Gassy v The Queen [2008] HCA 18 14 May 2008 A2/2006
ORDER
1.Application for special leave to appeal granted.
2.Appeal treated as instituted, heard instanter and allowed.
3.Set aside the orders of the Full Court of the Supreme Court of South Australia made on 22 December 2005 and in their place order that:
(a)the appeal to that Court be allowed;
(b)the appellant's conviction and sentence be quashed; and
(c)there be a new trial.
On appeal from the Supreme Court of South Australia
Representation
J E Gassy appeared in person
C J Kourakis QC Solicitor-General for the State of South Australia with P R Brebner QC and E F Telfer for the respondent (instructed by Director of Public Prosecutions (South Australia))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Gassy v The Queen
Criminal law – Practice and procedure – Directions to the jury – Deliberations continued, without success, for more than ten hours – The trial judge suggested that, if invited by the jury, she could suggest ways for the jury to "move forward" – Jury requested assistance – Further direction suggesting how the jury could approach its deliberations –The jury returned its guilty verdict about half an hour after the further direction – Balance of further direction – Whether the further direction constituted a miscarriage of justice.
Criminal law – Appeals – Application of the proviso – Whether no substantial miscarriage of justice actually occurred – Whether on the record of the trial an appellate court could conclude, beyond reasonable doubt, that the applicant was guilty – Relevance to the proviso of a separate consideration as to whether the trial was unfair – Relevance to the proviso of a consideration as to whether there has been such a departure from the essential requirements of the law that it goes to the root of the proceedings.
Criminal law – Practice and procedure – Legal representation of an accused – At the applicant's trial for murder, counsel sought to appear for the applicant in relation only to a voir dire hearing concerning the admissibility of certain evidence – Statement by the trial judge that counsel could not appear on the voir dire if counsel did not then represent the applicant for the entire trial – Counsel withdrew and applicant conducted voir dire himself – Error of law – Whether error constituted a miscarriage of justice.
GUMMOW AND HAYNE JJ. Dr Margaret Tobin was Director of Mental Health for South Australia. On 14 October 2002, after lunch, Dr Tobin was returning to her office on the eighth floor of an Adelaide city building. She got into a lift with two men and another woman. One of the men, and the…
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.
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AGLC
Gassy v The Queen [2008] HCA 18
Case
[2008] HCA 18
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Gassy against his conviction for murder. The dispute concerned alleged misdirections to the jury and an error in the handling of legal representation during a voir dire.
The legal issues before the High Court were whether a supplementary jury direction, given after extensive deliberations, was unbalanced and lacked neutrality, thereby constituting a miscarriage of justice. Additionally, the Court had to determine if an earlier ruling by the trial judge, which prevented counsel from appearing solely for a voir dire hearing, constituted an error of law and a miscarriage of justice. The Court also considered the application of the proviso to s 353(1) of the Criminal Law Consolidation Act, which allows an appellate court to dismiss an appeal if no substantial miscarriage of justice has actually occurred, and the relevance of a separate consideration of trial unfairness to this proviso.
The Court reasoned that the trial judge's ruling on legal representation for the voir dire was an error of law. Furthermore, the supplementary jury direction, given after the jury had deliberated for over ten hours, was found to lack balance and neutrality, leading to a miscarriage of justice. The Court emphasised that the proviso to s 353(1) requires an independent assessment of the evidence by the appellate court to determine if a substantial miscarriage of justice has occurred, rather than relying on hypothetical jury deliberations.
The High Court granted special leave to appeal, treated the appeal as instituted and heard instanter, and allowed the appeal. The orders of the Full Court of the Supreme Court of South Australia were set aside, and in their place, the appeal to that Court was allowed, the appellant's conviction and sentence were quashed, and a new trial was ordered.
Orders
Orders of the court
1. Application for special leave to appeal granted.
2. Appeal treated as instituted, heard instanter and allowed.
3. Set aside the orders of the Full Court of the Supreme Court of South Australia made on 22 December 2005 and in their place order that:
(a) the appeal to that Court be allowed;
(b) the appellant's conviction and sentence be quashed; and
(c) there be a new trial.
