The High Court has allowed an appeal against a conviction for manslaughter in a case concerning the proviso that permits an appeal court to dismiss a criminal appeal despite an error of law if there was no substantial miscarriage of justice. The defendant was charged with murder after an altercation outside a hotel in Casino, NSW left a man with head injuries, from which he died nine days later.  CCTV showed that the man fell twice: the ‘first fall’ after he approached the defendant and then retreated with the defendant in pursuit, falling backwards and striking his head; the ‘second fall’ after he rose and faced the defendant and then fell backwards again, leaving him unconscious. Although the Crown initially argued that the accused was responsible for the second fall, it changed its case – after its expert said that either fall could have caused the man’s death – to arguing that the accused was responsible for both falls. The accused did not seek to argue that the first fall both caused the man’s death and was not the accused’s responsibility. The jury acquitted the accused of murder but convicted him of manslaughter. He was sentenced to a minimum of six years four months imprisonment. On appeal, the NSW Court of Criminal Appeal unanimously held that the trial judge erred by failing to tell the jury that they needed to be unanimous not just on their verdict but on which act of the accused was the basis of his criminal liability. However, a majority nevertheless dismissed the appeal because the the evidence was insufficient to establish that the accused caused the first fall.

A unanimous High Court (Kiefel CJ, Bell, Keane & Edelman JJ, and Gageler J concurring) held that the appeal ought to have been allowed. The joint judgment considered the reasoning of the majority in the court below and the Crown’s defence of that reasoning in the High Court. The joint judges observed (at [38]-[39]) that the appeal court’s certainty that the defendant was guilty, while a necessary condition for dismissing an appeal despite an error law, is not a sufficient condition: “some errors will establish a substantial miscarriage of justice even if the appellate court considers that conviction was inevitable” and ‘[i]t is necessary for the appellate court to consider the nature and effect of the error in every case.’ The Crown’s submission that the proviso was properly applied by the majority because an alternative case it put to the jury was not open to it ‘is not an attractive argument’, as the Crown’s case at trial is part of the context in which the likely effect of the trial judge’s non-direction must be assessed  and ‘one cannot leap from the evidence to the verdict of the jury, ignoring the Crown’s case and the directions of the trial judge.’ ([40]-[41]). The  Crown’s reliance on the assumption that the jury followed the trial judge’s directions actually supports the accused’s argument, given that the trial judge left both falls to the jury as a basis for liability and failed to give a unanimity direction ([42]). The appeal court’s speculation about how the jury could or should have reasoned cannot alter the possibility that some jurors relied on the first fall is ‘as a matter of fact, distinctly possible’ ([43]). Dismissing an appeal on the basis that it was not open to the jury to do what the Crown asked it to do and the trial judge told it to do ‘would impermissibly diminish the role of the jury as “the constitutional tribunal for deciding issues of fact”‘ ([44]). Justice Gageler’s concurrence reached a similar view to this part of the joint judgment’s reasons (see [60]-[61]).

The joint judges then considered whether the proviso ought to have been applied to dismiss the appeal. Observing (at [48]), that ‘[a] misdirection that is apt to prevent the performance by the jury of its function, without more, will result in a substantial miscarriage of justice’, the judges held:

The proviso is cast in terms which permit the appellate court to dismiss an appeal from a judgment of the court which gives effect to the verdict of the jury: the proviso does not permit the appellate court to exercise the function of the jury. The language of the proviso cannot be understood as if it were to the effect that an appeal in which the possibility that the jury has not performed its function of reaching a unanimous verdict may be dismissed on the basis that the appellate court is satisfied of the guilt of the accused.

The judges concluded (at [50]) that Court of Criminal Appeal’s dismissal of the appeal disregarded the requirement of a unanimous verdict on the part of the jury and substituted trial by an appeal court for trial by jury.

Justice Gageler’s concurrence differed from the second part of the joint judgment’s reasons. In passing, the joint judgment (at [46]) commented that:

to say that some errors at trial can be seen to breach the “presuppositions of the trial” so as to be beyond the reach of the proviso does serve to focus attention upon the effect of the error in question upon the trial in order to determine whether a substantial miscarriage of justice has actually occurred.

By contrast, Gagleer J (at [57ff]) found the trial judge’s error did not sufficiently breach any presuppositions of the trial, as the judge’s error was of omission and the omission was not so great as to have led the jury to reach a verdict without considering whether a crime had been committed. Accordingly, he held, the Court of Criminal Appeal correctly asked whether the jury would inevitably have reached a unanimous view on the act of the accused that attracted liability. Nevertheless, he concluded (at [63])  that the majority in the court below reached the wrong answer: ‘[h]aving regard to the way in which the case was left to the jury, it is impossible to be confident that the jury’s verdict might not have been different if the omission of the trial judge had not occurred’.

Accordingly, the High Court unanimously allowed the accused’s appeal from the Court of Criminal Appeal’s ruling, substituted a ruling allowing the accused’s appeal from his manslaughter conviction and ordered a new trial.