Yunupingu v The Queen

In *Yunupingu v The Queen*, the Court of Appeal of the Supreme Court of New South Wales considered an appeal against a conviction. The central dispute concerned the admissibility of an autopsy report at trial, where the pathologist who conducted the autopsy was unable to give evidence due to ill health. The report had been admitted as a business record.

The Court was required to determine whether the autopsy report was admissible as a business record, given that it was prepared in connection with an investigation leading to criminal legal proceedings against the appellant. Further, the Court had to consider whether, if the report was wrongly admitted, the conviction should be quashed and whether the proviso to section 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied, meaning the appeal should be dismissed if the Court found no substantial miscarriage of justice. Finally, the Court had to consider the discretionary test for ordering a retrial.

The Court held that the autopsy report was inadmissible as a business record because it was made in contemplation of criminal proceedings, contrary to the purpose of the *Evidence (Business Records) Interim Arrangements Act*. The Court found that the report's primary purpose was to gather evidence relevant to the charge against the appellant, not merely to record routine business activities. As the Crown case relied heavily on this inadmissible evidence, the Court concluded that a miscarriage of justice had occurred and that the Crown case was not so overwhelming that the error was swamped by other evidence.

Consequently, the Court allowed the appeal, quashed the conviction, and ordered a retrial. The Court found that the Crown evidence, excluding the inadmissible report, was sufficiently cogent to support a retrial and that it would not be unjust to require the appellant to stand trial again, as this was in the interests of justice.