Case: Mickelberg v The Queen [1989] HCA 35 ; (1988-1989) 167 CLR 259
Outcome: considered
test to be applied by a court upon a reference under s 672A(a) and its analogues in deciding whether to set aside a conviction on the ground of fresh evidence is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial: Mickelberg v The Queen [1989] HCA 35 ; (1988-1989) 167 CLR 259 at 273 per Mason CJ (Mickelberg). That test, as Mason CJ noted in Mickelberg , is derived from views expressed by four of the judges in Gallagher v The Queen [1986] HCA 26 ; (1985-1986) 160 CLR 392 (Gallagher). Of these, it is worthy of note in the present context that, in so concluding as to the nature of the relevant test, Gibbs CJ observed (at 399) that, "it is too severe, and indeed speculative, a test to require that the court should grant a new trial only if it concludes that the fresh evidence was likely to have produced a different result, in the sense that it would probably have done so." Also worthy of note in the present context is a further observation of Mason CJ in his judgment in Mickelberg (at 272) in respect of the reference in that case that it indicated "the existence of public concern about the propriety of the convictions". Such considerations would not be exhaustive of matters to which the Minister might, without committing the error of taking into account an irrelevant consideration, advert in deciding whether or not to refer a case. Because, in making the decision, the Minister acts administratively, he might take into account material which would not be admissible on the consideration of a reference by the Court of Appeal. Thus, as for example, Mason CJ apprehended in his judgment in Mickelberg , he might note public concern as to the propriety of the conviction. His sources of information in this regard might, for example, be reports in the media, a petition presented to Parliament, a representation from a parliamentary colleague, or perhaps hearsay evidence as to the reliability of a complainant or other information in an application for a pardon which did not constitute admissible evidence which could be considered by an appellate court on a reference. None of these would though be considerations that he was obliged to take into account, ie "relevant considerations". Having regard to what was said in Mickelberg and Gallagher , described above, as to the basis upon which an appellate court on a reference will set aside a conviction, the words emphasised overstate the position. Evidence which is "fresh and compelling" may very well persuade an appellate court not only to set aside a conviction but also not to order a retrial and perhaps to order the entry of an acquittal. However, to secure the setting aside of a conviction, it is enough that the appellate court, considering the case as a whole, concludes that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant. It is true that, earlier in his reasons, the Minister expresses the opinion that, "I consider it appropriate to refer a case to the Court of Appeal where the material presented raises a doubt or question about the conviction or sentence." Read in isolation, that might be thought to posit a test not materially different to that adopted in Mickelberg and Gallagher . As to that though, the Minister is not performing the function of an appellate court, only exercising a discretion as to whether or not there is a case which warrants referral to such a court. His role is to determine whether the applicant has presented a case in which it is reasonably arguable that an appellate court, applying the test in those cases and upon a consideration of the whole of the case, would set aside the conviction. That is a lesser threshold.