3.1 There are two statutory departures in Australia from the common law principle that no appeal lies against an acquittal: one in Tasmania, the other in Western Australia.
TASMANIA
3.2 Section 401(2) of the Criminal Code Act 1924 (Tas) provides that:
The Attorney General may appeal to the Court -
(a) against an order arresting judgment;
(b) by leave of the Court or upon the certificate of the judge of the court of trial that it is a fit case for appeal against an acquittal on a question of law alone; or
(c) by leave of the Court, against the sentence.
3.3 Section 402 provides that:
(1) On an appeal the Court shall allow the appeal if it is of the opinion 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 the judgment or order of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal...
3.4 Section 401(2) has been narrowly interpreted. In R v Jenkins1 the Tasmanian Court of Criminal Appeal stated that the term “a question of law alone” excludes questions of mixed fact and law.2 Hence:
under the Tasmanian formula ... there would seem to be great difficulties in the way of entertaining an appeal by the Crown against the exercise of a judicial discretion where the question involved is not so much the existence of a discretion but the question of its exercise in relation to the facts of a particular case.3
3.5 The Court also interpreted the section as allowing leave to appeal only when the issue in question is one of importance for the administration of the criminal law generally, rather than for the particular case at hand.4
3.6 Later, in R v Jessop,5 a differently constituted Court took a wider view of the section. Crawford J considered that the discretion to grant leave is unfettered,6 and that the importance of the appeal question to the administration of the criminal law may be one, but not the only, relevant factor in deciding whether to grant leave:
... it is in the public interest that a grave error by a trial judge which may well have resulted in an acquittal should not be allowed to have the necessary result that the acquittal stand. It may be that not only the seriousness of the error, but also the seriousness of the crime of which an accused has been acquitted should in some cases be a relevant matter.7
Nettlefold J also considered that the section was not restricted to questions of general importance.
3.7 Chambers J, dissenting, considered that the discretion to grant leave is unfettered, but also that it was a legitimate function of the Court to lay down broad guidelines as to when leave should be granted.8 He considered that only rarely - when the case was “a serious case of more than average public importance where there had been a fundamental error in the conduct or course of the trial” - should leave be granted to hear a question which had importance only to a particular case.9
3.8 In relation to the import of the term “a question of law alone”, Nettlefold J looked to cases under a similar provision in the Canadian Criminal Code, and considered that: “[a] conclusion of mixed law and fact may be challenged by the Attorney-General on appeal where that conclusion proceeds from a misdirection in law”.10 This was the basis for Nettlefold J’s rejection of the narrow general interest basis for allowing an appeal, as the recognition of questions of mixed fact and law could give rise to a miscarriage of justice as easily as a question of law alone in an individual case.
3.9 In Williams v R11 the Crown appealed on the grounds that the trial judge had erred in law in refusing to admit (as evidence for the prosecution) records of interview and in exercising a discretion to admit or reject that evidence. The Tasmanian Court of Criminal Appeal had followed the judgment of Nettlefold J in R v Jessop and allowed the appeal on the ground that the question was of law alone even though of mixed fact and law. The High Court (consisting of Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ), rejected the appeal on the basis that both grounds of appeal involved questions of mixed fact and law, and so were not questions of law alone:
An appeal on the ground of the wrongful rejection of evidence by a trial judge in the exercise of a discretion is not an appeal on a question of law alone. The manner in which a discretion is exercised depends upon the judge’s appreciation of all the facts of the case, so that an error of law which leads the judge wrongly to hold that he has a discretion is not the only factor which contributes to his decision to reject the evidence.12
3.10 It should be noted that s 401(2)(b) was amended in 1987, by the removal of the word “alone”.13 However, the word “alone” was also removed from the provision conferring a right of appeal, on a question of law, against conviction (s 401(1)(a)). Given that questions of fact and mixed fact and law (s 401(1)(b)) are expressly separated from those of law in relation to appeals against conviction, it is suggested that the amendment of s 401(2)(b) does not by implication increase its ambit to include questions of mixed fact and law in relation to Crown appeals.
WESTERN AUSTRALIA
3.11 Section 688(2)(b) of the Criminal Code Act 1913 (WA) provides:
(2) An appeal may be made to the Court of Criminal Appeal on the part of the prosecution -
(a) against any decision allowing a demurrer to an indictment or arresting judgment on an indictment or quashing an indictment; or
(b) against any verdict of acquittal on an indictment and any judgment founded thereon when such verdict has been found by direction of the Judge or other authority entitled to give directions on law to the jury at the trial; or
(c) against any judgment (including any verdict on which the same is founded) given on a plea to the jurisdiction of a Court to try an accused person for an offence alleged in an indictment; or
(d) against any punishment imposed or order made in respect of a person convicted on indictment or convicted by a court of summary jurisdiction and committed for sentence.
