4.1 Because there is no right of Crown appeal against an acquittal in New South Wales, an erroneous direction to acquit, or a correct direction to acquit founded upon an error of law (such as the erroneous rejection of Crown evidence upon which a conviction might have been procured) stands as final. This raises the question whether there should be a right of appeal in the Crown against acquittals generally, or directed acquittals in particular, where there has been an error of law. The policy basis of such a right would be the importance to the community of ensuring that serious criminal matters are dealt with fully according to law, and that the full process of criminal justice is not impeded by “technical” legal irregularities.
4.2 In coming to a provisional conclusion on whether or not this policy justifies granting a right of appeal to the Crown in this context, the Commission has weighed a number of factors. First, we have borne in mind the necessity of resolving two initial considerations before a right of Crown appeal should be conceded. Secondly, we have considered the arguments against a right of Crown appeal. Thirdly, we have had regard to the incidence of directed verdicts of acquittal in New South Wales.
MATTERS FOR INITIAL RESOLUTION
4.3 The Commission is of the view that a right of Crown appeal should be granted only in the context of a clear resolution of two initial questions. First, are appeals to be had when the issue in question is one of importance for the administration of the criminal law generally or for the particular case at hand or for both? Secondly, must a successful appeal necessarily result in a retrial?
The focus: the general direction of the criminal law or the individual case?
4.4 Speaking of s 401 of the Criminal Code Act 1924 (Tas),1 Dixon J said in Vallance v R:
I confess that an appeal under s 401 by the Crown against an acquittal strikes me as standing on a different footing from an appeal against conviction. It is evident that the policy which guided the legislature was rather concern in the operation of the criminal law than of correcting verdicts of acquittal to which the Crown objected.2
4.5 In R v Jenkins, the Tasmanian Court of Criminal Appeal stated, in relation to that same section, that:
Obviously a matter complained of must have a wider and deeper significance in the administration of the criminal law than its application to a particular case. But it is unwise I think by definition further to attempt to elaborate the principles which the court should apply. The court has a discretion, that is plain. It is a discretion which is to be guided by a concern for the administration of the criminal law of which the Code is the statutory expression, and this concern will be in general directed more to the consequences of the decision assailed in other cases than to the case in hand.3
4.6 The same Court subsequently took a broader approach in R v Jessop,4 when it stated that the resolution of issues pertinent to a particular case may be as relevant as issues of a general interest nature, and may in fact be of general interest. Whatever the outcome of a trial:
a minimum requirement with which a criminal trial should comply is that the law is correctly interpreted and applied, or, in other words, that justice is done according to law ... The public interest may require that an error on a question of law alone should be corrected despite the fact that the decision is not likely to be followed in subsequent cases. For example, serious cases like murder, “pack rape” and armed robbery often cause feelings of grave concern in the community. And the public interest requires, in my opinion, that the Crown should be entitled to seek leave to appeal if an error of law has been made even though it is a patent error which will not be followed in later cases. For, in such a case, the error may be so serious that it may be said correctly that justice has not been done according to law.5
Retrial: the necessary outcome of a successful appeal?
4.7 In R v Jessop Chambers J considered that there is a great difference between granting an appeal against conviction and acquittal:
If the judge makes a mistake in the course of the trial and the accused is subsequently convicted, it is proper that he should have a fresh trial ... If the judge makes a mistake and the accused is acquitted, then the setting aside of the verdict may involve the accused in the emotional ordeal of going through it all again, although the mistake was something over which he had no control.6
4.8 In Vallance v R,7 Dixon and Kitto JJ, respectively, considered the appropriateness of ordering a retrial upon a successful appeal under s 401 of the Tasmanian Criminal Code. Their comments also are relevant to a further issue - the importance of evidence the rejection of which forms the basis of the appeal:
I think that I should have let the verdict of acquittal stand on the ground that the departure in the learned judge’s direction to the jury from what I considered the true position was not on the whole case a probable explanation of the verdict of the jury.8
If a direction to the jury along correct lines would not have been likely to make any difference in the result, a new trial ought not to be had.9
4.9 Similarly, in Williams v R,10 the High Court stated that:
Even where a rejection of prosecution evidence may be attributable to a question of law alone, a particular caution should be exercised in giving leave to the Attorney-General to appeal against an acquittal on that ground. Where the prosecution bears the onus of proof of the issue to which the rejected evidence is relevant, it is not enough for the Attorney-General to show that the evidence ought to have been admitted. Regard must be had to the standard of proof in a criminal trial and to the likelihood that, had the rejected evidence been admitted, the jury would have convicted ...11
Their Honours’ respective emphases upon “probable” and “likely” contrast with the approach taken to the erroneous rejection of evidence in civil cases. In Balenzuela v De Gail,12 the High Court acknowledged that it was not for the court to determine what a jury would or should have made of wrongly rejected evidence, had it been admitted, but rather:
a new trial must be granted unless we can say that the jury, proceeding according to law and within the bounds of reason, could not have been led by the rejected evidence, if it had been before them, to find a verdict for the plaintiff.13
4.10 Clearly, in criminal cases, the emphasis is upon sparing an accused a retrial unless the wrongfully rejected evidence is considered to be such as would have made a significant difference to the jury’s deliberation; whereas in civil cases the emphasis is upon allowing a retrial unless the rejected evidence, had it been admitted, could have made little or no difference to the result.
