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Wilde v R [1988] HCA 6; (1988) 164 CLR 365 (18 February 1988)

CATCHWORDS

HEARING

DECISION

2. The next two counts in the indictment related to events which occurred at premises in Warrawee, on 28 September 1983. The third count charged that the applicant broke and entered the premises and stole a car key and the fourth count charged that he there stole a Sigma sedan. The applicant was convicted on these counts.

3. The remaining four counts related to events which occurred on 29 September 1983 in a house at North Rocks. The fifth, sixth and seventh counts charged that the applicant committed a series of sexual offences against a woman, and the eighth count charged that he stole two rings and $80 in money from her. The applicant was convicted on all of these counts. The complainant on this occasion was a mother with twin babies, who arrived home during the morning and observed a blue Sigma sedan parked outside her neighbour's house. (The Sigma sedan which was stolen on 28 September was a blue Sigma sedan.) She entered her house with one of her children, leaving the other in her car. In the hallway she was confronted by a man with a knife in his hand who forced her upstairs to the main bedroom. The contents of her dressing-table drawers had been emptied on the floor and her jewellery box had been emptied on the bed and on the floor. The intruder pushed the complainant towards the bed, tied her up and gagged her. He then went downstairs and recovered the other child. He placed both the children in another room and returned to the bedroom where he forced the complainant to engage in various acts of a sexual nature, including an act of oral intercourse. The man then took from the complainant's bag a sum of money amounting to about $80 and, following a visit to the kitchen, left. Subsequently, the complainant observed that the flyscreen on a downstairs window had been removed and that the window had been opened further than she had left it. She also found in the bedroom lying upon a bedside table a silver ingot which did not belong to her or any member of her family and which she had not seen before. Some weeks later the complainant missed a sapphire ring which had been in her bedroom.

4. The substantial issue at the trial was the identity of the person who committed the various offences charged in the indictment. The applicant denied that he was the offender. His counsel had applied to sever the indictment and for an order for separate trials upon the counts relating to the attacks on each of the two women and the thefts on 28 September 1983. The application was refused. The trial judge directed the jury that they might use the evidence against the applicant in relation to either attack as similar fact evidence to establish the identity of the applicant as the attacker upon the other occasion. That direction, which was consistent with her Honour's refusal to sever the indictment, was based upon a view that there was such a striking similarity between the two attacks as to make the evidence in relation to one admissible in proof of the other. This view was not upheld upon appeal by the applicant to the Court of Criminal Appeal of New South Wales. That Court reached the conclusion that the similarities between the attacks on the two occasions were not sufficiently striking to allow evidence of what occurred on 26 September to be used by the jury as a basis for concluding that the applicant was the attacker on 29 September. That conclusion meant that there had been a substantial blemish in the conduct of the trial. The first of the sexual attacks was of a serious nature and, if the jury were satisfied that the applicant was the attacker on that occasion, the evidence was clearly prejudicial to the applicant upon the counts charging him with the second attack. Of course, that would not have mattered if the evidence were of sufficient probative force upon the counts relating to the second occasion to warrant its admission, but the Court of Criminal Appeal held that it was not and that conclusion is not challenged before us: see Sutton v. The Queen [1984] HCA 5; (1984) 152 CLR 528. The trial judge had, therefore, wrongly directed the jury concerning the use which they might make of the evidence of what occurred on each of the two occasions. Indeed, upon the view which the Court of Criminal Appeal took, the trial judge ought to have severed the indictment: De Jesus v. The Queen [1986] HCA 65; [1986] HCA 65; (1986) 61 ALJR 1; 68 ALR 1.

5. The Court of Criminal Appeal reached the further conclusion that the evidence in support of the counts upon which the applicant was convicted was so strong, and the defence so weak, that the proviso to s.6(1) of the Criminal Appeal Act ought to be applied. That proviso, which is in common form in the criminal appeal statutes of the Australian States, enables the Court, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, to dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. The sole question raised by the applicant in this application is whether it was open to the Court of Criminal Appeal to apply the proviso in this case.

