Davis v The Queen

This matter concerned an application for special leave to appeal by Shane Sebastian Davis against a decision of the Court of Appeal. The central dispute revolved around the application of the proviso to the common form criminal appeal statute, specifically concerning whether the Court of Appeal had correctly applied the principles established in *Wilde v Reg*.

The legal issue before the High Court was whether the Court of Appeal had erred in its application of the proviso by failing to undertake a two-stage test. The applicant argued that the proviso requires an initial determination of whether an error or irregularity at trial was so fundamental as to deprive the proceedings of the quality of a fair trial, before considering whether the jury would have convicted notwithstanding the error.

The applicant contended that the Court of Appeal had not performed this initial fundamental error analysis, instead engaging in a simple weighing of the evidence to determine if a miscarriage of justice had occurred. The applicant relied on the majority judgment in *Wilde v Reg*, which indicated that the proviso's application involves assessing the gravity and significance of an error, rather than solely determining if a jury would inevitably have convicted. The applicant submitted that the Court of Appeal's judgment did not demonstrate this two-stage approach.