Vincent Raymond Jones v The Queen

HIGH COURT OF AUSTRALIA

BRENNAN CJ, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ

VINCENT RAYMOND JONES v. R
Criminal law

(1997) 191 CLR 439

2 December 1997
Criminal law

Criminal law—Unsafe and unsatisfactory verdict—Nature of the function of an appellate court in determining whether it was open to the jury to convict—Whether a reasonable jury can arrive at inconsistent verdicts on similar counts—Whether a reasonable jury can discount evidence which is equivocal due to delays in prosecution—Whether the trial judge should direct the jury accordingly.

Orders

Order: 1. Appeal allowed
2. Set aside the order of the Court of Criminal Appeal. In lieu thereof the appeal to that Court is allowed; the convictions on counts 1 and 3 are quashed and, in lieu thereof, verdicts of acquittal are entered.

Decision

BRENNAN CJ

The meaning of the phrase "open to the jury to convict" when used to determine whether a verdict of guilty is unsafe and unsatisfactory was considered by this Court in M v The Queen[1]. Different approaches were taken to the application of the test. The majority (Mason CJ, Deane, Dawson and Toohey JJ) proposed as a general criterion a doubt about guilt experienced by the appellate court. Their Honours said[2]:

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced."

Their Honours stated the exception thus:

"It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred." Gaudron J accepted the correctness of this formulation of the test

[3]. I was unable to accept this formulation, saying[4]:

"The appellate court's function is to make its own assessment of the evidence not for the purpose of concluding whether that court entertains a doubt about the guilt of the person convicted but for the purpose of determining whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused."

The difference between the two approaches may not be great in practice but it still appears to me to represent a fundamental difference in principle. The majority approach accords with the approach of Barwick CJ in Ratten v The Queen[5]:

"It is the reasonable doubt in the mind of the court which is the operative factor. It is of no practical consequence whether this is expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution; as I have said it is the doubt in the court's mind upon its review and assessment of the evidence which is the operative consideration."

This approach was rejected by Dawson J with the concurrence of Gibbs CJ and me in Whitehorn v The…