Appellate Advocacy

An “appeal” is a creation of statue law. The common law did not provide for an “appeal”.

An “appeal” has been defined as a statutory right to invoke the jurisdiction of a higher court to redress an error which occurred in a lower court.2 However, as will be seen below, this definition is not suitable to describe the breadth of the jurisdiction conferred on the Court of Appeal when it is asked to determine an appeal against conviction after a trial on indictment.

The nature and the effect of an appeal is to be determined by the terms of the statutory provision conferring the right of appeal.3

When the Criminal Code came into effect on and from 1st January 1901 little was provided in the way of an appeal. Section 668 of the Code allowed counsel for an accused tried on indictment to apply “before verdict” for the trial court to reserve any question of law which had arisen at the trial for the Supreme Court’s consideration.

By s.669 of the Code the question reserved had to be heard and determined by the Full Court at Brisbane. The Court was empowered to, inter alia, affirm the judgment given at trial or set aside the verdict and judgment and order that a verdict of not guilty or other appropriate verdict be entered. However, s.671 of the Code stated that a conviction could not be set aside upon the ground of the improper admission of evidence if it appeared to the Full Court that the evidence was merely of a “formal character and not material”. Section 671 also stated that a conviction could not be set aside upon “the ground of the improper admission of evidence adduced for the defence”.

It is often said in the present time4 that an accused is ordinarily bound by the way his counsel conducts the defence case. However, in 1901 he was statutorily bound very markedly in one important respect.

By the Criminal Code Amendment Act 1913 (Q), sections 668 to 672 were repealed. New sections, numbered 668 to 672A, were inserted in Chapter 67 of the Code. All references to the Supreme Court became references to the Court of Criminal Appeal. The amended provisions reflected the terms of the Criminal Appeal Act 1907 (UK) which had been enacted in England on 28 August 1907. The amended provisions were also adopted by the other States of Australia and in New Zealand and Canada. They have often been referred to as the “common form” appeal provisions.5 However, with the enactment of the Criminal Procedure Act 2009 (Vic) these appeal provisions are no longer as common as they were previously.

The new s.668B continued to provide that the court of trial might reserve a question of law which arose at the trial for the consideration of the Court of Criminal Appeal. The new s.668D(1) provided that a person convicted on indictment might appeal against his conviction on any ground which involved a question of law alone and, with leave of the Court of Appeal or upon the certificate of the trial judge that the case was fit for appeal against conviction, on any ground of appeal which involved a question of fact alone, or a question of mixed law and fact.

The new s.668E relevantly provided:

“668E Determination of appeal in ordinary cases

(1) The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.” (My emphasis)

This provision obliged the Court of Criminal Appeal, now the Court of Appeal, to set aside a conviction in any of the three circumstances mentioned. The third circumstance is that on any other ground whatsoever there was a “miscarriage of justice”. This expression is not to be given a narrow meaning.6 The expression has conferred on the Court the function of undertaking an independent judgment on the facts of the case.7 If an appellant can “show a miscarriage of justice that is sufficient. That is the greatest innovation made by the Act, and to lose sight of it is to miss the point of the legislative advance”.8 One of the earliest appeals commenced after the enactment of the Criminal Appeal Act 19079 concerned a solicitor who was gaoled for misappropriation from a trust fund. He was one of three trustees. On appeal he sought leave to adduce evidence from one of the other trustees who happened to be a relative of the beneficiary. The trustee concerned was not called at the trial, defence counsel apparently of the belief that the prosecution would call him to testify. The witness could have testified that he knew that the appellant had retained some trust funds but that the witness had consented to the appellant doing so. Perhaps this evidence would have raised honest claim of right. However, the judgment of the Lord Chief Justice was simply this: “Persons who could have been called at the trial cannot be called in this Court to make out a new case”. An argument can be made, if the report of the judgment is in fact complete, that the English Court of Criminal Appeal failed to appreciate at first the change the Criminal Appeal Act had wrought.

The circumstances which can give rise to a miscarriage of justice are “as wide as the potential for error”.10 Sometimes evidence available at the time of a trial was not led at the trial when it arguably should have been. Sometimes evidence comes to light only after a trial has ended which, had it been available at trial, may have affected the verdict. In circumstances like these a miscarriage of justice may occur if the conviction, obtained after an otherwise regularly conducted trial, is not set aside by the Court of Appeal.