6. The view of the Court of Criminal Appeal was that, putting to one side the evidence wrongly admitted, the evidence supporting the conviction of the applicant was overwhelming. They pointed to a number of circumstances. First, there was the unexplained presence of the applicant's fingerprint on the flyscreen at the complainant's house. Evidence was given by a fingerprint expert that one of the applicant's fingerprints was found on the flyscreen which had been removed from the window by means of which the attacker had apparently gained access to the complainant's house. The applicant offered no explanation for the fingerprint. Secondly, there was the discovery of the silver ingot in the complainant's bedroom. When the applicant was interviewed by the police he was shown the silver ingot and admitted that it was his, saying that his mother had given it to him. At his trial the applicant denied in an unsworn statement that the ingot was his or that he knew anything about it and called his mother to give evidence to the same effect. Although the applicant, after allegedly admitting ownership, subsequently denied that the article belonged to him, its presence was unexplained. Thirdly, there was the presence outside the neighbour's house of a blue Sigma sedan similar to that which had been stolen on 28 September which the applicant was driving when he was apprehended. Fourthly, the police had found two rings in the possession of the applicant when he was arrested, one of which was identified by the complainant as the sapphire ring which she had missed and the other of which she also identified as hers. Fifthly, the complainant had given a clear and detailed description of her attacker which fitted the applicant and, less significantly, she identified the applicant in court. And finally there was an admission by the applicant in a statement in his own handwriting that he had sexually assaulted a woman in a manner consistent with the complainant's account.

7. The applicant made a confession to the police in his own handwriting as follows:

"I went to a house at Nth Rocks on Thursday. There
was a window open & I got in. Prior to this I was
seen by 2 men who I've seen only once before, they
bashed me after I refused to help them and they
said that they wanted the house at Nth Rocks ripped
off and if any one caught me in there they were to
be hurt bad. I was told if I didnt do it eighter
myself or a friend or family would be hurt or
killed if I didnt do it. So I went there and
proceeded to rip the place when the owner came
home. I grabbed her tied her up and gaged her. I
ejeculated all over her then left without taking
any-thing. I was up to the time of being arrested
trying to find the 2 men so that all this could be
stopped. So that no one else would be hurt and
that I wouldn't have to do anything more illegal.
I took the womans child from her car into the house
so the child Wouldnt be hurt from the heat or
anything else I took the child in the house and
didnt & I wouldn't hurt him."

8. Although counsel for the applicant criticized the reliance placed by the Court of Criminal Appeal on some of these considerations, the strength of the prosecution case was not contested before us. Nor was it argued that the evidence offered any strong support for the defence. At his trial the applicant did not give evidence on oath but made an unsworn statement as follows:

"Ladies and Gentleman of the Jury, I am absolutely
not guilty of any of these charges. All I remember
of these events is what I remember on Monday of the
long weekend of the 3rd October. I remember waking
up in the cell and feeling sore and in a lot of
pain. I remember feeling my face and my body and
finding that I was bruised and sore, namely, my
eyes, my nose, my cheeks and my ribs. I had a
great difficulty in breathing because of my ribs
were being so sore. My left wrist and left leg
were also very sore and stiff. As I came to in the
cell I could not make out what I was doing in there
and it was only later that I found out that I was
in Parramatta Police Station. I can at one stage
remember being tied or handcuffed to a piece of
furniture and being asked a lot of questions and
being belted by the people who were asking those
questions and I believe that to be the police
although I can't say who it was or where the
assault took place. I have no memory at all of
ringing my mother or seeing her at the police
station and I have no memory of writing any
statements or anything, any way of confessions. I
believe that if I did write those, that I would
have been severely bashed by the police into doing
so and they were not made of my own free will. I
have no memory of hurting anybody or being in
anybody's house at all and I don't believe that I
done any of those things and I believe that the
women in question are mistaken when they say it was
me. If in their astute observations of the
intruder they pointed out quite a lot of things
regarding the description of that person. Now if
that was me, why did they not identify a tattoo of
a dragon that is on my left thigh which covers
nearly the whole of the thigh. In regards to the
rings and ingots, I can definitely say that those
are not mine and I can't say as to where they were
found. In regards to any of these matters I have
no memory and I don't believe that I've done these
things and I believe that I'm not guilty. Thank
you."

