2.Set aside order 4 of the Court of Criminal Appeal of the Supreme Court of New South Wales dated 22 March 2017 and in lieu thereof order that:
(a)the appellant's appeal to that Court be allowed;
(b)the appellant's conviction and sentence be quashed; and
(c)a new trial be had.
On appeal from the Supreme Court of New South Wales
Representation
S J Buchen with G E L Huxley for the appellant (instructed by Legal Aid NSW)
W J Abraham QC with H R Roberts for the respondent (instructed by Solicitor for Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Lane v The Queen
Criminal law – Appeal against conviction – Application of proviso – Where appellant convicted of manslaughter – Where either of two acts of appellant may have caused death of deceased – Where trial judge erred in failing to direct jury as to requirement that it be unanimous as to specific act causing death – Whether "no substantial miscarriage of justice has actually occurred" – Whether absence of unanimity direction precluded application of proviso.
Words and phrases – "fundamental defect", "nature and effect of the error", "presuppositions of the trial", "proviso", "reasonable doubt", "substantial miscarriage of justice", "unanimity direction", "unanimous".
KIEFEL CJ, BELL, KEANE AND EDELMAN JJ. At the appellant's trial for murder, the Crown relied on two physical interactions between the appellant and the deceased, each of which was alleged to have involved a blow by the appellant capable of having caused the death of the deceased. The appellant was acquitted of murder but convicted of manslaughter.
The Court of Criminal Appeal of the Supreme Court of New South Wales held that the trial judge erred in failing to direct the jury that it must be unanimous as to which actions on the part of the appellant caused the death of the deceased. Nevertheless, the Court of Criminal Appeal, by majority, dismissed the appeal on the basis that no substantial miscarriage of justice had actually occurred, as the jury could not have been satisfied beyond reasonable doubt that the first action of the appellant caused the death and it was not open to the jury to entertain a reasonable doubt of the appellant's guilt of manslaughter by the evidence of the second interaction.
The issue in the appeal to this Court is whether the Court of Criminal Appeal erred in concluding that no substantial miscarriage of justice actually occurred by reason of the failure of the trial judge to give the necessary unanimity direction.
The appeal to this Court must be allowed. The proviso to the common form criminal appeal provision in s…
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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Details
AGLC
Lane v The Queen [2018] HCA 28
Case
[2018] HCA 28
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the appellant, Lane, against his conviction for manslaughter. The central dispute concerned the trial judge's directions to the jury regarding the requirement of unanimity as to the specific act that caused the death of the deceased, where the prosecution had presented evidence of two distinct acts by the appellant, either of which could have been the cause of death.
The legal issues before the High Court were whether the trial judge's failure to direct the jury on the necessity of unanimity concerning the specific act causing death constituted a "fundamental defect" that precluded the application of the proviso under section 6(1) of the Criminal Appeal Act 1912 (NSW). This required the Court to determine whether, in the absence of such a direction, a "substantial miscarriage of justice" had actually occurred.
The High Court reasoned that the requirement for a jury to be unanimous as to the specific act causing death is a fundamental presupposition of a criminal trial. The absence of a direction on this matter meant that the jury might not have been unanimous as to the factual basis of the conviction, thereby creating a substantial miscarriage of justice. Consequently, the proviso, which allows an appeal to be dismissed despite an error if no substantial miscarriage of justice has occurred, could not be applied.
The High Court allowed the appeal, set aside the order of the Court of Criminal Appeal, and ordered that the appellant's conviction and sentence be quashed, with a new trial to be had.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside order 4 of the Court of Criminal Appeal of the Supreme Court of New South Wales dated 22 March 2017 and in lieu thereof order that:
(a) the appellant's appeal to that Court be allowed;
(b) the appellant's conviction and sentence be quashed; and
(c) a new trial be had.
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
KIEFEL CJ, BELL, KEANE AND EDELMAN JJ
GAGELER J
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Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, BELL, KEANE AND EDELMAN JJ,
GAGELER J