Thus the appeal provided for by s.668E(1) of the Code is not one confined to redressing an error which occurred below. In Eastman, McHugh J put forward four different meanings for “appeal”. It is the third of these meanings which most accurately describes the nature of the appeal contemplated by s.668E(1), namely, “an appeal by way of re-hearing on the evidence before the trial court and such further evidence as the appellate court admits pursuant to a statutory power to do so”.11

The relevant statutory power is to be found in section 671B(1)(c) of the Code. It permits the Court “if it thinks it necessary or expedient in the interests of justice” to “receive the evidence if tendered, of any witness (including the appellant) who is a competent … witness”.

Consistently with the phrase “if it thinks it necessary or expedient”, Rule 108 of the Criminal Practice Rules 1999 provides:

108 Application for leave to adduce evidence

(1) If an appellant wants to adduce evidence at the hearing of the appeal, the appellant must apply to the court for leave to adduce evidence.

(2) An application for leave to adduce evidence must be accompanied by an affidavit of the witness giving or producing the evidence.

(3) The affidavit must state the following—

(a) for evidence that is to be given by the witness—what the evidence is;

(b) for evidence that is to be produced by the witness—the nature of the evidence.

The points to note are that: additional evidence may be adduced only with the leave of the Court; and, that a proof of the evidence, in the form of an affidavit, must be provided setting out the evidence the witness can give. The “Form 38 — Application for leave to adduce evidence” also requires the appellant to state why the witness was not called at the trial. Paragraph 33(2) of the Supreme Court of Queensland Practice Direction 2 of 2010 requires the Form 38 and the affidavit material to be filed in the Court Registry at least 28 days prior to the date on which the Court is to hear the appeal.

In formulating the Notice of Appeal in any case where it is sought to adduce additional evidence it is desirable to draft the ground of appeal as follows: “A miscarriage of justice occurred because …”. Drafting the ground this way directs attention to the matter that s.668E(1) requires to be established in order for the appeal to succeed.

If counsel for an appellant seeks to adduce additional evidence he should confine the application to one directed towards the adduction of admissible evidence. Inadmissible evidence does not lose its character as such simply because it is sought to be adduced on appeal.12

At the hearing of the appeal counsel for the party seeking to rely on any additional evidence will read the affidavits of those witnesses to be relied on. Generally the affidavits are regarded as the witnesses’ evidence in chief. Counsel for the opposite interest, invariably the prosecution, will then indicate to the Court whether he wishes to cross-examine any of the deponents. If he says that he does, each of the witnesses he wishes to cross-examine is called in turn. When intending to rely on additional evidence it is obviously desirable that, prior to the day of the hearing, steps be taken to ascertain whether the other side wishes to cross-examine any of the witnesses. If this step is taken arrangements can be made to ensure that those witnesses are at court on the day.

The Court is entitled to receive evidence which contradicts or weakens the additional evidence.13 Counsel will know before the day of the hearing whether the other side intends to adduce any evidence in reply. Interestingly, the Criminal Practice Rules have nothing to say about the respondent adducing evidence at a hearing. The Form 38 only appears to apply to an appellant. Notwithstanding all this, the Court routinely permits the respondent’s counsel to adduce evidence if it is relevant to the issues raised by the appellant’s evidence.

Paragraphs 11 and 33 of Practice Direction 2 of 2010 impose obligations on “a party” who wishes to adduce additional evidence to take certain steps, some of which are referred to at paragraph 15 above. However, it is unlikely that a respondent will be in a position to file affidavit material until after he has seen the appellant’s material. Only in that way can he file material that is responsive to the evidence the appellant seeks to adduce.

The word “additional”, which has been used so far, masks a very important distinction that is drawn between items of evidence adduced or sought to be adduced on appeal.

Any counsel wishing to adduce additional evidence needs to be alert to the distinction drawn between “new” evidence and “fresh” evidence. In short, new evidence is old evidence while fresh evidence is new evidence. The distinction is important because of the way appellate courts are required to treat each class of evidence.

Fresh evidence is evidence that did not exist at the time of the trial or, if it did, was not available to the accused through the exercise of reasonable diligence. New evidence is evidence that was available at the time of the trial and which the accused knew about but chose not to deploy or could have discovered by the time of trial with the exercise of reasonable diligence.14

Considerable latitude is accorded to an accused in determining what evidence reasonable diligence could have discovered.15

If evidence is regarded as fresh evidence then, subject to considerations of reliability and cogency, the Court of Appeal will set aside a conviction if it thinks 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.16

If evidence is regarded only as new evidence then, subject to considerations of reliability and cogency, the Court of Appeal will set aside a conviction only if it is satisfied that the appellant should not have been convicted, that is, if the evidence shows that the appellant is innocent or if it raises a reasonable doubt about guilt.17

