The responsibilities of appeal judges

Today’s decision in Gassy v R [2008] HCA 3 wasn’t actually about whether Gassy’s trial judge made mistakes or not. Everyone – including, belatedly, the prosecution – agreed that she had. Rather, the question for the High Court – as it often is, these days – is the consequence of those mistakes: does Gassy get a new trial or does his conviction stand, warts and all? Or, to put it another way, what responsibilities do appeal courts have towards defendants whose trial rights have been breached?

This question keeps coming to the High Court, in part because the Court is a de facto appeal court on this appeal-court-specific question, but mainly because of the Court’s complete failure to come up with a workable test for answering this question. The latter is remarkable as the relevant statutory provisions haven’t changed in any significant way in a hundred years. The Gleeson court, despite purporting to settle the whole approach to the interpretation of the statute in 2005, split 2-2-1 in today’s decision.

The great news for Victorians is that the Charter – despite its general impotence when it comes to criminal rights – may well allow Victoria’s courts to find a new – and more certain – path to interpretation, via the Charter’s interpretation mandate:

32(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

Crucially, appeal decisions – in contrast to many trial decisions – are regulated by a statutory provision. The Victorian provision is this one:

The Court of Appeal on any such appeal against conviction shall allow the appeal if it thinks 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 before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal:

Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in 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.

Arguably, the High Court’s jurisprudence on Victoria’s appeal provision ceased to apply five months ago. The intersection of the interpretation mandate and appeals is a big question. A really big question. Here are some sketches of three arguments that could be made.

First, consider the nature of the provision. The clearest thing about it is its structure. The first para sets out the grounds of intervention; notably, they cover both bad verdicts (the first half of the para) and bad trials (the second half of the para.) Establishing one or both of these things is a necessary condition for quashing a conviction, but it is not a sufficient condition. The appeal court doesn’t have to quash a conviction if the test in the second para – known as ‘the proviso’ – is passed. While this structure is clear, everything turns on the meaning of some pretty broad words, like ‘unreasonable’, cannot be supported’, wrong decision’, ‘miscarriage of justice’ and ‘substantial’. Until ten or so years ago, Australian courts had built up a lot of jurisprudence about the meaning of these words, drawing to a large degree from UK cases, where a similar provision has since been replaced by more refined versions. Alas, that jurisprudence has been totally ditched by the Gleeson Court.

The rot started in 1999 when the Court – sick of appellants relying on broad and vague appeal grounds to raise fresh points in the Court for the first time – tried to ban the established test for a bad verdict – whether it was ‘unsafe and unsatisfactory’ – from Australian law, as the words didn’t appear in the statute. This change didn’t stick – given that the phrase was convenient and the alternatives were clumsy – and the Court quietly started using the phrase again. This failure didn’t stop the Court, in a unanimous decision from 2005, from ditching all tests other than the words of the statute itself:

It is the words of the statute that ultimately govern, not the many subsequent judicial expositions of that meaning which have sought to express the operation of the proviso to the common form criminal appeal provision by using other words.

Now, I’m the first to say that the words of statutes matter. That’s one of the  points I make repeatedly in this blog. But everyone knows that some statutes’ words – especially old ones taken from the UK – are antiques or even cliches. Phrases like ‘miscarriage of justice’ and ‘substantial miscarriage of justice’ don’t bear repeated readings. Rather, what they require is development and refinement over the course of experience, including the creation of new tests and categorisations. The Gleeson Court’s new test couldn’t be more of a contrast:

Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt.

And that’s it. Read the statute, then make up your mind.

And that’s precisely what happened in Gassy. Each of the three judgments – especially the two non-Kirby judgments – summarised the facts and then picked out a seemingly random set of factors and reached an even more random conclusion. No statements of principle, no categorisations, no precedents, no nothing. The result is that Gassy’s victory seems to flow, not from any law, but rather a lucky draw of judges. Presumably, if either Gleeson or Heydon was on the bench instead of Hayne, Gummow or Kirby, then Gassy’s saga would be over. So, one argument is that this sort of non-interpretation, nont-test, personal decision is anathema to the Charter’s rights to a fair trial in general, particular trial rights and appeal. I have to admit that this is a speculative argument and will need some refinement. But it fits well with some more specific arguments about how the words of Victoria’s appeal provision should be re-interpreted.

Second, there’s an interesting question of whether or not a breach of Charter rights in the trial below is automatically an appeal ground. Here are the four appeal grounds:

  • ‘the verdict… is unreasonable’
  • ‘the verdict… cannot be supported having regard to the evidence’
  • ‘a wrong decision of any question of law’
  • ‘any ground there was a miscarriage of justice’

It might be thought that breaches of the conduct mandate – which are declared unlawful by the Charter – will be picked up by ground three, which is a ‘relief or remedy on a ground of unlawfulness’ under Charter s. 39(1). But this is a dead end, because the conduct mandate doesn’t apply to courts acting judicially. (There’s also a further problem that some judges in Gassy would give a  narrow reading to the word ‘decision’ as limited to formal rulings made by a trial judge, thus excluding both Vanstone J’s informal barring of Gassy’s attempt to use a lawyer and her direction to the jury (which was prompted by them, not a party.)

