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War of the words: The new meaning of substantial miscarriage of justice

Feature Articles

Cite as: April 2014 88 (04) LIJ, p.42

The recent decision of the High Court in Baini v The Queen brings about a new and seemingly more appellant-friendly test for appeals against conviction in Victoria. 

By Theo Alexander and Dimitri Ternovski

The possibility of appellate intervention after conviction is of critical importance to clients. A solicitor’s role in defending a criminal charge does not conclude with a finding of guilt. It includes understanding and exploring a client’s right of appeal. The Criminal Procedure Act 2009 (the Act) substantially altered that right – both in form and substance – along with many other aspects of criminal procedure. In December 2012, in Baini v The Queen (Baini)1 the High Court considered, for the first time, the scope of the new appeal provision contained in s276(1) of the Act. The Court gave an unexpectedly appellant-friendly interpretation to the section. Since then, two decisions of the Court of Appeal suggest that the semantic war may rage on. In an effort to make sense of the crossfire, this article examines the current state of the law to assist practitioners advising clients about what circumstances may give rise to an appeal.

A brief history of conviction appeals

Before the Criminal Procedure Act was introduced, appeals to the Victorian Court of Appeal were brought under s568(1) of the Crimes Act 1958.2 It provided for three distinct grounds of appeal:

  • unreliability of the verdict/evidence;
  • an error of law; and
  • any miscarriage of justice.

Under this provision, even if one of the grounds was made out, the appellate court was still entitled to dismiss the appeal if “no substantial miscarriage of justice has actually occurred”. This became known as the “proviso” and was intended to ensure that technical errors did not unnecessarily result in appellate intervention.

However, the dual use of “miscarriage of justice” in the grounds of appeal and again in the proviso created uncertainty about the meaning, content and application of the provision. As a result, it has been widely criticised.

In R v Gallagher3 Brooking JA lamented that the proviso created an intellectual “riddle”4 and pointed to the logical difficulties created by the semantics:5

“If there is no miscarriage, then clearly there can be no substantial miscarriage . . . But can there be a miscarriage without there being a substantial miscarriage?”.

Despite its difficulties, the provision governed appeals for about 90 years. The law settled on a core definition of the proviso that seemed to make the section work by applying a “fair chance of acquittal” test:6

“[E]very accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice.” (emphasis added)

This traditional approach was abandoned by the High Court in Weiss v The Queen (Weiss)7 with the High Court decrying the substitution of the “fair chance of acquittal” test for the actual words of the provision8 and holding that the appellate court must decide for itself whether the appellant is guilty beyond reasonable doubt based on the written record.9

Weiss was described as causing “a shockwave to sweep through the ranks of criminal appellate lawyers and judges”.10 Rather than dispel any remaining doubts about the operation of the provision, Weiss created further conflict. Indeed, in R v Gill11 the Court of Appeal observed that the propositions in Weiss “giv[e] rise to some internal tensions”.12

After a comprehensive review of the criminal appeals legislation,13 Parliament adopted a new approach.

The new section 276

Section 276(1) retains the “substantial miscarriage of justice” concept but it now embeds that concept into the grounds of appeal themselves. There is no longer a proviso.

The new provision reads:

“(1) On an appeal under section 274, the Court of Appeal must allow the appeal against conviction if the appellant satisfies the Court that:

(a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or

(b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or

(c) for any other reason there has been a substantial miscarriage of justice.

(2) In any other case, the Court of Appeal must dismiss an appeal under section 274.”

Ground (a) deals with what is usually known as the “unsafe and unsatisfactory” ground. The test in relation to that ground has not changed14: see for example M v The Queen15 and subsequent cases.

Ground (c) is concerned with a situation where a miscarriage of justice occurs without an error at the trial. An example would be the “fresh evidence” ground. This is a less common scenario that is beyond the scope of this article.

Ground (b) is concerned with the more common scenario where an appellant points to a particular error during (or in relation to) the trial. In Baini, the High Court held that the test for intervention under ground (b) is new and substantially different from the provision it replaced.

Baini v The Queen

In Baini, the High Court had its first opportunity to elucidate the meaning of “substantial miscarriage of justice” in s276(1)(b). Mr Baini was convicted of 36 counts of blackmail against two complainants, Mr Rifat and Mr Srour. All but one of the counts related to Mr Rifat. In the course of the joint trial, the jury heard Mr Srour give highly prejudicial evidence about Mr Baini, effectively admitting to Mr Srour he was a standover man. On appeal, the Court of Appeal held that the numerous “Rifat counts” should have been severed from the single “Srour count”, resulting in a substantial miscarriage of justice on the single count. However, the Court found that there was no substantial miscarriage of justice in relation to the Rifat counts despite the jury hearing the inadmissible and prejudicial evidence of Mr Srour. Consequently, the Court of Appeal quashed the conviction and ordered a retrial on the Srour count, but dismissed the appeal against the Rifat counts. Mr Baini appealed to the High Court on the Rifat counts. The High Court held that the Court of Appeal had applied the wrong test for what constitutes a substantial miscarriage of justice and remitted the matter back to the Court of Appeal.

