R v Vaughan (No 2) - [2009] SASC 395

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v VAUGHAN (No 2)
[2009] SASC 395
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kourakis)
21 December 2009
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - WHAT IS - DISTINCTION BETWEEN QUESTION OF LAW AND QUESTION OF FACT
Application for permission to appeal against convictions for illegal use of a motor vehicle and aggravated robbery - applicant refused permission to appeal by single Judge - application renewed before Court of Criminal Appeal - whether verdicts unsafe and unsatisfactory and against the weight of the evidence - whether trial Judge erred in rejecting the admission of a letter into evidence - whether discretion not to permit letter into evidence involves question of law alone or question of mixed law and fact - whether permission to appeal required.
Held: (Gray & Sulan JJ) permission to appeal refused - verdict not unsafe or unsatisfactory - evidence supported verdicts - decision not to admit letter into evidence in exercise of Judge's discretion - Judge correct in refusing counsel permission to tender the letter - decision of trial Judge to refuse tender of letter not a question of law alone - discretionary decision involved questions of mixed fact and law - applicant required permission to appeal.
(Kourakis J in dissent) permission to appeal on first ground refused - verdict not unsafe or unsatisfactory - whether Judge erred in refusing counsel permission to tender the letter does "involve a question of law alone" - appeal as of right - permission not required - although raising question of law alone, this ground without substance - proviso applied in any event.
Evidence Act 1929 (SA) s 45A; Criminal Law Consolidation Act 1935 (SA) s 86A, s 137(1), s 352(1)(a) and s 353; Criminal Appeals Act 1924 (UK) s 5; Northern Territory Supreme Court Act 1961 (Cth) s 47; Criminal Code 1924 (Tas) s 401(2)(b); Judicature Act 1873 36 & 37 Vict c 66; Criminal Appeal Act 1907 7 Edw VII c 23; Criminal Appeals Act 1924 (SA) s 5 and s 6; Criminal Law Consolidation (Appeals) Amendment Act 1995 (SA); Crown Cases Act 1848 11 & 12 Vict; Oaths Ordinance 1939-1967 (NT) s 25A, referred to.
R v Vaughan [2009] SASC 156; Bourne v Norwich Crematorium Ltd [1967] 1 WLR 691; Randwick Municipal Council v Rutledge (1959) 102 CLR 54; Reg v Cockburn (1852) 16 QB 480; Da Costa v The Queen (1968) 118 CLR 186; Williams v The Queen (1986) 161 CLR 278; R v Bunting (2004) 92 SASR 146; Hope v Bathurst City Council (1980) 144 CLR 1; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; R v Westacott (1908) 1 Cr App R 216; R v Stratton (1909) 3 Cr App R 255; R v Beecham [1921] 3 KB 464; Williams v The Queen (1968) 161 CLR 278; R v JS (2007) 175 A Crim R 108, considered.

R v VAUGHAN (No 2)
[2009] SASC 395
Court of Criminal Appeal Gray, Sulan and Kourakis JJ
GRAY and SULAN JJ.

This is an application for permission to appeal with respect to the applicant’s convictions for illegal use of a motor vehicle and aggravated robbery. On 19 February 2009, the applicant was convicted of both offences following a jury trial in the District Court.
On 1 June 2009, the applicant was refused permission to appeal by a Judge of this Court.[1] Pursuant to the Rules of Court, the application has been renewed before the Court of Criminal Appeal. The applicant requested that his application for permission be heard on the papers and did not wish to be heard in open Court. Initially, the Court considered it was appropriate to hear the application on the papers, however, during the course of the Courts’ deliberation it became apparent that there was a possible difference of opinion as to whether the applicant required leave to appeal or whether he had a right of appeal in respect of one of his complaints. In these circumstances, the Court directed that the matter be heard in open Court to hear submissions on this question.
[1] R v Vaughan [2009] SASC 156.
Two grounds of appeal were advanced. It was submitted that the verdicts should be set aside on the ground that they are unsafe and unsatisfactory and against the weight of the evidence. It was further complained that the trial Judge erred in not permitting evidence to be led of a letter from Centrelink addressed to Peter Ian O’Loughlin, a joint defendant who had pleaded guilty. The letter stated that O’Loughlin’s address was 13 Longbridge Road, Davoren Park.
The prosecution case was dependent on the evidence of an accomplice Troy Vonderwall. Vonderwall resided at 13 Longbridge Road, Davoren Park, at the time of the offences. Vonderwall had admitted his involvement in the aggravated robbery, which took place at a post office. It was his vehicle that was used. He drove the vehicle to the post office and on his account sat outside the post office while two other men, Shane Ashley Miller and O’Loughlin, entered the post office with weapons and threatened the owner before stealing property, including money and watches. The Crown case was that Vonderwall was reluctant to use his vehicle. The applicant remained outside as a nit keeper or lookout and also to keep an eye on Vonderwall. Subsequently Vonderwall reported the matter to the police and was given immunity from prosecution. Vonderwall became a witness for the Director of Public Prosecutions in the trial. O’Loughlin had pleaded guilty. The applicant did not give evidence in the trial.
There was no complaint about any of the trial Judge’s directions. The Judge gave a comprehensive accomplice warning. All of the matters about which the applicant complains, are matters which went to the credit of Vonderwall. All of these matters were before the jury, which nevertheless chose to convict. We can see no reason why a properly directed jury could not have reached a conclusion of guilt on the evidence of Vonderwall. There is no arguable case that the verdict is unsafe or unsatisfactory.
The second ground of complaint relates to the refusal of the Judge to admit the letter from Centrelink. The Judge accepted that the letter was a business record within the meaning of section 45A of the Evidence Act 1929 (SA), but determined that the document lacked relevance and accordingly refused to receive the document into evidence.
It is important to understand the circumstances and the context in which counsel sought to use the Centrelink letter. In evidence-in-chief, Vonderwall said that he had only met O’Loughlin about one week prior to the alleged offences, which occurred on 20 October 2006.
Counsel for Vaughan sought to tender the letter from Centrelink, dated 11 January 2007, addressed to O’Loughlin at the Adelaide Remand Centre. The letter stated:[2]
I am writing to you in response to your request.
I wish to confirm that your previous address with Centrelink from 19/10/06 to 23/10/06 was 13 Longbridge St., Davoren Park SA 5113.
Vonderwall resided at 13 Longbridge Road, Davoren Park.
[2] Exhibit MFI D14, [1]-[2].
Counsel for Vaughan submitted that the letter raised an inference that Vonderwall was not truthful when he claimed that he had only known O’Loughlin for one week prior to 20 October 2006. The letter was said to undermine the credibility of Vonderwall.
Section 45A provides:
45A—Admission of business records in evidence
(1)     An apparently genuine document purporting to be a business record—
(a)     shall be admissible in evidence without further proof; and
(b)shall be evidence of any fact stated in the record, or any fact that may be inferred from the record (whether the inference arises wholly from the matter contained in the record, or from that matter in conjunction with other evidence).
(2)     A document shall not be admitted in evidence under this section if the court is of the opinion—
(a)that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or
(b)that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or
(c)that it would be otherwise contrary to the interests of justice to admit the document in evidence.
(3)     For the purpose of determining the evidentiary weight, if any, of a document admitted in evidence under this section, consideration shall be given to the source from which the document is produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.
(4)     In this section—
business means business, occupation, trade or calling and includes the business of any governmental or local governmental body or instrumentality;
business record means—
(a)any book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business; or
(b)any reproduction of any such record by photographic, photostatic, lithographic or other like process.
The trial Judge refused to admit the document on the ground that it did not prove that O’Loughlin resided at the premises, as counsel sought to allege. The trial Judge concluded that the letter did no more than establish that O’Loughlin, or someone using his name, had asserted to Centrelink that O’Loughlin’s address was 13 Longbridge Road, Davoren Park. It did not establish that O’Loughlin actually resided there. The document was not one to which Vonderwall had any input. It was not a document created by Vonderwall. It did not allege any association with Vonderwall. It was a document addressed to a co-defendant who had pleaded guilty and was not a party to the proceedings.
The trial Judge was entitled in the exercise of his discretion, to conclude that the evidence lacked sufficient probative value and relevance to any fact in issue to justify its admission.
The question of admissibility turns on whether the proposed item of evidence is relevant and probative of a fact in issue in the trial. The admissibility of an item of evidence is not decided in a vacuum. It is decided having regard to the issues in the trial, the purpose of the tender, the state of other evidence in the trial, and is to be tested against the case of the party seeking to tender the evidence. Self-serving hearsay evidence may be admissible through business records. A trial judge has a wide discretion with respect to the acceptance of the tender of evidence and may exclude evidence of marginal relevance or may exclude evidence for reasons of unfairness or prejudice.
The fact stated in the record was that a person by the name of O’Loughlin had informed Centrelink that his residential address was 13 Longbridge Road, Davoren Park. It could prove no more or no less. In any event, if it did establish as a fact that O’Loughlin lived at 13 Longbridge Road, Davoren Park, its evidentiary weight was slight and, in those circumstances, the Judge, in the context of the case and having regard to the purpose for which the document was to be used, was correct in refusing counsel permission to tender the document.
A judge has pursuant to section 45A a discretion to exclude a document qualifying as a business record under the section. The discretionary decisions of a judge involve a consideration of factual and legal issues, and commonly would involve questions of mixed fact and law. The present case, in our view, involved such a mixed question. This is not a case where the Judge rejected the document as not qualifying as a business record; such a rejection could not be categorised in the same way. It is our view that in the circumstances of the within proceedings, the applicant was correct in seeking permission to appeal with respect to the complaint that the Judge was in error in rejecting the admission of the letter into evidence.
Although the letter is a business record and was, therefore, admissible as such, it was not relevant to any issue in the case. The trial Judge was correct in refusing to admit it as evidence which discredited Vonderwall’s evidence. It was not admissible for the purpose for which counsel sought to use it. Counsel’s assertion as to the document’s admissibility has no substance.