ARGUMENTS AGAINST A CROWN RIGHT OF APPEAL
4.11 There are clear arguments opposing a Crown right of appeal against acquittal. These arguments focus on the notion of double jeopardy and on the rights of the accused.
Double jeopardy
4.12 It might be said that the Crown should not be given the chance to put an accused in double jeopardy: “[t]he effect of such a departure would be that double jeopardy was at the whim of a disgruntled prosecutor even after acquittal in a trial on the merits in a superior court”.14 The exercise of the right would depend on the discretion of the Director of Public Prosecutions. In the absence of a test of overriding public interest, the discretion to bring appeals might not be subject to criteria of adequate precision. Additionally, cases may arise where the exercise of a judicial discretion is made necessary by Crown incompetence or unpreparedness, such as where witnesses are absent from the trial. Any provision, if adopted, should not act to remedy deficiencies in the Crown’s case or its conduct.
The rights of the accused
4.13 It may be argued that vague or even specified concerns for the community interest, as the basis for a right of appeal, cannot override the common law’s traditional concern for the rights of the accused. Currently:
the appellate court may allow an appeal on account of a wrong decision on any point of law, or because there was a miscarriage of justice, and these provisions are, of course, wide enough to cover any wrongful admission or rejection of evidence by the judge, as well as an irregularity in his summing up.15
4.14 The width of this power reflects the law’s recognition of the powerlessness of the accused relative to the Crown. It cannot be assumed that affording the Crown an equivalent avenue of redress against judicial error would provide equal or even adequate benefits. Should there be any infringement of the traditional protection of the accused, it should be defined precisely:
[t]o recognize how drastic such a departure from a time-honoured principle of the common law would be is not to question the legislative competence of ... Parliament to enact provisions having that effect. Such recognition does, however, indicate the need to examine the relevant provisions with care before concluding that the legislative intent properly to be found within them is that the general words used should be so construed.16
In addition, the infringement may have to be restricted to ensure that it remains subordinate to the law’s protection of the accused.
THE INCIDENCE OF DIRECTED VERDICTS IN NEW SOUTH WALES
4.15 At the request of the Commission, the New South Wales Bureau of Crime Statistics and Research compiled data on the number of acquittals by directed verdict in the District Court and Supreme Court in 1992. That data is set out in the Appendix to this Discussion Paper.
4.16 During 1992, 1,344 persons were tried on 9,197 charges in the District and Supreme Court. Directed verdicts of not guilty were made on 187 of these charges (2.03%). There was a directed verdict of at least one charge in 155 trials. In 63 of these trials (40.65%) the charges were disposed of completely by directed verdict. In an additional 26 of the trials (16.77%) there was a finding of charge not appropriate and/or no further proceedings.
4.17 Clearly the number of directed verdicts of not guilty in New South Wales is small. It is not possible to draw from the data any conclusions as to the reasonableness of this number of acquittals or of the reasons for such acquittals.
CONCLUSION
4.18 Given the small number of cases arising from the Tasmanian17 and Western Australian Code provisions, and the statistics relating to directed verdicts in New South Wales,18 appeals by the Crown based upon an error of law in the giving of directed verdicts would probably be rare. However, given the breadth of matters at trial which may directly or indirectly give rise to and impinge upon an appeal, and the difficulty of reconciling Crown powers with traditional legal protection of the accused, the limited value of a right of Crown appeal may be outweighed by the difficulties associated with drafting, interpretation and implementation.
4.19 The Commission is asked to consider only appeals from erroneous verdicts by direction, and thus appeals from errors of law. The Crown clearly has the right to bring up questions of law for appellate scrutiny, provided that the question is one of general importance.19 That provision and the construction placed upon it in R v J20 would sit uneasily with the proposed more general right of appeal, which is not required in order to provide a means of preventing the criminal law from being corrupted by error. In the Commission’s view, therefore there is little in favour of abandoning a long standing and still generally accepted principle of the common law, and much to be said on the other side in favour of preserving the rule against double jeopardy.
FOOTNOTES
1. The section is extracted in para 3.2.
2. Vallance v R (1961) 108 CLR 56 at 62.
3. [1970] Tas SR 13 at 16.
4. [1974] Tas SR 64. See paras 3.6-3.7.
5. Jessop at 94-95 per Nettlefold J.
6. Jessop at 86 per Chambers J (dissenting).
7. (1961) 108 CLR 56.
8. Vallance at 62 per Dixon J.
9. Vallance at 66 per Kitto J.
10. (1986) 161 CLR 278.
11. Williams at 302-303 per Mason and Brennan JJ.
12. (1958) 101 CLR 226.
13. Balenzuela v De Gail (1958) 101 CLR 226 at 237 per Kitto J, see also Dixon CJ at 236.
14. Thomson v MasterTouch TV Service Pty Ltd (No. 3) (1978) 38 FLR 397 at 408 per Deane J.
15. D Byrne and J Heydon (eds) Cross on Evidence (3rd Aus ed, Butterworths, Sydney, 1986) at 304.
16. Thomson v MasterTouch TV Service Pty Ltd (No. 3) (1978) 38 FLR 397 at 408 per Deane J.
17. In R v Jenkins [1970] Tas SR 13 it was noted that counsel's research had uncovered only two appeals by the Crown against acquittal in the previous 20 years.
18. See Appendix.
19. Criminal Appeal Act 1912 (NSW) s 5A (2)(a). See para 2.2.
20. (1987) 9 NSWLR 615.
