Gallagher v R [1986] HCA 26; (1986) 160 CLR 392 (22 May 1986)

CATCHWORDS

HEARING

DECISION

"The evidence is suspect to such a degree that I do

not consider that a reasonable jury might

reasonably regard this evidence as introducing an

element of reasonable doubt in the context of

evidence which, in the first trial, was such as to

enable the Crown to succeed in proving guilt beyond

reasonable doubt. I prefer to express my conclusion

in the foregoing terms although, in order to meet

the alternative formulation in the second passage

quoted by Barwick, C.J. (in Ratten v. The Queen

[1974] HCA 35; (1974) 131 CLR 510, at p 520), I would also

state my conclusion that the evidence is not likely

to be accepted by a jury."

" ... although there are areas which raise serious

questions about (Arthur Gallagher's) veracity, I am

left with the opinion that I cannot say that his

evidence is so unreliable that this court should

not interfere and set aside the conviction and

order a new trial."

2. The power of the Court of Criminal Appeal in New South Wales to determine appeals in ordinary cases is given by s.6(1) of the Criminal Appeal Act 1912 (N.S.W.), as amended, which was modelled on s.4(1) of the Criminal Appeal Act 1907 (U.K.) and is in terms which are common to the statutes of most Australian States. Sub-section 6(1) provides:

"The court on any appeal under section 5(1)

against conviction shall allow the appeal if it is

of 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 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 other ground

whatsoever there was a miscarriage of justice, and

in any other case shall dismiss the appeal;

provided that the court may, notwithstanding that

it is of opinion that the point or points raised by

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."

3. In a case such as the present, when there was no wrong decision of any question of law or other irregularity at the trial, and the verdict of the jury was not unreasonable or insupportable having regard to the evidence at the trial, it is apparent that the Court of Criminal Appeal can allow the appeal only if it considers that a miscarriage of justice has occurred by reason of the fact that the evidence now adduced was not called at the trial. Although many cases have provided a gloss on the words of s.6 and similar provisions, it is important to remember that the fundamental question is whether a miscarriage of justice has occurred, and that the principles that may be extracted from the authorities "should not ... be regarded as absolute or hard and fast rules": Green v. The King (1939) 61 CLR 167, at p 175. The circumstances of cases may vary widely, and it is undesirable to fetter the power of Courts of Criminal Appeal to remedy a miscarriage of justice. I respectfully agree with the statement of King C.J. in Reg. v. McIntee (1985) 38 SASR 432, at p 435, that "appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand".

4. The authorities disclose three main considerations which will guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred because evidence now available was not led at the trial. The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial, is satisfied in the present case, and need not be discussed, although it should be noted that this is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial. Two other matters that should be taken into consideration are whether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might reasonably have led the jury to return a different verdict. Although I have stated the matters in that way, it will be seen that there has been some difference of expression, if not of opinion, in the judicial discussion of these questions. The combined effect of the two considerations was stated by Rich and Dixon JJ. in Craig v. The King [1933] HCA 41; (1933) 49 CLR 429, at p 439, as follows:

"A Court of Criminal Appeal has thrown upon it some

responsibility of examining the probative value of

the fresh evidence. It cannot be said that a

miscarriage has occurred unless the fresh evidence

has cogency and plausibility as well as relevancy.

The fresh evidence must, we think, be of such a

character that, if considered in combination with

the evidence already given upon the trial the

result ought in the minds of reasonable men to be

affected. Such evidence should be calculated at

least to remove the certainty of the prisoner's

guilt which the former evidence produced. But in

judging of the weight of the fresh testimony the

probative force and the nature of the evidence

already adduced at the trial must be a matter of

great importance."

5. In the present case, the critical question is whether the evidence was apparently credible. There can be no doubt that if the evidence had been before the jury and had been believed, the jury, if it had acted reasonably, would have returned a different verdict. It was submitted on behalf of the applicant in the present case that the learned judges who constituted the majority in the Court of Criminal Appeal erred in substituting their own view of the credibility of Arthur Gallagher for that which a reasonable jury might have formed. In Stafford v. D.P.P. (1974) AC 878, at pp 892-893, Viscount Dilhorne rejected an argument, which was based on some observations by Lord Parker C.J. in Reg. v. Parks (1961) 1 WLR 1484, at p 1486; 3 All ER 633, at p 634, that the Court of Appeal is not entitled to consider whether the fresh evidence is to be believed, but only whether it is capable of belief. Viscount Dilhorne said in effect that once the fresh evidence had been admitted, and possibly subjected to cross-examination, the court had to decide what weight, if any, should be given to it. The statutory provisions considered in Stafford v. D.P.P. are not the same as those in force in Australia, but I doubt whether the difference is material for present purposes. In Ratten v. The Queen [1974] HCA 35; (1974) 131 CLR 510, Barwick C.J. drew a distinction between cases in which the court is considering whether the verdict of guilty should be set aside outright and those in which the court is considering whether there should be a new trial, and said that in the former cases the court should form and act upon its own belief in, or disbelief of, the evidence, whereas in the latter cases it should consider whether the evidence was capable of belief and likely to be believed by a jury: see at pp.518-520.

6. There can be no doubt that the Court of Criminal Appeal is required to form some view as to the credibility of the fresh evidence. In some cases the Court of Criminal Appeal will be able to reach a firm conclusion as to whether the evidence is trustworthy or unreliable, but in many cases it will be able to do no more than decide whether or not the evidence is apparently credible, or capable of being believed. Where the fresh evidence conflicts with the evidence given at the trial, and the Court of Criminal Appeal has not heard the witnesses with whose evidence it is in conflict, it will often not be possible to decide whether a reasonable jury would (or might) believe the fresh evidence: cf. per Stephen J. in Lawless v. The Queen [1979] HCA 49; (1979) 142 CLR 659, at p 672. Further, as Mason J. pointed out in the same case, at p 676, the question will not necessarily be whether the evidence is likely to be believed by a jury, because evidence may be sufficiently cogent and plausible to lead a jury to have a reasonable doubt, although the jury might not necessarily prefer it to other evidence with which it is inconsistent.

7. If the court concludes that the fresh evidence is apparently credible, or not incapable of belief, when considered in conjunction with the other evidence given in the case, the question then arises what influence it might have had upon the jury if it had been available at the trial. This question, which really subsumes the issue of credibility, has been stated in the authorities in different ways and with different degrees of emphasis. Sometimes it is said that the question is whether the evidence would probably have affected the verdict: see, for example, Arnold v. The King (1946) 48 WALR 83, at p 87; Reg. v. Wakefield [1957] VicRp 76; (1957) VR 547; Reg. v. McIntee, at p 433. That appears to be the test accepted in the United States, at least by the Ninth Circuit of the Court of Appeals: U.S. v. Krasny (1979) 607 F (2d) 840; U.S. v. Steel [1985] USCA9 654; (1985) 759 F (2d) 706. Sometimes it has been regarded as sufficient that the evidence might reasonably have led the jury to have a reasonable doubt: R. v. Sayegh (1924) 25 SR(NSW) 61, at p 63; Reg. v. Parks; Stafford v. D.P.P., at pp 893, 907; Reg. v. Baker (1976) 1 NZLR 419, at p 420; Palmer & Palmer v. The Queen (1979) 50 CCC (2d) 193, at p 205. In Ratten v. The Queen the test was said to be whether the fresh evidence, if believed, was likely to produce a different verdict: see at p 520 per Barwick C.J., with whom McTiernan, Stephen and Jacobs JJ. agreed. In Lawless v. The Queen this test was again accepted as correct: see at pp 665, 670-672, 677, 686. By "likely", Barwick C.J. in Ratten v. The Queen meant "probable"; he said, at p 520, that "It is not enough that there is a reasonable possibility that a doubt be raised: there must be a likelihood of a different verdict."