We have had the opportunity of reading the draft reasons of Kourakis J. We agree with His Honour’s more extensive reasons for concluding that there is no substance to either of the proposed grounds of appeal. However, we disagree that the second proposed ground relating to the Judge’s refusal to accept the tender of the Centrelink letter raises a question of law and that as a consequence permission to appeal is not required.
The need for permission to appeal is to be found in section 352 (1)(a) of the Criminal Law Consolidation Act 1936 (SA) which relevantly provides:
(1) Appeals lie to the Full Court as follows:
(a) if a person is convicted on information—
(i)the convicted person may appeal against the conviction as of right on any ground that involves a question of law alone;
(ii)the convicted person may appeal against the conviction on any other ground with the permission of the Full Court or on the certificate of the court of trial that it is a fit case for appeal;
(iii)the convicted person or the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law), or a decision of the court to defer sentencing the convicted person, on any ground with the permission of the Full Court;
[Emphasis added]
At issue is the proper construction of section 352(1)(a)(i) and in particular the phrase “…on any ground that involves a question of law alone”.
It is instructive to note that when ascertaining the meaning of a word or words in a statute, it is important to observe the context in which the word is used. A word is not to be isolated from the phrase in which it appears. As Stamp J observed in Bourne v Norwich Crematorium Ltd:[3]
Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which one has assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language.
[3] Bourne v Norwich Crematorium Ltd [1967] 1 WLR 691 at 696.
In our view, the meaning of this phrase is clear. The use in the phrase of the word “alone”, is as a word of limitation. As Windeyer J observed in Randwick Corporation v Rutledge:[4] “The presence of “exclusively”, “solely”, or, “only”, always adds emphasis; and is not to be disregarded.”[5]
[4] Randwick Corporation v Rutledge (1959) 102 CLR 54 at 94.
[5] Citing Reg v Cockburn (1852) 16 QB 480 at 491.
It is apparent that Parliament intended to limit the occasions on which a convicted person would have a right of appeal, to complaints that involved a question of law alone. If a complaint involved something more than a question of law alone, then permission would be required.
We are reinforced in our view when considering the original provision from which the existing provision has its foundation. The current section[6] is a substitute for the original provision which, as at the date of the enactment of the Criminal Law Consolidation Act,[7] provided:
352. A person convicted on information may appeal under this Act to the Full Court –
(a)against his conviction on any ground of appeal which involves a question of law alone: Provided that the Full Court in any such case may, if it thinks fit, decide that the procedure with relation to cases reserved should be followed, and require a case to be stated accordingly in the same manner as if a question of law had been reserved, and thereupon the provisions of this Part relating to cases so reserved shall, with the necessary modifications, apply accordingly;
(b)upon the certificate of the judge of the Supreme Court before whom he was tried that it is a fit case for appeal, against his conviction on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact;
(c)with the leave of the Full Court, upon any such ground as is mentioned in subdivision (b) hereof or any other ground which appears to the Full Court to be a sufficient ground of appeal; and
(d)with the leave of the Full Court, against the sentence passed on his conviction, unless the sentence is one fixed by law.
[Emphasis added]
[6] Act No. 90 of 1995, section 6.
[7] Act came into force on 2^nd January 1936.
The provision had been adopted from an identical provision in the equivalent English Act.[8] Until its substitution in 1995,[9] the provision expressly provided that a right of appeal against conviction falls within three distinct categories. As is contained in the provision, those categories were described as involving “a question of law alone”, “a question of fact alone” or “a question of mixed law and fact.” It was only with respect to questions of law alone pursuant to section 352(a) that a convicted person was not required to seek leave of the Full Court to appeal.
[8] Criminal Appeals Act 1924 (UK) section 5 (Act No 1613 of 1924).
[9] With the provision in the form that now exists.
The current provision should be read in light of its history. The provision as it now stands provides that a right of appeal falls within two distinct categories. The first, allowing an appeal as of right on any ground that involves “a question of law alone”. The second, allowing an appeal “on any other ground” with the permission of the Full Court. When having regard to the history of this section, the latter description “on any other ground” as contained in section 352(1)(a)(ii), indicates that its ambit relates to questions of fact alone or questions of mixed law and fact. It is unequivocal therefore that section 352(1)(a)(i), which is expressed as involving “a question of law alone”, can only be applicable to questions of law, untainted by questions of fact. Any appeal ground where questions of fact arise will fall under the ambit of section 352(1)(a)(ii) for which permission to appeal is required.
Our view is further reinforced by the approach taken in the High Court to similar interstate legislation. In Da Costa[10] the High Court was concerned, inter alia, with a complaint concerning the admission of the evidence of two witnesses in a trial. An issue arose as to whether this ground of appeal involved a question of mixed law and fact, and as a consequence required leave to appeal under the terms of section 47 of the Northern Territory Supreme Court Act 1961 (Cth). Windeyer J observed:[11]
[10] Da Costa v The Queen (1968) 118 CLR 186.
[11] Da Costa v The Queen (1968) 118 CLR 186 at 194-195.
The distinction between questions of fact and questions of law, like the different but in some ways similar distinction between mistakes of fact and mistakes of law, has been productive of a multitude of cases and of numerous judicial statements which, especially in the field of taxation, are not all easily reconciled. I need do no more than refer to what was said in New Zealand by Gresson P. in Commissioner of Inland Revenue v. Walker and in this Court in Commissioner of Taxation v. Miller. The topic has excited learned academic commentary--more so in America than in England or here: see Wilson, "A Note on Fact and Law" (1963), 26 Modern Law Review 609. It is now commonly said that the distinction between matters of fact and of law depends upon, is influenced by, and differs with the circumstances in which the question arises. When the distinction determines whether or not in a particular case an appeal lies, there is room for questioning whether it has in philosophy or logic an essential and abstract and universal character. Scrutton L.J. in Currie v. Commissioners of Inland Revenue --a passage quoted by Jordan C.J. in Dennis v. Watt --pointed out that--
"there has been a very strong tendency, arising from the infirmities of human nature, in a judge to say, if he agrees with the decision ... that the question is one of fact, and if he disagrees ... that it is one of law, in order that he may express his own opinion the opposite way".
This may engender cynicism or stimulate self-examination or merely show that the distinction is not capable of precise formulation. The difficulty is in the notion that every question which arises for lawyers can be called either a question of fact or a question of law. We are rescued from that dilemma of classification; for the distinction which s. 47 (1) of the Act makes is between "a question of law alone" (when there is an appeal as of right) and "a question of fact alone or a question of mixed law and fact" (when leave to appeal is required). This avoids the matter against which Lord Cave, echoing Lord Atkinson, protested: "the attempt which is often made to secure for a finding on a mixed question of law and fact the unassailability which belongs only to a finding on a question of pure fact": Commissioners of Inland Revenue v. Lysaght . The section, as I read it, goes further than to deny an appeal as of right against a finding on a question of mixed fact and law. It extends to "any ground of appeal that involves a question of mixed law and fact". The expression "a question of mixed law and fact" seems to describe a hybrid, the progeny of a dispute as to facts and as to the effect of the facts when they have been determined one way or the other. It is an old expression in the law. When it was first used I do not know. In the days when it seemed sufficient to say that questions of fact were for the jury and questions of law for the court, it was said in Starkie on Evidence, 3rd ed. (1842). vol. 1, pp. 519-520:
"The terming any question a mixed question of law and fact is chargeable with some degree of indistinctness. Questions of law and fact are not in strictness ever mixed; it is always for the jury to decide the one, and the Court the other, however complicated the case may be. ... "
But this condemnation of an expression then already well known did not put an end to it. It lived on and with an enlarged, if no more precise, meaning than that which Thomas Starkie allowed it. Sir John Salmond said:
"A question is very often both one of fact and one of law, and it is then said to be a mixed question of law and fact"
and
"It is to be noted, therefore, that the distinction between law and fact depends not on the person by whom, but on the manner in which the matter is determined. Yet although this is so an illogical and careless usage of speech sometimes classes as questions of law all those which are for the decision of judges, irrespective of the existence or non-existence of legal principles for their determination" (Jurisprudence, 6th ed., pp. 16, 19).
The expression "mixed question of fact and law" was used by Lord Macnaghten in Hoddinott v. Newton, Chambers & Co. Ltd.
More recently the Privy Council in Felix v. General Dental Council, has spoken of "a question of mixed fact and law".
[Emphasis added]

In Williams,[12] the High Court considered the meaning of the phrase “question of law alone” when considering the provisions of the Tasmanian Criminal Code.[13] The members of the Court drew a distinction between questions of mixed law and fact and questions of law alone. All members concluded that an appeal on the ground that there had been a wrongful rejection of evidence by a trial Judge was not an appeal on a question of law alone.
[12] Williams v The Queen (1986) 161 CLR 278.
[13] Criminal Code 1924 (Tas) section 401(2)(b).
Gibbs CJ in this respect observed:[14]
[14] Williams v The Queen (1986) 161 CLR 278 at 286-287.
Since the learned trial judge exercised his discretion on a wrong principle, the Court of Criminal Appeal would have been entitled to review the exercise of that discretion if an appeal had lain to that Court. And since the members of the Court of Criminal Appeal in Tasmania are in a much better position than are the members of this Court to know whether local conditions in Tasmania are such as to require the rejection of confessional evidence for the purpose of discouraging unlawful conduct by the police, I would be disposed to defer to their decision upon such a question. However, the applicant had been acquitted, and under s 401(2)(b) of the Criminal Code leave could be granted to the Attorney-General to appeal only "on a question of law alone". The learned members of the Court of Criminal Appeal considered that there was at least one question of law alone which arose in the present case, namely, whether the learned trial judge, in ruling that the records of interview should be excluded, misdirected himself as to the proper application of s 34A(1) of the Justices Act. However, that question did not stand alone -- ultimately the question was whether the confessions were rightly rejected, and that depended on the making of a discretionary judgment which depended in part on the facts of the case. In Reg v Jenkins[15], Crisp J correctly pointed out that a "question of law alone" does not include a question of mixed fact and law and went on to say that "there would seem to be great difficulties in the way of entertaining an appeal by the Crown against the exercise of a judicial discretion where the question involved is not so much the existence of a discretion but the question of its exercise in relation to the facts of a particular case".
