Shepherd v The Queen

In this matter before the High Court of Australia, James William Shepherd was the applicant, and the Crown was the respondent. The dispute concerned an application for special leave to appeal against a decision of the Court of Criminal Appeal of New South Wales. The applicant sought to argue a ground relating to the application of the proviso by a second reconstituted Court of Criminal Appeal.

The primary legal issue before the High Court was whether the second reconstituted Court of Criminal Appeal had erred in applying the proviso to section 6(1) of the Criminal Appeal Act 1912 (NSW). This question arose in circumstances where the first reconstituted Court of Criminal Appeal had found that the trial judge had erred in failing to give a "Chamberlain direction" concerning the necessity for the jury to find primary facts beyond reasonable doubt in a case relying on circumstantial evidence.

The applicant contended that the failure to give the Chamberlain direction resulted in a miscarriage of justice. The first reconstituted Court of Criminal Appeal was divided on whether such a direction was required, with the Chief Justice and Justice Campbell of the view that it was, and Justice Lee holding the contrary view, suggesting it would only be given in special circumstances. The proceedings then took an unusual turn when, after the judgment on the Chamberlain direction, the Crown indicated a desire to argue the proviso, which allows an appeal to be dismissed notwithstanding an error if the court is of the opinion that no substantial miscarriage of justice has actually occurred.