GLEESON CJ, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
BOHDAN WEISS APPELLANT
AND
THE QUEEN RESPONDENT
Weiss v The Queen
[2005] HCA 81
15 December 2005 M50/2005
ORDER
1.Appeal allowed.
2.Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made on 5 May 2004.
3.Remit the matter to the Court of Appeal of the Supreme Court of Victoria for its further consideration.
On appeal from the Supreme Court of Victoria
Representation:
P F Tehan QC with S T Russell and L C Carter for the appellant (instructed by Falcone and Adams)
J D McArdle QC with C B Boyce for the respondent (instructed by Director of Public Prosecutions (Victoria))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Weiss v The Queen
Criminal Law – Appeal – Application of "proviso" that no substantial miscarriage of justice has actually occurred – Appellant convicted of murder – Evidence led at trial that should not have been adduced – Appellant appealed against conviction – Appeal court to review the whole case – Utility of reference to what a jury, the actual trial jury or a hypothetical reasonable jury, would have done.
Words and phrases – "proviso", "substantial miscarriage of justice", "substantial miscarriage of justice has actually occurred".
GLEESON CJ, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ. The important issue in this appeal concerns the operation of the proviso to s 568(1) of the Crimes Act1958 (Vic) ("the Crimes Act") and how that provision is to be applied in criminal appeals conformably with the language and purpose of the statute which appears in common form throughout Australia.
The facts and disposition in the Court of Appeal
On 24 November 1994, Ms Helen Elizabeth Grey was murdered. She was beaten to death. In November 2000, the appellant was charged with Ms Grey's murder.
At the appellant's trial in the Supreme Court of Victoria, Ms Jean Horstead, with whom the appellant was living in 1994, was an important witness against the appellant. She swore that, on the night of the murder, the appellant had confessed to her that he had killed Ms Grey. Ms Horstead gave evidence that, although she had at first provided the appellant with a false alibi, some years after the murder, and after she had left the relationship with the appellant and moved to America, she had decided to tell the truth. Evidence was led that, some time after Ms Grey was murdered, the appellant formed and thereafter maintained a sexual relationship with a woman other than Ms Horstead. Over the objection of the appellant's counsel, the prosecution was permitted to adduce evidence in cross‑examination of the appellant that at the time the appellant began his relationship with the other woman (whom it is convenient to refer to as Renée) she was not yet 15 years old. It is not…
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
Weiss v The Queen [2005] HCA 81
Case
[2005] HCA 81
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal by the appellant against his conviction for murder. The central issue concerned the application of the proviso to section 568(1) of the *Crimes Act 1958* (Vic), which allows an appeal to be dismissed if no substantial miscarriage of justice has occurred, despite the admission of evidence that should not have been adduced. At trial, evidence was admitted concerning the appellant's sexual relationship with a woman who was under 15 years old at the time. The Court of Appeal of Victoria had unanimously found this evidence should not have been admitted, deeming it irrelevant and unduly prejudicial, but ultimately dismissed the appeal by applying the proviso.
The High Court was required to determine how the proviso to section 568(1) of the *Crimes Act* should be applied in criminal appeals, particularly in light of the Court of Appeal's reasoning. The Court needed to consider the utility of references to what a jury, either the actual trial jury or a hypothetical reasonable jury, might have done when assessing whether a substantial miscarriage of justice had occurred. The Court also had to consider whether the Court of Appeal had erred in its application of the proviso based on the reasons it provided.
The High Court concluded that the Court of Appeal had erred in its application of the proviso to section 568(1) of the *Crimes Act*. While acknowledging that the Court of Appeal had correctly identified the evidence of the woman's age as wrongly admitted, the High Court found that the Court of Appeal's reasons for applying the proviso were inconsistent with the statutory language and purpose of the appellate duty. The High Court noted that it did not have the full trial record and that it was preferable for the Court of Appeal to reconsider the matter in light of the High Court's guidance.