8. Before I return to consider these suggested tests, it is convenient to refer to another aspect of the judgment of Barwick C.J. in Ratten v. The Queen. In that case the learned Chief Justice commenced by considering the various ways in which a miscarriage of justice can arise when there is no question of fresh evidence. He said, at p.516, that there is a miscarriage of justice when on the evidence given at the trial the court is of opinion that there exists such a doubt as to the guilt of the accused that the verdict should not be allowed to stand and added "It is the reasonable doubt in the mind of the court which is the operative factor." Subsequently this Court has felt unable to agree with that view. In Whitehorn v. The Queen [1983] HCA 42; (1983) 152 CLR 657, at pp 660, 686-688 and Chamberlain v. The Queen (No. 2) [1984] HCA 7; (1984) 153 CLR 521, at pp 533-534, 603-604, it was held that the proper approach is to ask whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused, and that the Court of Criminal Appeal is not entitled to usurp the function of the jury simply because it disagrees with the jury's conclusion. Rather different considerations are raised in a case where fresh evidence is adduced, and the question is whether the court should act upon its own view of the effect of the fresh evidence, or should consider what effect a reasonable jury might have attributed to it, because in that case the Court of Criminal Appeal has to consider material which was not available to the jury. Nevertheless, it seems more consistent with the proper role of the jury that the Court of Criminal Appeal should inquire what effect the fresh evidence might have had if it had been before the jury. It seems that the test for deciding whether a new trial should be ordered suggested by Barwick C.J. in Ratten v. The Queen at p 520 - in effect, whether in the opinion of the Court of Criminal Appeal the fresh evidence is likely to produce (i.e., would probably produce) a different verdict - is more stringent than that suggested in Stafford v. D.P.P., at pp 893, 907, 912 - in effect, whether, in the opinion of the Court of Criminal Appeal, the fresh evidence might produce a different verdict.

9. It seems to me, with all respect, that where the trial was by jury, the accused was entitled to have the question of his guilt determined by the verdict of the jury, and that the Court of Criminal Appeal, in considering the effect of the fresh evidence, should consider what effect it might have had upon a reasonable jury. It is not enough that there is a bare possibility that a jury might have been influenced by the evidence to return a verdict of not guilty. On the other hand, it is too severe, and indeed speculative, a test, to require that the court should grant a new trial only if it concludes that the fresh evidence was likely to have produced a different result, in the sense that it would probably have done so. I have had the advantage of reading the reasons for judgment prepared by Mason and Deane JJ. who suggest that the Court of Criminal Appeal will conclude that the unavailability of the fresh evidence at the time of the trial will have involved a miscarriage of justice if the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence had been before it at the trial. I am in substantial agreement with this statement. However, I would emphasize that no form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred. It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial.

10. I respectfully agree with the analysis of the facts in the judgment of Mason and Deane JJ. In my opinion Street C.J. and Reynolds J. were justified in holding the fresh evidence to be unreliable and in rejecting the view that a jury might reasonably have regarded the evidence as leading them to a different verdict.

11. I would refuse the application for special leave to appeal.

MASON AND DEANE JJ.: Kevin John Michael Gallagher ("the applicant") was convicted by a jury at Sydney of the murder of Edward James Lloyd. His co-accused, Archibald Beattie McCafferty, was acquitted of the charge of murder, but found guilty of manslaughter. The Crown case was that Lloyd's death resulted from being repeatedly stabbed by the applicant, aided and abetted by the co-accused, while in his cell in Parramatta Gaol where Lloyd, the applicant and the co-accused were serving prison sentences. Lloyd's death resulted from being repeatedly stabbed while in his cell in Parramatta Gaol where he and the applicant were both serving prison sentences. An appeal by the applicant against his conviction was dismissed by the New South Wales Court of Criminal Appeal (Street C.J. and Reynolds J.; Enderby J. dissenting). The applicant now seeks special leave to appeal to this Court on the ground that new evidence placed before the Court of Criminal Appeal, which was not available to him at his trial, should have led the Court of Criminal Appeal to set aside his conviction and to order a new trial. The new evidence consists of the testimony of Arthur Bernard Gallagher who was also an inmate of Parramatta Gaol when Lloyd was murdered. In a written statement, in an interview with an agent for the applicant's solicitors and in oral evidence before the Court of Criminal Appeal, Arthur Bernard Gallagher maintained that he, and not the applicant, had killed Lloyd. It has not been suggested on behalf of the Crown that the testimony of the witness Gallagher is not, for relevant purposes, "new" or "fresh" evidence which was unavailable to the applicant at the time of the trial.

2. It is settled that an appellate court dealing with an application for a new trial on the grounds of fresh evidence has some responsibility to examine the probative value of the fresh evidence. So much is plainly established by the judgments in a number of cases in this Court including Ratten v. The Queen [1974] HCA 35; (1974) 131 CLR 510, at pp 519, 526 and Lawless v. The Queen [1979] HCA 49; (1979) 142 CLR 659, at pp 670, 676-677, 684. The precise task of the appellate court in dealing with such an application has been formulated in a number of ways in those cases. It suffices, for present purposes, that we quote two of those formulations. The first is that found in the judgment of Rich and Dixon JJ. in Craig v. The King [1933] HCA 41; (1933) 49 CLR 429, at p 439 which was quoted by Menzies J. in Ratten (at p 526) and by Mason J. and Aickin J. in Lawless (at pp 676-677, 686):

"A Court of Criminal Appeal has thrown upon it

some responsibility of examining the probative

value of the fresh evidence. It cannot be said

that a miscarriage has occurred unless the fresh

evidence has cogency and plausibility as well as

relevancy. The fresh evidence must, we think, be of

such a character that, if considered in combination

with the evidence already given upon the trial the

result ought in the minds of reasonable men to be

affected. Such evidence should be calculated at

least to remove the certainty of the prisoner's

guilt which the former evidence produced. But in

judging of the weight of the fresh testimony the

probative force and the nature of the evidence

already adduced at the trial must be a matter of

great importance."

"In this situation, the court must as before decide

the credibility and the cogency of the fresh

evidence in order to determine whether, when the

fresh evidence, if believed by the jury, is taken

with the evidence given at the trial in that sense

most favourable to the accused which reasonable men

might properly accept, it is likely that a verdict

of guilty would not have been returned. In con-

sidering the material before it for this purpose,

the element of credibility will be satisfied if the

court is of opinion that the evidence is capable of

belief and likely to be believed by a jury. The

court in this instance will not be directly acting

upon its own view of the evidence but rather upon

that view most favourable to an appellant, which in

the court's view a jury of reasonable men may

properly take."

