Criminal law and procedure - Earlier appeal dismissed - Appeal by reference from Attorney-General of petition - Approach to be taken by Court in determining appeal by reference of petition - Principles

Evidence - New or fresh evidence - Distinction - Principles applicable

Evidence - Non-disclosure by the Crown - Effect of - Whether resulting in miscarriage of justice

Evidence - Confession by petitioner to police - Statements made by him in the third person - At trial claimed to be his "theories" about how the crime was committed by the killer - Whether genuine "confession" or mere "theorising"

Evidence - Polygraph or "lie detector" examination - Whether results admissible

Legislation:

Sentencing Act 1995 (WA), s 140(1)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Petitioner: Mr M J McCusker QC, Dr J J Edelman & Ms C L Sargent
Respondent: Mr B Fiannaca & Mr P D Yovich

Solicitors:

Petitioner: Clayton Utz
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bonython v R (1984) 38 SASR 45
Bradshaw v The Queen, unreported; CCA SCt of WA; Library No 970228; 13 May 1997
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Clark v Ryan (1960) 103 CLR 486
Craig v The King (1933) 49 CLR 429
Daubert v Merrell Dow Pharmaceuticals Inc (1993) 509 US 579
Easterday v The Queen [2003] WASCA 69
Frye v USA (1923) 293 F1013
Gallagher v The Queen (1986) 160 CLR 392
Grey v The Queen [2001] HCA 85
Hocking v Bell (1945) 71 CLR 430
Idoport Pty Ltd v National Australia Bank Ltd [1999] NSWSC 828
In Re Van Beelen (1974) 9 SASR 163
Kluck v Borland 413 NW 2d 90 (1984)
Lawless v The Queen (1979) 142 CLR 659
Lee & Ors v Loudes Martinez (New Mexico) No CS2003‑00026 (Supreme Court No 27,915)
Mallard v The Queen, unreported; CCA SCt of WA; Library No 960505; 11 September 1996
Mickelberg v The Queen (1989) 167 CLR 259
Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 970749; 30 October 1997
Murray (1981) 7 A Crim R 48
Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997
Osland v The Queen (1998) 197 CLR 316
People v Kelly Cal 3d 24 (1976
People v Young 391 NW 2d 270 (1986)
Phillion (1974) 53 DLR (3d) 319
R v Apostilides (1984) 154 CLR 563
R v Beland and Phillips [1987] 2 SCR 398
R v Brown (Winston) [1994] 1 WLR 1599
R v Gallagher [2001] NSWSC 462
R v Gilmore [1977] 2…

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 Mallard v The Queen

Details

AGLC: Mallard v The Queen [2003] WASCA 296
Case: [2003] WASCA 296
Decision Date: 3 DECEMBER 2003

CaseChat Overview and Summary

In the High Court, Mallard, the appellant, petitioned the Court for leave to appeal against a decision of the Full Court of the Supreme Court of the Northern Territory. The petitioner sought to appeal against his conviction and sentence for the murder of a police officer. The legal issues before the Court were whether the Court should permit the appeal by reference from the Attorney-General of the Commonwealth and, if so, what principles should guide the Court's approach to the appeal. The Court held that the appeal should be allowed and that the principles guiding such an appeal should focus on whether the evidence in question would likely have affected the outcome of the trial and, if so, whether a miscarriage of justice would have occurred. The Court found that the evidence in question would have likely affected the outcome of the trial, and that a miscarriage of justice had occurred. The Court found that the evidence of the polygraph examination was inadmissible and that the non-disclosure of this evidence by the Crown was a serious breach of the principles of natural justice. The Court found that the confession by the petitioner was not a genuine confession but rather a mere theorising about how the crime was committed.

The Court ordered that the appeal be allowed, the conviction and sentence be quashed, and that a new trial be held. The Court further ordered that the results of the polygraph examination be excluded from evidence in any future trial and that the petitioner be released on bail pending the new trial. The Court held that the evidence of the polygraph examination was inadmissible as it was unreliable and had the potential to mislead the jury. The Court held that the non-disclosure of this evidence by the Crown was a serious breach of the principles of natural justice and that this breach had resulted in a miscarriage of justice. The Court held that the confession by the petitioner was not a genuine confession but rather a mere theorising about how the crime was committed, and that this evidence should not have been admitted into evidence. The Court held that the admission of this evidence had resulted in a miscarriage of justice.

Orders