Report and Recommendations - Scottish Government

trial judge, in determining whether a case should be left to a jury, and that of athree (or more) judge appellate court, when reviewing the adequacy of theevidence upon which a conviction has been based. The High Court, in itsappellate capacity, has, for almost a century, been able to allow an appealagainst conviction where it has considered that no reasonable jury could havereached a guilty verdict, even if a technical sufficiency did exist.7.3.7 When it came to look at the test for the allowance of conviction appeals, theSutherland Committee 16 recommended maintaining, as a single ground ofappeal, a test of whether there has been a miscarriage of justice, rather thanthat used in England and Wales of whether the conviction was “unsafe”. TheCommittee did not consider that the “miscarriage of justice” test would be lessrestrictive than the “unsafe” test, but it concluded that an “unsafe” test couldcreate problems of interpretation. Reference 17 was made by the Committee tothe Australian case of M v The Queen 18 where the court was applying a test ofwhether a conviction was “unsafe”. The Australian High Court concluded thatsuch a test was not a speculative or an intuitive one, such as the “lurkingdoubt” test in English law. Rather 19 :“The question, in Australia, is one of fact which the court decides,making its own independent assessment of the evidence: in doing so itassesses whether, upon the whole of the evidence, it was open to thejury to be satisfied beyond reasonable doubt that the accused wasguilty. The court will not allow itself to substitute trial by court ofappeal for trial by jury, for the ultimate question must always go back16 Report by the Committee on Criminal Appeals and Miscarriages of Justice Procedures (Cmnd 3245)(1996)17 p 918 (1994) 181 CLR 48719 Mason CJ at 493292