"...if there is fresh evidence which in the court's

view is properly capable of acceptance and likely

to be accepted by a jury, and which is so cogent in

the opinion of the court that, being believed, it

is likely to produce a different verdict, a new

trial will be ordered as a remedy for the

miscarriage which has occurred because of the

absence at the trial of the fresh evidence."

3. The new evidence in the present case clearly satisfies any requirement of relevance. If the present testimony of the witness Gallagher had been adduced at the trial of the applicant and accepted by the jury, the applicant would certainly have been acquitted. The issue between the parties before the Court of Criminal Appeal related to the "plausibility" (per Rich and Dixon JJ. in Craig) or "credibility" (per Barwick C.J. in Ratten) of the new evidence. Street C.J. (with whose judgment Reynolds J. agreed) found that the evidence did not satisfy what he saw as the effective content of the requirement of plausibility or credibility. His Honour found:

"The evidence is suspect to such a degree that I do

not consider that a reasonable jury might

reasonably regard this evidence as introducing an

element of reasonable doubt in the context of

evidence which, in the first trial, was such as to

enable the Crown to succeed in proving guilt beyond

reasonable doubt. I prefer to express my

conclusion in the foregoing terms although, in

order to meet the alternative formulation in the

second passage quoted by Barwick, C.J., I would

also state my conclusion that the evidence is not

likely to be accepted by a jury."

4. It was submitted on behalf of the applicant that this finding of Street C.J. was inadequate to found a conclusion that the new evidence did not warrant the making of an order quashing the applicant's conviction and directing a new trial. Examination of his Honour's judgment as a whole disclosed, so it was said, that Street C.J. had, in effect, tried "the issue, the likelihood of change of the verdict" for himself and that his Honour's conclusion that the new evidence was "not likely to be accepted by a jury" simply reflected his own rejection of it. In our view, there is no force in this submission.

5. Regardless of the precise words in which one describes requirements such as "cogency", "plausibility" or "credibility", the ultimate question for decision by an appellate court when considering an application for a new trial on the ground of fresh evidence in the relevant sense, is, as the remarks of Rich and Dixon JJ. in Craig indicate, whether there has been a miscarriage of justice at the trial. The appellate court will conclude that the unavail- ability of the new evidence at the time of the trial involved such a miscarriage if, and only if, it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial. Obviously, that question can only be answered in the context of, and by reference to, "the probative force and the nature of the evidence already adduced at the trial" (Craig, per Rich and Dixon JJ., at p.439). Street C.J. so answered it. His Honour considered the new evidence in "the context of evidence which, in the first trial, was such as to enable the Crown to succeed in proving guilt beyond reasonable doubt". The effect of his Honour's finding which is set out above was clearly that there was no significant possibility that the unavailability to the applicant of the new evidence at the time of the trial had resulted in a miscarriage of justice in the relevant sense. That being so, any appeal to this Court from the decision of the Court of Criminal Appeal must fail unless that finding of Street C.J., in which Reynolds J. joined, is displaced.

6. The applicant, the co-accused and the deceased were, at the time of the murder, prisoners serving sentences in Parramatta Gaol. At about 3.45 pm on 18 September 1981 the deceased was found in his cell bleeding from multiple stab wounds from which he died soon afterwards. The Crown case was that the applicant entered the cell and stabbed him, as well as causing injuries to his head by blows with a blunt instrument, while the co-accused kept watch. Much evidence was adduced at the trial which supported the Crown case and the jury's ultimate finding of guilt.

7. A prisoner, Raymond Munnery, who occupied a nearby cell, gave evidence that the two accused came to his cell that afternoon. According to his evidence, the applicant had a towel beneath his arm and a bag in his hand from which part of the blade of a knife was protruding. The applicant said that he had come to the wrong cell and then left. The witness went to the door and saw the applicant at the door of the deceased's cell. The applicant thereupon ordered the witness to go back inside his cell. A few moments later Munnery saw the co-accused standing at a nearby landing and heard the sound of bumping from the deceased's cell. About ten minutes later Munnery saw the applicant speak to his (Munnery's) brother and walk off to another part of the gaol. Munnery said that the applicant spoke to him the next day, saying "you never seen Archie (the co-accused) and me in the wing".

8. Munnery's brother died before the trial. In his deposition, which was read to the jury, he said that the applicant had told him:

"You seen nothin' and tell Hulme to say nothing or

otherwise you get the same as that arse."

9. Another prisoner, who was in a cell near that of the applicant, testified that the applicant had asked him to come and keep watch for him, indicating that he intended to kill the deceased. He saw the applicant in the co-accused's cell filling a hollow iron bar with sand and heard him ask another prisoner to obtain a knife for him. Subsequently the applicant and the co-accused asked him to cut up a bloodstained blue shirt and flush it down a toilet. The witness complied with this request. According to Raymond Munnery, the applicant, who had been wearing a blue skivvy when he called by mistake at Munnery's cell, was later wearing an ordinary T-shirt. The witness gave evidence that the applicant had subsequently said to him, after reading a newspaper clipping giving details of the stabbing:

"I thought I only stabbed him two or three times.

I must have gone crazy."

10. There was evidence from other prisoners that the applicant was seen wiping the door of the deceased's cell with a towel between 3.15 and 4.00 pm on the day of the killing and that he had been overheard saying that he had killed Lloyd. An investigating officer gave evidence that the applicant had made a similar admission to him. And there was evidence from a number of prison officers establishing circumstances consistent with the Crown case that the applicant and the co-accused had gone to the victim's cell at about 3.45 pm that day.

11. Evidence was also given that an iron bar about 12 inches long, wrapped in cloth material, was found in a garbage container in the prison yard later that afternoon. In evidence the material was loosely described as "towelling". Both the bar and the material became exhibits at the trial. However, they were mislaid after the trial and have not been found since. This is unfortunate because the precise nature of the material in which the bar was wrapped became a relevant issue in the application for a new trial.

12. At the trial, the applicant made an unsworn statement denying that he had participated in any way in the death of the deceased. He called a number of fellow prisoners who gave an account of his movements at relevant times, the effect of which was to exculpate him.

13. The judgment of Street C.J. sets out in some detail the factors which led to the conclusion reached by the majority of the Court of Criminal Appeal that there was no significant possibility that the unavailability at the trial of the evidence of the witness Gallagher resulted in a miscarriage of justice. There is no need for us to recount what his Honour said. It will be sufficient if we draw attention to those aspects of the fresh evidence which tend to indicate its lack of credibility.

14. To begin with there is the implausibility of the account given by the witness of his reason for viciously assaulting Lloyd and killing him. Gallagher claimed in his evidence before the Court of Criminal Appeal that on 16 September he lent $15 to Lloyd which Lloyd later refused to pay and that on the afternoon of 18 September he went to Lloyd's cell to attack him with an iron bar in order to punish him for not repaying the money and to provide an example to other prisoners of the consequences of not paying a debt. Alarmed at the extent of the head injuries inflicted on Lloyd by blows from the iron bar, Gallagher claims that he then decided to kill him by stabbing him with a knife which he then obtained from his own cell. He says he stabbed Lloyd about twenty times. His evidence to the Court of Criminal Appeal was marked, as Street C.J. points out, by an extraordinary determination to convince the Court that he was the killer and that he was a man of violent, if not dangerous, tendencies, a characteristic which is not objectively demonstrated on a reading of his criminal record. Gallagher's evidence, which must include his explanation for coming forward and claiming that he was the killer, namely that "it just doesn't seem to be fair that a person should be doing a life sentence because of something I have done", was regarded by the majority of the Court of Criminal Appeal, after seeing and hearing him in the witness box, as highly suspect and unconvincing.

