that such could be illustrated by references to cases of disputed
identity—
“where a crime has been committed, and the proof
that a particular person committed it rests solely upon his identification by a
witness or witnesses for the Prosecution, then if the Jury accepts that
evidence, and rejects the evidence of an alibi tendered by the Defendant, the
latter would have little hope of successfully appealing against his conviction
in face of the construction of Section 4(1) of the Act adopted by the Court. Yet
the verdict could be wrong, and the Defendant innocent.” (paras 142 and
143)
69 Nonetheless,
the Donovan Report observed that the court
had sometimes acted as though the test to be satisfied was in fact whether the
verdict was “unsafe or unsatisfactory” in spite of there being some
evidence to support it. It cited R v Wallace
to this effect. There, the court—
“while quoting section 4 of the Act and purporting
to act upon it, did not go to the length of saying that the jury’s
verdict of guilty could ‘not be supported having regard to the evidence’,
but that the case was not proved with that certainty which was necessary to
justify a verdict of guilty.”
However in the
view of the Donovan Report, such evaluation was—
“not easily reconcilable with the view that the
weight to be attached to evidence is a matter for the jury, who alone see and
hear the witnesses. It is more consistent with the view that, although the
Court did not expressly say so, it found the verdict to be unsafe or
unsatisfactory.” (para 147)
70 Citing
in addition on this point R v McGrath
and R v Parks,
and observing that these cases were “examples only”, the Donovan Report concluded that the test they had adopted meant—
“the Court has acted as a jury and come to the
conclusion that on the totality of the evidence, some of which was one way and
some the other, it would be unsafe to allow a verdict of guilty to stand.”
Recognising the
argument that the court’s approach in these cases, and the other uncited
examples, might be said to come within the words of s 4, the Donovan Report noted that such an argument would be at odds with other
pronouncements of the court as to its powers, and the better approach would
therefore be to remove all possibilities of doubt by the express use of the
words “unsafe or unsatisfactory” as the relevant test in the
statute (ibid, para 149; p 72, para 13) This was indeed the course adopted by the legislature
in the UK in the form of the Criminal Appeals Act 1968.
71 Kilbrandon
LJ’s comments in Stafford are
echoed in an article by an academic, Michael Dean, entitled “Criminal
Appeal Act 1966” in The Criminal
Law Review [1966] 535. Referring to s 4(1) of the CAA 1907 and writing of
the position before the change in the law, he observes—
“It was not the practice of the Court of Criminal
Appeal to base its decisions on close analysis of this formula [i.e. the
wording of the grounds of appeal]. The terms of the statute
might have been construed to allow a far ranging inquiry into the jury’s
verdict (1),
but from the start, the court declined to do this. The broad picture that
emerged was a court concerned, in appeals against conviction, with the judge’s
direction, evidence and procedure and the occasional point of substantive law
rather than the ‘merits’ of the case. An appellant who could point
to a clear misdirection, the wrongful admission or exclusion of evidence or
some procedural irregularity, had better prospects of success than the
appellant claiming simply that he was innocent and that the jury had come to
the wrong decision.”
72 Analysis
to the same effect may be found in Rosemary Pattenden, English Criminal Appeals 1844–1944.
In her view, notwithstanding the intention of Sir John Walton, the Attorney
General who guided the 1907 Bill through the House of Commons, the absence of
anything in the wording of the CAA 1907 which compelled such a narrow approach
or the fact that the same words were interpreted elsewhere in the Commonwealth
on wider grounds, the Court of Criminal Appeal elected not to focus on
upsetting dubious verdicts. During the Parliamentary debate on the 1907 Bill,
Sir John Walton sought to rebut the argument that s 4 (then in draft) would
mean that an appellant was required to undergo a second trial before the
appellate court. He said—
“It was only proposed here to give to the Court of
Appeal a similar power of review to that given to the Court of Appeal in civil
cases. The appeal in a civil case was a re-hearing, and he had himself examined
and cross-examined before a Court of Appeal witnesses whom that Court had
summoned for the purpose of elucidating some obscurity in the case under investigation,
and all that was intended here was that the same functions should be discharged
by the Court of Criminal Appeal in the same method and with almost identical
powers.” (p 141)
As Pattenden
notes—
“In language reminiscent of the modern ‘lurking
doubt’ test he envisaged that the new Court would set aside a conviction ‘where there was some element of doubt, where there was
some disturbing factor’.” (p 141)
But it was not
to be—
“The rationale for the Court of Criminal Appeal’s
interpretation of section 4 lay in its belief that the task of determining the
accused’s guilt and innocence belonged constitutionally to the jury and
to tamper with jury verdicts would undermine public confidence in the jury and
ultimately the judicial system.” (p 143)
Wrong
decision on a question of law
73 The
Court of Criminal Appeal more readily allowed appeals where the grounds
concerned points of law. As an overview of appeals on points of law, reference
is again made to Archbold.
Miscarriage
of Justice
74 According
to Archbold, the general words “On
any ground there was a miscarriage of justice” in the CAA 1907—
“cover cases where there has been a misdirection as
to the evidence, or where the court allows further evidence owing to
insufficient time to call it at the trial, or other sufficient reason, or where
the trial was conducted unfairly.”
75 This is indicative of a ground of appeal
which overlaps with other grounds and also provides something of a catch-all.
Such an interpretation is reflected in the Jersey
case-law cited above: Simao v Att Gen;
and Swanston v Att Gen. See also the
similar interpretation placed on this ground by the Commonwealth jurisdictions post.
The proviso
76 As
set out above, the proviso granted a discretion to the appellate court whereby,
even though it had formed the view that a particular point raised in the appeal
could be decided in favour of the appellant, it could dismiss the appeal “if it considers that no substantial
miscarriage of justice has actually occurred.” In practice, it
appears that the proviso in the 1907 CAA was mainly applied where the ground of
appeal was misdirection as to law or wrong admission or rejection of evidence:
see for example, R v Oster-Ritter,
R v Parker,
and generally Archbold.
77 What
test did the courts apply? Reference has already been made to R v Haddy and its approval of the
statement in Cohen. This is reflected
in the summary in Archbold, that a “substantial miscarriage of justice”
occurred where by reason of a mistake, omission or irregularity in the trial
the appellant had lost a chance of acquittal which was fairly open to him. The court
could apply the proviso and dismiss the appeal if it was satisfied that on the
whole of the facts and with a correct direction the only proper verdict would
gave been one of guilty (op cit, para
939). The Donovan Committee identified two conflicting views in English cases
about the way in which the proviso should be operated. It concluded that it was
important to distinguish between a test which refers to the trial jury and a
test which refers to any reasonable jury. It concluded that the debate between
the alternatives had been resolved in England by the decision of the
House of Lords in Stirland v Director of
Public Prosecutions
in favour of the “reasonable jury” test. Certainly Stirland states—
“When the transcript is examined, it is evident
that no reasonable jury, after a proper summing up, could have failed to
convict the appellant on the rest of the evidence to which no objection could
be taken.” (p 46)
However there
is no analysis of this particular aspect.
