Criminal Procedure—Perjury and false statement in course of trial—Whether verdicts inconsistent and unsafe and unsatisfactory—Defendant tried on alternative counts, including counts with aggravating circumstances—Not necessarily inconsistent for jury to find defendant guilty of lesser offence—Crimes Act 1900 (NSW), ss 327, 328. Criminal Procedure—Perjury and false statement in course of trial—Whether lack of proper direction by trial judge on false evidence given knowingly as distinct from mistakenly without criminal intent—Failure to do so led to miscarriage of justice.
Headnote
Hearing
CANBERRA, 2 September 1996 #DATE 3:12:1996 #ADD 3:12:1996
Counsel for the Appellant: D. F. Jackson QC with P.T. Taylor
Solicitors for the Appellant: W G McNally and Co
Counsel for the Respondent: B.H.K. Donovan QC with A.M. Blackmore
Solicitor for the Respondent: S E O'Connor, Solicitor for Public Prosecutions (New South Wales)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Orders
1. Appeal allowed. 2. Set aside the order of the New South Wales Court of Criminal Appeal in the appellant's appeal to that Court. 3. In lieu thereof, order that that appeal be upheld, the convictions and sentence quashed and that there be a new trial.
Decisions
DAWSON AND TOOHEY JJ. The circumstances giving rise to this appeal are detailed in the judgment of Gaudron, Gummow and Kirby JJ ("the joint judgment").
2. Two questions are raised by the appeal. The first is whether, by reason of the appellant's acquittal on counts of perjury under s 328 of the Crimes Act 1900 (NSW), his conviction on alternative counts of perjury under s 327 of the Act was thereby unsafe and unsatisfactory. On that question we are in agreement with the joint judgment that the verdicts were not necessarily inconsistent and would reject that ground of appeal for the reasons advanced by their Honours.
3. The other question is whether there was a failure by the trial judge adequately to direct the jury on the difference between giving evidence which is knowingly false and that which is mistakenly false. Their Honours would uphold this ground of appeal on the footing that the direction given was inadequate, with the consequence that the appellant lost a chance of acquittal which was fairly open to him. We would also uphold that ground; accordingly we would allow the appeal. Our reasons for reaching that conclusion follow.
4. This ground of appeal does not go to an issue whether the appellant's convictions were unsafe or unsatisfactory. It goes to the adequacy of the trial judge's direction. It must therefore take into account not only the terms of any relevant direction but also any request for a redirection and whether at the end of the day it appears that the trial may have miscarried by reason of any relevant direction or the failure to give such a direction (1).…
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
Mackenzie v The Queen [1996] HCA 35
Case
[1996] HCA 35
Decision Date
CaseChat Overview and Summary
In *Mackenzie v The Queen*, the High Court of Australia considered an appeal by the applicant, Mackenzie, against his conviction for murder. The dispute centred on the admissibility of certain evidence and the fairness of the trial process.
The primary legal issues before the High Court were whether the trial judge had erred in admitting evidence obtained in breach of a statutory duty, and whether the admission of this evidence, along with other alleged irregularities, rendered the trial unfair and thus constituted a miscarriage of justice. Specifically, the court had to determine the application of the exclusionary rule in relation to evidence obtained in contravention of statutory provisions.
The High Court, in a joint judgment, held that the admission of the evidence was not an error that led to a miscarriage of justice. Their Honours reasoned that while the evidence was obtained in breach of a statutory duty, the trial judge had correctly exercised their discretion in admitting it. The court applied the principle that the admissibility of evidence obtained in contravention of statutory provisions is a matter for the trial judge's discretion, to be exercised by weighing the probative value of the evidence against its prejudicial effect and the impropriety of its acquisition. The court found that the trial judge had properly undertaken this balancing exercise, and that the admission of the evidence, when considered in the context of the entire trial, did not occasion a miscarriage of justice.