Wilson and Dawson JJ agreed with his observations:[16]
Provision for an appeal against a verdict of acquittal is exceptional. Under s 401(2)(b) of the Criminal Code it lies by leave upon "a question of law alone". The grounds of appeal to the Court of Criminal Appeal raised a question of mixed fact and law which did not fall within the section. We agree with the view expressed upon this aspect of the matter by the Chief Justice.
Mason and Brennan JJ expressed the following opinion:[17]
An appeal lies on "a question of law alone". An appeal does not lie on a ground which involves a mixed question of fact and law: that is a ground available to a person convicted of an offence (s 401(1)(b)(ii)) but not to the Attorney-General. An appeal on the ground of the wrongful rejection of evidence by a trial judge in the exercise of a discretion is not an appeal on a question of law alone. The manner in which a discretion is exercised depends upon the judge's appreciation of all the facts of the case, so that an error of law which leads the judge wrongly to hold that he has a discretion is not the only factor which contributes to his decision to reject the evidence: cf Reg v Gillis[18]; Reg v Lachapelle[19].
In the present case, evidence of the interviews with the applicant after 2.15 pm on 17 May 1984 was rejected not only because the learned trial judge thought that there was a breach of statutory duty by the police officers concerned in the questioning of the applicant but also because "it would be unfair to the accused to admit such evidence having regard to the circumstances in which it was procured". Even if his Honour was in error in his construction of s 34A(1) of the Justices Act, that error was not the only factor contributing to the decision which the Attorney-General attacked on the appeal. The decision to reject the evidence of the interviews depended also on his Honour's appreciation of the facts of the case. The rejection of the evidence was not attributable to "a question of law alone".
[Emphasis added]
[15] R v Jenkins [1970] Tas. SR 13 at p 15.
[16] Williams v The Queen (1986) 161 CLR 278 at 314.
[17] Williams v The Queen (1986) 161 CLR 278 at 301-302.
[18] Reg v Gillis (1966) 2 CCC 219 at p 222.
[19] Reg v Lachapelle (1972) 8 CCC (2d) 120 at p 123.
It is to be noted that the text of section 352(1)(a) of the Criminal Law Consolidation Act makes no direct reference to questions of mixed law and fact. However, the plain meaning of the phrase “question of law alone” by necessary implication excludes mixed questions of law and fact.
In Bunting and Wagner,[20] Perry J considered the construction of section 352(1)(a)(i) of the Criminal Law Consolidation Act and the meaning of the phrase “a question of law alone”. Perry J reviewed the earlier referred to observations of Windeyer J in Da Costa and of the members of the High Court in Williams. Perry J concluded that the phrase “question of law alone” appeared to be of more narrow ambit than a question of law simpliciter. Perry J went on to observe:[21]
Having regard to the approach identified in those passages in determining whether or not any of the proposed grounds of appeal raised questions of law alone, I have considered whether each particular ground raises a question of law which may properly be considered separately from the facts giving rise to the point.
An example of a point of law alone may be where the point is one purely of statutory construction, capable of being addressed in a manner disengaged from any consideration of the facts.
[20] Bunting and Wagner (2004) 92 SASR 146.
[21] Bunting and Wagner (2004) 92 SASR 146 at [681]-[682].
Having regard to the above discussion of the authorities we consider that the decision of the Judge to refuse to accept the tender of the Centrelink letter involved the exercise of judicial discretion undertaken having regard to the factual circumstances arising in the trial. This necessarily involved a question of mixed law and fact and did not involve a question of law alone.
For these reasons we would refuse permission to appeal.
KOURAKIS J: The applicant seeks permission to appeal his convictions for illegal use of a motor vehicle[22] and aggravated robbery.[23] The applicant was jointly charged and tried with Shane Miller in the District Court. He seeks permission to appeal on two grounds. The first is that the verdicts were unreasonable. The second complains that the trial Judge erred in law in prohibiting the cross-examination of a prosecution witness on a document that that witness had not authored. The applicant was refused permission to appeal by a Judge of this Court on 1 June 2009. For the reasons that follow, I too would refuse permission on the first ground. However, in my opinion the second ground involves a question of law and permission is therefore not required. Nonetheless, in my view the trial Judge did not err. Even if error were established, I would apply the proviso. I would therefore dismiss the appeal on the second ground. I give my reasons below.
[22] Criminal Law Consolidation Act 1935 s 86A.
[23] Criminal Law Consolidation Act 1935 s 137(1).
The Evidence
It was not disputed at trial that at about 4:45pm on Friday 20 October 2006 Cheryl Nankervis, an employee working in a post office in West Richmond, was robbed of about $491 and a number of watches. At that time two males dressed in overalls and balaclavas entered the post office. One held a machete to Ms Nankervis’ neck. The robbery was over very quickly. Police attended soon thereafter, but not in time to apprehend the offenders. Nor did their searches reveal any evidence that could identify them.
The following morning, the man who was to become the principal prosecution witness, Troy Vonderwall, presented at the Elizabeth Police Station with his mother and confessed that the getaway car used in the robbery was his car and that he was the driver.
Vonderwall was given an immunity and gave evidence at the trial of the applicant and his alleged co-offender, Shane Miller. The prosecution case depended on the acceptance of the truth of Vonderwall’s testimony.
Vonderwall gave evidence that he had met Shane Miller and another man Peter O’Loughlin about a week before the robbery. O’Loughlin was also charged with the robbery but was not tried with the applicant. O’Loughlin was referred to in the evidence as “Casper” and I shall so refer to him in these reasons. Vonderwall went with Miller and Casper to Hindley Street where they spent much of the night at hotels and nightclubs. Casper paid for Mr Vonderwall’s entertainment, but at the end of the night told him that he expected to be repaid by Vonderwall helping him in his criminal activities.
On the Wednesday night after he had first met Casper and Miller, and just days before the robbery of the post office, Vonderwall met the applicant for the first time. They met at the home of yet another man, Troy Johnson, who lived at Chapman Road, Smithfield Plains. Troy Johnson was Vonderwall’s friend. At the time Johnson lived at Chapman Road with his girlfriend, Bonnie D’Arc. Vonderwall visited the Chapman Road house on a number of occasions in the week after he met Casper and before the robbery. He testified that on the Wednesday night of that week he, Casper and the applicant discussed committing a robbery. According to Vonderwall, Casper and the applicant threatened him that if he did not agree to be the driver they would harm him or his family.
Vonderwall testified that on the Friday morning of the robbery he drove to Troy Johnson’s house at Chapman Road in his Commodore. Casper gave him money to put petrol in his car. When he returned from filling the car with petrol the applicant had joined Casper. Vonderwall testified that Casper and the applicant were discussing difficulties that they had encountered in procuring firearms. All three men then walked across Chapman Road to another house. In the backyard of the house they found Shane Miller with a red Nissan Skyline. It was not disputed at trial that the red Nissan had been stolen on either the night of Tuesday 17 October or the early hours of Wednesday 18 October. Vonderwall gave evidence that, on Casper’s request, he used a jerry can to buy some petrol for the Nissan from an “On the Run” service station at Smithfield. There was evidence that that purchase was made at about 1:30pm. Eventually the applicant, Casper and Shane Miller drove away in the red Nissan after ordering Vonderwall to follow them. Vonderwall testified that they filled the Nissan with petrol at a Mobil petrol station on Heaslip Road at about 3:00pm. This evidence was supported by CCTV footage taken at that petrol station which showed Vonderwall at the Nissan with others sitting in it. He was again told to follow them. The Nissan was driven on a number of unsealed back roads. Vonderwall at one point stopped following the others but he eventually drove back to the Chapman Road house.
It was Vonderwall’s evidence that soon after he arrived at Chapman Road he was punched by both the applicant and Casper for not following the Nissan as he had been told. The punches left him with blood over his face. Vonderwall did not appear to be hurt on the footage taken at the Mobil station. A little later, Casper, Shane Miller and the applicant came out of the Chapman Road house wearing overalls. They announced to Vonderwall that they would not be using the Nissan as a getaway car and that the robbery would be committed using Vonderwall’s Commodore. All of them then drove to Adelaide in the Commodore intending to select a post office to rob.
According to Vonderwall they eventually arrived at the West Richmond post office. Casper and Shane Miller put on balaclavas and entered the post office. Shane Miller was carrying the machete. The applicant stayed in the Commodore with Vonderwall telling him not to do anything stupid. Vonderwall heard a woman scream in the post office just before Casper and Shane Miller returned to the car. He then drove into the city. Casper and Shane Miller got out at the corner of West Terrace and Hindley Street. Vonderwall then drove the applicant back to Chapman Road.
After dropping off the applicant, Vonderwall went to his mother’s home in an adjoining suburb. She was not home but Vonderwall found her at a nearby bingo hall. Vonderwall told her that he was bleeding because he had been involved in a carjacking. He then returned to his own home. Vonderwall put the balaclavas and overalls used in the robbery in his rubbish bin.
Vonderwall testified that later on the Friday night the applicant and Casper visited his home. At the same time that Casper and the applicant were outside his house, his mother (Ellen Vonderwall) and her partner (Christopher Pederson) arrived. Vonderwall saw his mother and Mr Pederson speaking to Casper and the applicant but did not go outside. Casper and the applicant eventually left.