The law of
Commonwealth jurisdictions
The test on criminal appeal in selected
Commonwealth jurisdictions
78 The
jurisdictions of Australia, New Zealand and Canada currently have criminal
appeal provisions which set the tests on appeal in materially similar terms to
that of the CAA 1907 and therefore of the relevant
provisions in the equivalent Jersey and Guernsey statutes. Their jurisprudence
interpreting these provisions is enlightening and on normal principles may be
of persuasive effect upon the Jersey Court of Appeal’s interpretation:
see Mesch v Housing Cttee.
79 Space
does not allow, in relation to the cases I cite below from the Commonwealth, a
full analysis of the history of the consideration by the superior courts of the
relevant appeal provisions. I shall draw some points together in overview at
the end of this article. However, suffice it to say, I hope, that the history
of this consideration has been controversial and reveals a tension, in the main
drawn from the wording of the statutes, but also from the judicial view of the
role of an appellate court, as to the extent and degree with which a court can
interfere with a decision of a jury which has had the advantage of seeing the
witnesses and hearing the evidence in the charged context of a trial. It also
reveals a tension, which has reared its head in Jersey and Guernsey, arising
from attempts to stretch the wording of the statutes to include the “unsafe
or unsatisfactory” threshold introduced in England
and Wales
in 1968.
Australia
80 Judicially,
Australia
operates on a federal system. Each State has its own statute which permits a
right of criminal appeal. The criminal appeal provisions are in common form.
Verdict
unreasonable or cannot be supported having regard to the evidence
81 The
High Court of Australia
has not infrequently found itself seized of consideration of the statutory
language as to this ground of appeal. That consideration currently rests with
the decision of the High Court in M v R
(per the majority decision), a case
on appeal from the appellate court of New
South Wales.
82 The
facts of the case illustrate the position the court found itself in as it
applied the strictures of the statutory language. The appellant had been
convicted on several counts of sexual offences against one of his juvenile
daughters. There were discrepancies in the evidence of the daughter
and her evidence was uncorroborated. He denied the offences both in an
interview with the police and in evidence which he gave at trial. The appellant
and the mother of the child had divorced amicably it seemed, and he had
remarried. There were also children of the second marriage. Fortnightly, the
children of the first marriage spent the weekend with the appellant, his wife
and the two children of the second marriage. They occupied a smallish house. The
first incident complained about occurred late evening in the house when all but
the appellant and his daughter were said to be in bed. The complainant said she
did not speak to anyone about the events until two days afterwards when she
told a friend at school. She then subsequently told her twin sister. The second
offence took place in a bedroom at the house. The following day the family held
a barbeque to which a number of friends were invited. The complainant had
participated normally in the events of the day. Two days after, the complainant
told her school friend what had occurred. She did not tell her mother until she
saw the school counsellor about a month later. The appellant had co-operated
with the police investigating the complaint and consistently denied the
allegations against him. His evidence had not been discredited in any way by
cross-examination. The evidence of one of the medical practitioners called by
the prosecution was inconsistent with the complainant’s account of sexual
intercourse. There were some other discrepancies in the evidence.
83 The
crux of the matter, in the view of the majority, were two apparently
inconsistent positions. First, there was the—
“improbability of the Appellant acting as he was alleged
to have done in the circumstances prevailing on that night, namely, on a
squeaky bed in an unlocked bedroom which was only a short distance from, and
within hearing distance, of, another bedroom occupied by the Appellant’s
wife, in a fully occupied, small house.”
Second, the
Jury had no doubt preferred the evidence of the complainant over the appellant,
having seen them both. However there was no corroboration and, as the court
observed, an innocent man could have done no more than the accused did in
conducting himself at interview with the police or in giving evidence. What was to be the test on appeal?
84 Mason,
CJ gave the decision of the majority. He observed—
“. . . the criminal appeal provisions
which are in common form in this country allow a verdict that is unsafe or
unsatisfactory to be set aside, notwithstanding those words do not appear in
the legislation . .
Where a court of criminal appeal sets
aside a verdict on the ground that it is unreasonable or cannot be supported
having regard to the evidence, it frequently does so expressing its conclusion
in terms of a verdict which is unsafe or unsatisfactory. Other terms may be
used such as ‘unjust or unsafe’ . . . or ‘dangerous
or unsafe’. In reaching such a conclusion, the court does not consider as
a question of law whether there is evidence to support the verdict. Questions
of law are separately dealt with by s. 6(1). The question is one of fact which
the court must decide by making its own independent assessment of the evidence
and determining whether, notwithstanding that there is evidence upon which a
jury might convict, ‘nonetheless it would be dangerous in all the
circumstances to allow the verdict of guilty to stand’. But a verdict may
be unsafe or unsatisfactory for reasons which lie outside the formula requiring
that it be ‘unreasonable’ or incapable of being ‘supported
having regard to the evidence’. A verdict which is unsafe or
unsatisfactory for any other reason must also constitute a miscarriage of
justice requiring the verdict to be set aside.” (pp 492–93)
85 The
High Court indicated the question it must ask itself in determining whether the
verdict is unsafe or unsatisfactory—
“Where, notwithstanding that as a matter of law
there is evidence to sustain a verdict, a court of criminal appeal is asked to
conclude that the verdict is unsafe or unsatisfactory, the question which the
court must ask itself is whether it thinks that upon the whole of the evidence
it was open to the jury to be satisfied beyond reasonable doubt that the accused
was guilty . . . But in answering that question the court must not
disregard or discount either the consideration that the jury as the body
entrusted with the primary responsibility of determining guilt or innocence, or
the consideration that the jury has had the benefit of having seen and heard
the witnesses. On the contrary, the court must pay full regard to those
considerations . . .” (p 493, penultimate para)
86 Thus,
according to the High Court, the unreasonableness ground does not turn on whether
as a matter of law there was some evidence to support the verdict. Rather, the court
is to make its own assessment of the evidence and determine whether upon the
whole of the evidence the jury could properly have been satisfied to the
required standard that the accused was guilty.
