ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram   :HEENAN CJDC
File Number            :  IND 675 of 1982

Catchwords:

Criminal law - Reference by the AttorneyGeneral of petitions for exercise of Royal Prerogative of Mercy - Petitioners convicted in 1983 of one count of conspiring to defraud the Director of the Perth Mint and seven offences committed in furtherance of the conspiracy - Reference of the whole case to be heard and determined as if it were an appeal - Crown case at trial very reliant on police evidence - Significant doubt as to the police evidence - Significant possibility that a jury would have acquitted - Miscarriage of justice - Substantial possibility jury reached its verdict in reliance on false evidence and was consequently misled in the manner in which it reached its conclusion

Evidence - Fresh evidence - Test to be applied - Whether there is a significant possibility that, in the light of all the admissible evidence, a jury, acting reasonably, would have acquitted the accused - Whether there is a substantial possibility that the jury may have been mistaken or misled in the manner in which it reached its conviction

Evidence - Witnesses - Recanting witness - Court to look closely at evidence of recanting witness and evaluate its relevance, cogency and credibility taking into account all relevant factors

Legislation:

Criminal Code (WA), s 689

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

Result:

Appeals allowed
Convictions quashed

Category: A

Representation:

CCA 136 of 2002

Counsel:

Petitioner: Mr M J McCusker QC & Dr J J Edelman
Respondent: Mr S E Stone & Mr J Randazzo

Solicitors:

Petitioner: Lawton Gillon
Respondent: State Director of Public Prosecutions

CCA 137 of 2002

Counsel:

Petitioner: Mr M L Bennett
Respondent: Mr S E Stone & Mr J Randazzo

Solicitors:

Petitioner: Bennett & Co
Respondent: State Director of Public Prosecutions

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

Bourne v Elliss [2001] WASCA 290
Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382
Conway v The Queen (2002) 209 CLR 203
Craig v The King (1933) 49 CLR 429
Davies and Cody v The King (1937) 57 CLR 170
De Gruchy v The Queen (2002) 211 CLR 85
Dyers v The Queen (2002) 210 CLR 285
Easterday v The Queen [2003] WASCA 69
Gallagher v The Queen (1986) 160 CLR 392
Geesing v The Queen (1985) 38 SASR 226
Glennon v The Queen (1994) 179 CLR 1
Grey v The Queen (2001) 75 ALJR 1708
Jones v The Queen (1997) 191 CLR 439
Lawless v The Queen (1979)…

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 Mickelberg v The Queen

Details

AGLC: Mickelberg v The Queen [2004] WASCA 145
Case: [2004] WASCA 145
Decision Date: 2 JULY 2004

CaseChat Overview and Summary

The case of Mickelberg and others versus The Queen involved the petitioners, who had been convicted in 1983 of conspiring to defraud the Director of the Perth Mint and various offences committed in furtherance of the conspiracy. The petitioners sought the exercise of the Royal Prerogative of Mercy, which was referred to the court for determination as if it were an appeal. The central issue before the court was whether the reference of the whole case to be heard and determined as if it were an appeal was appropriate, given the significant doubt about the police evidence upon which the Crown's case at trial heavily relied.

The court had to determine whether there was a substantial possibility that the jury reached its verdict in reliance on false evidence and was consequently misled in the manner in which it reached its conclusion. The court applied the test for fresh evidence, considering whether there was a significant possibility that, in the light of all the admissible evidence, a jury, acting reasonably, would have acquitted the accused. Additionally, the court had to evaluate whether there was a substantial possibility that the jury may have been mistaken or misled in the manner in which it reached its conviction, particularly in light of the recanting evidence from a key witness. The court closely examined the evidence of the recanting witness and assessed its relevance, cogency, and credibility, taking into account all relevant factors.

In conclusion, the court found that the reference of the whole case to be heard and determined as if it were an appeal was appropriate. The court determined that there was a significant doubt about the reliability of the police evidence and a substantial possibility that the jury may have been misled in reaching its verdict. The fresh evidence provided a significant possibility that a jury, acting reasonably, would have acquitted the accused. The court's decision was grounded in the need to prevent a miscarriage of justice where there was a substantial possibility that the jury's decision was based on false evidence.

Orders