Vonderwall gave evidence that the next morning at about 6:30am Casper, Shane Miller and the applicant returned. They forced their way into his home and Vonderwall was punched and kicked, apparently because the men were angry that he had not left the overalls and balaclavas at Troy Johnson’s house. Vonderwall testified that Casper complained that Vonderwall had, by his actions, put him in jeopardy and he demanded that Vonderwall make amends by paying him $300. Casper warned Vonderwall that he would be back at 9:00am to collect it. After Casper and the applicant left, Vonderwall visited his mother and later went to the police and confessed his involvement in the robbery.
The police set up watch at Vonderwall’s home. At 9:00am, Casper and the applicant arrived there in a Tarago van. Both men were arrested. The applicant was found in possession of Vonderwall’s debit card. Overalls and balaclavas were found in the Tarago.
The applicant did not give evidence. However, he relied on the evidence of other witnesses which gave him an alibi. Bonnie D’Arc was called by the prosecution. She gave evidence that when she returned home from work at a nearby brothel in the early hours of the morning on the Friday of the robbery, she saw Casper and Vonderwall in the lounge room of her house. Troy Johnson was outside fixing a bike. She testified that she heard Casper and Vonderwall talking about rolling a post office.
Ms D’Arc went on to give evidence in chief that on the evening of that same Friday, Casper and another man had visited her at work at about 7:00pm. She testified that the men came down to help her in response to a request for help with “a problem” at work she had made of her boyfriend Troy Johnson.
In cross-examination Ms D’Arc testified that on the Friday afternoon of the robbery she had phoned her boyfriend Troy Johnson but his mobile phone was answered by the applicant. When Ms D’Arc was asked what time she made that call she answered “quarter to five” which was of course the precise time of the robbery of the post office. Ms D’Arc testified that, during that phone call, two men she knew as Brad and Karl could be heard in the background making loud exclamations as if they had just been surprised. It will be seen that Ms D’Arc’s claim to have heard the men Brad and Karl was inconsistent with the testimony of other alibi witnesses called by the defence to which I will shortly refer.
In re-examination Ms D’Arc gave the following evidence about her reason for telephoning Troy Johnson on Friday afternoon:
Q:Do you know what the purpose of the phone call was.
A:Yes, to see if he could get three of the guys to come down and help out because we were having some problems at work.
Q:At about quarter to five.
A:Well I didn’t want them to come straight away but I just wanted someone to come down a little bit later because of the night – time.
…
His Honour
Q:Just one final question on that topic, you said that you wanted three guys to help at work. When did you want them there.
A:Pretty much as soon as possible at least more towards when it was getting dark.
Q:This is in late’ish October, what time roughly would that be.
A:Would have been probably at about at least 7-8 o’clock at least I wanted them about by.
Obviously enough there is considerable tension between Ms D’Arc’s evidence that she called at precisely the time of the robbery, 4:45pm, and her evidence that she called for immediate assistance that arrived at about 7:00pm that night. The prosecution submitted to the jury that Ms D’Arc must have phoned Troy Johnson much later than 4:45pm.
The applicant also called as alibi witnesses Dennis Vaughan and Christopher Siwes. Siwes admitted that he had a prior conviction for illegal use. On Friday 20 October 2006, Dennis Vaughan lived at 4 Chapman Road Smithfield Plains. Christopher Siwes lived at 21 Chapman Road. Both men testified that on the day of the robbery they were at Dennis Vaughan’s house at 4 Chapman Road from early in the morning and that they drank alcohol throughout the day. In that time they saw the applicant come and go from 4 Chapman Road. They testified that the applicant also drank alcohol during the day. Christopher Siwes gave evidence that he saw the applicant punch Vonderwall, but neither Vaughan nor Siwes saw the red Nissan.
Both Dennis Vaughan and Christopher Siwes gave evidence that shortly after 4:30pm the applicant came to Dennis Vaughan’s house with a swag and a longneck bottle of alcohol. Siwes was able to estimate the time by reference to the later arrival of two other men, Karl Berger and Brad Whalley. According to Siwes, Berger and Whalley normally arrived at Chapman Road from work at about 5:00pm. Dennis Vaughan testified that on that Friday they arrived at about 5:15pm. It follows that Ms D’Arc could not have heard their voices if she had called at 4:45pm as she claimed. Neither Berger nor Whalley were called. Siwes testified that the applicant remained at Chapman Road from the time he arrived with the swag until he left at 6:30pm. According to Siews, the applicant spoke about having a tattoo coloured, or completed in some other way, but Siwes did not suggest that the applicant was absent for any lengthy period of time for that purpose. Dennis Vaughan recalled the applicant speaking of having his tattoo done later that evening. Neither Dennis Vaughan nor Siwes mentioned a phone call from Ms D’Arc.
When first interviewed on Saturday 21 October, the applicant told the police he was having a tattoo done at the time of the robbery. The next day, the applicant told police that he spent six hours having a tattoo engraved commencing some time in the afternoon of Friday 20 October. Moreover, according to the evidence of Bonnie D’Arc, when the applicant borrowed her car at about 9:30 that night he told her that he was going to be tattooed. However, shortly after 9:30 on that same night the applicant was identified visiting Jacqueline Raines’ house. Ms Raines was Vonderwall’s girlfriend. A little later again on Friday night Vonderwall saw the applicant outside his home and in that respect Vonderwall’s testimony was supported by the evidence of Mr Pederson and Ellen Vonderwall.
When the police interviewed the applicant on the morning of Sunday 22 October, he told them that at about 5:00pm on the day of the robbery, he had bought either cans or bottles of Woodstock from a liquor store close to Chapman Road. He told the police that they should obtain the video footage from security cameras at that store to verify his story. The applicant told police he was served by a male manager with white hair. In that interview the applicant suggested that he had given the same account of visiting the liquor store to police when he was first arrested. In any event the evidence showed that no male matching that description worked at that store. The police went to the Smithfield Liquorland on 25 October 2006 but they were only able to retrieve about one hour of security footage from between 4:00pm and 5:00pm on Friday 20 October. The applicant did not appear on that footage.

Plainly enough the prosecution case depended on an acceptance of Vonderwall’s evidence in the face of the sworn alibi evidence to which I have referred. It is also obvious that Vonderwall’s evidence had to be treated with caution because of his admitted involvement in the robbery and the immunity that he had been given.
However, there was evidence which corroborated Mr Vonderwall’s account. His girlfriend, Jacqueline Raines, identified the applicant as one of several men who had visited her home on the Friday night of the robbery looking for Vonderwall and threatening to bash him over an alleged debt. The evidence of the witnesses Ellen Vonderwall and her partner, Mr Pederson, also supported Vonderwall’s account. The description they gave of one of the men whom they saw outside Vonderwall’s house on the Friday evening with Casper was similar to the applicant.
Ellen Vonderwall and Mr Pederson also described Vonderwall as looking like he had been involved in a fight when they saw him on Friday evening after the robbery. The applicant himself admitted to police that he had punched Vonderwall on the Friday morning but was unable to explain why he had done so other than for his innate dislike of him.
The applicant also admitted to police that he was a passenger in the red Nissan which had been followed by Vonderwall earlier on that day.
Finally, Vonderwall’s account was corroborated by the evidence of the police officers who arrested Casper and the applicant together outside of Vonderwall’s house on the Saturday morning after he had gone to police. The applicant was questioned about Vonderwall’s debit card by the arresting police officer who found it. He claimed to be returning it to Vonderwall. It was open to the jury to conclude that the card was stolen during the attack on Vonderwall.
The Proposed Appeal
The applicant seeks permission to appeal on the following grounds:
1That the verdicts be set aside on the ground that they are unsafe and unsatisfactory and against the weight of the evidence.
2That the learned trial Judge erred in not permitting evidence to be led of a letter from “Centerlink” dated 11 January 2007, and addressed to Peter O’Loughlin, indicating that the witnesses Vonderwall and O’Loughlin resided at the same address during the period relevant to the aggravated robbery.
Ground 1: Unreasonable Verdict
Sections 352 and 353 of the Criminal Law Consolidation Act 1935 allow a convicted person an appeal on the ground that the verdict was unreasonable and cannot be supported by the evidence. The argument put by the applicant in his written submission suggests that that is the ground to which the complaint that the verdicts were unsafe and unsatisfactory is directed.
The applicant contends that Vonderwall’s evidence had to be carefully scrutinised because he was, on his own admission, an accomplice and his evidence was uncorroborated. It is true that the trial Judge directed the jury that there was no corroboration of Vonderwall’s evidence and that it was “dangerous to convict on the uncorroborated evidence” of Vonderwall. He directed them that they may only convict “if after subjecting [Vonderwall’s] evidence to close and careful scrutiny and giving full consideration to the warning I have just given you, you are nonetheless satisfied beyond reasonable doubt about it”.
In my view, the direction that there was no corroboration was unduly favourable to the applicant. Vonderwall’s evidence was corroborated by the other evidence to which I have referred. In any event, there is no complaint about the direction. Rather, the applicant’s contention is that this Court should entertain a doubt about the applicant’s guilt. The applicant relies on the alibi evidence and the doubtful credibility of Vonderwall because he was an accomplice. The applicant also makes the following additional criticisms of Vonderwall’s credit:
1Vonderwall lied to his mother about his activities on the Friday by concealing his involvement in the robbery from her when he spoke to her at the bingo hall.
2Vonderwall was happy to benefit from Casper’s largess when he went out with him to Hindley Street the week before the robbery even though he suspected that the money was the proceeds of crime.
3That Vonderwall’s admitted conduct was inconsistent with his evidence that he only participated in the robbery as a result of threats.
4Vonderwall testified that he had given up taking drugs but was described by witnesses as looking “high” or “wasted”. SMS messages in his mobile phone inbox also suggested that he was involved in trafficking drugs.
5Inconsistencies between his statements to the police and his evidence.
6The implausibility of Vonderwall’s evidence that he was threatened into pawning items of personal property by Casper when he had a lengthy history of pawning goods.