9. As the prosecution case was so strong and the defence was so weak, the authorities which are customarily cited when it is sought to challenge the application of the proviso were insufficient to found an attack upon the judgment of the Court of Criminal Appeal. Those authorities establish that where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost "a chance which was fairly open to him of being acquitted" to use the phrase of Fullagar J. in Mraz v. The Queen [1955] HCA 59; (1955) 93 CLR 493, at p 514 or "a real chance of acquittal" to use the phrase of Barwick C.J. in Reg. v. Storey [1978] HCA 39; (1978) 140 CLR 364, at p 376. Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v. The Queen [1977] HCA 43; (1977) 137 CLR 517, at p 524; Reg. v. Storey, at p 376; Gallagher v. The Queen [1986] HCA 26; (1986) 160 CLR 392, at pp 412-413. Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v. The Queen, at p 514. The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. The question whether the jury would inevitably have convicted falls to be determined by the Court of Criminal Appeal. It is a question which the Court of Criminal Appeal must answer according to its assessment of the facts of the case. In this case the Court of Criminal Appeal answered it adversely to the applicant, and there is nothing to show that the answer was wrong.

10. However, it was submitted that the question whether a reasonable jury would inevitably have convicted does not arise where the error in the conduct of the trial is fundamental. In such a case, it was submitted, it does not matter what the strength of the prosecution case or the weakness of the defence case was. Reliance was placed upon what was said by Gibbs J. in Quartermaine v. The Queen [1980] HCA 29; (1980) 143 CLR 595, at pp 600-601:

"Ordinarily, when there has been a misdirection of
law, the proviso to s.689 (Criminal Code, W.A.)
will be applied if the Crown establishes that if
there had been no misdirection the jury would (or
must) have come to the same conclusion. However,
Wickham J., who delivered the judgment of the Court
of Criminal Appeal in the present case, recognized
that even if this were established 'there might
still be a substantial miscarriage of justice if
the trial was so irregular that no proper trial had
taken place, in that "there had been a serious
departure from the essential requirements of the
law"'. The Court of Criminal Appeal was right in
taking that view of the law ..."

11. There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted. There are those cases which identify irregularities which are sufficient to vitiate a trial and afford a basis for a writ of venire de novo. They are concerned more with the form of the trial but even in that area they provide no real touchstone for determining when an irregularity is so serious as to cause a mistrial: see Cooke, "Venire de Novo" (1955) 71 Law Quarterly Review 100, at p 128; Reg. v. Rose (1982) 1 WLR 614, at pp 621-622; (1982) 2 All ER 536, at p 542; and, in the House of Lords (1982) AC 822, at pp 831-834. But the wording of the proviso is quite general and it is clear that it may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence. In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances.

12. In this case we do not think that the Court of Criminal Appeal erred in concluding that it was proper to apply the proviso. Whilst the indictment ought to have been severed, a defect in the form of the indictment does not necessarily lead to a mistrial: Mackay v. The Queen [1977] HCA 22; (1977) 136 CLR 465. The reason why, upon the finding of the Court of Criminal Appeal, the indictment ought to have been severed is because the failure to do so allowed prejudicial evidence to be given in circumstances where the prejudicial effect would probably not, having regard to the sexual nature of the charges, have been overcome by any direction on the part of the trial judge. Of course, the trial judge did not attempt any such direction, being of the view that the evidence was admissible as similar fact evidence. Pressed by the Court to identify the precise ground upon which the applicant relied, his counsel agreed that in essence it was that the admission of evidence relating to the attack on 26 September for the identification of the applicant as the attacker on 29 September was an irregularity of such gravity that no proper trial took place. It is the significance of the evidence wrongly admitted, in the context of the trial, which must determine whether the error was of a fundamental kind.

13. The evidence in relation to the first of the sexual attacks was markedly weaker than the evidence in relation to the second attack. In relation to the first occasion there was no evidence such as that of the presence of the motor car nor were articles belonging to the complainant found in the possession of the applicant. It is most unlikely that the jury would have felt it necessary to have recourse to the evidence relating to the first occasion in order to establish the identity of the applicant on the second. This is borne out by the acquittal of the applicant upon the count of theft on the first occasion, upon which the only evidence in dispute would appear to have been that relating to the identity of the applicant. When viewed in context, it does not appear that the evidence wrongly admitted in relation to the counts upon which the applicant was convicted can have carried any significant additional weight having regard to the other evidence. This is, of course, to take into account the strength of the prosecution case upon those counts and the weakness of the defence, but it is to do so for the purpose of determining the gravity and significance of the error and not for the purpose of determining whether the jury would inevitably have convicted notwithstanding the error. The two questions are obviously intertwined where the error is one of the wrongful admission of evidence, but they must be considered separately. Once it is determined that the error was not of a fundamental kind, the question must still be asked whether a reasonable jury would inevitably have convicted had the error not been made. There can be no doubt that the Court of Criminal Appeal gave the correct answer to that question in this case.