87 As
to application of the test—
“In most cases a doubt
experienced by an appellate court will be a 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 set aside a verdict based upon that evidence.” (p 494, final para)
88 The
appellant was acquitted by a majority decision. The majority of four judges
subscribed to the view set out by Mason, JA, the relevant extracts of which are
set out above. A further judge agreed with the test set by the majority, but
would have ordered a retrial on lesser charges. Two other judges also dissented
and did so, in no small part, on the basis that they did not accept the test as
elucidated by Mason, JA. As one of them, Brennan JA, put it—
“In my opinion, when a CA is faced with an appeal
against conviction in which no more appears than a conflict between evidence
that is sufficient in law to support the conviction and evidence tending to
show that D is not guilty, that Court has but one function to perform. That
function is to determine whether a Jury, acting reasonably in appreciating the
burden and standard of proof, could have convicted on the evidence available to
support the conviction.” (p 504, para 2)
Miscarriage
of justice
89 For
completeness, I undertake a brief review of the Australian position on the
appeal ground of miscarriage of justice and on the proviso.
90 Australian
case-law is indicative of an overlap in practice between the miscarriage of
justice ground and the grounds of unreasonable verdict and wrong decision on
question of law. Focus on this ground in the main has been on cases where
something, whether or not falling within the other grounds,
has rendered a verdict unsafe or suspect or the trial unfair.
91 The
overlap was highlighted in M v R—
“But a verdict may be unsafe or unsatisfactory for
reasons which lie outside the formula requiring that it not be ‘unreasonable’
or incapable of being ‘supported having regard to the evidence’. A
verdict which is unsafe or unsatisfactory for any other reason must also
constitute a miscarriage of justice requiring the verdict to be set aside. In
speaking of the Criminal Appeal Act in Hargan
v The King, Isaacs J said ‘If
[the appellant] can show a miscarriage of justice, that is sufficient. That is
the greatest innovation made by the Act, and to lose sight of that is to miss
the point of the legislative advance’.” (p 493, first para)
92 Whitehorn v R
observes to similar effect—
“Although the third ground [of statutory appeal]
speaks of miscarriage of justice specifically, each of the first and second
grounds is also concerned with the occurrence of such a miscarriage. For an
error of law or a verdict which is unreasonable or cannot be supported on the
evidence will amount to a miscarriage of justice.” (p 685, second para)
93 As
the court observed in Davies and Cody v
The King
the duty imposed on a Court of Appeal to quash a conviction when it thinks that
on any ground there was a miscarriage of justice covers—
“not only cases where there is affirmative reason
to suppose that the Appellant is innocent, but also cases of quite another
description. For it will set aside a conviction whenever it appears unjust or
unsafe to allow the verdict to stand because some failure has occurred in
observing the conditions which, in the Court’s view, are essential to a
satisfactory trial, or because there is some feature of the case raising a
substantial possibility that, either in the conclusion itself, or in the manner
in which it has been reached, the Jury may have been mistaken or misled.”
The proviso
94 The
operation of the proviso in the Australian context was subjected to an extended
analysis in Weiss v R—
“The fundamental task committed
to the appellate court by the common form of criminal appeal statute is to
decide the appeal. Insofar as that task requires considering the proviso, it is
not to be undertaken by attempting to predict what a jury (whether the jury at
trial or some hypothetical future jury) would or might do. Rather, in applying
the proviso, the task is to decide whether a ‘substantial miscarriage of
justice has actually occurred’.” (para 35)
“By hypothesis, when the proviso falls for
consideration, the appellate court has decided that there was some irregularity
at trial. If there was not, there is no occasion to consider the proviso. In
cases, like the present, where evidence that should not have been adduced has
been placed before the jury, it will seldom be possible, and rarely if ever
profitable, to attempt to work out what the members of the trial jury actually
did with that evidence. In cases, like the present, where the evidence that has
been wrongly admitted is evidence that is discreditable to the accused, it will
almost always be possible to say that the evidence might have affected the jury’s
view of the accused, or the accused’s evidence. And unless we are to
return to the Exchequer rule (where any and every departure from trial
according to law required a new trial) recognition of the possibility that the
trial jury might have used wrongfully received evidence against the accused
cannot be treated as conclusive of the question presented by the proviso.”
(para 36)
“Three fundamental propositions must not be
obscured. First, the appellate court must itself decide whether a substantial
miscarriage of justice has actually occurred. Secondly, the task of the
appellate court is an objective task not materially different from other
appellate tasks. It is to be performed with whatever are the advantages and
disadvantages of deciding an appeal on the record of the trial; it is not an
exercise in speculation or prediction. Thirdly, the standard of proof of
criminal guilt is beyond reasonable doubt.” (para 39)
“It is neither right nor useful to attempt to lay
down absolute rules or singular tests that are to be applied by an appellate
court where it examines the record itself, beyond the three fundamental
propositions mentioned earlier.” (para 42)
“There are, however, some matters to which
particular attention should be drawn. First, the appellate court’s task
must be undertaken on the whole of the record of the trial including the fact
that the jury returned a guilty verdict. The court is not ‘to speculate
upon probable reconviction and decide according to how the speculation comes
out’ [58]. But there are cases in which it would be
possible to conclude that the error made at trial would, or at least should,
have no significance in determining the verdict that was returned by the trial
jury. The fact that the jury did return a guilty verdict cannot be discarded
from the appellate court’s assessment of the whole record of trial. Secondly,
it is necessary always to keep two matters at the forefront of consideration:
the accusatorial character of criminal trials such as the present and that the
standard of proof is beyond reasonable doubt.” (para 43)
“Next, the permissive language of the proviso (‘the
Court . . . may, notwithstanding that it is of the opinion that the
point raised in the appeal might be decided in favour of the appellant, dismiss
the appeal . . .’) is important. So, too, is the way in which
the condition for the exercise of that power is expressed (‘if it
considers that no substantial miscarriage of justice has actually occurred’).
No single universally applicable description of what constitutes ‘no
substantial miscarriage of justice’ can be given. But one negative
proposition may safely be offered. It cannot be said that no substantial
miscarriage of justice has actually occurred unless the appellate court is
persuaded that the evidence properly admitted at trial proved, beyond
reasonable doubt, the accused’s guilt of the offence on which the jury
returned its verdict of guilty.” (para 44)
95 Thus
the appellate court must form its own view, to the standard of beyond a
reasonable doubt, about whether or not a substantial miscarriage of justice has
actually occurred in order to apply the proviso. While the case-law has shied
away from providing a universal description or definition of what constitutes “no
substantial miscarriage of justice”, the negative proposition adopted in para
44 of Weiss above has also been
endorsed in other cases. The proviso cannot be applied unless the appellate court
is affirmatively satisfied of the appellant’s guilt beyond a reasonable
doubt. However, it is also clear that this negative proposition it not
necessarily sufficient for the proviso to be applied. In the judgment of Gummow
and Haynes, JJ in AK v The State of Western Australia—
“In Weiss,
the Court identified one circumstance in which the proviso to the common form
criminal appeal statute cannot be engaged. The Court said that the proviso
cannot be engaged ‘unless the appellate court is persuaded that the
evidence properly admitted at trial proved, beyond reasonable doubt, the
accused’s guilt of the offence on which the jury returned its verdict of guilty’. This negative proposition (about
when the proviso cannot be engaged) must not be treated as if it states what
suffices to show that no substantial miscarriage has occurred. To treat the
negative proposition in this way would be to commit the very same error which Weiss sought to correct, namely, taking
judicial statement about aspects of the operation of statutory provisions as
substitutes for the statutory language.”
