2.Set aside the orders of the Court of Criminal Appeal of the Supreme Court of Western Australia dated 3 December 2003 and, in place thereof, order that the conviction of the appellant be quashed, and that there be an order for retrial of the appellant.
On appeal from the Supreme Court of Western Australia
Representation:
M J McCusker QC with J J Edelman for the appellant (instructed by Clayton Utz)
B W Walker QC with B Fiannaca for the respondent (instructed by Director of Public Prosecutions (Western 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
Mallard v The Queen
Criminal law – Appellant convicted of murder – Appellant petitioned for mercy – Attorney-General referred petition to Court of Criminal Appeal – Whether non-disclosure of exculpatory evidence by prosecution denied appellant a fair trial or fair chance of acquittal – Scope of jurisdiction of Court of Criminal Appeal on Attorney-General's reference under s 140(1)(a) Sentencing Act 1995 (WA) – Duty to consider the "whole case" – Whether Court of Criminal Appeal erred in refusing to consider evidence adduced at trial – Whether jury verdict unreasonable or unsupportable – Whether jury verdict could not be supported having regard to the evidence – Whether a substantial miscarriage of justice occurred – Whether a retrial should be ordered.
Appeal – New trial – Petition for mercy – Reference of whole case to Court of Criminal Appeal – Scope of proceedings in Full Court.
Words and phrases – "fresh evidence", "new evidence", "whole case", "as if it were an appeal".
Criminal Code (WA), ss 21, 689(1). Sentencing Act1995 (WA), s 140(1)(a).
GUMMOW, HAYNE, CALLINAN AND HEYDON JJ. The appellant was tried and convicted by the Supreme Court of Western Australia (Murray J with a jury) of the murder of Mrs Lawrence, the proprietor of a jewellery shop, at Perth on 23 May 1994. The trial lasted 10 days. The appellant unsuccessfully appealed to the Court of Criminal Appeal of Western Australia. After he had served eight years of his sentence of life imprisonment in strict security, he petitioned for clemency. The Attorney-General for Western Australia referred the petition to the Court of Criminal Appeal which dismissed the appeal. The appeal to this Court raises questions as to the way in which the Court of Criminal Appeal should proceed in determining a reference of such a petition and the evidence to which it may have regard in doing so.
The legislation
Part 19 of the Sentencing Act 1995 (WA) ("the Act") both preserves the royal prerogative of mercy and makes alternative provision for its effective exercise by the Court of Criminal Appeal. The relevant provisions are as follows:
"Part 19 – Royal Prerogative of Mercy
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
Mallard v The Queen [2005] HCA 68
Case
[2005] HCA 68
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Mallard against his conviction for murder. The Attorney-General of Western Australia had referred the appellant's petition for mercy to the Court of Criminal Appeal, which subsequently refused to quash the conviction. The central dispute concerned whether the prosecution's non-disclosure of exculpatory evidence to the defence had denied the appellant a fair trial or a fair chance of acquittal.
The legal issues before the High Court included the scope of the Court of Criminal Appeal's jurisdiction on a reference under s 140(1)(a) of the Sentencing Act 1995 (WA), particularly the obligation to consider the "whole case." The court also had to determine whether the Court of Criminal Appeal had erred in refusing to consider evidence adduced on the reference, whether the jury's verdict was unreasonable or unsupportable, and ultimately, whether a substantial miscarriage of justice had occurred.
The High Court reasoned that the Court of Criminal Appeal had erred in law by failing to adequately consider the whole case, including evidence that had not been disclosed to the defence prior to or during the trial. The court emphasised the prosecution's duty to disclose material evidence, especially that which might be exculpatory or cast doubt on the credibility of prosecution witnesses, to ensure a fair trial. The court found that the non-disclosure of certain evidence, which should have been disclosed pursuant to the Statement of Prosecution Policy and Guidelines, had undermined confidence in the trial's outcome and occasioned a miscarriage of justice.
Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a retrial of the appellant.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the Court of Criminal Appeal of the Supreme Court of Western Australia dated 3 December 2003 and, in place thereof, order that the conviction of the appellant be quashed, and that there be an order for retrial of the appellant.
