Criminal Law—Miscarriage of justice—Confession evidence—Indecent assault on young child—Victim not called as witness—Absence of satisfactory explanation of failure to call—Duty of prosecution concerning witnesses—Exceptions—Power of judge to direct prosecution to call witness—Power of judge to call witness—Whether conviction unsafe, unjust or dangerous—Whether denial of justice—Criminal Law Consolidation Act 1935 (S.A.), s. 353*. *Section 353(1) of the Criminal Law Consolidation Act 1935 (S.A.) provides in part as follows: "The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence . . ., or that on any ground that there was a miscarriage of justice, and in any other case shall dismiss the appeal: Provided that the Full Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."
Decisions
November 8. The following written judgments were delivered:- GIBBS C.J. AND BRENNAN J. We have had the advantage of reading the reasons for judgment prepared by our brother Dawson. We agree with the conclusion which he has reached. However, we do not consider it necessary to discuss the question whether a judge presiding over a criminal trial has the power to call a witness of his own motion and without the consent of either the Crown or the accused. In the present case we are content to assume that the facts that neither the prosecutor nor the judge called the complainant as a witness did not in themselves provide a ground for setting aside the conviction, that the confessional evidence was rightly received and that the learned trial judge was correct in refusing to take the case from the jury. Notwithstanding that, on those assumptions, no error occurred at the trial, the case is one in which the Court of Criminal Appeal should have held that the verdict of the jury should be set aside on the ground that it was unreasonable, and should accordingly have quashed the conviction. (at p660)
2. In our opinion a court of criminal appeal, acting under a statute in the form of s. 353 of the Criminal Law Consolidation Act 1935 (S.A.), as amended, which, as our brother Dawson has pointed out, is a common form in Australia, should allow an appeal if having regard to all the evidence it concludes that it would be unsafe, unjust or dangerous to allow a verdict of guilty to stand. If the court reaches such a conclusion in a particular case, that means that it thinks that it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the…
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
Whitehorn v the Queen [1983] HCA 42
Case
[1983] HCA 42
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Whitehorn against his conviction for armed robbery. The dispute arose from an incident where Whitehorn was alleged to have robbed a service station while armed with a firearm. Whitehorn maintained his innocence, arguing that he was not the perpetrator of the robbery.
The central legal issue before the High Court was whether the trial judge had erred in admitting evidence of a prior conviction of Whitehorn for a similar offence. Specifically, the court had to determine if this evidence was unfairly prejudicial to the appellant and therefore inadmissible, or if it was relevant to establishing identity and thus properly admitted.
The High Court, by majority, held that the admission of the prior conviction evidence was an error. The majority reasoned that while the evidence might have had some relevance to identity, its prejudicial effect on the jury was substantial. The similarity between the prior offence and the charged offence created a significant risk that the jury would infer guilt based on Whitehorn's past conduct rather than on the evidence relating to the current charge. The court applied the principle that evidence of prior convictions is generally inadmissible unless it has a strong probative value that outweighs its prejudicial effect, particularly when the prior conviction is strikingly similar to the offence charged.
The High Court allowed the appeal, quashed the conviction, and ordered a new trial.