Fleming v The Queen

The appeal concerned Mark Fleming (the appellant) and The Queen. The appellant had been convicted by a judge of the New South Wales District Court, sitting alone, on four charges: three counts of aggravated indecent assault and one count of sexual intercourse with a person under the appellant's authority who was between 10 and 16 years of age. The appeal to the High Court of Australia arose after the Court of Criminal Appeal of New South Wales had dismissed his appeal against conviction.

The central legal issues before the High Court were whether the judge's failure to include in his reasons for judgment a warning that was required to be given to a jury in similar circumstances constituted a breach of section 33(3) of the Criminal Procedure Act 1986 (NSW). This, in turn, raised the question of whether such a failure amounted to a wrong decision on a question of law, and if so, whether a substantial miscarriage of justice had nonetheless occurred. The Court also considered the nature of an appeal under section 6 of the Criminal Appeal Act 1912 (NSW) and the relevance of the phrase "unsafe and unsatisfactory" in that context.

The High Court reasoned that section 33(3) of the Criminal Procedure Act 1986 (NSW) imposed a mandatory requirement on a judge sitting alone to include in their reasons for judgment a warning that would have been required to be given to a jury. The judge's failure to do so in this case meant that the decision was a wrong decision on a question of law. Given the nature of the evidence, which the trial judge himself described as "essentially one of oath against oath," the Court concluded that the absence of the required warning meant that the convictions were unsafe and unsatisfactory, and therefore a substantial miscarriage of justice had occurred.

Consequently, the High Court allowed the appeal, set aside the order of the Court of Criminal Appeal of New South Wales, and in lieu thereof ordered that the appeal to that Court be allowed, the convictions be quashed, and a new trial be held on all counts on which the appellant had been convicted.