THE QUEEN Criminal Law-Appeal-Court of Criminal Appeal of Victoria-Power to interfere
with verdict-Whether only exercisable where finding unreasonable or whether exercisable where no reasonable evidence on which jury could reasonably find MELBOURNE,
issue in favour of party bearing onus of proof-Distinction between verdict May 26, 27;
contrary to evidence and verdict against weight of evidence-Question of fact- BRISBANE.
Whether power of High Court to grant special leave to appeal should be exercised- Crimes Act 1957 (No. 6103) (Vict.), ss. 563, 564.
Section 564 of the Crimes Act 1957 (No. 6103) (Vict.), as amended, provides inter alia that on any appeal against conviction the Full Court 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
Held, that it is not the law that upon an issue which the Crown must estab- lish beyond reasonable doubt a verdict against the prisoner must be sustained by a court of criminal appeal unless upon the evidence the finding is unreason- able in a case where there has been no misdirection erroneous reception or rejection of evidence and no other objection exists as to the course of the trial. The powers of the Court of Criminal Appeal of Victoria are not so restricted. It is within the powers of that court to set aside a conviction on the ground that it is against the weight of evidence.
Powers of the Court of Criminal Appeal of Victoria discussed. Reg. v. McGibbony (1956) V.L.R. 424 considered. On the trial of a man for assaulting a woman with intent to have carnal knowledge the evidence was that the alleged assault took place on a moon- light night with scudding clouds obscuring the moon from time to time. The victim did not know her assailant but she observed that he had a leather motor-cycle cap, a leather three-quarter coat, a moustache and that he spoke with a foreign accent. After committing the assault the man rode off on a motor cycle. Three weeks later the woman saw a man riding a motor cycle
whom she thought was her assailant. She took the number of the cycle and communicated with the police. Subsequently she identified as her assail- ant the motor cyclist at an identification parade. At the trial the chairman of general sessions advised the jury to acquit the accused because it was unsafe to convict upon the evidence as to identification. The jury, however convicted the accused. An appeal by him to the Court of Criminal Appeal of Victoria having been dismissed, he sought special leave to appeal to the High Court.
Held, that, in the circumstances, special leave should be refused. Special leave to appeal from the decision of the Court of Criminal Appeal of Victoria, refused.
APPLICATION for Special Leave to Appeal from the Court of Criminal Appeal of Victoria.
The applicant Rudi Raspor was charged…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Raspor v The Queen [1958] HCA 30
Case
[1958] HCA 30
Decision Date
CaseChat Overview and Summary
This case concerned an application for special leave to appeal to the High Court of Australia from a decision of the Court of Criminal Appeal of Victoria. The applicant, Rudi Raspor, had been convicted of assaulting a woman with intent to have carnal knowledge. The Court of Criminal Appeal had dismissed his appeal against conviction. The primary issue before the High Court was the scope of the powers of the Court of Criminal Appeal of Victoria to set aside a jury's verdict.
The legal issues before the High Court were whether the Court of Criminal Appeal's power to interfere with a jury's verdict was limited to situations where the verdict was unreasonable or unsupported by evidence, or whether it extended to setting aside a verdict that was against the weight of the evidence. This involved considering the distinction between a verdict contrary to evidence and a verdict against the weight of evidence, and whether the court's statutory powers under sections 563 and 564 of the Crimes Act 1957 (Vict.) were so restricted.
The High Court clarified that the powers of the Court of Criminal Appeal of Victoria were not so restricted as to only allow interference where a verdict was unreasonable or unsupported by evidence. The Court affirmed that it was within the powers of the Court of Criminal Appeal to set aside a conviction on the ground that it was against the weight of the evidence. However, in the specific circumstances of this case, the High Court found no sufficient reason to believe that the Court of Criminal Appeal had applied an unduly restricted view of its functions. The evidence concerning identification was considered, including the victim's description of the assailant and her subsequent identification of the applicant, as well as the trial judge's advice to acquit. Despite the trial judge's reservations, the jury had convicted. The High Court concluded that, as only a question of fact was involved and there was no indication of a restrictive application of powers by the Court of Criminal Appeal, special leave to appeal should be refused.