Fisher v The Queen

This matter concerned an application for special leave to appeal to the High Court of Australia, brought by the applicant, Fisher, against the Queen. The dispute arose from a criminal conviction, and the application was heard by Justices Wilson, Toohey, and Deane.

The primary legal issue before the High Court was whether the Court should grant special leave to appeal, particularly in light of established High Court precedent that appeals from State courts are generally confined to the evidence presented at trial, without the admission of fresh or new evidence. The applicant sought to rely on evidence that had not been before the Court of Criminal Appeal, arguing it raised a reasonable doubt as to his guilt.

The applicant's counsel, Mr. Cooke QC, acknowledged the established line of authority, including *Cody* and *The Victorian Stevedoring v Dignan*, which held that appeals to the High Court from State courts are appeals in the strict sense and do not permit the consideration of fresh evidence. He indicated he would not seek to overturn this precedent. Instead, he attempted to draw an analogy with the case of *Carr v Reg*, suggesting that the principles applied in *Carr* regarding the appellate court's responsibility to evaluate evidence when a verdict is attacked as unsafe and unsatisfactory could be relevant. Specifically, he referred to passages from the joint judgment of Wilson and Dawson JJ in *Carr*, which stated that appellate courts have a responsibility to evaluate relevant evidence to determine if a reasonable doubt ought to have been left with the jury. He also referred to Justice Gaudron's reasoning in *Carr* concerning evidence sufficient to raise a doubt.

The application for special leave was ultimately dealt with on the basis of the material that had been before the Court of Criminal Appeal, excluding the additional affidavit material filed by the applicant. The transcript does not record the final orders or outcome of the special leave application.