15. Particularly significant was the contrast between on the one hand the positive and forthright assertions made by Gallagher with respect to his responsibility for the murder and his propensity for violence and on the other hand the indefinite, non-committal and evasive responses which he made to questions concerning the details and circumstances of the killing. The contrast between the firmness of his answers on matters of generality and the weakness of his answers on matters of particularity is indicative of the lack of knowledge of details which should have been clearly etched in his mind, if his story were true, and a desire not to commit himself to detail lest his account be shown to be untrue. One illustration is provided by his inability to recollect the whereabouts of the garbage bin in which he claimed to have placed the iron bar after the killing.

16. Another more illuminating illustration is the evidence which he gave in cross-examination of the material in which the bar was wrapped:

"Q. Did you wrap it in something, did you put it in

something? A. I think I wrapped it in a towel.

Q. You think you did? A. Yes.

Q. Has anyone said anything to you about this

implement ever being found in a towel? A. I have

heard it has been found in a towel - not in a towel

but I heard it had been found.

Q. Who did you hear that from? A. I don't recall.

Q. At any event, it is your recollection that you

probably wrapped it up in some sort of towel, is

that right? A. Yes, that is the normal procedure.

Q. Do you recall doing that, do you, you have some

recollection of wrapping it in a towel? A. In a

towel, yes.

Q. What was it, just a little small piece of towel

or a great big towel? A. It could have been a gaol

towel.

Q. I am not asking you what it could have been,

what was it? A. I don't know what it was. I don't

get into things like measuring towels and things

like that, and you get an issue, it is no big deal.

Q. Would you agree there is a big difference

between a piece of towelling 12 inches by 12 inches

and a big bath towel 4 feet by 3 feet? A. Of course

there is a difference.

Q. Are you able to tell us whether you wrapped it

in one or the other of that sort of towelling?

A. No, I don't recall, but I don't recall having

any 4 x 4 foot towels.

Q. It wasn't that big, was it? A. No. I can't

recall having a 4 x 4 foot towel.

Q. Could it have been that big? A. I doubt it

because I don't recall having one like that.

Q. What is the biggest piece of towelling that it

could have been? A. I don't know, I wouldn't have

a clue. There is different sizes, I don't know.

You get issue towels and everyone has got maybe

eight towels, nine towels, whatever they want, in

their cell and it is no big deal. You get them,

you get them washed, you want more and you go down

and just grab them out of stores if the store has

them. It is no big deal. You are not paying for

them like people outside where they count

everything.

Q. So I take it you have no recollection of the

colour of that towel? A. No."

17. In the Court of Criminal Appeal, Detective Senior Constable Hurst gave evidence that in the course of his investigation of the killing he had examined the bar and the material in which it was wrapped. The material was 30 or 40 cm by 10 cm and was very faded yellow chenille with ribbing, of the kind used in the manufacture of bedspreads. The striking difference between Gallagher's description of the material and that given by the police officer suggests that Gallagher's description was not the product of his personal experience but was derived from accounts given to him by others of evidence that was adduced at the trial where, on at least one occasion, the piece of chenille had been loosely described as a piece of towelling.

18. The Court of Criminal Appeal was unfavourably impressed by inconsistencies in Gallagher's version of events. It is sufficient for us to mention three such inconsistencies. In his written statement Gallagher said that on returning to his cell after stabbing Lloyd he hid the iron bar with which he had previously beaten him. By contrast, in cross- examination he claimed that he threw the iron bar into a garbage bin. Gallagher also said in the written statement that he hid his bloodstained clothes on his return to his cell. In an interview on 9 August 1984 he said that he cut his clothes up and flushed them down the toilet. By the time he gave evidence in the Court of Criminal Appeal he had changed his story yet again, then claiming that he had given the clothes to another prisoner to dispose of them. In the written statement he said that he hid the knife which he used to stab Lloyd. In examination-in-chief in the Court of Criminal Appeal he said that he gave the knife to another prisoner to be disposed of with the clothes.

19. Finally there is a significant inconsistency between Gallagher's evidence as to the stabbing and the established facts. The deceased had stab wounds to the chest, abdomen, face, upper arm and hand. Yet in cross-examination Gallagher said that he had not meant to stab the deceased in the face or arm and that he had no recollection of stabbing the deceased in the face or arm or of slipping to such an extent that he would have stabbed the deceased in those places.

20. In the light of those aspects of the evidence the majority of the Court of Criminal Appeal, having the advantage of seeing and hearing Gallagher and of forming an unfavourable impression of his demeanour as a witness, was well equipped to assess the implausibility and lack of credibility of his claim to have killed Lloyd. In the light of their assessment, an assessment which was plainly open on the materials, their Honours determined that there was not a significant possibility that the unavailability of Gallagher's evidence at the trial resulted in a miscarriage of justice. In our opinion there is no sufficient ground for disturbing that conclusion.

21. In the result we would dismiss the application for special leave to appeal.

BRENNAN J.: Section 6(1) of the Criminal Appeal Act 1912 (N.S.W.) which is in a form substantially common to the States of Australia prescribes three categories of grounds on which an appeal against conviction may be allowed: unreasonable or insupportable verdict, error of law, and miscarriage of justice "on any other ground whatsoever". The third category covers cases where the trial is fair and without blemish but where fresh evidence shows that the conviction is a miscarriage of justice. A miscarriage of justice is not shown by producing fresh evidence which might possibly have led to a different verdict. In Ratten v. The Queen [1974] HCA 35; (1974) 131 CLR 510, Menzies J. at pp 525-526 said:

" The absence of such evidence which, if given,

ought, in the opinion of the court, to have led

to an acquittal constitutes an acceptable basis

for concluding that there was a miscarriage of

justice at the trial; the absence of evidence

which, if given, might perhaps have led to an

acquittal does not provide any basis for an

affirmative conclusion that there was a

miscarriage of justice at the trial."

2. Although the question for determination in Ratten was the character of fresh evidence required to establish a miscarriage of justice, Barwick C.J. went further, expressing a view as to the approach of a Court of Criminal Appeal in reviewing the evidence in cases where fresh evidence is not produced. His Honour's judgment as to the approach of a Court of Criminal Appeal in cases where fresh evidence is produced commanded the support of McTiernan, Stephens and Jacobs JJ, but his view as to the approach in cases where fresh evidence is not produced has not been accepted in later cases: see Whitehorn v. The Queen [1983] HCA 42; (1983) 152 CLR 657, at pp 660,686-688; Chamberlain v. The Queen (No.2) [1984] HCA 7; (1984) 153 CLR 521, at pp 533-534,603-604. The authority of Ratten has not been maintained except in respect of cases in which fresh evidence is produced. Barwick C.J. distinguished (at p.520) between cases where the new material "convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand", and cases where fresh evidence is, in the court's view, "properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict". In cases of the former kind, the court quashes the conviction outright; in cases of the latter kind, a new trial is ordered. (The distinction which his Honour drew between new material that is fresh evidence and new material that is not need not detain us here: the new material in this case is fresh evidence.)