Rather, the other grounds – but especially ground four, ‘miscarriage of justice’ – are a better bet, relying not on the conduct mandate but rather the interpretation mandate. The argument here – again one that needs refinement – is that a statutory provision on appeal courts powers that is not triggered by any breach of a trial right is not compatible with such rights, so it needs to be re-read in a way that is. Certainly, reading ‘miscarriage of justice’ as automatically covering any breach of Charter ss. 24 and 25 is no great stretch of the statute’s language. And such a reading is potentially wider than the current High Court approach. Notably, the dissenting judges, Crennan & Kiefel, ruled that neither of the trial judge’s errors were a miscarriage of justice, because neither of them would – in their view- have had any likely effect on the outcome of the trial. Arguably, this approach fails to give full effect to either Charter s. 24(1)’s right to have a criminal charge decided by a particular process or to the various ‘minimum guarantees’ that criminal defendants are ‘entitled’ to under Charter s. 25(1).

Third, there’s the proviso. The controversial thing about current approaches to the proviso is that they allow an appeal court to uphold a conviction based on the appeal judges’ view of the strength of the case against the defendant:

The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty.

The ECtHR, while broadly accepting that appellate reconsideration can sometimes cure defects in a trial below, has also been very concerned about the limitations of appellate process as a way of providing defendants with a fair trial. The High Court itself has reserved the question of whether this approach to the proviso is compatible with s. 80 of the Constitution’s right to a trial by jury (but that issue will only come up in a federal case.)

But in non-federal cases, the High Court has backed away from earlier jurisprudence that suggested that fundamental procedural flaws would require a new trial even if the evidence was overwhelming. Instead, the new ‘read the statute, make up your own mind’ approach treats the strength of a case as always relevant, no matter what the flaw (putting aside a residual category of errors that are so fundamental that there’s no trial at all, like when the indictment was a nullity.) So, none of the three majority judges was prepared to say that Vanstone J’s unbalanced direction, on its own, was automatic grounds for Gassy’s new trial. Instead, each of them factored in an assessment of the strength of the case against Gassy, the jury’s evident doubts about that case and the potential for Vanstone J to have swayed the jury. Arguably, looking at these factors is incompatible with Charter s24(1)’s right to a decision by an ‘impartial, independent’ court. Arguably.

The UK’s experience with its own (now quite different) appeal provision since the onset of the HRA ought to be influential, although it is also quite convoluted and unsettled. As outlined in Ashworth et al’s criminal process rights text, the UK courts have more or less settled on the view that the test of whether a verdict was ‘unsafe’ is automatically satisfied if the trial below was ‘unfair’. What is less clear is whether a similar conclusion should be reached if one of the other rights, including a right to an impartial court, has a similar status. Interestingly, when the UK government recently tried to reinstate the traditional proviso, it included a proviso to the proviso for whether the trial was unfair. As it happens, the attempt failed on the floor of the parliament. (Truly an alien place!)

In Victoria, there’s a further problem: the limitation of the interpretation mandate to readings ‘consistent with the purpose’ of the provision. In 2005, the High Court held that the purpose of Victoria’s hundred year old provision was to reject the previous ‘Exchequer rule’ that required a new trial whenever there was a procedural flaw. Arguably, a reading that barred the application of the proviso if a Charter right was breached would conflict with that purpose. Indeed, arguably, Victoria’s provision – to the extent that it incorporates this purpose – is a reasonable limit on the Charter’s rights. Arguably.

Finally, it should be noted that this issue probably won’t be resolved in Victoria for some time. The culprit is, of course, Charter s. 49(2), which bars the Charter from proceedings commenced before 1/1/7. Does this extend to appeals from such proceedings, even when the appeals were commenced after 1/1/7? In the UK, the House of Lords baulked at counting appeals as part of a proceedings, but that was in the context of a transitional provision that retroactively applied the HRA to certain sorts of proceedings (and the UK courts themselves later baulked at their earlier baulking, although they never ended up resolving the dispute.) Here, I think that the only non-capricious reading of Charter s. 49(2) is a broad one that applies the same rule (or non-application of the Charter) to both trials and appeals from them. If that’s correct, then it won’t be until 2009 or so that the first Charter case will hit the Court of Appeal. So, there’s plenty of time for me to try to refine all of the above arguments. Gosh this Charter is tricky!

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