In its decision, the High Court made the following observations:

The new provision places the burden of establishing a substantial miscarriage of justice on the appellant, whereas the proviso placed the burden on the Crown. But, “[a]s a practical matter, few, if any, appeals governed by s276 will turn upon which party bears the onus of proof” at ([22]-[23]).

There is no “single universally applicable description . . . for what is a ‘substantial miscarriage of justice’” (at [26]).

A fundamental error – an error or irregularity that amounts to “a serious departure from the prescribed processes for trial” - will ipso facto constitute a substantial miscarriage of justice, irrespective of its impact on the trial (at [26] and [33]).

A substantial miscarriage of justice will be established if the “Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial” (at [26]);

In many cases, the Court of Appeal “will not be in a position to decide whether the appellant must have been convicted if the error had not been made” (at [29]).

The Court of Appeal “may conclude that no ‘substantial miscarriage of justice’ occurred because a verdict of guilty, on the evidence properly admissible at trial, was inevitable” (at [30]). Inevitable means that “a verdict of acquittal was not open” (at [32]).

At least in cases where evidence was wrongly admitted or excluded, the Court of Appeal must “be satisfied that there has been a substantial miscarriage of justice unless it determines that it was not open to the jury to entertain a doubt as to guilt”(at [32]).

Whether an acquittal was open (or conviction not “inevitable”) must be decided “on the written record of the trial with the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record” (at [32]).

The fact that “the jury returned a guilty verdict may, in appropriate cases, bear upon the question” of inevitability (at [32] (footnotes omitted)).

Therefore, the Court of Appeal may dismiss an appeal only if the error is not fundamental and the Court can be satisfied that the conviction was “inevitable”. While we perceive this to be a very appellant-friendly test,16 ultimately it did not help Mr Baini. When his appeal returned to the Court of Appeal in Baini (No. 2),17 the Court held that his conviction was inevitable.

“Serious departure”

As Baini makes clear, where the error is “a serious departure from the prescribed processes for trial”, a substantial miscarriage of justice will be established even if the guilty verdict was inevitable. The question is: what constitutes a “serious departure”?

Baini itself provided two examples.18 One was a failure by the trial judge to provide adequate reasons for his verdict in circumstances where the trial judge was the tribunal of fact and was obliged by statute to provide reasons.19 The other was conducting a trial on the basis of joint criminal enterprise when that theory of liability did not (then) apply to Commonwealth offences.20 On the other hand, Baini (No 2) held that a failure to sever charges, even if inadmissible and prejudicial evidence is consequently heard by the jury, does not necessarily constitute fundamental error.21

Post-Baini case law of the Court of Appeal provides some further examples. In Andelman v The Queen (Andelman)22 the Court found two errors to constitute “serious departures”. One was failing to advise an unrepresented accused about his right to seek an unreliable evidence warning under s165 of the Evidence Act 2008 in relation to key Crown evidence.23 The other was permitting the Crown to adduce tendency and coincidence evidence where the accused was unrepresented, the Crown had not given a tendency and coincidence evidence notice and the judge did not dispense with the notice requirement.24 In Tunja v The Queen25 a misdirection concerning the likely truthfulness of alleged admissions made by the accused was held not to be a “serious departure”.26

These examples, as well as the very notion of a “serious departure from the prescribed processes for trial” suggest that the error needs to impact upon the integrity of the trial process (e.g. bias) rather than the substantive issues at trial (eg wrong decision about admissibility). Thus, it seems advantageous for an appellant to frame an alleged error as going to trial processes rather than to a substantive issue in the trial.

Effect of the error

In Baini, the High Court said at [29] that: “in many cases . . . an appellate court will not be in a position to decide whether the appellant must have been convicted if the error had not been made. The nature of the error . . . will often prevent that conclusion from being reached . . .”. In Andelman, the Court of Appeal applied that reasoning stating at [105]-[106] that:

“In this case, the precise impact of error is difficult to determine to any meaningful extent. The counterfactual proposed by the Crown – to exclude the [wrongly admitted evidence] and to assess whether the remainder of the evidence meant that conviction was inevitable – is, in this case, entirely artificial. Such a course may be appropriate in other cases as, for example, where an item of evidence has been wrongly admitted, but is viewed by the appellate court as having been wholly innocuous . . . Where, as here, such evidence formed an integral component of the Crown case, as it was conducted, it is difficult to meaningfully disentangle that evidence from the remainder”.

