CBL v The Queen

The applicant, CBL, sought special leave to appeal to the High Court of Australia against a decision concerning his criminal convictions. The core of the dispute revolved around the jury's directions and the potential for non-unanimous verdicts in relation to the applicant and his co-accused. The applicant argued that the jury's verdicts against him were unsafe because the jury may not have been unanimous on the factual basis for his guilt, particularly given that the verdicts against his co-accused had been set aside and a retrial ordered.

The legal issues before the High Court were whether exceptional circumstances existed to permit the applicant to raise a point not taken at trial or in the Court of Appeal, and whether the jury directions were deficient to the extent that the applicant's convictions could not be considered safe. Specifically, the applicant contended that the jury should have been directed that they must be unanimous on the specific factual basis for finding him guilty, especially as the evidence allowed for different factual pathways to conviction for him and his co-accused. The applicant argued that the subsequent setting aside of the co-accused's verdicts created an exceptional circumstance, as it rendered the previous jury's findings functionally insignificant and made it impossible to ascertain unanimity on any sustaining factual basis for his own convictions.

The High Court, through Keane J, noted that the failure to raise the issue of jury directions at trial or in the Court of Appeal presented a significant hurdle, requiring the applicant to demonstrate exceptional circumstances. While acknowledging the applicant's argument that the subsequent quashing of co-accused verdicts created an unusual situation, the Court found that these circumstances were not sufficiently exceptional to warrant the grant of special leave. The Court considered that the failure to seek the relevant direction at trial could have been a tactical decision by the applicant's counsel, given the strength of the case against him. Ultimately, the Court concluded that the applicant had not demonstrated the necessary exceptional circumstances to justify departing from the usual principles of finality in litigation.

Special leave to appeal was refused.