14. The Court has before it an application for extension of time as well as for leave to appeal. There was no material to explain the substantial delay that had occurred between the decision of the Court of Criminal Appeal on 10 April 1986 and the filing of an application in this Court on 23 March 1987. It would be wrong to assume that there is no need to put before the Court material to explain a delay, or that the Court will not be concerned by an unexplained delay, particularly a lengthy delay. In the present case we are prepared to extend the time for making application and would grant special leave to appeal. But for the reasons given we would dismiss the appeal.

DEANE J. The relevant facts and issues involved in this case are set out in the joint judgment of Brennan, Dawson and Toohey JJ. While I am in general agreement with much of their Honours' exposition of principle, I have reached a different conclusion on the question whether the circumstances of the present case were such as to permit the application of the proviso to s.6(1) of the Criminal Appeal Act 1912 (N.S.W.). That being so, I shall confine myself to a brief statement of the reasons which have led me to conclude that the applicant's convictions were fatally flawed and should not be allowed to stand.

2. The fundamental prescript of the administration of criminal justice in this country is that no person should be convicted of a serious crime except by the verdict of a jury after a fair trial according to law. The proviso to s.6(1) - which empowers the New South Wales Court of Criminal Appeal to dismiss an appeal, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of an appellant, "if it considers that no substantial miscarriage of justice has actually occurred" - does not negate that principle. The reason why that is so is that it is simply not open to a court of criminal appeal to dismiss an appeal, in reliance on such a proviso, on the ground that there has been "no substantial miscarriage of justice" in a case where error, impropriety or unfairness has pervaded and affected the trial to an extent where the overall trial ceased to be a fair trial according to law. In such a case, the verdict of guilty is intrinsically flawed and it is no part of the function of a court of criminal appeal to say that the accused is, in its view, so obviously guilty that the requirement of a fair trial according to law can be dispensed with. If it were otherwise, the fundamental prescript of the criminal law could be reduced to a mockery and the injustice of a conviction without a relevantly fair trial according to law could be made the occasion for trial by appellate judges who had seen no witnesses, heard no evidence and had no direct contact with the atmosphere, the tensions, the nuances or the reality of the actual trial. In referring to a "relevantly" fair trial, I have intended to exclude the case where it can be seen that any error, impropriety or unfairness did not prejudice or colour the overall trial or that the residual effect (i.e. viewed in the context of the overall trial) of any such error, impropriety or unfairness could not have influenced the jury in reaching their verdict on the charges upon which the accused was convicted and in respect of which the appeal to a court of criminal appeal is brought.

3. In the present case, the applicant's trial was gravely affected by unfairness and error. The indictment joined together charges relating to two distinct incidents involving sexual attacks which should not, as a matter of fairness, have been joined. The evidence which was admissible on the charges relating to the first incident involving a degrading sexual attack upon a woman ("T") should not have been placed before a jury charged to determine the applicant's guilt or innocence of the charges relating to the subsequent attack upon another woman ("H"). The members of the jury were wrongly instructed by the learned trial judge that, if they thought the two incidents were so strongly similar that it must have been the same person who perpetrated each, they could pay regard to the highly prejudicial material relating to the attack on T in determining the applicant's guilt or innocence of the offences involving H. As the Crown now concedes, that direction was wrong for the reason that, as a matter of law and regardless of the jury's view of factual matters, the necessary foundation did not exist to permit the evidence relating to the incident involving T to be taken into account in relation to the charges relating to the attack upon H. In these circumstances, it seems to me that the applicant's trial was so pervaded by unfairness and error in relation to the offences involving H of which he was convicted that the conclusion is inescapable that the applicant was denied a fair trial according to law of those alleged offences. That being so, it is not to the point that the case against him in relation to those alleged offences appears, at this distance from the impact of live evidence and the atmosphere of the trial, to have been an overwhelmingly strong one. Nor is it open to an appellate court, in the circumstances of the present case, to conclude that the fact that the members of the jury were not prepared to find that the guilt of the applicant of the remaining alleged offence relating to T was established demonstrates that they were positively satisfied that the applicant was not involved in that incident at all with the result that the evidence relating to it could not have played any part in his conviction of the offences relating to H. It is possible that the jury's acquittal of the applicant of that other offence was on some basis other than doubt about the identity of the applicant as the person involved. Quite apart from that, there is nothing in the learned trial judge's summing up or in the circumstances of the case which precludes the possibility that, even though they were not satisfied beyond reasonable doubt of the applicant's guilt of the remaining charge involving T, some or all of the members of the jury may have considered that it was more probable than not that the applicant was in fact guilty of the offence alleged in that charge and that that probability was a factor weighing against him on the question whether he was the person who had attacked H. In that regard, it is significant that the overall effect of the learned trial judge's directions to the members of the jury would seem to have been that they could take the evidence relating to the earlier attack on T into account in relation to the alleged offences involving H but not that they could take the evidence relating to the later attack upon H into account in relation to the alleged offence involving T. If the members of the jury so understood those directions, the verdicts of not guilty in relation to the earlier incident but guilty in relation to the later one are consistent with a conclusion by the jury that the evidence in relation to neither incident sufficed, if viewed in isolation, to establish the applicant's guilt beyond reasonable doubt.