Background
Background to the litigation
It follows that in proceeding as it did, the Court of Criminal Appeal erred in law. The question remains however, whether that error induced or caused a miscarriage of justice, the same question as would exercise the mind of the Executive were it to deal with a petition rather than refer it to the Court of Criminal Appeal for determination. The answer to that question may only be given after a consideration of the facts, not only as they emerged at the trial, but also as they emerged in the Court of Criminal Appeal, no matter what descriptive term the evidence adduced there might be given. It is elementary that some matters may assume an entirely different complexion in the light of other matters and facts either ignored or previously unknown. Facts Mrs Lawrence was alone in her shop when she was violently assaulted with a heavy instrument which has never been found. The assault occurred in the late afternoon. She was discovered, barely alive, but terminally injured, in a pool of her own blood, by her husband. The appellant had, on a previous occasion or occasions, been in the shop. He was a user of marijuana. Earlier on the day of the assault, he had been briefly in the custody of police officers. Following the death he was repeatedly interviewed by police officers, both while he was in hospital for the treatment of mental infirmity, and elsewhere. Only one of the interviews was recorded. During the interviews he made some highly fanciful, indeed incredible assertions and claims, as well as apparently inculpatory, confessional statements. Some witnesses at the trial, with varying degrees of credibility, swore that they had seen the appellant in or about the shop at or about the time of the murder. It is sufficient for immediate purposes to say, that the whole of the evidence at the trial, including that of the appellant, despite conflicts in it, was sufficient to sustain a verdict of guilty. On the reference however, further evidence was adduced. It also became apparent that a deal of it had been in the possession of investigating police before, and during the trial, and had not then been disclosed to the appellant. (Whether any of it was in the possession of the Director of Public Prosecutions is a question that is unnecessary to investigate.) Some, at least, of that evidence, the respondent concedes should have been disclosed pursuant to cll 57-60 of the Statement of Prosecution Policy and Guidelines made and gazetted pursuant to the Director of Public Prosecutions Act 1991 (WA). "Disclosure of Crown Case57.The Crown has a general duty to disclose the case in-chief for the prosecution to the defence.58.Normally full disclosure of all relevant evidence will occur unless in exceptional circumstances full disclosure prior to the trial will undermine the administration of justice, or when such disclosure may endanger the life or safety of a witness.Disclosure of Information to the Defence59.When information which may be exculpatory comes to the attention of a prosecutor and the prosecutor does not intend adducing that evidence, the prosecutor will disclose to the defence –(a) the nature of the information;(b)the identity of the person who possesses it; and(c) when known, the whereabouts of the person.60. These details should be disclosed in good time."
Evidence
Evidence Before The Court
The European Court of Human Rights has recognised that the duty of disclosure is not absolute or precisely reciprocal in an accusatorial system. The duty may permit prosecution non-disclosure for reasons of competing interests such as national security; or to protect witnesses at risk of reprisal; or to keep secret police methods of investigating certain crimes; in some cases to preserve the fundamental rights of another individual; or to safeguard an important public interest[80]. However, even where such exceptions exist, the European Court has insisted that it remains the accused's right to receive a fair trial and any difficulties caused by limitations on the right to disclosure must be "sufficiently counterbalanced by the procedures followed by the judicial authorities"[81]. Considerations such as these have led, in accusations of terrorism offences, to the adoption of new procedures involving "special advocates"[82].[80]Fitt (2000) 30 EHRR 480 at 510-511 [45].[81]Fitt (2000) 30 EHRR 480 at 511 [45]. [82]R v H [2004] 2 AC 134 at 149-150 [21].Non-disclosure of evidence: conclusions The applicable principles:The foregoing review of the approach of courts, in national and international jurisdiction, indicates the growth of the insistence of the law, particularly in countries observing the accusatorial form of criminal trial[83], of the requirement that the prosecution may not suppress evidence in its possession, or available to it, material to the contested issues in the trial. It must ordinarily provide such evidence to the defence. Especially is this so where the material evidence may cast a significant light on the credibility or reliability of material prosecution witnesses or the acceptability and truthfulness of exculpatory evidence by or for the accused.[83]RPS v The Queen (2000) 199 CLR 620 at 630 [22]. According to the principles expressed (as in Apostilides), this Court will not second guess the prosecutor in the decisions that have to be made in presenting the prosecution case. Still less is the prosecutor burdened with an obligation to present the defence case (which, in any event, may not always be known in advance of the trial). The obligation imposed by the law is to ensure a fair trial for the accused, remembering the special requirements that descend upon a prosecutor, who represents not an ordinary party but the organised community committed to the fair trial of criminal accusations and the avoidance of miscarriages of justice. Ultimately, where there has been non-disclosure or suppression of material evidence, which fairness suggests ought to have been provided to the defence, the question is whether the omission has occasioned a miscarriage of justice. This is so both by the common law and by statute[84] (and in some jurisdictions by constitutional mandate). The courts are guardians to ensure that "justice is done" in criminal trials[85]. Where the prosecutor's evidentiary default or suppression "undermines confidence in the outcome of the trial"[86], that outcome cannot stand. A conviction must then be set aside and consequential orders made to protect the accused from a risk of a miscarriage of justice. At least, this will follow unless an affirmative conclusion may be reached that the "proviso" applies – a conclusion less likely in such cases given the premise. [84]Relevantly because of the terms of the Code, s 689(1).[85]Stinchcombe [1991] 3 SCR 326 at 333; cf Berger 295 US 78 at 88 (1935).[86]Kyles 514 US 419 at 434 (1995).
Decision
Reasons for decision
GUMMOW, HAYNE, CALLINAN AND HEYDON JJ
KIRBY J
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
GUMMOW, HAYNE, CALLINAN AND HEYDON JJ,
KIRBY J