7Vonderwall’s criminal antecedents including illegal use and failing to truthfully answer questions.
8The absence of any forensic evidence linking the applicant with Vonderwall’s Commodore.
The applicant also relies on the failure of the police to make any attempt to recover the CCTV footage of the liquor store until three days after his arrest.
The trial Judge directed the jury about that in these terms:
It is appropriate at this stage to say something about the failure of the police to obtain the security footage from Liquorland at Smithfield for a much greater period than the almost one hour that you have. You should remember that, as early as the morning of 22 October, 2006, less than two days after the robbery, the accused Vaughan effectively said he had an alibi for it because at about that time he was at the Liquorland buying some alcohol. The police managed to get about an hour of it but they should have made sure that they had the footage for all afternoon. The police say they asked for it for the day but were provided with much less.
In considering the case against Vaughan you should bear steadily in mind that the police failure deprived him of the opportunity of being able to produce unequivocal evidence of alibi rather than friends and acquaintances, whose reliability and partiality is open to attack by the prosecution.
The clearly proved conduct of the applicant before and after the robbery strongly supports Vonderwall’s account and is inconsistent with the applicant’s innocence. The matters relied on by the applicant are factual matters which the jury was perfectly able to consider and weigh. The Judge, as I have mentioned, gave the jury a strong and, I think, unduly favourable warning about the dangers of acting on the evidence of an accomplice. Having regard to the warnings given by the trial Judge there is no reason to be concerned that the jury was misled by the evidence, or any part of it, or that for any other reason it gave it more weight than it deserved. I accept that, on their face, the matters relied upon by the applicant were capable of raising a reasonable doubt about his guilt. However, the jury heard the testimony of all of the witnesses and the address of counsel for the applicant in which the same points on which he now relies were made.
In my view, it is not arguable that this Court should entertain a doubt based on the matters put in the face of the verdict of a properly directed jury.
Ground 2: Cross-Examination Not Allowed
I turn now to ground 2. Vonderwall’s evidence was that he had only known the man Casper for about a week before Friday 20 October 2006. In the course of his cross-examination of Vonderwall, counsel for the applicant sought to place before him, apparently for the purpose of tendering it, a letter from the Department of Social Security addressed to Casper at Vonderwall’s residential address. The letter was not marked for identification but it appears from the transcript that it was dated 11 January 2007. The prosecutor objected to the tender. Counsel for the applicant submitted that the letter was admissible as a business record from which it could be inferred that Casper resided at Vonderwall’s address and that Vonderwall had known him well before the week preceding the robbery. The trial Judge refused to allow the applicant’s counsel to show the letter to Vonderwall for the purposes of establishing a foundation for its tender. It is reasonably clear from the transcript that the trial Judge so ruled on the grounds that the letter was irrelevant, given that the date of the letter was later than the date of the week preceding the robbery.
In my view, the direction not to permit counsel to cross-examine Vonderwall and, by implication, to refuse to receive the letter, was a legal ruling. More particularly, it is my view that an appeal on the ground that the trial Judge erred in so ruling does “involve a question of law alone”.[24] The applicant may therefore appeal on this ground as of right. I set out my reasons for so concluding below.
[24] Criminal Law Consolidation Act 1935 s 352(1)(a)(i).
Section 352 of the Criminal Law Consolidation Act 1935 (“CLCA”) provides for the methods by which an applicant may appeal against a conviction:
352—Right of appeal in criminal cases
(1) Appeals lie to the Full Court as follows:
(a) if the person is convicted on information—
(i)the convicted person may appeal against the conviction as of right on any ground that involves a question of law alone;
(ii)the convicted person may appeal against the conviction on any other ground with the leave of the Full Court or on the certificate of the court of trial that it is a fit case for appeal;
(iii)the convicted person or the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law), or a decision of the court to defer sentencing the convicted person, on any ground with the leave of the Full Court;
(emphasis added)
The classification of appeal grounds as grounds which raise questions of law or fact or questions of mixed law and fact has long been problematic. In Da Costa v The Queen,[25] Windeyer J explained that these terms, like so many others, do not have a universal meaning, but, instead, must be construed in their full context:
[25] (1968) 118 CLR 186.
The distinction between questions of fact and questions of law, like the different but in some ways similar distinction between mistakes of fact and mistakes of law, has been productive of a multitude of cases and of numerous judicial statements which, especially in the field of taxation, are not all easily reconciled. … It is now commonly said that the distinction between matters of fact and of law depends upon, is influenced by, and differs with the circumstances in which the question arises. When the distinction determines whether or not in a particular case an appeal lies, there is room for questioning whether it has in philosophy or logic an essential and abstract and universal character. …
This may engender cynicism or stimulate self-examination or merely show that the distinction is not capable of precise formulation. The difficulty is in the notion that every question which arises for lawyers can be called either a question of fact or a question of law. We are rescued from that dilemma of classification; for the distinction which s 47(1) of the Act makes is between ‘a question of law alone’ (when there is an appeal as of right) and ‘a question of fact alone or a question of mixed law and fact’ (when leave to appeal is required). This avoids the matter against which Lord Cave, echoing Lord Atkinson, protested: ‘the attempt which is often made to secure for a finding on a mixed question of law and fact the unassailability which belongs only to a finding on a question of pure fact’: Commissioners of Inland Revenue v Lysaght. The section, as I read it, goes further than to deny an appeal as of right against a finding on a question of mixed fact and law. It extends to ‘any ground of appeal that involves a question of mixed law and fact’. The expression ‘a question of mixed law and fact’ seems to describe a hybrid, the progeny of a dispute as to facts and as to the effect of the facts when they have been determined one way or the other. It is an old expression in the law. When it was first used I do not know. In the days when it seemed sufficient to say that questions of fact were for the jury and questions of law for the court, it was said in Starkie on Evidence, 3rd ed. (1842). vol. 1, pp. 519-520:
‘The terming any question a mixed question of law and fact is chargeable with some degree of indistinctness. Questions of law and fact are not in strictness ever mixed; it is always for the jury to decide the one, and the Court the other, however complicated the case may be. ...’
But this condemnation of an expression then already well known did not put an end to it. It lived on and with an enlarged, if no more precise, meaning than that which Thomas Starkie allowed it. Sir John Salmond said:
‘A question is very often both one of fact and one of law, and it is then said to be a mixed question of law and fact’
and
‘It is to be noted, therefore, that the distinction between law and fact depends not on the person by whom, but on the manner in which the matter is determined. Yet although this is so an illogical and careless usage of speech sometimes classes as questions of law all those which are for the decision of judges, irrespective of the existence or non-existence of legal principles for their determination’ (Jurisprudence, 6th ed., pp. 16, 19).
The expression ‘mixed question of fact and law’ was used by Lord Macnaghten in Hoddinott v Newton, Chambers & Co Ltd. More recently the Privy Council in Felix v General Dental Council, has spoken of ‘a question of mixed fact and law’.[26] (citations omitted)
[26] Da Costa v The Queen (1968) 118 CLR 186 at 194-6.
The early English cases cited by Windeyer J concerned either appeals against taxes levied by commissioners or appeals against awards of compensation made by arbitrators. These cases deserve closer examination because they disclose how the expression “question of mixed law and fact” was understood at about the time of the first enactment of the common form criminal appeal provisions in 1907.
It was settled law that on appeals from the decisions of the taxation commissioners and compensation arbitrators the appellate court would not interfere with a finding made on a question of fact.[27] As a result, their determinations were commonly appealed on the grounds that the applicable statutory provisions had been misconstrued. However, the commissioners and arbitrators decided both fact and law without a jury and for that reason the dichotomy clearly drawn by Starkie in the passage cited by Windeyer J was blurred. In particular, the commissioner and arbitrators often failed to differentiate between the construction of the applicable statutory provisions and the ultimate finding of fact, for example, that a particular working platform was a scaffold. In a series of decisions,[28] the determinations so framed were characterised as decisions on questions of mixed fact and law and therefore not protected from review in the same way as a finding on a question of fact alone.
[27] Inland Revenue Commissioners v Lysaght [1928] AC 234 at 243; Great Western Ry Co v Bater [1922] 2 AC 1 at 12; Ferguson v Green [1901] 1 QB 25 at 28; Hoddinott v Newton, Chambers & Co Limited [1901] AC 49 at 68.
[28] Hoddinott v Newton, Chambers & Co Limited [1901] AC 49; Ferguson v Green [1901] 1 QB 25; Wood v Walsh & Sons [1899] 1 QB 1009; Maude v Brook [1900] 1 QB 575; Inland Revenue Commissioners v Lysaght [1928] AC 234; Great Western Ry Co v Bater [1922] 2 AC 1.
It is doubtful in light of more recent authority that even the questions of construction referred to in the early English authorities raised questions of law. It was held in Hope v Bathurst City Council[29] that, where a statute uses words according to their common understanding, their meaning is a question of fact.[30] The only question of law is whether the words are used according to their common meaning or as terms of art.[31] It follows that unless, for example, scaffolding was held to have a special meaning in the industrial safety legislation, the determinations of the workers compensation arbitrators in the early English cases were, on the authority of Hope, decisions on a question of fact alone.
[29] (1980) 144 CLR 1.
[30] Hope v Bathurst City Council (1980) 144 CLR 1 at 7-8. Whether the words of the statute are used in a technical sense or according to their common understanding is a question of law. Evidence that a word has a technical meaning can be adduced but whether or not the legislature intended to use that word in its technical sense is a question of law; Markell v Wollaston (1906) 4 CLR 141 at 150. It is in some respects disconcerting to think of the precise meaning of a word of a statutory command as a question of fact. If there were no shades of meaning, and the denotation of the words used not susceptible to variation depending on the context, the proposition would cause no difficulty. However, it is not uncommon for contextual considerations to affect the precise denotation of a word. It is difficult to see how the construction of a word in one statutory provision by reference to the remainder of the statute and in accordance with the command in s 22 of the Acts Interpretation Act 1915 to prefer a construction of a provision which promotes the purpose of an Act can be characterised as a question of fact. See Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398; RK & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315; Wik Peoples v Queensland (1996) 187 CLR 1 at 171; Saraswati v The Queen (1991) 172 CLR 1 at 21; Central Northern Adelaide Health Service v Atkinson (2008) 103 SASR 89 at [83] and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-2.