3. To reach a decision, the Court of Criminal Appeal itself must evaluate the fresh evidence in the context of the evidence given at the trial. The capacity of fresh evidence to convince a Court of Criminal Appeal that a verdict of guilty could not be allowed to stand or to satisfy that court that, had it been given, it would have been likely to produce a different verdict depends on a variety of factors which cannot be separated into categories, some of which can be evaluated by a Court of Criminal Appeal while others must be left for evaluation by a jury. The Court of Criminal Appeal must assess for itself the cogency of the fresh evidence in order to decide whether there has been a miscarriage of justice and, if so, to decide whether the conviction should be quashed outright or whether a new trial should be ordered. To repeat what I said in Chamberlain, at p.603:

" The function of evaluating evidence not given at

the trial and of deciding whether a verdict

should be set aside and whether a verdict of

acquittal should be entered or a new trial

ordered is a function which falls in all its

aspects upon a Court of Criminal Appeal."

4. There is an interplay among the factors on which the cogency of fresh evidence depends: the evidence adduced at the trial, the facts which the fresh evidence tends to prove or disprove, the inherent credibility of the fresh evidence, the veracity of the witness or the authenticity of the source from which the fresh evidence comes. It will frequently be impossible to separate or to attribute a precise weight to each of the several factors which give or deny cogency to the fresh evidence. As Stephen J. said in Lawless v. The Queen [1979] HCA 49; (1979) 142 CLR 659, at p 672:

" In any event it is, in my view, the ultimate

conclusion of the Court that is of importance,

not the various steps leading to it, steps which,

as I have endeavoured to show, may be both

numerous and complex although they are the

accepted commonplace of the judicial task. That

ultimate conclusion must be whether or not it is

likely, had the fresh evidence been before the

jury, that a verdict of guilty would not have

been returned."

5. The criterion of the "likely" effect of the fresh evidence on the verdict has taken the place of an earlier criterion: "ought in the minds of reasonable men" affect the verdict. In Craig v. The King [1933] HCA 41; (1933) 49 CLR 429, Rich and Dixon JJ. said (at p 439):

" It cannot be said that a miscarriage has occurred

unless the fresh evidence has cogency and

plausibility as well as relevancy. The fresh

evidence must, we think, be of such a character

that, if considered in combination with the

evidence already given upon the trial the result

ought in the minds of reasonable men to be

affected. Such evidence should be calculated at

least to remove the certainty of the prisoner's

guilt which the former evidence produced."

6. To obtain an order for a retrial, it is sufficient to show that it is likely, not that it is certain, that a different verdict would have been produced if the fresh evidence had been given. The test is less stringent than the test applied in civil appeals from jury verdicts (cf. Wollongong Corporation v. Cowan [1955] HCA 16; (1955) 93 CLR 435, at pp 444-445). And as a verdict of acquittal follows if the jury have a reasonable doubt as to the prisoner's guilt, the test is not whether the jury would have been likely to believe the evidence had it been given but whether the jury would have been likely to entertain such a reasonable doubt. It is not necessary that the court should think it likely that the fresh evidence would have been believed: it is enough that it is judged to be likely to have resulted in an acquittal. Mason J. in Lawless v. The Queen commented (at p 677):

" Their Honours did not suggest that, in order

to succeed, the appellant had to show that the

fresh evidence was likely to be believed as well

as showing it was likely that the jury would

return a verdict of not guilty."

7. The likelihood of acquittal is, I think, a sufficiently clear criterion not to require exegesis. To describe the likelihood as a significant possibility seems to me, if I may say so with respect, to introduce a further conception which has a nuance of meaning different from the meaning of likelihood. A criterion of "significant possibility" may be thought to be susceptible of easier satisfaction than the criterion of likelihood and to be closer to the test rejected by Menzies J. in Ratten: "might perhaps have led to an acquittal".

8. In the present case, I am neither convinced that the verdict of guilty cannot stand nor satisfied that, if the fresh evidence had been given, it was likely that a verdict of acquittal would have been returned. I need not rehearse the analysis of the evidence made by Mason and Deane JJ. nor their Honours' criticisms of the cogency of the evidence given by Arthur Gallagher. I agree with that analysis and those criticisms. I would add that some scepticism might have to be overcome - it depends on the circumstances - about a confession by a long-term prisoner offered as fresh evidence on the hearing of another prisoner's appeal. Such a confession may subsequently be retracted (as occurred in the case of Rowland (1947) 32 Cr.App.R.29) after it has served its purpose in the appeal. It is unnecessary to decide what were the motives of Arthur Gallagher for confessing to the crime for which the appellant was convicted, but the circumstances of the case, coupled with the criticisms of Arthur Gallagher's evidence set out in the judgment of Mason and Deane JJ., lead me to conclude that his confession is not so cogent that the jury would have been likely to acquit. Expressed in somewhat different terms, that was the view of the majority of the Court of Criminal Appeal. I find that there was no miscarriage of justice in this case, and I would refuse special leave to appeal.

DAWSON J.: The applicant, together with a man named McCafferty, was charged with the murder of an inmate of Parramatta Gaol. The applicant and McCafferty were also inmates of the same gaol and the prosecution case was that on 18 September 1981 the applicant attacked the deceased in his cell while McCafferty kept watch. The deceased was stabbed 23 times, his head was beaten and his skull was fractured. On 3 November 1983 the applicant was convicted of murder and McCafferty was convicted of manslaughter. Both appealed to the New South Wales Court of Criminal Appeal but McCafferty abandoned his appeal. As the argument has developed before us, the relevant ground of appeal in the case of the applicant was that fresh evidence was available which was not available to him at his trial and would not have been available to him by the exercise of reasonable diligence.

2. The evidence relied upon by the applicant as fresh evidence was that of another man named Gallagher (whom I shall refer to as Gallagher), who was no relation of the accused but who had also been an inmate of Parramatta Gaol at the time the deceased was murdered. Gallagher's evidence was that he had killed the deceased.

3. Gallagher had been released from Parramatta Gaol on 10 July 1982 and had gone to Victoria. There he was taken into custody on 8 October 1982 in relation to an offence of armed robbery. In May or June 1984 whilst he was in prison at Pentridge Gaol in Melbourne, he was visited by his sister and he told her to contact a solicitor because he wanted to make a confession. Subsequently on 8 May 1984 he made a statement in the presence of a solicitor representing the applicant and on 9 August 1984 the solicitor tape-recorded an interview with Gallagher.

4. Upon the hearing of the applicant's appeal in the Court of Criminal Appeal, Gallagher was called as a witness and was cross-examined by the Crown. He said that on 16 September 1981 he had lent $15 to the deceased which the deceased had refused to repay. He said that on the afternoon of 18 September 1981 he went to the deceased's cell equipped with an iron bar for the purpose of bashing the deceased. According to Gallagher, he struck the deceased on the head a number of times with the bar and then became alarmed at the extent of the injuries so that he decided to kill him by stabbing. Gallagher said that he then left the deceased's cell and went to his own cell, which was nearby, where he obtained a blade. Equipped with this, he returned to the deceased's cell and stabbed him about twenty times.

