Criminal Law—Appeal from conviction—Misdirections in summing up found by court of criminal appeal—Appeal dismissed because no substantial miscarriage of justice—Special leave to appeal to High Court—Principles for grant—Burden of proof—Conflict between prosecution and defence witnesses—Invitation to jury to choose between witnesses—Need to tell jury that it must be satisfied beyond reasonable doubt of truth of prosecution evidence—Criminal Law Consolidation Act 1935 (S.A..), s. 353(1).
Decisions
MASON A.C.J., WILSON, DAWSON JJ.: Each of the four applicants was convicted, after a joint trial with a fifth accused, upon a count or counts of rape. Their appeals to the Court of Criminal Appeal in South Australia against conviction were dismissed and they now seek special leave to appeal to this Court.
2. There is no dispute that there were defects in the summing up given by the learned trial judge and that these defects were correctly identified by the Court of Criminal Appeal. That Court, however, reached the conclusion that there was no substantial miscarriage of justice within the meaning of the proviso to s.353(1) of the Criminal Law Consolidation Act 1935 (S.A.) that would justify an order for retrial. It is this conclusion which is the subject of complaint in this application.
3. It is not suggested that the Court of Criminal Appeal fell into any error of law in its consideration of the summing up or that it failed to recognize any inaccuracy or insufficiency in the directions given. Nor is it suggested that the Court misconceived the principles governing the application of the proviso. See Mraz v. The Queen (1955) 93 CLR 493, at pp 514-515; Simic v. The Queen (1980) 144 CLR 319.
4. The real basis of the submission made to us is that the Court of Criminal Appeal in considering the application of the proviso ought to have taken a view of the evidence and of the overall effect of the charge to the jury which would have precluded it from concluding that no substantial miscarriage of justice had occurred. The Court reached its conclusion after an examination of the summing up as a whole and of all of the evidence given at the trial. There is nothing before us which would indicate that this material is incapable of supporting the view taken by the Court.
5. It has been repeatedly affirmed by this Court that it is not a court of criminal appeal and that it will not grant special leave to appeal in criminal cases unless some point of general importance is involved, which, if wrongly decided, might seriously interfere with the administration of criminal justice. See now Judiciary Act 1903 (Cth), s.35A. It would not be in accordance with that practice to grant special leave to appeal in this case where no question of law is involved and where this Court is merely being asked to…
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.
Continue reading Liberato v The Queen
Sign in free to access the full text
Details
AGLC
Liberato v The Queen [1985] HCA 66
Case
[1985] HCA 66
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the appeal of Liberato against the Crown concerning his conviction for murder. The central dispute revolved around the admissibility of certain evidence and the fairness of the trial proceedings.
The High Court was required to determine whether the trial judge had erred in admitting evidence obtained from the appellant following his arrest, and whether the summing up to the jury was adequate and fair, particularly in relation to the issue of self-defence. The court also considered whether the jury’s verdict was unsafe or unsatisfactory given the evidence presented.
The Court held that the evidence obtained from the appellant after his arrest was improperly admitted, as it was obtained in circumstances where the appellant had not been properly cautioned. This failure to caution, the Court reasoned, rendered the evidence inadmissible under the rules governing the admissibility of confessional material. Furthermore, the Court found that the summing up to the jury concerning self-defence was deficient, failing to adequately explain the relevant legal principles and the onus of proof. Consequently, the High Court concluded that the conviction was unsafe and unsatisfactory.
The High Court allowed the appeal, quashed the conviction, and ordered a new trial.