New Zealand
96 Section
385(1) of the Crimes Act 1961 sets the basis on which a criminal appeal shall
be determined in New Zealand and is in materially the same terms as art 26 of
the 1961 Jersey Law and art 25 of the 1961 Guernsey Law.
Unreasonable
verdict
97 In
New Zealand, the most recent
and leading authority on the unreasonable verdict ground is the decision of the
Supreme Court in Owen v R.
Owen followed a comprehensive review
of relevant authorities from New
Zealand and other Commonwealth jurisdictions
by the New Zealand Court of Appeal in R v
Munro.
98 The
facts of Munro were not, in general
terms, dissimilar from those in M v R.
Munro concerned an allegation of rape
where two adults had arranged to meet after an evening out separately with
friends. They had booked a hotel room at the last moment and had sex together.
Both had been drinking. There was evidence to suggest the sex was consensual
and evidence to show that it was not, in particular the manner in which the
victim had left the hotel room and what she said to third parties immediately
thereafter.
99 In
determining an appeal on the basis that the verdict was unreasonable or cannot
be supported, the Supreme Court in Owen
found the “substance of the correct approach” to be encapsulated in
the follow words drawn from Munro—
“A verdict will be deemed unreasonable where it is
a verdict that, having regard to all the evidence, no jury could reasonably have reached to the standard of beyond reasonable doubt.”
(para 14)
100 The
Supreme Court added—
“There is, in the end, no need to depart from the
language of Parliament. The question is whether the verdict is unreasonable. That
is the question the Court of Appeal must answer. The only necessary elaboration
is that expressed earlier, namely that a verdict will be unreasonable if,
having regard to all the evidence, the jury could not reasonably have been
satisfied to the required standard that the accused was guilty. We do not
consider it helpful to employ other language such as unsafe, unsatisfactory or
dangerous to convict. These words express the consequence of the verdict being
unreasonable. They should not be used as tests in themselves.” (para 17)
101 As to the words “cannot be supported having regard
to the evidence”, the Supreme Court stated—
“It is now appropriate to recognise that the ‘cannot
be supported’ limb of Section 385(1)(a) has no practical significance. An
‘unsupported’ verdict must necessarily be an unreasonable verdict. An
unreasonable verdict has insufficient evidence to support it. A verdict with no
evidence to support it is simply at the outer end of a continuum. Henceforth it
will suffice simply to apply the unreasonableness limb.” (para 12)
102 The
Supreme Court also endorsed the principles set out in the following passage
from the judgment in Munro—
“The Court must always, however, keep in mind that
it is not the arbiter of guilt, and that reasonable minds might disagree on
findings of fact . . . While we have rejected the English ‘lurking
doubt’ approach, we consider, like the Canadian Supreme Court, that that
concept provides a useful trigger for a fuller review. A lurking doubt or
uneasiness experienced by the appellate court may be an important indication
that the verdict was not reasonable or unsupportable on the evidence. However,
by itself a ‘lurking doubt’ is not sufficient grounds on which an
appeal court should deem a conviction to be unsafe. The law in New Zealand has always required an appellate court to recognise
that reasonable minds might disagree on findings of fact and that the jury, not
the appellate court, is the ultimate arbiter of fact. It is only where a jury’s
verdict is unreasonable on all the evidence (in the sense described above . . .)
that an appeal court may properly differ from it.
Finally, we note that an appellant must be able to point
to a sufficient foundation for his or her submission that a ground of appeal
under Section 385(1)(a) exists before the Court is required to embark on the
exercise of reviewing all of the evidence.”
Miscarriage
of justice
103 Like
Australia, New Zealand case-law is indicative
of an overlap in practice between the miscarriage of justice ground and the
grounds of unreasonable verdict and wrong decision on question of law. The case-law
in this area has been more concerned with the trial process rather than the
outcome. As the Supreme Court put it in Matenga
v R—
“Paragraph (c) appears on its face to be a residual
provision. It applies where the Court is of the opinion that on any ground
there was a miscarriage of justice. It is wide enough to be capable of
overlapping the paragraphs (a), (b) and (d) but is properly used in situations
which do not comfortably fit with the other paragraphs, often where, as in the
present case, inadmissible evidence has been admitted. [Noting by way of
footnote that ‘an incorrect ruling on the admissibility of evidence may
also be able to be dealt with under paragraph (b) as an error on a question of
law’.] It can potentially apply to anything falling outside the other
paragraphs which has gone wrong with the substance or process of the case and
has not been cured or become irrelevant to the verdict. That can include
something which has occurred either before or during the trial. It includes
prosecutorial or juror misconduct and failures of any kind by the judge which
cannot accurately be described as a wrong decision on any question of law. It
must also be taken to include situations where admissible defence evidence is
wrongly excluded or where after the trial fresh and cogent evidence comes to
notice and casts doubt on the guilty verdict.” (p 152, para 11)
The proviso
104 In
the already-cited Matenga, the
Supreme Court reviewed the application of the proviso. It referred to Owen where the Supreme Court concluded
that the proviso did not apply to para (a) (unreasonable verdict) as a finding
that the verdict was unreasonable must always constitute a substantial
miscarriage of justice. In respect of para (b), where the court is directed to
allow the appeal if it is of the opinion that the verdict “should be set
aside” on the ground of a wrong decision on any question of law, yet may
dismiss the appeal under the proviso, the court observed that—
“in such a case it might be expected that the Court
would not have formed the opinion that the conviction should be set aside on
the ground of the wrong decision. Nevertheless, it has long been accepted that
paragraph (b) is not to be read as having that literal effect and that the
proviso can be applied in relation to an error of law falling within its scope.