5. The Court of Criminal Appeal (Street C.J. and Reynolds J., Enderby J. dissenting) reached the conclusion that Gallagher's evidence, although it was fresh evidence, was not such that a reasonable jury might regard it as introducing an element of reasonable doubt in the context of the other evidence against the applicant which the jury must have accepted upon the applicant's trial having regard to the verdict which it reached. Accordingly, the Court rejected the grounds of appeal based upon fresh evidence.

6. I have expressed the conclusion of the Court of Criminal Appeal in this way because that is how Street C.J., with whom Reynolds J. agreed, preferred to express himself, observing at the same time that if a different test was laid down by Barwick C.J. in Ratten v. The Queen [1974] HCA 35; (1974) 131 CLR 510, at p 520, then the fresh evidence failed to satisfy that test also. The test in Ratten to which his Honour referred is as follows:

" ... if there is fresh evidence which in the

court's view is properly capable of acceptance and

likely to be accepted by a jury, and which is so

cogent in the opinion of the court that, being

believed, it is likely to produce a different

verdict, a new trial will be ordered as a remedy

for the miscarriage which has occurred because of

the absence at the trial of the fresh evidence."

7. If I may say so with respect, I am able to understand why Street C.J. preferred the words which he used. They reflect the familiar test used in applying the proviso to the statutory grounds of appeal under which a court of criminal appeal may dismiss an appeal notwithstanding a technical miscarriage of justice if it considers that no substantial miscarriage of justice has actually occurred. The test in such a case is not whether on the evidence a reasonable jury properly instructed would be likely to convict but whether it would inevitably convict (Stirland v. Director of Public Prosecutions (1944) AC 315, at p 321) or, as it was put by Fullagar J. in Mraz v. The Queen [1955] HCA 59; (1955) 93 CLR 493, at p 514, whether by reason of a defect in his trial an appellant "may ... have lost a chance which was fairly open to him of being acquitted". On the other hand, the test formulated by Barwick C.J. speaks of evidence "likely to produce a different verdict" rather than evidence which may create a doubt in the minds of a reasonable jury and, bearing in mind that the relevant ground of appeal in fresh evidence cases is that of miscarriage of justice, he seems to be setting a different standard in such cases for determining whether a miscarriage of justice of the requisite kind has occurred.

8. It is, however, necessary to bear in mind that there is always a danger in any examination of verbal formulations of losing sight of the real principle. And as Latham C.J. in Green v. The King [1939] HCA 4; (1939) 61 CLR 167, at p 175, observed of the principles governing the use of fresh evidence:

"They are applicable, not as independent rules, but

as related to the subject of miscarriage of

justice. They should not, particularly in the

Court of Criminal Appeal, be regarded as absolute or

hard and fast rules. The relevant proposition in

that jurisdiction is that (in Victoria, though not

in England) a new trial may be granted if the court

thinks 'that on any ground there was a miscarriage

of justice'".

9. The relevant principles do, of course, emphasize that a verdict is not lightly to be set aside because of the discovery of fresh evidence. This was recognized by Latham C.J. in Green v. The King, at p 174, and in Craig v. The King [1933] HCA 41; (1933) 49 CLR 429, at p 439, Rich and Dixon JJ. observed that to set aside a conviction and direct a new trial because fresh evidence is forthcoming is to engage in an exercise which is attended both with danger and difficulty. The power to do so is not expressly conferred but is contained in the power to allow an appeal on the ground of a miscarriage of justice and to direct a new trial where appropriate. They pointed out that it is the function of the jury to determine questions of fact in a criminal trial and that when they have found a verdict they have performed that duty. If after a verdict of guilty the mere emergence of some relevant evidence were to require a further trial, "then in a jurisdiction where perjury is rife great abuses would ensue". It is in that context that Rich and Dixon JJ. went on to say:

"It cannot be said that a miscarriage has occurred

unless the fresh evidence has cogency and

plausibility as well as relevancy. The fresh

evidence must, we think, be of such a character

that, if considered in combination with the

evidence already given upon the trial the result

ought in the minds of reasonable men to be

affected. Such evidence should be calculated at

least to remove the certainty of the prisoner's

guilt which the former evidence produced."

10. The last sentence of the passage which I have just cited lends no support to the notion that a decision to set aside a verdict and grant a new trial because of fresh evidence should be dependent upon whether in the view of the appellate court the fresh evidence is likely to affect the outcome of that trial. If the evidence is capable of affecting the outcome, that is to say, if it is capable of raising a reasonable doubt notwithstanding the previous evidence, then there is a sufficient basis upon which to grant a new trial. As I understand it, what this passage is saying is that there will be no miscarriage of justice in a trial arising from the failure to call evidence which is subsequently discovered unless that evidence is relevant, cogent and plausible. The evidence must be relevant in the sense that it must bear directly upon some issue at the trial and it must be plausible in the sense that it must be reasonably capable of belief. But the question goes beyond mere relevance and credibility. It goes to the whole matter of probative value. The probative value of the evidence is considered not for the purpose of determining the likely outcome of a new trial; it is considered in order to determine whether a miscarriage of justice has occurred by reason of the absence of the evidence at the previous trial. A trial is conducted upon the basis of the evidence placed before the jury and it cannot be said to have miscarried merely because some evidence, which might have been called, was not called. For there to have been a miscarriage of justice because of newly-discovered evidence, the new evidence must not only be fresh (I put to one side those cases in which the new evidence, whether fresh or not, conclusively establishes that the conviction is unsound), it must also be capable, when viewed together with the evidence given at the previous trial, of creating a reasonable doubt in the minds of a jury. Put another way, the fresh evidence must be so material that its absence at the previous trial constitutes a miscarriage of justice. Upon this question an appellate court must reach its own conclusion, if necessary by hearing the evidence and providing an opportunity for it to be tested by cross-examination. But if in considering the fresh evidence in this way the court of appeal concludes that it is sufficiently relevant, cogent and plausible to create in the minds of a jury a reasonable doubt about the guilt of the appellant, then that is enough for the conviction to be quashed and a new trial ordered. It is unnecessary to go beyond that and to my mind it is irrelevant whether an appellate court considers it likely that the evidence will engender such a doubt.

11. If there is a real question of guilt or innocence, it is for a jury and for a jury alone to determine that question and it is not for a court of appeal to usurp the function of a jury. See Ross v. The King [1922] HCA 4; (1922) 30 CLR 246, at pp 255-256. In cases involving a consideration of the proviso, a real question exists, not if an acquittal is likely, but if it is fairly open. To deny an appellant a new trial on the ground of fresh evidence where that evidence, considered in the light of the evidence given at the previous trial, is capable of raising a reasonable doubt in the minds of a jury, is in my view to deprive him of a fair chance of acquittal and it is nonetheless so because an appellate court considers that an actual acquittal is unlikely. If in other cases the loss of a fair chance of acquittal constitutes a substantial miscarriage of justice then, for my part, I am unable to see why it does not do so in cases involving fresh evidence.