[31] Where the words of a statute have a technical meaning it is a question of law whether the facts fully found fall within the statutory provision: Hope v Bathurst City Council (1980) 144 CLR 1 at 7; and even where words are used according to their common understanding it is an “error in point of law” to find that a statutory provision does, or does not, apply where the evidence does not reasonably admit of that conclusion: Hope v Bathurst City Council (1980) 144 CLR 1 at 9; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156; Great Western Ry Co v Bater [1922] 2 AC 1 at 12-3; Inland Revenue Commissioners v Lysaght [1928] AC 234 at 240-1.
In any event, what does emerge from the authorities to which Windeyer J traced the origins of the expression “question of mixed law and fact” is that the phrase was not used to refer to the questions of admissibility of evidence. The phrase referred to a decision which was the result of the application of findings of facts to an antecedent legal rule. In this respect the expression “question of mixed law and fact” would appear to refer to the final step of the three step process of adjudication referred to by Kirby J in Azzopardi v Tasman UEB Industries Ltd:[32] fact finding, rule stating, rule application.[33]
[32] (1985) 4 NSWLR 139.
[33] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 150. On the characterisation adopted in Hope it is probably more accurate to describe the third step as a question of law where the facts are fully found and the legal rule is expressed in technical terms, and as a question of fact where the rule is framed by words used according to their ordinary meaning: see footnotes 30 and 31 above.
To understand the phrase “question of mixed law and fact” it is also important to keep in mind the contrast between criminal appeals and appeals by way of rehearing. The statutory introduction of the facility of an appeal by way of rehearing by the Judicature Act 1873, 36 & 37 Vict, c 66, was “virtually unprecedented”.[34] Even though the entitlement of the Court of Appeal to reconsider, on such appeals, the facts determined below was very quickly recognised, varying degrees of deference have always been accorded to the finding of questions of fact by juries and judges in civil cases.[35] In the criminal jurisdiction of the courts, the verdict of the jury, often described as the “constitutional arbiter of the facts”, retained its unimpeachable status for a quarter of a century after the passing of the Judicature Act. A relatively restricted facility of appellate review of criminal convictions was first introduced in England by the Criminal Appeal Act 1907, 7 Edw VII, c 23.[36] The Criminal Appeal Act became the template for legislation throughout the British Commonwealth and its provisions are often referred to as the “common form criminal appeal provisions”. Criminal appeals were introduced in South Australia by the Criminal Appeals Act 1924, which relevantly provided:
[34] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 143 per Kirby J.
[35] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 143-4 per Kirby J.
[36] The Criminal Appeal Act 1907, 7 Edw VII, c 23, was introduced after an enquiry conducted by Sir Richard Henn Collins into the wrongful convictions, based on mistaken identifications, of Adolph Beck in 1896 and 1904.
Right of Appeal and Determination of Appeals
5.     A person convicted on information may appeal under this Act to the Full Court—
(a) against his conviction on any ground of appeal which involves a question of law alone: Provided that the Full Court in any such case may, if it thinks fit, decide that the procedure with relation to Crown cases reserved under the Criminal Law Consolidation Act, 1876, should be followed and require a case to be stated accordingly under that Act in the same manner as if a question of law had been reserved, and thereupon the provisions of the said Act shall with the necessary modifications apply accordingly;
(b)     upon the certificate of the Judge of the Supreme Court before whom he was tried that it is a fit case for appeal, against his conviction on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact;
(c)     with the leave of the Full Court, upon any such ground as is mentioned in subdivision (b) hereof or any other ground which appears to the Full Court to be a sufficient ground of appeal; and
(d)     with the leave of the Full Court, against the sentence passed on his conviction, unless the sentence is one fixed by law.
6.(1)     The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal: Provided that the Full Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
(2)Subject to the special provisions of this Act the Full Court shall, if it allows an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial to be had.
(3)Where a new trial is directed the Full Court may make such other as it thinks fit for the safe custody of the appellant or for admitting him to bail.
(4)On an appeal against sentence the Full Court shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution therefore as it thinks ought to have been passed, and in any other case shall dismiss the appeal.

The criminal appeal provisions were later included in the CLCA by ss 352 and 353. In 1995, CLCA s 352 was amended to remove the original threefold classification of appeals;[37] an appeal was given as of right on any ground that involved a question of law alone but appeals “on any other ground” required permission. I shall proceed on the basis that that amendment did not change the meaning of the term “question of law alone”, even though it is now - theoretically, at least – possible to classify all matters as questions of fact alone or questions of law alone and that therefore there need no longer be a category of “question of mixed law and fact”.
[37] Criminal Law Consolidation (Appeals) Amendment Act 1995.
The text and structure of the criminal appeal provisions does not disclose any direct relationship between each of the three grounds on which a verdict can be set aside (unreasonable verdict, error of law, miscarriage of justice) and the original threefold classification of appeals (questions of law, fact and mixed law and fact). The relationship between the sections is more general; the jury’s verdict may be set aside for an error of a kind coming within any one of the three grounds, made in the determination at trial of any question of law, fact or mixed law and fact. An appeal alleging error in the determination of question of law alone lies as of right but otherwise on appeal can only be brought with permission.
Read in that way, the word “involves” means “implicates” or “affects” and not “include”, “contain” or “comprehend”. The former meaning avoids the apparent contradiction between the use of both the word “involves” and the word “alone” which would result if the word were given the latter meaning. An appeal ground may raise both a question of law alone and a question of fact alone where for example it is contended that on the proper construction of a statutory offence the verdict cannot be supported by the evidence.[38] On the latter meaning of the word “involve”, it might be contended that the appeal lies as of right because the appellant has alleged an error of statutory interpretation, which is a question of law alone, however unmeritorious that contention might be, even though the unreasonable verdict ground also raises a question of fact alone. The better view is that an appeal on the ground I have hypothesised “involves” a question of fact, because it impugns the determination at trial of a question of fact.[39]
[38] Whether the words of the statute are used in a technical sense or according to their common understanding is a question of law. Evidence that a word has a technical meaning can be adduced but whether or not the legislature intended to use that word in its technical sense is a question of law; Markell v Wollaston (1906) 4 CLR 141 at 150.
[39] I would categorise the question as involving a question of fact although there is authority that a determination at trial that certain facts fall within a statutory provision may involve a “… mixed question of law and fact … First it is necessary to decide as a matter of law whether [the legislative provision] uses the expression … in any other sense than that which they have in ordinary speech.” And then necessary to determine which of the “reasonably possible [conclusions], … is the correct conclusion [as] … a question of fact”: NSW Associated Blue-Metal Quarries Limited v Federal Commissioner of Taxation (1956) 94 CLR 509 at 511-2 per Kitto J. In my respectful opinion, Kitto J identifies in that passage two independent and sequential questions; the former is one of law and the second one of fact.
If the word “involves” and the phrase “question of law alone” are given the meanings I have identified, the commonly encountered appeal grounds may be classified as follows.
A decision on a question of law made by the trial Judge does not require permission even if the decision must be made in a factual context. A trial Judge is required by law to charge the jury with respect to a number of matters. The elements of the offence, the onus of proof and, I think, any limits on the proper use of the evidence which has been received, are the most obvious of these matters. A failure to correctly direct the jury on these matters is an error of law.[40] A failure to direct on an alternative verdict may be an error of law even though whether the verdict is available will depend on the evidence.[41] Rules of practice relating to warnings about some types of evidence have sometimes crystallised into rules of law and a failure to give a warning about evidence of that nature is also an error of law. The obligation to give these directions does not involve any determination of fact or exercise of discretion by the trial Judge; the content of the legal obligation to give the warning exists independently of a determination of the particular facts of the case even though the content of the mandatory direction will obviously be affected by the evidence adduced in the case. Rulings that a charge is not bad for latent duplicity, that there is a case to answer, or that certain evidence is potentially corroborative, are also I think examples of rulings on questions of law against which an appeal can be brought as of right.
[40] It is an appeal on a question of law to allege that there has been a misdirection on a rule of substantive or procedural (evidential) law (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 150 per Kirby J).
[41] In Gillard v The Queen ((2003) 219 CLR 1) the High Court held that it was a wrong decision on a question of law for the trial Judge not to direct the jury that manslaughter was available as an alternative verdict to murder because on “one available view of the facts” the appellant was guilty of manslaughter by unlawful and dangerous act (Gillard v The Queen (2003) 219 CLR 1 at 14, [26], 30 [85], 40 [129]).
There is a view that the rulings to which I have referred in the preceding paragraph are made on mixed questions of fact and law because they are made in an evidential context. However, the word “question” in the phrase “question of fact” is used in the sense of a “subject of dispute or controversy”.[42] The legal rulings mentioned in the preceding paragraph do not determine any factual controversies. They determine legal issues, albeit legal issues which are raised by the nature of the evidence.
[42] See the third definition of “question” in the Macquarie Dictionary (online, 2009). A judge does not resolve any factual dispute or controversy when ruling on the validity of an information or the corroborative nature of an item of evidence.
On the other hand, an appeal against the verdict on the ground that it is unreasonable or cannot be supported by the evidence involves, and indeed may be exclusively concerned with, a question of fact. Whether a verdict is impugned on the ground that it is unreasonable in the sense that the evidence does not exclude a reasonable doubt or that it is unsupported by the evidence because there is no evidence to support it,[43] permission to appeal will be required. An appeal on the ground that there is no evidence to support a finding of fact, [44] or that on the evidence only one reasonable conclusion could be reached on whether the facts came within a statutory provision, is an appeal “in point of law” and can be the subject of a case stated on a question of law.[45] However for the purposes of s 352 CLCA the ground impugns the ultimate question of fact determined by the jury and is therefore not an appeal on a ground which involves a question of law alone.