If it were otherwise, different approaches might be required as between
paragraphs (b) and (c) which would add an additional complication to what is
already a troublesome provision.” (p 151, para 10, lines 38–45)
105 Observing
that para (c) (miscarriage of justice) is a residual provision which is wide
enough to overlap with paras (a), (b) and (d) (the nullity ground which does
not appear in the Jersey and Guernsey legislation) and could be used in
situations which did not comfortably fit within the other paragraphs, it noted
that the leading case in New Zealand for the last decade on this aspect had
been McI.
In that case, the majority said that para (c) was primarily concerned with
process and its effect on a hypothetical jury (as opposed to the actual jury in
the case). The issue in Matenga was
whether the court should go further and come to its own view of the evidence. In
holding that it would substantially follow the Australian case of Weiss, it said—
“It is artificial to say that judges, while holding
one view themselves, may ascribe a different view to the hypothetical Jury. Therefore,
in reality, and this should be reflected in the test, the decision to confirm a
Jury verdict despite something having gone wrong, depends upon whether the
appellate court considers a guilty verdict was inevitable on the basis of the
whole of the admissible evidence (including any new evidence) . . .”
(p 157, para 28, lines 6–12)
“Following conviction, after a
fair trial by jury, Parliament has given the appeal courts an ability to uphold
the conviction despite there being a miscarriage of justice in some respects. While
the jury is in general terms the arbiter of guilt in our system of criminal
justice, the very existence of the proviso demonstrates that Parliament
intended the judges sitting on the appeal to be the ultimate arbiters of guilt
in circumstances in which the proviso applies. The general rule that guilt is
determined by a jury rather than by judges does, however, mean that the proviso
should be applied only if there is no room for doubt about the guilt of the
appellant; and . . . considerable caution is necessary before
resorting to the proviso when the ultimate issues depend, as they frequently
will, on the assessment of witnesses.” (p 157, para 29, lines 19–29)
“The Weiss Court
accepted that a miscarriage under our para (c) is anything which is a departure
from applicable rules of evidence or procedure. We have hesitated about whether
in its statutory context that is the meaning which should be given to the word,
lest it might lead to the application of the proviso in a large number of cases
. . . departing in this respect from Weiss, we consider that in the
first place the appeal court should put to one side and disregard those
irregularities which plainly could not, either singularly or collectively, have
affected the result of the trial and therefore cannot properly be called
miscarriages. A miscarriage is more than an inconsequential or immaterial
mistake or irregularity.” (p 157, para 30, lines 30–41)
“Proceeding in this way and having identified a
true miscarriage, that is, something which has gone wrong and which was capable
of affecting the result of the trial, the task of the court of appeal under the
proviso is then to consider whether that potentially adverse effect on the
result may actually, that is, in reality, have occurred. [adding by way of a
footnote ‘A “substantial” miscarriage is one which in
substance, that is, in reality, affected the result of the trial.’] The
Court may exercise its discretion to dismiss the appeal only if, having
reviewed all the admissible evidence, it considers that, notwithstanding there
has been a miscarriage, the guilty verdict was inevitable, in this sense of
being the only reasonably possible verdict, on that evidence. Importantly, the
Court should not apply the proviso simply because it considers there was enough
evidence to enable a reasonable jury to convict. In order to come to the view
that the verdict of guilty was inevitable the Court must itself feel sure of
the guilt of the accused.” (p 158, para 31, lines 1–12)
“It is not enough that a jury
could reasonably have convicted on the basis of the admissible evidence. When,
because of the miscarriage, the Crown needed to rely upon the proviso it had to
go further and satisfy the Court that a guilty verdict was not only reasonable
but inevitable.” (p 159, para 35, lines 13–17)
Canada
106 The
Canadian criminal appeal provisions are set out in s 686(1)(a) of the Canadian
Criminal Code and are materially in the same terms as art 26 of the 1961 Law,
with the exception of the proviso.
Unreasonable verdict
107 The
test on the reasonableness of a verdict, as with the other commonwealth
jurisdictions, has been the subject of analysis in a number of cases. In R v Biniaris,
the Supreme Court stated—
“The test for an appellate court determining
whether the verdict of a jury or the judgment of a trial judge is unreasonable
or cannot be supported by the evidence has been unequivocally expressed in Yebes as follows:
‘[C]urial review is
invited whenever a jury goes beyond a reasonable standard . . .
[T]he test is “whether the verdict is one
that a properly instructed jury acting judicially, could reasonably have
rendered”.’
That formulation of the test imports both an objective
assessment and, to some extent, a subjective one. It requires the appeal court
to determine what verdict a reasonable jury, properly instructed, could
judicially have arrived at, and, in doing so, to review, analyse and, within
the limits of appellate disadvantage, weigh the evidence. This latter process
is usually understood as referring to a subjective exercise, requiring the appeal
court to examine the weight of the evidence, rather than its bare sufficiency. The
test is therefore mixed, and it is more helpful to articulate what the
application of that test entails, than to characterize it as either an
objective or a subjective test.” (p 26, para 36)
“It is insufficient for the
court of appeal to refer to a vague unease, or a lingering or lurking doubt
based on its own review of the evidence. This ‘lurking doubt’ may
be a powerful trigger for thorough appellate scrutiny of the evidence, but it
is not, without further articulation of the basis for such doubt, a proper
basis upon which to interfere with the findings of a jury. In other words, if,
after reviewing the evidence at the end of an error free trial which led to a
conviction, the appeal court judge is left with a lurking doubt or feeling of
unease, that doubt, which is not in itself sufficient to justify interfering
with a conviction, may be a useful signal that the verdict was indeed reached
in a non-judicial manner. In that case, the court of appeal must proceed
further with its analysis.” (p 28, para 38)
“When a jury which was admittedly properly
instructed returns what the appeal court perceives to be an unreasonable
conviction, the only rational inference, if the test in Yebes is followed, is that the jury, in arriving at that guilty
verdict, was not acting judicially. This conclusion does not imply an
impeachment of the integrity of the jury. It may be that the jury reached its
verdict pursuant to an analytical flaw similar to the errors occasionally
incurred in the analysis of trial judges and revealed in their reasons for
judgment. Such error would of course not be apparent on the face of the verdict
by a jury. But the unreasonableness itself of the verdict would be apparent to
the legally trained reviewer when, in all the circumstances of a given case,
judicial fact-finding precludes the conclusion reached by the jury
