Criminal law - Appeal and new trial - Inquiry after conviction - Appeal by reference from Attorney-General of petition by appellant - Task and approach of Court - Applicable test: whether there was a significant possibility that in the light of the admissible evidence now available (including evidence given at the trial) a jury, acting reasonably, would acquit the appellant, giving rise to a miscarriage of justice

Evidence - Fresh evidence - New evidence - Principles governing reception

Evidence - Fresh or new evidence of confessions of a third party deceased to the commission of offence - Evidence previously given personally on appellant's application for an extension of time - Evidence then rejected as "worthless" - Whether additional, new or fresh evidence of confessions admissible as an exception to the rule against hearsay or otherwise

Evidence - Fresh expert evidence based on knowledge and experience not available at the time of the trial or previous application for an extension of time for leave to appeal - Evidence tending to exclude involvement of appellant's vehicle and confirming possibility of involvement of vehicle driven by third party

Evidence - New evidence that injuries sustained by victim not consistent with having been caused by vehicle driven in manner described by appellant in his confession

Evidence - Fresh or new similar fact evidence of incidents in which other women had been run down at night in strikingly similar circumstances coupled with confessions by third party corroborated by the evidence of victims

Legislation:

Evidence Act 1995 (Cth), s 65

Sentencing Act 1995 (WA), s 140(1)(a), s 140(2)

Result:

Appeal allowed; conviction quashed; no order for a re-trial

Category: A

Representation:

Counsel:

Appellant: Mr T F Percy QC, Mr J A Davies & Mr W J Chesnutt
Respondent: Mr S E Stone & Ms A L Forrester

Solicitors:

Appellant: Davies & Co
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

B v The Queen (1991) 175 CLR 599
Bannon v The Queen (1995) 185 CLR 1
Beamish v The Queen (No 2), unreported; CCA SCt of WA; Library No 20 of 1964; 22 May 1964
Beamish v The Queen [1962] WAR 85
Bradshaw v The Queen, unreported; CCA SCt of WA; Library No 970228; 13 May 1997
Button v The Queen, unreported; CCA SCt of WA; 22 May 1964
Caratti v The Queen [2000] WASCA 279
Chambers v Mississippi (1973) 410 US 284
Cheney v R (1991) 99 ALR 360
Cheney v The Queen (1991) 28 FCR 103
Connell v The Queen (No 6) (1994) 12 WAR 133
Craig v The King (1933) 49 CLR 429
Demeter v The Queen [1978] 1 SCR 538
Donnelly v United…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Button v The Queen

Details

AGLC: Button v The Queen [2002] WASCA 35
Case: [2002] WASCA 35
Decision Date: 25 FEBRUARY 2002

CaseChat Overview and Summary

The appellant in this case appealed against his conviction for the murder of a pedestrian, asserting that there was new evidence available that would likely lead to his acquittal if a new trial were to be held. The appeal was brought to the court by reference from the Attorney-General, following a petition by the appellant. The court was tasked with determining whether there was a significant possibility that a jury, acting reasonably, would acquit the appellant in light of the new evidence, which would result in a miscarriage of justice.

The central legal issues revolved around the admissibility of fresh and new evidence, specifically the confessions of a deceased third party to the commission of the offence, and the relevance of fresh expert evidence that was not available at the time of the trial. The court had to consider whether this new evidence could be admissible as an exception to the hearsay rule or otherwise, and if it could lead to the exclusion of the appellant’s involvement in the crime. Additionally, the court examined the significance of new evidence suggesting that the injuries sustained by the victim were inconsistent with the appellant's confession and the possibility that a different vehicle, driven by the deceased third party, was involved in the incident.

The court concluded that the new evidence presented a significant possibility that a jury would acquit the appellant, thus satisfying the test for a miscarriage of justice. The evidence included confessions by the deceased third party that were corroborated by the victims of similar incidents, as well as expert evidence that excluded the appellant's vehicle as the cause of the injuries and suggested another vehicle was involved. The court found that this new evidence was compelling and provided a strong basis for a new trial.

As a result of this determination, the court quashed the conviction and ordered a new trial. The court recognised that the new evidence, if believed, could lead to the appellant's acquittal and that a miscarriage of justice would occur if a new trial were not granted. The decision underscores the importance of ensuring justice in criminal cases where significant new evidence comes to light after the original trial.

Orders