Savvas v The Queen; Nicholson v The Queen

These proceedings concerned applications for special leave to appeal from decisions of the Court of Criminal Appeal of New South Wales. The applicants, Savvas and Nicholson, sought to challenge their convictions. The core of the dispute revolved around the application of a rule of practice established in *McKinney and Judge v The Queen*, specifically whether it applied to trials conducted before that decision was handed down, and what guidance it offered to appellate courts.

The legal issues before the High Court were whether the rule of practice articulated in *McKinney and Judge* had retrospective application to trials concluded prior to its decision, and if not, whether the Court of Criminal Appeal had erred in not providing a warning to the jury along the lines suggested by *McKinney and Judge*, even in the absence of its direct application. A further question arose as to whether the rule in *McKinney and Judge* was intended to apply only in circumstances where confessional evidence was substantially the sole evidence against an accused.

The High Court considered the nature and scope of the rule in *McKinney and Judge*, which concerned the reliability of confessional evidence. While the majority of the Court of Criminal Appeal had held that *McKinney and Judge* had no retrospective application, Mr Justice Kirby, in dissent, questioned the power of the High Court to declare such a rule for the future, but nonetheless considered that the case warranted an appropriate warning. The High Court noted that *McKinney and Judge* was part of a line of cases addressing concerns about the reliability of confessional evidence, and that its application was confined to situations where confessional evidence was the only or substantially the only evidence supporting the prosecution's case.