The test of inevitability

What constitutes an “inevitable” conviction remains somewhat ambiguous. In Andelman, the Court of Appeal seems to have concluded that the issue of inevitability falls to be determined by asking whether this jury would have still convicted the appellant but for the error.27 However, in Baini, the High Court held at [32] that conviction is inevitable if an acquittal is not open and at [33] expressly disapproved “speculation about what a jury, this jury, or a reasonable jury might have done but for the error”. Without adverting to this apparent tension, the later Court of Appeal in Baini (No 2) held at [21] that the test is actually whether, but for the error, “the jury acting reasonably and applying the correct onus and standard of proof would have been bound to conclude that the Crown case . . . left no room for reasonable doubt”. This is a purely objective test. It is neither necessary nor sufficient to show that the error might have had an effect on this jury.28

This formulation of the test raises the question of what should happen in a case where an acquittal is open on the evidence but the error is unrelated to the real issues at trial. Although the Baini majority and Baini (No 2) were both silent about this issue, there must, in our view, be a nexus between the error and the issue on which an acquittal is said to be open. This is so for two reasons. First, the contrary conclusion would lead to absurd results. Second, s276(1)(b) in terms requires a causal nexus between the error and the miscarriage by providing that the miscarriage must be “as the result of” the error.

Conclusion: some guidance

The discussion above suggests that practitioners should consider the following questions when assessing the prospects of an appeal against conviction based on an allegation of an error or irregularity at trial.

First, the practitioner should consider whether the error or irregularity can be characterised as a “serious departure from the prescribed processes for trial”. To constitute “serious departure” the error or irregularity probably needs to be (or be framed as) procedural rather than substantive. If the error or irregularity is a “serious departure” then it will constitute a substantial miscarriage of justice regardless of its effect on the trial.

Second, the practitioner should consider whether, but for the error or irregularity, the guilty verdict was still inevitable in the sense that “a verdict of acquittal was not open”. The practitioner should consider that question on the basis of the written record of the trial. In considering the question, the practitioner should probably disregard areas of reasonable doubt about issues unrelated to the error or irregularity.

Third, because there is no single universal test of substantial miscarriage of justice, the practitioner should consider whether the specific error or irregularity can be argued as giving rise to some different type of miscarriage.

Bearing this approach in mind, practitioners will be armed and able to protect their client’s interest even after conviction at trial.



Theo Alexander is a barrister at the Victorian Bar, practising predominantly in the criminal and appellate jurisdictions. He lectures in law at Deakin University and has been widely published, including as the co-author, with Bagaric and Faris QC, of Australian Human Rights Law (2011, CCH). Dimitri Ternovski is a barrister at the Victorian Bar, practising in general commercial law, criminal appeals and administrative law. He was formerly the associate to Chief Justice Marilyn Warren. Note: Theo Alexander appeared as junior counsel for Mr Baini in the High Court with P Tehan QC, and on the remitted appeal in the Court of Appeal with P Faris QC.

1. (2012) 246 CLR 469.

2. The appeal provision originally appeared in s4(1) of the Criminal Appeal Act 1914 (Vic) before being re-enacted in the Crimes Act 1958 (Vic).

3. [1998] 2 VR 671.

4. Note 3 above, 672.

5. Note 3 above, 675.

6. Mraz v The Queen (1955) 93 CLR 493, 514 (Fullagar J).

7. (2005) 224 CLR 300.

8. Note 7 above, at [33].

9. Note 7 above, at [41].

10. Philip Priest QC (now Justice Priest of the Supreme Court), ‘The Problematic Proviso: The Vice of Weiss’ (2007) 140 Victorian Bar News 32, 32.

11. [2005] VSCA 321.

12. Note 11 above, at [28].

13. See for example: Discussion Paper, ‘Harmonisation of Criminal Appeals Legislation’, July 2010, Standing Committee of Attorneys-General.

14. Note 1 above, at [27].

15. (1994) 181 CLR 487.

16. See also Andelman v The Queen [2013] VSCA 25 [104].

17. [2013] VSCA 157. Special leave refused: Baini v The Queen [2013] HCATrans 276.

18. Baini, at [26] fn 18.

19. AK v Western Australia (2008) 232 CLR 438.

20. Handlen v The Queen (2011) 245 CLR 282.

21. Note 17 above, at [14].

22. [2013] VSCA 25.

23. Note 22 above, at [90].

24. Note 22 above, at [91].

25. [2013] VSCA 174.

26. Note 25, above, [20].

27. Note 22 above, [99], quoting with approval the Court of Appeal’s original decision in R v Weiss (2004) 8 VR 388, overturned by the High Court. See also Note 22 above, at [103]-[104].

28. Note 17 above, at [23]-[24].

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