Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
7.3.13 In Australia 29 :“…if there is evidence (even if tenuous or inherently weak or vague)which can be taken into account by the jury in its deliberations andthat evidence is capable of supporting a verdict of guilty, the mattermust be left to the jury for its decision. Or, to put the matter in moreusual terms, a verdict of not guilty may be directed only if there is adefect in the evidence such that, taken at its highest, it will not sustaina verdict of guilty”.7.3.14 The position in continental European jurisdictions, where cases are decidedeither without a jury or with the judge sitting with the jury, is not directlycomparable.Appeals7.3.15 In England and Wales, the Court of Appeal is tasked with allowing an appealagainst conviction if “they think that the conviction is unsafe” 30 . Thisreplaced an earlier test of “unsafe or unsatisfactory” or when there was anerror of law or material irregularity in procedure 31 . Nevertheless, the classiccase on the Court of Appeal’s powers is that of Lord Widgery, under the oldregime, in Cooper where he referred to the Court asking itself a subjectivequestion of 32 :“whether there is not some lurking doubt in our minds which makes uswonder whether an injustice has been done. This is a reaction whichmay not be based strictly on the evidence as such; it is a reactionwhich can be produced by the general feel of the case as the courtexperiences it”.29 Doney v The Queen (1990) 171 CLR 207 at 214-215; cf the reference to a “reasonable jury” in TheQueen v Bilick and Starke (1984) 36 SASR 321, King CJ at 335 and 337 followed in Parker v TheQueen [2007] NT CCA 11, Martin CJ at para 3730 Criminal Appeal Act 1968 s 231 the changes being made by the Criminal Appeal Act 1995 s 232 [1969] 1 QB 267, at 271296
7.3.16 The “lurking doubt” test has been doubted in subsequent cases 33 and theReview formed the view that, although Cooper has not been disapproved, theCourt of Appeal takes a more reasoned view than the dictum of Lord Widgerypromotes. The Review understands that the position in Ireland is similar.7.3.17 The approach of the Australian High Court is that, normally, if a panel ofjudges has a reasonable doubt, the jury ought also to have experienced it toounless there was some particular benefit in seeing and hearing the witnesses 34 .However, there are now compelling dicta from both Canada 35 and NewZealand 36articulating an appellate court’s task in reviewing thereasonableness of a jury’s verdict. It is clear that the assessment of thereasonableness of a verdict is a question of law. A decision that the verdict ofa properly directed jury has been unreasonable must be capable of articulationby the judicially trained and experienced assessor and not just be based on a“lurking doubt”. The judge must use his/her legal knowledge and experienceand not his/her personal views. The court’s function is analytical and notinstinctive.33 F [1998] Crim LR 307, cf Litchfield [1998] Crim LR 50734 See Parker v The Queen (supra) at para 43 quoting from MFA v The Queen (2002) 213 CLR 606 atpara 56 and also referring back to M v The Queen (supra)35 R v Biniaris [2000] 1 SCR 381, Arbour J at paras 36-42, see also AJE v HM Advocate 2002 JC 215,LJ-C (Gill) at para 3536 Owen v R [2007] NZSC 102297
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7.3.16 The “lurking doubt” test has been doubted in subsequent cases 33 <strong>and</strong> theReview formed the view that, although Cooper has not been disapproved, theCourt of Appeal takes a more reasoned view than the dictum of Lord Widgerypromotes. The Review underst<strong>and</strong>s that the position in Irel<strong>and</strong> is similar.7.3.17 The approach of the Australian High Court is that, normally, if a panel ofjudges has a reasonable doubt, the jury ought also to have experienced it toounless there was some particular benefit in seeing <strong>and</strong> hearing the witnesses 34 .However, there are now compelling dicta from both Canada 35 <strong>and</strong> NewZeal<strong>and</strong> 36articulating an appellate court’s task in reviewing thereasonableness of a jury’s verdict. It is clear that the assessment of thereasonableness of a verdict is a question of law. A decision that the verdict ofa properly directed jury has been unreasonable must be capable of articulationby the judicially trained <strong>and</strong> experienced assessor <strong>and</strong> not just be based on a“lurking doubt”. The judge must use his/her legal knowledge <strong>and</strong> experience<strong>and</strong> not his/her personal views. The court’s function is analytical <strong>and</strong> notinstinctive.33 F [1998] Crim LR 307, cf Litchfield [1998] Crim LR 50734 See Parker v The Queen (supra) at para 43 quoting from MFA v The Queen (2002) 213 CLR 606 atpara 56 <strong>and</strong> also referring back to M v The Queen (supra)35 R v Biniaris [2000] 1 SCR 381, Arbour J at paras 36-42, see also AJE v HM Advocate 2002 JC 215,LJ-C (Gill) at para 3536 Owen v R [2007] NZSC 102297
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