Black v The Queen

The applicant, Black, sought special leave to appeal to the High Court of Australia from a decision of the Court of Criminal Appeal of New South Wales. The Court of Criminal Appeal had dismissed Black's appeals against convictions following two separate trials, both concerning fires that occurred in 1986. The central issue common to both trials was the trial judge's refusal to order separate trials for the charges.

The legal issues before the High Court concerned whether the trial judge erred in principle in their approach to ordering separate trials, and if so, whether this error resulted in a miscarriage of justice. The applicant argued that the refusal to order separate trials constituted an error of law, rather than merely a discretionary matter where the sole focus was on a miscarriage of justice. The applicant contended that the established approach, which traditionally treated the question of separate trials as one of miscarriage of justice, was erroneous.

The applicant submitted that, analogous to the erroneous admission of evidence or the refusal of an adjournment, an erroneous decision to refuse separate trials should lead to the application of the proviso, meaning the conviction would only be overturned if a miscarriage of justice had occurred. The applicant argued that the discretionary principles governing separate trials had not been adequately elucidated and that certain principles applied in New South Wales, requiring evidence to be "significantly different" and one case "significantly weaker than the other" as a precondition for separate trials, were erroneous. The applicant sought to establish that the trial judge's approach to these principles constituted an error of law.