Case: Mallard v The Queen [2005] HCA 68 ; (2005) 224 CLR 125
Outcome: considered
Mallard v The Queen [2005] HCA 68 ; (2005) 224 CLR 125 ( Mallard's Case) at [4] Gummow, Hayne, Callinan and Heydon JJ observed of the Western Australian equivalent of s 672A: [4] Provision for the referral of petitions for clemency to the courts owes its modern origin to public adverse reaction to the excessive imposition of capital punishment in the nineteenth and earlier centuries. As the capital statutes were repealed so as to apply the death penalty to fewer offences, appeals for pardons to the Crown tended to be made in cases of asserted miscarriages of justice, despite the anomaly to which a successful petition might give rise, that a person who has in fact come to be considered to have been wrongly convicted or innocent, is pardoned, and not acquitted of the crime. The importance of this avenue of recourse to justice, effectively controlled by the Executive, declined, after the introduction of the Criminal Appeal Act 1907 (UK) to establish the Court of Criminal Appeal, although no attempt was made to abolish it. It proved fortunate that this was so because there was, initially at least, a judicial reluctance to allow appeals in criminal cases, occasioned in part no doubt by the sanctity accorded, and usually desirably so, to the verdict of a jury, and less desirably, to the legal conservatism of some of the judiciary of the day. Mallard's Case is also important for present purposes because of the emphasis given (at [10]) by Gummow, Hayne, Callinan and Heydon JJ in their joint judgment to the need for an appeal court on a reference under s 672A(a) to adhere to the letter and spirit of the words "the whole case" when determining a reference: [The] explicit reference to "the whole case" conveys no hint of any inhibition upon the jurisdiction of the Court of Criminal Appeal on a reference. Indeed, to the contrary, the words "the whole case" embrace the whole of the evidence properly admissible, whether "new", "fresh" or previously adduced, in the case against, and the case for the appellant. Another concern arises from the following passages in the Minister's reasons, "The majority of the claims raised in the application were considered at trial or on appeal" and, in respect of "Ground 2", "Even without the material provided in the application, the jury seems to have been well aware that the defence questioned the accuracy of [the complainant's] evidence and argued that the trip actually occurred in August 2001." So much may be accepted, but those claims were not considered against the additional background of the further evidence provided by the Applicant in his application to the Minister. Immediately after the passage from the joint judgement of Gummow, Hayne, Callinan and Heydon JJ in Mallard's Case (at [10]) which I have quoted above (at para 48) their Honours further observe: That does not mean that the Court may not, if it think it useful, derive assistance from the way in which a previous appellate court has dealt with some, or all of the matters before it, but under no circumstances can it relieve it of its statutory duty to deal with the whole case. The history, as we have already mentioned, points in the same direction. The inhibitory purpose and effect of the words "as if it were an appeal" are merely to confine the Court to the making of orders, and the following of procedures apposite to an appeal, and further, and perhaps most relevantly, to require the Court to consider whether the overall strength of the prosecution case requires the Court to apply the proviso contained in s 689(1) of the Criminal Code . [Emphasis added] Paragraphs [49] and [53] of the judgment delivered by McMurdo P in the Applicant's unsuccessful appeal, quoted above, highlight that evidence which the complainant and the Applicant gave at the trial as to the number of flights undertaken with each other, when and for what purpose, were before the jury to evaluate in an assessment of the their respective credibility and on the then state of their and other evidence. What was not before the jury or the Court of Appeal was the further evidence which formed part of the Applicant's submission to the Minister. Further, para [53] of the judgment also shows that the absence of contemporary corroboration of the Applicant's log book entries was recognised as a factor which need not have compelled the acceptance of the veracity of those entries. On a reference under s 672A that on the Applicant's earlier appeal the log book had been dealt with in this fashion might, when considering the whole of the case, which would include the PNGCAA material, be thought to raise a stronger interrogative note concerning the relative credibility of the Applicant and the complainant. The enhanced corroboration of other aspects of the Applicant's account of events offered by the other evidence might perhaps also be similarly viewed. Be this as it may, what can be said, having regard to this further observation in Mallard's Case , is that in deciding whether or not there is a reasonably arguable case advanced that on a reference an appellate court would conclude that there was a significant possibility that the jury, acting reasonably, would have acquitted the appellant, it does not follow that because, having regard to the then state of the evidence, an appeal against conviction was dismissed, like claims made against a broader evidentiary background must necessarily meet the same fate. The passage quoted from the Minister's reasons evidences a misunderstanding of the role of the Court of Appeal on a reference under s 672A. Of course, as McMurdo P was astute to point out in her judgment, the question before the jury at the Applicant's trial was not whether or not the complainant was mistaken as to the number of flights to Port Moresby she undertook with the Applicant, when and for what purposes. It was whether the Crown had proved beyond reasonable doubt on admissible evidence that the Applicant had committed the offence charged. Nonetheless, an assessment as to whether the offence had been so proved very much depended in the circumstances of this case on questions of credibility. What the Minister has not considered is whether on the whole of the evidence, as it now stands, the Applicant has presented an arguable case on the authorities for the setting aside of the conviction. A further concern is that the Minister has been dismissive of the Applicant's request for a reference on the basis that the evidence was not "fresh". Having regard to what was said in Daly's Case, Condren's Case and Mallard's Case, that new evidence contained in a request for a reference under s 672A might have been obtained with reasonable diligence prior to trial and therefore not strictly "fresh" does not mean that the Court of Appeal on a reference could not receive it as a matter of discretion. It is not even evident from the Minister's reasons whether, in referring to an absence of fresh evidence, the Minister is using "fresh" to mean that, though "new", it was evidence that might have been obtained with reasonable diligence prior to trial. Such analysis as there is in the Minister's reasons of the particular evidence which accompanied the submission to him displays a misunderstanding of what amounts to "evidence", be it "new" or "fresh", as the following passage in respect of "Ground 1" reveals: The information in the log book is the same as that in the document from the Papua New Guinea Civil Aviation Authority (PNGCAA). It is therefore not 'new evidence' as the information was before the jury when it considered the case. The subjects of when flights were undertaken and with whom were before the jury. At the trial, evidence on that subject came, inter alia, from the Applicant's oral testimony, that of the complainant and from the Applicant's log book. The PNGCAA documentation was evidence, was at least "new" and was never before the jury. These errors aside, the passage quoted is underpinned by the premise, erroneous on the authorities, that, because a subject was before a jury, that means that, faced with new evidence touching on that subject, an appellate court on a reference cannot hold, on the whole of the case, that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the "fresh" or "new" evidence been before it.