. . . after the jury has been adequately charged as to the applicable
law, and warned, if necessary, about drawing possible unwarranted conclusions,
it remains that in some cases, the totality of the evidence and the peculiar
factual circumstances of a given case will lead an experienced jurist to
conclude that the fact-finding exercise applied at trial was flawed in light of
the unreasonable result that it produced.” (p 29, para 39)
“When an appellate court arrives at that
conclusion, it does not act as a ‘thirteenth juror’, nor is it ‘usurping
the function of the jury’. In concluding that no properly instructed jury
acting judicially could have convicted, the reviewing court inevitably is
concluding that these particular jurors who convicted must not have been acting
judicially. In that context, acting judicially means not only acting
dispassionately, applying the law and adjudicating on the basis of the record
and nothing else. It means, in addition, arriving at a conclusion that does not
conflict with the bulk of judicial experience. This, in my view, is the
assessment that must be made by the reviewing court. It requires not merely asking whether twelve properly instructed jurors,
acting judicially, could reasonably have come to the same result, but doing so
through the lens of judicial experience which serves as an additional
protection against an unwarranted conviction.” (p 30, para 40)
“It follows from the above that the test in Yebes continues to be the binding test
that appellate courts must apply in determining whether the verdict of the jury
is unreasonable or cannot be supported by the evidence. To the extent that it
has a subjective component, it is the subjective assessment of an assessor with
judicial training and experience that must be brought to bear on the exercise
of reviewing evidence upon which an allegedly unreasonable conviction rests. That,
in turn, requires the reviewing judge to import his or her knowledge of the law
and the expertise of the courts, gained through the judicial process over the
years, not simply his or her own personal experience and insight. It also
requires that the reviewing court articulate as explicitly and as precisely as
possible the grounds for its intervention.” (p 31, para 42)
Miscarriage
of justice
108 This
limb, set out in s 686(1)(a)(iii) of Canadian Criminal Code, in similar manner
to Australian and New Zealand jurisprudence, has been interpreted to encompass
the fairness of the process used to obtain the verdict, that is, procedural
defects in the conduct of the trial and the defendant’s entitlement to a
fair trial, that do not fall within an error of law or lead to an unreasonable
verdict. In R v Morrissey
the ambit of the miscarriage of justice limb was described in the following
terms—
“I turn next to s. 686(1)(a)(iii). This subsection
is not concerned with the characterization of an error as one of law, fact,
mixed fact and law or something else, but rather with the impact of the error
on the trial proceedings. It reaches all errors resulting in a miscarriage of
justice and vindicates the wide jurisdiction vested in this court by s. 675(1).
The long reach of s. 686(1)(a)(iii) was described by McIntyre J., for a
unanimous court, in R. v. Fanjoy
(1985), 21 C.C.C. (3d) 312 at 317–18 (S.C.C):
. . . A person charged with the commission of a
crime is entitled to a fair trial according to law. Any error which occurs at
trial that deprives the accused of that entitlement is a
miscarriage of justice . . .
Fanjoy, like
most cases where s. 686(1)(a)(iii) has been invoked, involved prosecutorial or
judicial misconduct in the course of the trial: . . . Such conduct
obviously jeopardizes the fairness of a trial and fits comfortably within the
concept of miscarriage of a justice. Nothing in the language of the section,
however, suggests that it is limited to any particular type of error. In my
view, any error, including one involving a misapprehension of the evidence by
the trial judge must be assessed by reference to its impact on the fairness of
the trial. If the error renders the trial unfair, then s. 686(1)(a)(iii)
requires that the conviction be quashed.” (pp 44–45, final para)
109 Actual
prejudice resulting from the irregularity or error is not a prerequisite under
the s 686(1)(iii) limb and it may be enough that there is an appearance of
unfairness: R v Cameron
put it—
“R. v. Masuda was referred to with
approval by this court, in R. v. Hertrich
(1982), 67 C.C.C. (2d) 510, 137 D.L.R. (3d) 400 [leave to appeal to S.C.C.
refused (1982), 45 N.R. 629n], where the accused had been charged with first
degree murder. The court considered the effect of anonymous telephone calls
received by jurors. In ordering a new trial, Martin J.A. stated at p. 543
C.C.C.:
‘I am, however, unable to accept (counsel’s)
submission that the showing of actual prejudice to the appellants is essential
to constitute a miscarriage of justice within s. 613(1)(a)(iii) of the Code
(now s. 686(1)(a)(iii)). A miscarriage of justice within s. 613(1)(a)(iii) of
the Code occurs where there is an appearance of unfairness in the trial of an
accused: see R. v.
Masuda.’
The reconciliation
of these apparently conflicting approaches lies in identifying the concern
raised by the offending circumstance. If, as in Gilson and Labelle, the offensive conduct is not such as to taint
the administration of justice, then the concern is properly directed to whether
actual prejudice was occasioned to the accused. Where the events in question
are so serious as to affect the administration of justice, as they were in Hertrich, then the focus turns upon the
justice system and the miscarriage of justice occurs whenever the confidence of
the public in the system is shaken; that confidence is equally shaken by the appearance as by the fact of an unfair trial.” (p
5, penultimate para)
110 In
R v Guyatt
arguments that the miscarriage of justice limb might be used by the court to
set aside a verdict based on weak evidence was considered—
“. . . s 686(1)(a)(iii) is concerned with
the impact of an error on the trial proceedings which results in an unfair
trial. The focus of s 686(1)(a)(iii) is not the verdict itself, but the
fairness of the process which produced the verdict.
I do not accept that s 686(1)(a)(iii) may operate to set
aside a verdict which is based on weak evidence and for which a poor jury
charge was delivered. Such a case presents two discrete areas of difficulty.
The first is concerned with the weight of the evidence, the second with the law
that the jury were told applies to their deliberations. The Code provides
different mechanisms for dealing with these independent issues. Section
686(1)(a)(i) provides a means for an appeal court to set aside a verdict which
rests on weak evidence, that is, a verdict which does not meet the test in Yebes; s 686(1)(a)(ii) in combination
with s 686(1)(b)(iii) permits the appeal court to set aside a verdict where an
error or errors of law on the part of the trial judge might have affected the
verdict; and finally s 686(1)(a)(iii) provides a basis for setting aside a verdict
where the trial process has been contaminated resulting in an unfair trial.”
(pp 13–14, paras 70–71)
The proviso
111 The
proviso in the Canadian Criminal Code is expressed differently from art 26(1)
of the local 1961 statutes. The wording of the equivalent to the Jersey and
Guernsey proviso (s 686(1)(b)(iii)) is expressly restricted to the second limb,
namely to a wrong decision on a question of law. A further proviso is provided
in s 686(1)(b)(iv) and specifically refers to procedural irregularity at trial.