12. Were it not for some additional remarks made by Barwick C.J. in Ratten to which I shall refer in a moment, it may perhaps have been thought that the requirement which he laid down in that case that fresh evidence must be likely to produce a different verdict before it can justify an order for a new trial, was merely a means of emphasizing that a verdict reached after a trial is not to be overturned by reason of evidence subsequently discovered unless the probative force of that evidence, when considered together with the evidence given at the previous trial, provides a real basis for saying that the previous trial was unfair. There are various words - "likely", "probably", "possibly" - which are used in this way in cases dealing with fresh evidence and in Lawless v. The Queen [1979] HCA 49; (1979) 142 CLR 659, which applied the test laid down by Barwick C.J. in Ratten, Aickin J. appears to have taken such an approach when speaking of the likelihood of a different verdict. At p.686 he said:

" ... the question is whether, assuming it (i.e.

the fresh evidence) to be properly capable of

acceptance and likely to be accepted by the jury,

that is to say that it has cogency and plausibility

as well as relevance, it is likely to produce a

different verdict".

"i.e., to raise a reasonable doubt or to remove the

'certainty' of the prisoner's guilt which the

former evidence produced in the jury's mind."

13. However, in Ratten, Barwick C.J. denied that his remarks might be read in any limited way. He said, at p.520:

" ... it was submitted that the new material need

go no further than to satisfy the Court that,

placed before the jury, there would be a reasonable

possibility that it would raise in their minds a

reasonable doubt of the applicant's guilt. It will

be plain from what I have already written that I do

not accept that view of the law. It is not enough

that there is a reasonable possibility that a doubt

be raised: there must be a likelihood of a

different verdict."

14. It may be observed that courts in other jurisdictions have not adopted a test expressed in terms of the likelihood of a different verdict. In the New Zealand case of Reg. v. Baker (1976) 1 NZLR 419, at p 420, the Court of Appeal considered that the applicable test was whether the fresh evidence "might reasonably have led the jury to return a verdict of not guilty". See also Reg. v. K. (an accused) (1984) 1 NZLR 264; R. v. Calandar (1947) NZLR 290; In re O'Connor and Aitken (No.2) (1953) NZLR 776, where the Court of Appeal followed the Australian cases of Craig v. The King and Green v. The King. The Supreme Court of Canada applied a similar test in McMartin v. The Queen (1964) 46 DLR (2d) 372, at p 381, that is, whether the fresh evidence is of sufficient strength that "it might reasonably affect the verdict of a jury". See also Reg. v. Young (1970) 5 CCC 142; Palmer and Palmer v. The Queen (1979) 106 DLR (3d) 212, at pp 224-225; Reg. v. Miller (1981) 123 DLR (3d) 118. The position in the United States is not settled, though the weight of authority supports a test based on the probability rather than the possibility of an acquittal as a result of the newly- discovered evidence. See 24 C.J.S. pp.214-219, 282 and, recently, United States v. Krasny [1979] USCA9 1235; (1979) 607 F 2d 840; United States v. Steel [1985] USCA9 654; (1985) 759 F 2d 706; United States v. Goodwin [1985] USCA7 863; (1985) 770 F 2d 631. But there is authority, including the Supreme Court decision in Mesarosh v. United States [1956] USSC 94; (1956) 352 U.S. 1 (1 Law.Ed. 2d 1), for the proposition that where the credibility of a material prosecution witness is destroyed by proof that his previous evidence was mistaken or false, the possibility of an acquittal is sufficient to warrant a new trial. See Larrison v. United States (1928) 24 F 2d 82.

15. In Ratten reference was made to the then recent decision of the House of Lords in Stafford v. Director of Public Prosecutions (1974) AC 878. That was a case which, as Barwick C.J. recognized at p 515, could not be applied directly in Australia because in 1966 the relevant provisions of the Criminal Appeal Act 1907 (U.K.), upon which the appeal provisions of all Australian States are based, had been amended. Under the new legislation, the grounds upon which the Court of Appeal shall allow an appeal in England are if they think that under all circumstances of the case the verdict of the jury is unsafe or unsatis- factory, that there was a wrong decision of law or that there was a material irregularity in the course of the trial. The proviso is retained but the word "substantial" is omitted so the Court of Appeal might dismiss an appeal if they consider that no miscarriage of justice has actually occurred. The relevant section is now s.2 of the Criminal Appeal Act 1968 (U.K.), which is a consolidating Act. Thus miscarriage of justice as a specific ground of appeal disappeared in England and is no longer available as the basis upon which fresh evidence cases might be decided as they are in Australia. It could hardly be said that in fresh evidence cases there had been a material irregularity at the trial because of the failure to call evidence which was not then available, so that in Stafford, which was a case involving fresh evidence, the ground which had to be relied upon was that the verdicts were unsafe or unsatis- factory. In relation to this ground, it was said that what mattered was what the court thought, considering the fresh evidence in the context of the evidence given at the previous trial and not what a reasonable jury might think. As Viscount Dilhorne, who gave the leading speech, said at p.893:

"It would, in my opinion, be wrong for the court to

say: 'In our view this evidence does not give rise

to any reasonable doubt about the guilt of the

accused. We do not ourselves consider that an

unsafe or unsatisfactory verdict was returned but

as the jury who heard the case might conceivably

have taken a different view from ours, we quash the

conviction' for Parliament has, in terms, said that

the court should only quash a conviction if, there

being no error of law or material irregularity at

the trial, 'they think' the verdict was unsafe or

unsatisfactory. They have to decide and Parliament

has not required them or given them power to quash

a verdict if they think that a jury might

conceivably reach a different conclusion from that

to which they have come. If the court has no

reasonable doubt about the verdict, it follows that

the court does not think that the jury could have

one; and, conversely, if the court says that a jury

might in the light of the new evidence have a

reasonable doubt, that means that the court has a

reasonable doubt."

16. Of course, this mode of reasoning, even if it is valid in relation to a ground of appeal based upon an unsafe or unsatisfactory verdict (and it has been trenchantly criticized by Lord Devlin even in relation to this ground: see The Judge, 1979, pp.148 et seq.), has no logical application in relation to miscarriage of justice as a ground of appeal, a ground which has disappeared in England but remains in Australia as the ground upon which fresh evidence cases are decided. Nevertheless, it is a mode of reasoning which attracted Barwick C.J. in Ratten in dealing with miscarriage of justice. At p.516 he said:

"There is a miscarriage if on the material before

the court of criminal appeal, which where no new

evidence is produced will consist of the evidence

given at the trial, the appellant is shown to be

innocent, or if the court is of the opinion that

there exists such a doubt as to his guilt that the

verdict of guilty should not be allowed to stand.

It is the reasonable doubt in the mind of the court

which is the operative factor. It is of no

practical consequence whether this is expressed as

a doubt entertained by the court itself, or as a

doubt which the court decides that any reasonable

jury ought to entertain. If the court has a doubt,

a reasonable jury should be of a like mind. But I

see no need for any circumlocution; as I have said

it is the doubt in the court's mind upon its review

and assessment of the evidence which is the

operative consideration."