Consequently, the High Court allowed the appeal, set aside the orders of the Court of Appeal of the Supreme Court of Victoria, and remitted the matter to the Court of Appeal for its further consideration. This reconsideration was to involve a fresh assessment of whether, upon reviewing the whole record of the trial, the Court of Appeal could be persuaded beyond reasonable doubt of the appellant's guilt, notwithstanding the wrongly admitted evidence.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made on 5 May 2004.
3. Remit the matter to the Court of Appeal of the Supreme Court of Victoria for its further consideration.
Background
Background to the litigation
GLEESON The important issue in this appeal concerns the operation of the proviso to s 568(1) of the Crimes Act 1958 (Vic) ("the Crimes Act") and how that provision is to be applied in criminal appeals conformably with the language and purpose of the statute which appears in common form throughout Australia.The facts and disposition in the Court of Appeal On 24 November 1994, Ms Helen Elizabeth Grey was murdered. She was beaten to death. In November 2000, the appellant was charged with Ms Grey's murder. At the appellant's trial in the Supreme Court of Victoria, Ms Jean Horstead, with whom the appellant was living in 1994, was an important witness against the appellant. She swore that, on the night of the murder, the appellant had confessed to her that he had killed Ms Grey. Ms Horstead gave evidence that, although she had at first provided the appellant with a false alibi, some years after the murder, and after she had left the relationship with the appellant and moved to America, she had decided to tell the truth. Evidence was led that, some time after Ms Grey was murdered, the appellant formed and thereafter maintained a sexual relationship with a woman other than Ms Horstead. Over the objection of the appellant's counsel, the prosecution was permitted to adduce evidence in cross‑examination of the appellant that at the time the appellant began his relationship with the other woman (whom it is convenient to refer to as Renée) she was not yet 15 years old. It is not now disputed that evidence of Renée's age should not have been adduced. To have intercourse with a girl under 16 years of age and to maintain a sexual relationship with her were serious crimes[1]. None of the criminal consequences of the appellant's conduct with Renée was mentioned to the jury. All that they were told was that she was not yet 15 and a suggestion was made in the course of the prosecutor cross‑examining the appellant, but not adopted, that Renée's age had been given as part of the reasons for Ms Horstead terminating her relationship with the appellant. The prosecution did not later suggest that maintaining a sexual relationship with an under‑age girl was a matter that went to the appellant's credit.[1]Crimes Act 1958 (Vic), Pt I, Div 1(8C), ss 45‑49A. The appellant was convicted. On his appeal to the Court of Appeal of Victoria, the Court (Callaway and Batt JJA, Harper AJA) held unanimously[2] that the evidence of Renée's age had been wrongly admitted. Callaway JA (with whose reasons the other members of the Court agreed) rightly held[3] that the evidence of Renée's age was not relevant, that it could not be led to bolster the credit of Ms Horstead and that, if it did have any significant probative value, it was outweighed by its prejudicial quality because "[t]he jury became aware, in effect, that the [appellant] had had carnal knowledge of a girl of 14".[2]R v Weiss (2004) 8 VR 388.[3](2004) 8 VR 388 at 397 [60]. The Court of Appeal nonetheless dismissed the appellant's appeal, holding that the proviso to s 568(1) of the Crimes Act applied.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
These questions were not addressed in argument of the present appeal. Argument was confined to the point of principle revealed by the Court of Appeal's reasons. This Court does not have the whole record of the trial. Even if it did, it would be far preferable that the record first be considered by the Court of Appeal than examined for the first time in this Court. It may be that on examining the whole of the record of the trial, the Court of Appeal will not be persuaded to the requisite standard that, allowing for the natural limitations on an appellate court, what the appellant said in his second interview with police can be accepted as proving, beyond reasonable doubt, his guilt of murder. But that is a question that the Court of Appeal has not yet addressed. The matter should be remitted for that Court's further consideration. That reconsideration must take place because, in applying the proviso to s 568(1) of the Crimes Act, the Court of Appeal erred when the reasons that it gave are considered by reference to language of the Crimes Act expressing that Court's appellate duty.Conclusion and orders For these reasons, the appeal should be allowed, the orders of the Court of Appeal of the Supreme Court of Victoria made on 5 May 2004 should be set aside and the matter remitted to the Court of Appeal for its further consideration.
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