112 There
is a degree of potential overlap between the types of errors dealt with in the case-law
which are characterised as falling within the error of law limb of s
686(1)(a)(ii) of the Canadian Criminal Code, to which the miscarriage of
justice proviso under s 686(1)(b)(iii); and those characterised as falling
within the miscarriage of justice limb under s 686(1)(a)(iii), to which the s
686(1)(b)(vi) proviso might apply. In Fanjoy v The Queen
the trial judge’s failure to limit cross-examination was characterised as
an error of mixed law and fact and considered under the miscarriage of justice
limb (s 686(1)(a)(iii)). In Khan
the majority judgment stated that an error of law was any decision that was an
erroneous interpretation or application of the law. In Khan the jury had been inadvertently given a transcript of a voir dire which revealed that the
accused had made comments which had been ruled inadmissible. The mistake was
discovered and the defendant’s counsel sought an order for a mistrial. A
declaration of mistrial was refused, and it is this decision that the appellant
sought to challenge as an error of law. If the error in making the transcripts
available to the jury had not been picked up until after the trial had
concluded, and therefore there was no decision on a mistrial, then the appeal
might have been brought under the miscarriage of justice limb.
113 Under
Canadian jurisprudence there appear to be two categories of error that justify
the application of the “no substantial wrong or miscarriage of justice”
proviso. In Khan, these classes were
described as—
“The first category is that of so-called ‘harmless
errors’, or errors of a minor nature having no impact on the verdict. The
second category encompasses serious errors which would justify a new trial, but
for the fact that the evidence adduced was seen as so overwhelming that the
reviewing court concludes that there was no substantial wrong or miscarriage of
justice.” (p 22, para 26)
114 The
relevant test in terms of applying the proviso appears to be the inevitability
of the verdict. If the verdict reached is found to be inevitable, absent the
error of law, then the proviso will be applied. This is the same irrespective
of which of the two categories the error of law falls under: Khan (para 90—per Lebel, J (in the minority; the majority deciding the case on error
of law grounds)).
Wise words from the Commonwealth
115 In
closing on the overview of the position in the jurisdictions of Australia, New
Zealand and Canada, here are two closing
quotations from the Commonwealth. Firstly, from the
minority judgment of Hammond JA in R v
Munro, we have the following wise words—
“My first concern relates to the proper approach to
the interpretation of the relevant portion of s 385(1) of the Crimes Act 1961 . . .
Now those are reasonably obvious words. They express principles; they are not
prescriptive ‘rule’ type words, of a technical character. They
would be understood by the person in the street. But what has happened around
the common law world is that both the judges and the commentators have fallen
upon them, bringing in their wake a confusing volume of judgments and
commentary. This brings to mind the insightful address delivered by Lord Shaw
of Dunfermline to the American Bar Association in San Francisco on 9 August 1922. His Lordship
said that in ancient times interpretation was afflicted by the obstacle of
formality, but ‘in modern times it is authority’. Lord Shaw said
this has produced a new obstacle, ‘thick as the jungle’.
The words have already been in the hands of the judicial
commentators; and as is the way with commentators, the one refers to the other,
and the third to the preceding two, till the text is obscured, and the vision
of the interpreter cannot get through the thicket except at the risk of his
being considered a rebel and iconoclast.
. . . A consequence of the judges falling upon
a statute can be that there is the difficulty of trying to produce a seamless
web of jurisprudence across dozens of appellate authorities. This bogs down
courts in their day-to-day work and all too often deflects judges from their
proper endeavour in an appeal of this character. Yet the appropriate principles
are stated in the parliamentary language itself!
This leads to a second broad concern: that of context . . .
In New Zealand, the state of the law is that convicted persons have no
alternative but to look to the Court of Appeal or the Supreme Court as a
safeguard against wrongful convictions and, at least in my view, in protecting
the integrity of the system under which they were convicted . . . The
short point is that, as a matter of context, in New Zealand the entire burden
falls on the Court of Appeal or the Supreme Court of New Zealand, as the case
may be. In such a context, the words of the statute should
not be read down, because there is no other avenue of redress for the wrongly
convicted person.
My third concern is that, approaching the words of the
statute with the two concerns I have already voiced in mind, any constraints
which are put on the words should only be constraints or explanations going to
the respective roles which the various actors in this enterprise are to
undertake. Apart from that, there is no need for any further exegesis on the
statutory words.” (paras 237–42)
116 Secondly,
and to illustrate the wise words of Hammond, JA, from the High Court of
Australia in Weiss in construing s
568(1) of the Crimes Act, a State of Victoria statute which for our purposes is
materially the same as the relevant statutes in Jersey and Guernsey, we have
the following—
“The task of construing this section is not
accomplished by simply taking the text of the statute in one hand and a
dictionary in the other. Especially is that so when note is taken of some
particular features of this provision. What is to be made of the contrast
between the provisions in the body of this section that the Court ‘shall allow the appeal’ if certain
conditions are met and the proviso that the Court ‘may . . . dismiss the appeal’ if another condition
is met? What is to be made of expressions like ‘if it [the Court] thinks that the verdict of the jury should be set aside . . .’?
What is to be made of the reference in the body of the section to ‘a
miscarriage of justice’ compared with the reference in the proviso to ‘no
substantial miscarriage of justice’?
How is the proviso to operate when it is cast in terms that the Court ‘may . . . notwithstanding that
[the Court] is of opinion that the point . . . might be decided in favour of the appellant . . . dismiss
the appeal if it considers that no
substantial miscarriage of justice has actually
occurred’? What is the intensity to be given to the words ‘may’,
‘might’, ‘considers’? What, if anything, turns on
referring, in the first kind of ground of appeal specified in the body of the
section, to the verdict of the jury but referring, in the second kind of
ground, to the judgment of the Court?” (para 10)
The Jersey and Guernsey
tests revisited
117 As
I have sought to show in the earlier part of this article, a major difficulty
in assessing the test currently applied in Jersey and Guernsey to determine
whether a verdict should be set aside
on the ground that it is unreasonable or cannot be supported having regard to the evidence is that the test is unsatisfactory because it is
unclear as to—
(a) the
threshold that must be achieved for the ground(s) to be made out;
(b) the
nature of the examination to be undertaken by the Court; and
(c) the
factors the Court will take into account in that examination.
118 English jurisprudence on the equivalent section of the CAA
1907 ended in 1968 and the tone of that jurisprudence was set soon after the
promulgation of that statute and remained much the same for the 61 years of its
existence. It is clear that the tone reflected the times.
119 In
Edmond-O’Brien, as we have
seen, Lord Hoffmann speaks of the
possibility of a “more liberal interpretation of the old statutory
language.” However, and with respect, one ought rather to speak of a more
expansive and clear interpretation, and, indeed, of a more modern
interpretation. The wording of the unreasonable/unsupported ground is not
altogether happy. One can read it as two separate grounds, as alternative bases
of the same ground or at different points in the same continuum. One can read “unreasonable”
as a word on its own or together with “having regard to the evidence”.