Whether the evidence is to be categorised as fresh or new, it must be apparently credible, that is, capable of belief, and cogent.18 The expression “cogent” is defined in the Australian Oxford Dictionary as “forcible, convincing”. Examples of cases where evidence regarded as “fresh” was considered to be sufficiently cogent to warrant the setting aside of convictions include R v PAF19 and R v Park.20 An example of a case where “new” evidence was not found to be sufficiently cogent to warrant the setting aside of a conviction can be found in R v PAK.21

A miscarriage of justice can be occasioned by the conduct of counsel.22 In recent years complaints that a barrister’s conduct has occasioned a miscarriage have arisen more frequently than was the case in the past.23 There are three well known judgments concerning alleged miscarriages due to counsel’s conduct.24 

In TKWJ and Nudd the respective defence counsel furnished affidavits seeking to explain why they pursued the courses they did.25 No such affidavits were tendered in Ali. Yet the outcome in each case was the same; each appeal was dismissed.

Practitioners intending to assert that a miscarriage of justice was occasioned by another counsel’s conduct may be inclined to seek to adduce evidence in the Court of Appeal to support the claim. However, appellate counsel (and those counsel asked to provide an affidavit about their conduct of a defence case) should be alive to the consideration that a determination about whether a miscarriage is demonstrated is to be decided objectively. Generally speaking, if the course followed by defence counsel is explicable on the basis that it could have resulted in a forensic advantage to the defence case then a miscarriage will not be able to be shown.26 If an objective assessment of counsel’s conduct is to be made there may well be no point in adducing affidavit material.

R v PAK27 provides a recent example of a Court of Appeal decision where the appeal was resolved by an objective examination of counsel’s conduct.

However, in Nudd28 Gleeson CJ observed that there will arise, from time to time, cases where it is relevant for an appellate court to know why counsel took a particular course of action. R v Upson29 provides a good example of this.

Clearly, careful judgment is called for by both the counsel who has instructions to complain about the way a trial was conducted and by counsel (the prosecutor) who is to defend the conviction. It would seem fair to say that counsel for an appellant needs to be confident that any evidence his client can give concerning the way the defence counsel conducted the case is not liable to be contradicted by signed and dated instructions the appellant provided at trial. Counsel for the respondent must wrestle with the dilemma30 of whether the appellant’s complaint will be strengthened or weakened by seeking affidavit evidence from the defence lawyers. An example of a case where both sides adduced evidence on appeal which, on the one hand was harmful to the appellant and, on the other, was not of great assistance to the respondent is R v Lumley.31 Towards the other end of the spectrum is Upson, where trial counsel and solicitor were able to comprehensively answer the appellant’s allegations about how the defence was conducted.

M.J. Copley S.C.

Footnotes

1.  Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 at 225.
2.  Eastman v The Queen (2000) 203 CLR 1 at 33 [104].
3.  Cavanough at 225.
4.  Nudd v R (2006) 225 ALR 161 at 164[9]; TKWJ v The Queen (2002) 212 CLR 124 at 147[74].
5.  Weiss v The Queen (2005) 224 CLR 300 at 309[21].
6.  Eastman at 105 [315]; Nudd at 164 [7] and 170 [24].
7.  Ratten v The Queen (1974) 131 CLR 510 at 515.
8.  Hargan v The King (1919) 27 CLR 13 at 23.
9.  Soper 1 Cr App R 63.
10.  Nudd at 164[7].
11. At 40 [130].
12.  Ratten at 514; R v Martindale [2009] QCA 24 at [547].
13.  Ratten at 518.
14.  Lawless v The Queen (1970) 142 CLR 659 at 669.
15.  Lawless at 669; Ratten at 517.
16.  Mickelberg v The Queen (1989) 167 CLR 259 at 213; Gallagher v The Queen (1986) 160 CLR 392 at 399 and 402; R v Stafford [2009] QCA 407 at [50].
17.  Ratten at 517 — 518; Lawless at 674 — 676; Stafford at [50].
18.  Ratten at 518.
19. [2007] QCA 414.
20. [2008] QCA 383.
21. [2010] QCA 187.
22.  TKWJ at 133 [28]; 147[74]; 158[107].
23.  Nudd at 175[47].
24.  TKWJ, Nudd, and Ali v The Queen (2005) 214 ALR 1.
25.  TKWJ at 140 — 141 [57]; Nudd at 197[50].
26.  TKWJ at 131[17]; 135[33]; 150 [81]; 158 [108]; Ali at 4[7]; 7[25]; 22[99].
27. [2010] QCA 187.
28. At 165 [10].
29. [2011] QCA 196.
30. Informed by considerations pertinent to the prosecutorial duty of disclosure.
31. [2004] QCA 120 at [69] and [70].