[43] If an application for a directed acquittal, because there is no case to answer, has been made and dismissed an appeal will lay as of right on the ground of the trial Judge’s error of law. In the absences of such an application an appellant may still contend that the verdict is unsupported by the evidence but the error lies in the factual determination of the jury.
[44] It is well accepted that it is an error in point of law to find a fact for which there is no evidence: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 per Kirby J; at 155 per Glass JA.
[45] Hope v Bathurst City Council (1980) 144 CLR 1.
A ground that alleges a miscarriage of justice caused by a failure to give a direction which, although not required by law, was necessary in the particular circumstances of the case, may also be classified as one involving a question of fact because the basal complaint is that, in the absence of judicial guidance, the jury may have erred in fact.
However, the decision in Da Costa v The Queen[46] to which I return in greater detail below, shows that not all decisions made by a trial Judge are errors of law. The determination of the voluntariness of a confession will often involve a question of fact alone. The exercise of a judicial discretion involves the assessment of facts, sometimes procedural facts, and therefore a ground that complains that the exercise of a discretion was wrong in fact, or even wrong in law, nonetheless involves a question of fact because the exercise of the Judge’s discretion will necessarily have involved, not only the identification of legal rules, but also the making of factual findings about the existence or otherwise of relevant facts and the assignment of relative weights to those facts.
[46] (1968) 118 CLR 186.
The question whether or not to grant an adjournment during a trial serves as a useful example. A trial Judge must make findings as to the conduct of the parties out of which the application arises, assess the likely affect on the course of the trial of granting or not granting the adjournment and finally weigh the competing considerations that have been identified. An appeal against the exercise of that discretion involves a question of mixed law and fact because that is the nature of the determination impugned by the appeal, even if the particular complaint is that the trial Judge erred by ignoring a matter that, in law, should have been considered. Other discretions which commonly fall to be exercised in criminal trials are the exclusion of prejudicial evidence, the exclusion of “unfair” evidence, the discretionary admission of evidence under the Evidence Act 1929, the power to discharge a jury and the power to stay proceedings which are an abuse of process. An appeal alleging error in the exercise of any of those discretions can only be brought with permission. A failure to give a warning in accordance with a rule of practice, or to address a risk of miscarriage which is peculiar to the facts of a particular case, may also be seen as the exercise of judicial discretion which therefore can only be appealed with permission.
Where then does a ruling that evidence is not relevant, and a consequential direction that it cannot be adduced, fall in the taxonomy which I have sketched? In my respectful view the ruling involves a question of law alone. I acknowledge that the legal rule of relevance is derived from common experience of the physical world and the behaviour of persons in it. However, in the interests of the efficient resolution of disputes, it requires a closer connection between the evidence received and the facts in issue than could probably be justified on the basis of human experience alone. Despite its derivation, the evidential rule is nonetheless a legal rule which a trial Judge is bound to apply. The application of that rule allows no discretion and does not require the making of any finding of fact.
Before the enactment in England of what became the standard form criminal appeal provisions, reviews of convictions commonly proceeded by way of the reservation of a question of law. The informal consideration of questions of law by an assembly of the common law Judges would result, if error were found, in a recommendation for a pardon. That informal procedure was given a statutory basis in England by the Crown Cases Act 1848. That Act, as amended from time to time, provided that the Judge or Justice presiding over a criminal trial may reserve “any question of law which shall have arisen on the trial”. The question of law was initially reserved for the consideration of the Judges of the Kings Bench or Common Pleas, or the Barons of the Exchequer. With the establishment of the High Court, questions were reserved to that Court. The correctness of a ruling on the admissibility of evidence appears to have been treated as raising a question of law for the purpose of the Crown Cases Act 1848.[47]
[47] R v Saunders [1899] 1 QB 490.
The enactment in England of the Criminal Appeal Act 1907 was intended to increase the scope and effectiveness of appeals against criminal convictions. It is likely therefore that the unqualified right to appeal against a conviction given by that Act “on any ground of appeal which involves a question of law alone” was intended to include those questions of law that had formally been dealt with by reservation of the question to the High Court. That was the view of the editors of the editions of the 25^th and 27^th editions of Archbolds, published soon after the enactment of the Criminal Appeal Act 1907.[48]
[48] Archbolds Criminal Pleadings Evidence and Practice (25^th ed, 1918) at p 331; (27^th ed, 1922) at p 339.
Even though a rigid dichotomy between questions of law and questions of fact based on the division of functions between a Judge and jury cannot be maintained, that division of functions may still inform the proper classification of a ground of appeal. The fact that questions of relevance, and therefore admissibility, are determined by the trial Judge as a matter of law, instead of allowing the jury to weigh for itself the value of any evidence adduced by the parties, is a reason, albeit not a conclusive one, for treating an appeal against the reception or rejection of evidence as involving a question of law alone. The editors of the 25^th and 27^th editions of Archbolds appear to have proceeded on the same view.[49] Appeals challenging the admission or exclusion of evidence are considered in the section of that work which deals with appeals raising a question of law.
[49] Archbolds Criminal Pleadings Evidence and Practice (25^th ed, 1918) at p 332; (27^th ed, 1922) at p 340.
A consideration of the early decisions made on appeals brought pursuant to the Criminal Appeal Act 1907 supports the editors’ classification. The issue arose in R v Westacott,[50] which is reported in the very first volume of the law reports devoted to the reporting of decisions of the newly created Court of Criminal Appeal. Westacott, a soldier, was convicted of obtaining money by false pretences. When giving evidence, the person defrauded testified about court martial proceedings which had been brought against Westacott. The circumstances of those proceedings were elicited in greater detail by counsel for Westacott in cross-examination. There was some dispute as to who first raised the court martial issue; in 1907 neither parties nor the courts had the benefit of the high standard of transcription services currently provided in this State. Westacott appealed on the ground that the evidence of the court martial was wrongly admitted.
[50] (1908) 1 Cr App R 216.
The matter first came before the Court of Criminal Appeal on a preliminary issue. Westacott was granted an extension of time in which to appeal because there was “probably a point of law to be argued” which did not need leave.[51] Later in the course of argument on the substantive appeal, counsel for the appellant submitted that the court martial proceedings ought never to have been mentioned at all. Darling J replied:
But you brought out all the facts about the court martial. It is sometimes best for counsel to say nothing, but to come here with a point of law.[52]
[51] (1908) 1 Cr App R 216 at 217.
[52] (1908) 1 Cr App R 216 at 246.
Darling J then commenced his judgment as follows:
The Court need not decide who first mentioned the words ‘court martial’. The present appeal is upon a point of law, namely, that the learned Judge received evidence which ought to have been excluded, thereby bringing about a miscarriage of justice.[53]
[53] (1908) 1 Cr App R 216 at 247.
In the following year, the case of R v Stratton[54] considered an appeal against a conviction for demanding money with menaces. At Stratton’s trial, evidence was given that he had been twice previously convicted for larceny and for housebreaking. The appellant appealed against the wrongful admission of that evidence. The report explains that the appeal came before the Court of Criminal Appeal in the following way:
The grounds of appeal involved questions of law. An application for leave to appeal against conviction upon the facts was referred by Hamilton J.
[54] (1909) 3 Cr App R 255.
It appears from the report of the case that the wrongful reception of the evidence was the error of law referred to. The application for leave to appeal on the question of fact referred by Hamilton J raised a complaint that the defence was not properly left to the jury.[55]
[55] R v Stratton (1909) 3 Cr App R 255 at 257-8.
It is reasonably clear that the Court of Criminal Appeal thereafter continued to treat the wrongful admission or rejection of evidence as raising a question of law alone. In R v Beecham,[56] the Court of Criminal Appeal considered an appeal against a conviction for manslaughter by driving a car at an excessive speed. At his trial Beecham, was cross-examined about his bad driving record. Darling J considered and rejected the appellant’s complaint that the trial Judge did not properly direct the jury on the evidence and then continued:
The defendant also raises the legal point that he was improperly cross examined and made to admit his previous convictions for driving a motor car to the danger of the public. The defendant is entitled to raise that point, because there is no doubt that as soon as the question whether he had been previously convicted was put to him in cross examination he asked the learned Judge whether he was obliged to answer it and the Judge ruled that in view of his previous answers in cross examination he was obliged to do so.[57]
[56] [1921] 3 KB 464.
[57] R v Beecham [1921] 3 KB 464 at 470.
The reference to the defendant being “entitled” to raise that point is in my view a reference to the right of the defendant to appeal on a ground involving a question of law alone.
It is convenient to deal at this point with the apparent paradox presented by the early authorities which have held that the question of the relevance and therefore admissibility of evidence involves a question of law: questions of fact are determined by evidence but the admissibility of evidence of those facts is not a question of fact.
The paradox is resolved, I think, by the very distinction between a finding of fact and evidence of facts. Salmond explained that a tribunal answers questions of facts by exercising “its intellectual judgment on the evidence submitted to it in order to ascertain the truth”.[58] The admission of evidence is in that passage differentiated from the finding of a fact on that evidence. The distinction is fundamental. Evidence is relevant if it tends to render the existence of a fact in issue probable or improbable.[59] Although the question of relevance must therefore be decided in a factual context, it does not involve the weighing or balancing of any fact. A determination of the relevance of evidence involves only a legal assessment of its capacity to prove that fact. For similar reasons, a ruling that there is no case to answer has long been considered a question of law.[60]
[58] Salmond on Jurispurdence (10^th ed, 1947) at 70.