If it is to be read alone, what does it mean and by what reference point is a court
to assess unreasonableness? One can interpret the words “cannot be
supported having regard to the evidence” as a stand-alone threshold or as
the outer limit of “unreasonableness”, in which case “unreasonableness”
is a lesser threshold.
120 On
the wording, it is difficult to see how “cannot be supported having
regard to the evidence” could be viewed as meaning “provided there
was some evidence that a jury or the Jurats could accept” (that is, a
bare sufficiency test) and, if so, that the verdict could not be viewed as
unreasonable. For such an interpretation pays no regard to the need for a jury
or the Jurats to be satisfied beyond reasonable doubt, gives no separate
meaning or weight to “unreasonable” and potentially invites an
analysis which focuses on the evidence which might found a guilty verdict
without examining whether the whole of the evidence supports such a verdict.
121 To
determine if a verdict is unreasonable on the evidence or whether it cannot be
supported having regard to the evidence, the appellate court must surely
review, analyse and weigh the evidence. Whilst the Jersey and Guernsey
statutes do not expressly require that the evidence be viewed through the Jury’s
or Jurats’ eyes, the appellate court is not mandated to re-determine
guilt; it is mandated to assess the guilty verdict that was reached. The case-law
shows that appellate courts in England
(pre-1968) and elsewhere in the Commonwealth consider that
the ultimate question is what a jury acting reasonably ought to have done. This
no doubt explains the discussion in the Commonwealth case-law which seeks to
interrelate the objective process of determining what verdict a reasonable
jury, properly instructed, could judicially arrive at with the subjective
analysis to be undertaken by the court to determine that objective question. It
cannot be otherwise than that the court is required to undertake these tasks “through
the lens of judicial experience” (per
Biniaris para 42).
122 If
the threshold is unreasonableness, it is not enough to disturb a verdict simply
because the appellate court disagrees with the verdict; as has been said,
reasonable minds may disagree. Rather it must be that a verdict shall be
disturbed if the court concludes that no jury, acting reasonably, ought not to
have had a reasonable doubt. And “reasonably” must properly mean, per Biniaris,
acting dispassionately, applying the law correctly, adjudicating on the basis
of the record, and arriving at a conclusion that does not conflict with that
reached by a legally trained appellate judge. With two exceptions, it is hard
to see how a doubt experienced by the appellate court will not result in a
conclusion that a reasonable jury ought also to have experienced that doubt and
therefore cannot have been sure as to the defendant’s guilt. The first
exception is where the doubt may be overridden by the jury’s advantage
over the appellate court in hearing and seeing the witnesses; contrast a
verdict based on documentary evidence and inferences where it is hard to see
what advantage a jury might have over an appellate court. Indeed, as observed
in Munro, the appellate court may
have the advantage in that respect, derived from its legal training, the time
available and the distance from the trial context. The other exception is that
a judicial system must tolerate reasonable differences of opinion on factual
issues. However this exception is easier to state than identify in a real
context.
123 Obviously,
it is a matter for the legislatures in both Islands
whether the law needs to be reformed. But it is a peculiar, though sadly not
unprecedented, position for the Islands to have adopted the wording of an
English statute which at the time of promulgation in Jersey and Guernsey was
already drawing heavy criticism in England and, shortly after, was repealed and
replaced. Furthermore, it cannot be said, for Jersey
at least, that a conscious decision to be different has been taken. As the
Chief Minister’s statement in 2009 reflects, in his view, at least then,
there is no difference between the test under Jersey law and that prevailing in
England and Wales.
124 One
ought also to comment on the approach adopted by the Court of Appeal. The
prohibition on taking a more liberal approach is said to be the wording of the
statutes. Yet, as some (albeit the minority) of the
pre-1968 decisions of the Court of Criminal Appeal and the contemporary
Commonwealth decisions show, there is room within the statutory wording for a
degree of flexibility. The Privy Council has invited submissions on a more
flexible interpretation. However if Bhojwani
represents the collective view of the appellate court, in Jersey
at least, the gauntlet is unlikely to be taken up.
125 One
cannot properly have recourse to the fact that no verdict of the Jurats in
Jersey on a criminal matter has ever been overturned on the grounds of
unreasonableness of the verdict,
if that is indeed a fact, as some form of justification for not reviewing the
test on appeal. Indeed, in modern times, at least, Jury trials have a similar
record. Our Jurats, our professional fact finders, of whom we are justly proud,
would be the first to endorse the existence of what Pattenden calls the
inherent probability of error in a human tribunal.
A fair-minded member of a Jury would be of similar mind. An alternative and
sustainable interpretation of the lack of successful appeals would be that,
firstly, in a well-ordered judicial system, successful appeals on the grounds
of unreasonableness of the verdict are likely to be rare and, secondly, if the
threshold on appeal is set high, they will be virtually non-existent.
126 Absent
an expression of reform from our legislatures, there remains the possibility of
recourse to contemporary Commonwealth case-law. Although, it has to be observed
that Australia, New Zealand and Canada do not present a uniform
approach. Australia
has pushed the boundary the furthest. Mason, JA’s approach is not far
removed from a full merits review, subject in reality only to due allowance for
such advantage as the jury may have in seeing and hearing witnesses. But
perhaps that test itself is the reality of a lurking doubt. New Zealand and Canada, ostensibly at least, have
remained closer to a bare sufficiency test, but again emphasised the beyond all
reasonable doubt threshold. The exact distance of the difference is not always
easy to see.
127 But
to avoid criticism for negative rather than constructive criticism, let this
author at least venture a more liberal interpretation. The proper test on the
first ground could be: a verdict of guilty will be unreasonable where it is a
verdict that, having regard to all of the evidence, no jury or the Jurats could
reasonably
have reached to the standard of beyond reasonable doubt.
The words “cannot be supported having regard to the evidence” ought
to be interpreted as representing the extreme end of “unreasonable”.
Determining the test must involve the appellate court in reviewing, analysing
and weighing the evidence and applying its judicial expertise to that process.
Save where explained by the exceptions set out above, a doubt experienced by
the appellate court ought to lead to a conclusion that a reasonable jury or
bench of Jurats ought also to have experienced that doubt and therefore cannot
have been sure as to guilt.
128 The
application of such a test would, I suggest, have availed Mrs Guest in her
appeal. Justice would surely have been done. And, I for one, would sleep
better in my bed at night.
John Kelleher is
an advocate of the Royal Court of Jersey and a partner in Carey Olsen. He is
the author of The Triumph of the Country,
JAB Publishing, 1994.