17. In Whitehorn v. The Queen [1983] HCA 42; (1983) 152 CLR 657, at p 687, I found myself unable to accept the view that it was a circumlocution to speak in terms of a doubt which ought to have been entertained by any reasonable jury rather than in terms of a doubt which the court has. And in Chamberlain v. The Queen (No.2) [1984] HCA 7; (1984) 153 CLR 521, a majority of this Court also found itself unable to accept that view. At p.534 Gibbs C.J. and Mason J., having referred to the passage from the judgment of Barwick C.J. in Ratten which I have cited, said:

"It is unnecessary to consider whether the

jurisdiction exercised by Courts of Criminal Appeal

in Australia is precisely the same as that

exercised by the Court of Appeal in criminal cases

in England under the amended statute. It seems to

us that the proper test to be applied in Australia

is ... to ask whether the jury, acting reasonably,

must have entertained a sufficient doubt to have

entitled the accused to an acquittal, i.e. must

have entertained a reasonable doubt as to the guilt

of the accused. To say that the Court of Criminal

Appeal thinks that it was unsafe or dangerous to

convict, is another way of saying that the Court of

Criminal Appeal thinks that a reasonable jury

should have entertained such a doubt. The function

which the Court of Appeal performs in making an

independent assessment of the evidence is performed

for the purpose of deciding that question. The

responsibility of deciding upon the verdict,

whether of conviction or acquittal, lies with the

jury and we can see no justification, in the

absence of express statutory provisions leading to

a different result, for an appellate tribunal to

usurp the function of the jury and disturb a

verdict of conviction simply because it disagrees

with the jury's conclusion. We do agree that in

many cases the distinction will be of no practical

consequence; it will be merely a matter of words.

That will not generally be the case where questions

of credibility are decisive. However, whether it

matters from a practical point of view or not in a

particular case, it is not unimportant to observe

the distinction - the trial is by jury, and (absent

other sources of error) the jury's verdict should

not be interfered with unless the Court of Criminal

Appeal concludes that a reasonable jury ought to

have had a reasonable doubt."

"The question for the Court of Criminal Appeal

is whether it was open to the jury to be satisfied

of the appellant's guilt, not whether the court is

satisfied. The distinction between the two

propositions must be constantly borne in mind lest

the function of the court under the common form

statute, wide though it be, is unduly extended and

that court usurps the functions of the jury."

18. Of course, in Chamberlain, the attention of the Court was focused upon the question whether the verdicts were unsafe or unsatisfactory which, in Australia, is dealt with under the ground of appeal that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence. Nevertheless the views expressed are of general application and apply a fortiori where the ground of appeal is miscarriage of justice and the question is whether the appellant was deprived of a fair trial. The view must be taken to have been dispelled in this country that a reasonable doubt or the absence of a reasonable doubt upon the part of an appellate court is in every case the same thing as a reasonable doubt or the absence of a reasonable doubt on the part of a jury.

19. Whilst, as I have said, Barwick C.J. in Ratten recognized that Stafford was decided upon the application of statutory provisions which now differ from those found in Australia, it does appear that he drew support from the views which were expressed in that case. In speaking of the amendment giving rise to the new grounds of appeal in England, he said, at pp.515-516:

"The amendment in 1966 in the United Kingdom of

the formulation of the jurisdiction of the court of

criminal appeal now appearing in s.2(1) of the

Criminal Appeal Act 1968 (U.K.), as interpreted by

the House of Lords in Stafford v. Director of

Public Prosecutions would seem to have increased

the scope for the exercise by the court of its own

assessment of the evidence in a case, though it has

had no opportunity to hear the witnesses called

before the jury. This amendment has not been made

in Australian legislation, but this Court has

recently reiterated the view that under the

Australian provisions a court of criminal appeal in

Australia should allow an appeal if on its own view

of the evidence it would be dangerous or unsafe in

the administration of the criminal law to allow a

verdict of guilty to stand (Hayes v. The Queen

(1973) 47 ALJR 603). This decision may not

have disclosed as great a discretion in a court of

criminal appeal in Australia, as the decision of

the House of Lords in Stafford v. Director of

Public Prosecutions has done for the United

Kingdom. But the Court's decision is founded on

the existence of the function of independent

assessment of the evidence by the court of criminal

appeal. This function is of particular importance

when considering what a court of criminal appeal

should do when asked to disturb a jury's verdict on

the production of new evidence."

20. It is, I think, this view of the law which led Barwick C.J. to his conclusion in Ratten that it is not enough in fresh evidence cases for an appeal to be successful " ... that there is a reasonable possibility that a doubt be raised: there must be a likelihood of a different verdict." That is not to go as far as Stafford which, in effect, allows an appeal court to try the case on the fresh evidence, but it goes some distance along that way. Since the decision in Chamberlain, it has been established that the approach adopted in Stafford has no application here and that the ultimate question of guilt or innocence must remain a question for a jury. The function of a court of criminal appeal does not extend beyond determining whether the evidence is reasonably capable of sustaining a particular verdict. For this reason, I do not think that it can now be accepted that a miscarriage of justice can only be shown to arise from the discovery of fresh evidence if it can be established to the satisfaction of an appeal court that the fresh evidence is likely to produce a different verdict. It will be sufficient if, upon the whole of the evidence consisting of the evidence at the previous trial together with the fresh evidence, a court of criminal appeal reaches the conclusion that a jury might entertain a reasonable doubt about the guilt of the appellant. A court will not, of course, reach such a conclusion lightly and will bear in mind that the evidence led at the previous trial was sufficient in the opinion of the jury to establish the guilt of the appellant beyond reasonable doubt. For this reason a verdict will not be disturbed unless the fresh evidence is relevant, cogent and plausible. In the end, however, the question remains whether on the whole of the evidence, including the fresh evidence, a jury might reasonably acquit, not whether it is likely to do so.

21. In making these observations I have had the advantage of reading the reasons for judgment of Mason and Deane JJ. They express the view that an appellate court will only conclude that the unavailability of new evidence at the time of a trial involves a miscarriage of justice if it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge had the new evidence been before it in the trial. With respect, I do not think that the use of the expression "significant possibility" lays down a standard which is different from that which I have endeavoured to express in what I have already said. In particular, the use of that phrase involves the rejection of any test based upon likelihood of acquittal. I have thought it preferable to express myself as I have because it seems to me that if there is any real possibility of acquittal by a reasonable jury, it must always be significant when considering miscarriage of justice. For that reason it seems to me to be better to avoid any attempt to re-formulate the accepted tests, such as that used by Fullagar J. in Mraz, which have been found to be of practical assistance. But I do not understand Mason and Deane JJ., in speaking of a significant possibility of acquittal, to be laying down any new or different test for ascertaining whether there has been a miscarriage of justice in fresh evidence cases. Rather, I think that they are emphasizing that those cases are of a special nature because an appellate court must consider the probative value of the fresh evidence and must do so against evidence which has already been accepted by a jury as establishing guilt. In that context, the fresh evidence must be of real significance for the court to conclude that there is a possibility that a jury might reasonably acquit. But if it does so conclude, then to my mind it must also conclude that there is a miscarriage of justice.

22. As I have said, the Court of Criminal Appeal by a majority concluded that the fresh evidence in this case was not capable of introducing an element of reasonable doubt in the minds of a reasonable jury and I agree with that conclusion. The evidence is analyzed in the judgment of Mason and Deane JJ. I agree with their analysis and respectfully adopt it.

23. For these reasons I would dismiss the application for special leave to appeal.

ORDER

Application for special leave to appeal refused.