Waldron v The King

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Decision restricted [2023] NSWCCA 128
Decision date: 09 June 2023
Before: Button J at [1];
Hamill J at [2];
Sweeney J at [69]
Catchwords:
CRIMINAL LAW – appeal against conviction – tendency evidence – proper directions – where accused relied on tendency of the alleged victim – jury wrongly directed it should exercise caution in drawing inferences that tendency established – jury directed to enquire where it ”more likely than not” that the alleged victim had the tendency alleged – directions apt to reverse onus or proof – where prosecution concedes error in directions – appeal grounds sustained
CRIMINAL APPEALS – whether no substantial miscarriage occurred despite erroneous directions – application of proviso – nature of error – assessment of prosecution case – case rebutting self-defence not overwhelming – accused case not “glaringly improbable” – where appellate court did not see witnesses – conflict in evidence – proviso should not be applied – appeal allowed – re-trial ordered

The text of this decision has been restricted

CaseChat Overview and Summary

In this case, the appellant, Waldron, was convicted of the murder of a woman and appealed against the conviction. The appeal focused on the admission and use of tendency evidence in relation to the victim and whether the jury was correctly directed on its use. The High Court of Australia heard the appeal.

The legal issues before the court were whether the trial judge's directions to the jury regarding the use of tendency evidence were erroneous and, if so, whether the error resulted in a substantial miscarriage of justice. The court needed to determine whether the error in the jury's directions was such that it warranted a retrial, despite the prosecution's concession that the error had occurred.

The court held that the trial judge's directions to the jury were indeed erroneous as they suggested that the jury should exercise caution in drawing inferences from the tendency evidence and that it should find the tendency established if it was "more likely than not" present. These directions had the potential to reverse the onus of proof, which is impermissible. However, the court assessed whether a substantial miscarriage of justice occurred despite the error. The prosecution conceded the error but argued that the error did not result in a substantial miscarriage of justice. The court found that the prosecution's case was not overwhelming and the accused's case was not "glaringly improbable." Given the conflicts in the evidence and the fact that the appellate court had not seen the witnesses, the court concluded that the proviso should not be applied, and the appeal was allowed. A re-trial was ordered.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Decision restricted [2023] NSWCCA 128
Decision date:	09 June 2023
Before:	Button J at [1]; Hamill J at [2]; Sweeney J at [69]
Catchwords:	CRIMINAL LAW – appeal against conviction – tendency evidence – proper directions – where accused relied on tendency of the alleged victim – jury wrongly directed it should exercise caution in drawing inferences that tendency established – jury directed to enquire where it ”more likely than not” that the alleged victim had the tendency alleged – directions apt to reverse onus or proof – where prosecution concedes error in directions – appeal grounds sustained CRIMINAL APPEALS – whether no substantial miscarriage occurred despite erroneous directions – application of proviso – nature of error – assessment of prosecution case – case rebutting self-defence not overwhelming – accused case not “glaringly improbable” – where appellate court did not see witnesses – conflict in evidence – proviso should not be applied – appeal allowed – re-trial ordered