On appeal from the Supreme Court of South Australia (per Gummow and Hayne JJ, Kirby J agreeing with the orders in a separate judgment; Crennan and Kieffel JJ dissenting)
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GUMMOW AND HAYNE JJ
(dissent)
KIRBY J
(dissent)
It follows that the applicant has, at the very least, made out a ground of a "wrong decision on any question of law" in respect of the unchallenged legal error on the explicit ruling about legal representation on the voir dire, and also "that on any ground there was a miscarriage of justice" in the lack of balance and neutrality in the supplementary jury direction. The preconditions to s 353(1) of the Criminal Law Consolidation Act therefore require that the Court of Criminal Appeal "shall" allow the appeal when the Court "thinks that the verdict of the jury should be set aside", relevantly, with a ground of a wrong decision on any question of law or a miscarriage of justice. The Court of Criminal Appeal would only then not set aside the verdict of the jury if it were to consider "that no substantial miscarriage of justice has actually occurred"[49].[49]s 353(1) (emphasis added).The decision in Weiss The history and purpose of statutory provisions of the kind found in the proviso were explained in this Court's reasons in Weiss v The Queen[50]. In English criminal procedure, an important purpose of the new procedure provided by the 1907 Act in the United Kingdom was to overcome the rigidities of the so-called "Exchequer rule"[51]. The proviso to the new statutory procedure replacing Crown Cases Reserved aimed to substitute a more nuanced judicial decision, designed to produce outcomes in criminal appeals that reflected more than purely technical considerations. It drew attention to the actuality and substance of demonstrated defects in the trial. [50](2005) 224 CLR 300; [2005] HCA 81.[51]Weiss (2005) 224 CLR 300 at 306-307 [13] referring to Crease v Barrett (1835) 1 Cr M & R 919 at 933 [149 ER 1353 at 1359]. Since 1907, courts of criminal appeal have thus been preoccupied by attempts to strike the correct balance, envisaged by the statute, between:.The maintenance of a very high measure of legal accuracy, fairness and impartiality in the conduct of a criminal trial;.The proper observance of procedural and other rules that protect the fair trial of the accused; and.The adherence to the rule of law whilst preventing seemingly meritless, immaterial and insubstantial errors from controlling outcomes. The important instruction for Australian decision-making on such issues contained in this Court's decision in Weiss was:(1)The reminder to the appellate court to conform closely to the statutory language in which the duty of judges participating in criminal appeals is expressed by Parliament[52];(2)The affirmation of the need to avoid substituting for the statutory language various "absolute rules or singular tests" that have developed in a century of judicial decision-making explaining and applying the statutory provisions[53];(3)The instruction to avoid, in particular, judicial formulations that involved the legal fiction of speculating on or predicting what the original or a future hypothesised "jury of reasonable men, properly instructed and on such of the material as should properly be before them"[54] did, would do, or would have done without the legal error or miscarriage demonstrated; and(4)The insistence upon the obligation of the appellate court to "make its own independent assessment of the evidence"[55] in deciding whether "no substantial miscarriage of justice has actually occurred". In this, the appellate court must make due allowance for the "natural limitations" that exist[56]: it is obliged to act on the record, but ordinarily does not hear or see witnesses, and typically decides appeals based substantially on selected extracts of the record emphasised by the parties or their representatives.[52]Weiss (2005) 224 CLR 300 at 316 [41]-[42]. This is a recurring theme in recent decisions of this Court. Recent cases are collected in Weiss (2005) 224 CLR 300 at 312-313 [31] fn 49.[53]Weiss (2005) 224 CLR 300 at 316 [42].[54]R v Storey (1978) 140 CLR 364 at 376 per Barwick CJ; [1978] HCA 39. See Weiss (2005) 224 CLR 300 at 313 [34].[55]Weiss (2005) 224 CLR 300 at 316 [41].[56]Weiss (2005) 224 CLR 300 at 316 [41].