Justice William Charles Crockett AO - Victorian Bar

1958 provides that the Court of Appealshall allow an appeal against convictionif there is a “miscarriage of justice”; butmay dismiss the appeal if it considersthat no substantial miscarriage of justicehas actually occurred. Under the oldExchequer rule, “miscarriage of justice”was any departure from trial accordingto law, regardless of the nature orimportance of that departure. Accordingto the High Court’s analysis, the use ofthe words “substantial” and “actuallyoccurred” in the proviso were intendedto require the appellate court to considermatters “beyond the bare question ofwhether there had been any departurefrom applicable rules of evidence orprocedure” 14 . Again, so much may beaccepted.THE HIGH COURT’S ERROROnce the view is arrived at that theproviso was intended to require considerationof matters beyond the question ofwhether there had been a departure fromapplicable rules of evidence or procedure,the next question to arise is, what mattersare to be addressed in deciding whethera substantial miscarriage of justice hasactually occurred? The Court said: “Thequestion becomes, when is that interventionjustified?” And that, in turn, requiresexamination of when a court shouldconclude that “no substantial miscarriageof justice has actually occurred”. 15It is at this point that, with respect, theCourt fell into error.The Court made it plain that an appellatecourt is required to decide for itselfwhether a substantial miscarriage of justicehas actually occurred. To look to inevitabilityof result, or to a “fair” or “real chance ofacquittal”, and thus to look to what a jury(whether the trial jury or a hypotheticalreasonable jury) might have done is, in theHigh Court’s opinion, “to distract attentionfrom the statutory task as expressed bycriminal appeal statutes”. 16It might be accepted undoubtedlyas correct that an appellate court mustdecide for itself whether there has in agiven case been a substantial miscarriageof justice. The section requires no less. Ina breathtaking glide, however, and contraryto a long line of authority, the HighCourt concluded that the task of decidingwhether a substantial miscarriageof justice has actually occurred “is to beundertaken in the same way an appellatecourt decides whether the verdict of thejury should be set aside on the ground thatit is unreasonable, or cannot be supportedhaving regard to the evidence”. 17 Why thatis so is not expressed with any clarity, ifat all.Approaching the determination of themeaning of the proviso as one of statutoryconstruction, then it is submittedthat there simply is no justification forreading into the words of the section theimplication that the appellate court mustapproach the matter in the same way thatit decides whether the verdict of the juryshould be set aside on the ground that itis unreasonable, or cannot be supportedhaving regard to the evidence. Such animplication — if it is to be found — couldonly flow from the words “the Court ofAppeal may, notwithstanding that it is ofopinion that the point raised in the appealmight be decided in favour of the appellant,dismiss the appeal ‘if it considers thatno substantial miscarriage of justice hasactually occurred’”. Nothing in these barewords — even paying due regard to thehistorical underpinnings of the Exchequerrule — is capable of founding the approachnow dictated by the High Court.Indeed, the words of the statute pointthe other way. To approach the matterin the manner suggested by the Courtin Weiss is arguably to render the firstground for intervention by an appellatecourt found in the body of s 568(1) of theCrimes Act 1958 (and its equivalents)superfluous.THE “CURATIVE” CANADIANCRIMINAL CODEThe High Court does not appear to haveconsidered the position in Canada.In that country the proviso 18 isdescribed as “the curative provision”. It isregarded as placing a burden on the Crownto justify the denial of a new trial despitethe presence of error in the court fromwhich the appeal is brought. Satisfactionof the onus is a condition precedent to theapplication of the proviso. However, theproviso need not be applied even if theonus is met. 19 The question to be askedis whether the verdict would necessarilyhave been the same if the error had notoccurred. 20The leading case upon the applicationof the proviso in Canada is that of theSupreme Court of Canada in R v Khan[2001] 3 SCR 823; (2001) 160 CCC (3d).Arbour J (delivering the judgment ofMcLachlin C.J. and L’Heureux-Dubé,Gonthier, Major, Binnie and Arbour JJ)described the position as follows:[27] In every case, if the reviewing courtconcludes that the error, whetherprocedural or substantive, led to adenial of a fair trial, the court mayproperly characterize the matter asone where there was a miscarriage ofjustice. In that case, no remedial provisionis available and the appeal mustbe allowed. I will now examine thesepropositions in more detail.[28] This Court has enunciated on numerousoccasions the proper test for theapplication of the curative proviso (seeColpitts v The Queen [1965] SCR 739;Wildman v The Queen [1984] 2 SCR311; R. v B (FF) [1993] 1 SCR 697; R. vBevan [1993] 2 SCR 599). It can onlybe applied where there is no “reasonablepossibility that the verdictwould have been different had theerror ... not been made” (Bevan,supra, at p. 617).[29] The jurisprudence reveals that theproviso will generally be applied, inaccordance with the above principles,in two types of situations. A. W.Mewett has described the two possibleapproaches in “No Substantial Miscarriageof Justice”, in A. N. Doob and E.L. Greenspan, eds., Perspectives inCriminal Law (1985), 81, at p. 94:What we see are again two fundamentallydifferent views of theapplication of the proviso. Oneview proceeds on the basis of askingwhether, absent the error orwrongly admitted evidence, therest of the evidence is so overwhelmingas to make the outcomeof a retrial a virtual certainty; theother of asking whether, ignoringthe rest of the evidence, the jurymight have been influenced bythe error or the wrongly admittedevidence.On the one hand, appellatecourts will maintain a convictionin spite of the errors of law wheresuch errors were either minor inthemselves or had no effect on theverdict and caused no prejudice tothe accused. This accords with theoriginal purpose of the section, asdescribed early on by TaschereauJ., writing for the majority of thisCourt, in Chibok v The Queen(1956) 24 CR 354 at p. 359:It would indeed be a shockingimpediment to the properadministration of criminal justice,if criminals were allowed to go freebecause of a trivial error in lawor of an oversight of no materialconsequence. [Emphasis added.]As stated by Lamer CJ, for the Court, in R. vTran [1994] 2 SCR 951 at p. 1008, “[s]ection35