3.1 The Commission has given further consideration to the arguments for and against the proposal outlined in the Discussion Paper, especially those opposed to the Commission’s proposal which have been raised in submissions. Having done so, the Commission remains of the view that a longstanding rule, founded upon fundamental conceptions of the rule of law, ought to be upheld. The Commission finds unconvincing arguments calling for change which are based on imprecise reference to so-called “inconsistencies” in the criminal process, or on appropriating the mantle of “the public interest”. The paramount, and therefore overriding, consideration is the rule against double jeopardy, which, in this instance, should not be compromised.
3.2 The statistical data set out in paragraphs 4.15 to 4.17 of the Discussion Paper illustrates that the number of directed verdicts of not guilty in New South Wales is small, applying to only 2.03% of all charges in the District and Supreme Court in 1992. The Commission used this finding to bolster its proposal that a Crown right of appeal not be introduced, by arguing, amongst other things, that such appeals would be uncommon. Several submissions agreed that the small incidence of verdicts by direction did not warrant disturbing the rule against double jeopardy.1 By contrast, other submissions took the view that the comparatively small number of directed verdicts was rather a reason to create a right of appeal,2 or was at least irrelevant, law reform not being dependent on arguments of scale.3
3.3 Friedland writes “[t]oo many improper acquittals tend to weaken the administration of justice”.4 He quotes Justice Holmes, in a dissenting opinion favouring a government appeal, arguing that “[a]t the present time in this country there is more danger that criminals will escape justice than that they will be subjected to tyranny”.5 In New South Wales, where the number of directed verdicts is comparatively small, and it is reasonable to accept that a jury would have acquitted of their own accord in at least some of these cases, there is little evidence to suggest that the justice system is being weakened by too many improper acquittals.
3.4 The Commission is of the view that to permit appeals from an acquittal would be a major change to the present law. To undertake major changes in the law to accommodate a rare problem requires a very strong case, which, in our view, has not been made out.
3.5 The Commission is aware of the understandable community outrage which would result in the event of a worst case occurring, the acquittal by manifest error of an accused charged with an extremely serious offence, without an opportunity for the jury to deliberate properly upon the evidence, or for the Crown to appeal the acquittal. Such a scenario, is, however, very unlikely. Martin L Sides QC, Senior Public Defender, notes that in his experience it is very rare for a judge to direct a verdict in a murder case.6 Our data does not indicate the nature or severity of the charges on which acquittals were obtained by direction. The reasonable assumption must be that the more serious the charge, the less likely the judge would be to intervene and direct a verdict where there is credible evidence to be put to the jury.
FOOTNOTES
1. Legal Aid Commission of New South Wales Submission (9 August 1995) is one example.
2. M F Adams QC Submission (4 August 1995) at 2.
3. N R Cowdery QC, Director of Public Prosecutions Submission (22 August 1995) at 2.
4. Friedland at 298.
5. Friedland at 298.
6. Submission (3 October 1995) at 1.