3.12 Section 690(3) of the Code provides that:
(3) On any appeal against an acquittal by direction or on an appeal against any judgment given on a plea to the jurisdiction, the Court, if it allows the appeal, may reverse any judgment, decision, or verdict, the correctness of which was in question in the appeal, and may order a new trial or that the accused shall stand his trial, as the case may require.
3.13 In R v Udechuku14 the appeal was concerned with a directed verdict arising from the refusal of an interlocutory application. At the commencement of the trial the Crown had applied for an adjournment so that two Crown witnesses could be found. That application was refused (it appeared on appeal that the trial judge had misunderstood the importance of the witnesses to the Crown case). The trial continued, jurors were sworn, and the Crown opened its case sufficiently to inform the jury that no evidence would be led against the accused. In the absence of Crown evidence, the jury were directed to acquit.
3.14 Wickham J, dissenting, considered that s 688(2)(b) and 690(3) seemed to allow an appeal only where “the trial judge has directed an acquittal because of erroneous understanding of the law, whether it be on a motion of no case because of insufficient evidence or in some other context”.15 The only available grounds of appeal under the sections were said to be the verdict of acquittal or a judgment arising from it. Even if the trial judge’s refusal of the Crown’s interlocutory application could be classified as a judgment, it was not a judgment founded on a verdict of acquittal, and so was not appealable.16 Further, as the Crown had led no evidence, the direction to acquit was the only lawful course to follow, and there could be no mistake of law.17 In deciding whether the trial judge’s refusal of the interlocutory application was a “decision” which the Court is empowered to reverse under s 690(3), Wickham J considered that the word “decision” in that section relates to only those decisions set out in s 688(2)(a), and that, in any event, it was not a direction in law given to the jury.
3.15 The majority (Wallace and Jones JJ) considered that the section:
is a qualification to the rule against double jeopardy where it is alleged that an order based upon the erroneous exercise of a judicial discretion has been given even though such an order may result in a direction in itself unappealable.18
The trial judge’s refusal to grant an adjournment was said to be
- an improper exercise of the trial judge’s discretion;
- a “decision” reversible under s 690(3); and
- a “direction” upon which a verdict of acquittal (itself unimpugnable) was founded (as required by s 688(2)(b)).
Alternatively, the erroneous exercise of the discretion nullified all subsequent proceedings, and so there had been no “trial” under the Code.
3.16 In R v Hyman and French19 the section was considered again. The trial judge had intimated to the Crown prosecutor that evidence of the nature outlined in the Crown’s opening address would not be sufficient to make out a case. The Crown chose to lead no evidence, and a directed verdict resulted. The Supreme Court of Western Australia was asked to adopt the reasoning of Wickham J in Udechuku. The Court considered that Wickham J was incorrect in his assertion that the word “decision” in s 690(3) relates only to that described in s 688(2)(a); rather, s 690(3) deals only with decisions relating to an acquittal by direction or a judgment given on a plea to the jurisdiction. In any event, there was no need to determine the coverage of “decision” in s 690(3), or the correctness of Udechuku, for the trial judge’s intimation to the Crown did not amount to “a judicial determination as the final and definite result of examining a question”20 - the minimum requirement for classification as a “decision”. The acquittal followed a correct decision to direct the acquittal. There had been no incorrect decision against which to appeal.
FOOTNOTES
1. [1970] Tas SR 13.
2. Jenkins at 15 per Crisp J.
3. Jenkins at 15 per Crisp J.
4. Jenkins. See also paras 4.4-4.6.
5. [1974] Tas SR 64.
6. Jessop at 70 per Crawford J.
7. Jessop at 70 per Crawford J.
8. Jessop at 83 per Chambers J.
9. Jessop at 86 per Chambers J.
10. Jessop at 89, citing Wild v The Queen (1970) 4 Can Cr Cas 40 and Belyea v R [1932] 2 DLR 88
11. (1986) 161 CLR 278.
12. Williams at 301-302 per Mason and Brennan JJ.
13. Criminal Code Amendment Act 1987 (Tas) s 7. Section 401(2)(b) is set out in para 3.2.
14. [1982] WAR 21.
15. Udechuku at 25 per Wickham J.
16. The Crown can only appeal against "any decision allowing a demurer to an indictment or arresting judgment on an indictment or quashing an indictment": Criminal Code Act 1913 (WA) s 688(2)(a).
17. Udechuku at 25-26 per Wickham J.
18. Udeckuku at 28-29 per Wallace J.
19. (1990) 2 WAR 222.
20. Winter and Calder v Winter (1933) 52 NZLR 289, cited in R v Hyman and French (1990) 2 WAR 222 at 234.