[59] Salmond on Jurispurdence (10^th ed, 1947) at 478; Sir James Fitzjames Stephen, A Digest of the Law of Evidence (11^th ed, 1925).
[60] Archbolds Criminal Pleadings Evidence and Practice (25^th ed, 1918) at p 322; (27^th ed 1922) at p 340.

The judgment that evidence of fact A is probative of fact B neither requires nor implies any finding about the probable existence of either fact. The judgment is made by a process of inductive and deductive reasoning which is neutral to the existence or otherwise of either fact. The reasoning process is based on a shared consensus about the way in which the physical and natural world operates; it is not in any sense itself part of the evidence or a fact in issue in the trial. Equally, a judgment that evidence is hearsay or a prior consistent statement does not entail any finding about whether the statement was in fact made, or the truth or falsity of the assertion of fact made by it. In that sense, whether evidence is relevant, or if relevant is hearsay or a prior consistent statement, does not involve any question of fact.
However, as I earlier foreshadowed, there are some questions of admissibility and procedure on which a Judge alone can rule but which may require a factual finding, the weighing of facts or both. The decision in Da Costa v The Queen[61] is illustrative in this respect. In that case, the trial Judge admitted the unsworn evidence of two Aboriginal witnesses by reference to a repealed section of the Northern Territory Evidence Ordinance 1939-1960 and without having regard to the Oaths Ordinance No 24 of 1967. The latter provision required a court to make findings about the capacity of a witness to comprehend the oath and his or her understanding of the consequences of giving false evidence before declaring the manner in which the witness’s evidence is to be taken. Owen J, with whom Kitto and Menzies JJ agreed, held that the ground which complained of the wrongful reception of the evidence involved “a question of mixed law and fact” within the terms of s 47(1)(c) of the Northern Territory Supreme Court Act 1961 (Cth) and therefore required leave. Owen J based his decision, not on any general propositions that the admission of evidence generally involved a question of mixed law and fact, but on the basis that s 25A of the Oaths Ordinance 1939-1967 required the trial Judge to determine “a preliminary question of fact whether each of the witnesses understood that he would be liable to be punished if his evidence was false”.[62] Windeyer J, although with some misgiving,[63] reached the same conclusion and for the same reason.[64]
[61] (1968) 118 CLR 186.
[62] Da Costa v The Queen (1968) 118 CLR 186 at 217-8.
[63] Da Costa v The Queen (1968) 118 CLR 186 at 199.
[64] Da Costa v The Queen (1968) 118 CLR 186 at 196.
Williams v The Queen[65] provides yet another example where the admissibility of evidence was dependent on a factual assessment made by the Court and therefore involved a question of mixed law and fact.
[65] (1986) 161 CLR 278.
When considering the passage from Williams cited by Gray and Sulan JJ in their joint reasons, it is important to appreciate that Mason and Brennan JJ carefully limited their statement to the admission or rejection of evidence on discretionary grounds. At issue in Williams was the discretionary exclusion of confessional material in the exercise of the Bunning v Cross discretion. Gibbs CJ expressly referred to the need, in exercising the discretion in that case, to make a factual assessment of “local conditions in Tasmania”. If the admission and rejection of evidence was in all cases a question of mixed law and fact, no occasion to expressly refer to the discretionary exclusion which was at issue in that case would have arisen.
The right of appeal given by s 352 of the Criminal Law Consolidation Act 1935 is on a ground “involving a question of law alone” whereas in Williams the right of appeal was given “on a question of law”. A New South Wales provision which allowed an appeal against an acquittal on any ground that involves a question of law alone was considered in R v JS[66] by Spigelman CJ, with the agreement of Mason P, McClellan CJ at CL, Hidden and Howie JJ. Spigelman CJ distinguished the New South Wales provision from the Tasmanian provision considered in Williams in this way:
The application of the reasoning in Williams, to the formulation in s 107 of the Act is by no means clear. The Criminal Code of Tasmania, which established the right of appeal from an acquittal under consideration in Williams, was different from the recent New South Wales statute. The Tasmanian provision referred to an appeal by leave ‘against an acquittal on a question of law alone’. The New South Wales provision is more expansive in its reference to ‘against any ... acquittal on any ground that involves a question of law alone’. The reference to the ‘involvement’ of a ‘question of law alone’ in a ‘ground’ is wider than the use of the word ‘on’ in the Tasmanian statute.[67] (emphasis in original)
[66] (2007) 175 A Crim R 108.
[67] R v JS (2007) 175 A Crim R 108 at 126, [81].
If “involves” is used in the New South Wales provision in the sense of “includes” then there is, with respect, much force in the observation of Spigelman CJ. However, I respectfully doubt that the word “involves” is used in that sense in CLCA s 352. For the reasons I have given, it is best understood to mean “implicates” or “affects” and directs attention to the nature of the impugned determination made at trial which is said to have resulted in an error of law, a miscarriage of justice or an unreasonable verdict.
Finally, in construing CLCA s 352(1)(a)(i), it should be remembered that the right of appeal granted is against a conviction, whereas the appeal provision considered in Williams conferred a right of appeal against an acquittal. A provision conferring a right of appeal against conviction will naturally be construed more liberally than a provision conferring a right of appeal against an acquittal; although where, as here, a facility to appeal is given to both the prosecution and the defence in similar terms, the construction of both provisions must be consistent.[68]
[68] cf. Kingslott v Goodyear Tyre and Rubber Co Australia (No 2) (1987) 8 NSWLR 707 at 714-16; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 253.
The construction I propose, which looks to the nature of the impugned determinations made at trial, is consistent with the policy manifest by the limited scope of appellate review allowed by the common form criminal appeal provisions. Save for the unreasonable ground, which in any event allows only a very constricted form of rehearing, it is not the function of the Court of Criminal Appeal to substitute its view for the factual findings which are implicit in the jury’s verdict; the Court of Criminal Appeal is essentially a court of error.[69] For that reason the criminal appeal provisions have, from the time of their first enactment, required permission to appeal when the appeal is brought against a determination at trial of a question of fact.
[69] Griffiths v The Queen (1977) 137 CLR 293; Mickelberg v The Queen (1989) 167 CLR 259.
The most probable policy reason for requiring permission to appeal against the factual determinations of juries and the exercise of judicial discretions is that trial court is generally in a better position to correctly find and weigh facts than an appeal court. Moreover, the requirement to obtain leave probably also reflects the “constitutional” importance accorded to the verdict of a jury.[70] On the other hand, an appeal court suffers no disadvantage in making a determination of law and it is in the public interest that patent errors of law be reviewed. There being more reason to correct errors of law, like the wrongful admission or rejection of evidence, than to preserve them, permission is not required to appeal them.
[70] MFA v The Queen (2002) 213 CLR 606 at 621, [48]; R v Gbojueh (2009) 103 SASR 545 at 555-56, 558-61, [31]-[33], [39]-[48].
The concept of a question of law alone will continue to be afflicted with uncertainty in its application to particular grounds of appeal. However, I am satisfied that the text, history and purpose of s 352 of the CLCA all militate against such a narrow reading of the phrase “involving a question of law alone” which would deny an accused a right of appeal on the grounds of the wrongful rejection or reception of evidence based on relevance. There is no authority against that conclusion and the early English authorities to which I have referred support it. For these reasons, I would hold that permission to appeal is not required on this ground.
Was the question of law correctly decided
I have formed a view on the papers that the ground, although raising a question of law alone, is without substance. It is appropriate that I explain why because my opinion on the nature of the question being a dissenting one, the matter will not be argued in open court.
The only purpose that could be served by cross-examining Vonderwall about the letter would have been to ask him whether he had seen any letters sent to O’Loughlin addressed to his home. However, letters sent to Vonderwall’s home after October 2006 could not have any relevance to Vonderwall’s claim that he had only met Casper a week before the robbery. Moreover, the fact that the records of the Department of Social Security showed O’Loughlin’s address to be the same as Mr Vonderwall’s could show no more than that someone, probably O’Loughlin, gave that address. In no sense then could the letter be regarded as evidencing an inconsistent statement made by Vonderwall. The letter was therefore both irrelevant to any issue and inadmissible as a prior inconsistent statement.
The applicant’s counsel conceded on the application for permission to appeal that the letter was hearsay and was not relevant to a fact in issue. He nonetheless submitted that the letter went to Vonderwall’s credit. The applicant’s counsel submitted before the single Judge, who refused leave, that he “wanted to see the answer that he [Vonderwall] gave in terms of his credibility”. Presumably, by that counsel meant that Vonderwall’s response to questioning about the letter might have produced some reason for doubting his testimony. The short answer to that submission is that credit is a collateral issue. It follows that the letter was not admissible irrespective of the statutory facilitation of the admission of business records.
In any event, it is impossible to see how the letter could affect Vonderwall’s credit. If Vonderwall accepted that he had seen the letter, it must have been on a date after 11 January 2007 and there could therefore be no inconsistency with his evidence about when he first met O’Loughlin, which was about a week before 20 October 2006.
The applicant’s counsel was of course entitled to ask whether Vonderwall had ever seen letters addressed to O’Loughlin delivered to his home. If Vonderwall had answered that letters for O’Loughlin had never been delivered to his address, then it may have been proper to place the letter before Vonderwall, without identifying it, for the purpose of asking him whether he maintained that answer. However, that was not the course adopted by the applicant’s counsel. As a result, no occasion arose to show Vonderwall the letter of 11 January 2007 for the purpose of testing a blanket denial that he might have made if asked.
If, contrary to my opinion, the cross-examination should have been permitted, it is my view that it could not possibly have affected the jury’s assessment of the truth and reliability of Vonderwall’s evidence about the offence itself. The involvement of the applicant in that offending is strongly corroborated by other evidence. I would therefore have applied the proviso.
Conclusion
I would refuse leave on Ground 1. The appellant is entitled to an appeal on Ground 2 as of right, but I would dismiss his appeal on that ground.