Harvey v The Queen

The applicant, Harvey, sought special leave to appeal to the High Court of Australia against a decision of the Court of Criminal Appeal. The dispute concerned the proper approach a Court of Criminal Appeal should take when considering an appeal against conviction, particularly in relation to the timing of its assessment of the evidence.

The central legal issue before the High Court was whether the Court of Criminal Appeal erred by considering the case as it appeared at the conclusion of the Crown's case, rather than as it appeared at the time the trial judge made his decisions regarding directed verdicts. The applicant contended that this retrospective assessment by the appellate court, after quashing some convictions, was inappropriate and potentially prejudicial to the administration of justice.

The applicant argued that the Court of Criminal Appeal should have assessed the situation from the perspective of the trial judge when the application for a directed verdict was made. The trial judge had directed acquittals on 10 counts and allowed the remaining counts to proceed to the jury. The Court of Criminal Appeal subsequently quashed convictions on four further counts. The applicant submitted that the appellate court's approach of reviewing the evidence as it stood at the close of the Crown's case, after already having made decisions on the appeal, was not the correct method for determining whether a miscarriage of justice had occurred.