4. It may be objected that the effect of what is written above is to deprive a proviso such as that contained in s.6(1) of any scope for effective operation. That objection is without substance. There is ample scope for the effective operation of such a proviso in cases where the particular court of criminal appeal is satisfied that the relevant misdirection, error or unfairness could not properly be seen as depriving the trial of the overall character of a fair trial according to law. It is in such cases that the strength of the prosecution case and the unimportance, in all the circumstances and in so far as the charges of which an accused was convicted are concerned, of the effect of the particular misdirection, impropriety or unfairness may justify the conclusion by a court of criminal appeal that, in the result, there has been no substantial miscarriage of justice. Such a conclusion is, however, not open in a case such as the present where the uncorrected and persisting cumulative effect of the improper joinder in the indictment of charges, the wrongful exposure of the jury to prejudicial evidence which was inadmissible in relation to the charges of which the applicant was convicted and the misdirection to the effect that the members of the jury were entitled to take that evidence into account in relation to those charges, is that the applicant has been found guilty of the alleged offences relating to H without there having been a relevantly fair trial according to law. That being so, justice has substantially miscarried and a proviso such as that contained in s.6(1) does not authorize a court of criminal appeal to disregard or overcome that substantial miscarriage of justice by holding that the applicant should be denied what the law says that he shall have for the reason that he had no real defence anyway (see Couper v. The Queen (1985) 18 ACrimR 1, at p 5).

5. One matter which has caused me concern in the present case is the fact that the application for special leave to appeal to this Court was not lodged until almost a year after the decision of the Court of Criminal Appeal. One cannot but be conscious of the distress and strain which a new trial would, after all this time, impose upon the victim (H), whose credit was not attacked on the trial, if she is required yet again to give evidence of the acts of sexual depravity to which she was subjected. With considerable hesitation, I have, however, come to the conclusion that, in the circumstances of the present case, the delay in applying for special leave to appeal should not preclude the applicant from obtaining the relief to which, in my view, he is entitled.

6. It follows from the above that the applicant's conviction of the alleged offences involving H should be quashed. So also, in my view, should be his conviction of the alleged offences relating to the theft of the blue Sigma motor vehicle and its keys. It is true that, to a large extent, the evidence against the applicant in relation to the theft of the car and the keys stood independently of, and unaffected by, the evidence against him in relation to the two sexual attacks. It could not however be safely assumed that the jury's vitiated conclusion that it was proved beyond reasonable doubt that the applicant was the person who attacked H was not, in the context of the evidence involving the presence of such a vehicle outside H's home at the time of the attack, a factor taken into account by the jury in determining his guilt of the charges relating to the theft of the car and its keys. Quite apart from that, it is impossible to assume that the jury's conclusion that the applicant was guilty of the alleged offences involving H was not seen by at least some members of the jury as relevant to their assessment of the reliability of the confessional statements upon which the Crown relied in support of all charges.

7. I would extend the time for applying for special leave to appeal, grant such leave, allow the appeal, quash the convictions and order a new trial.

GAUDRON J. John Alan Wilde ("the applicant") stands convicted of six offences following a trial on indictment in the District Court of New South Wales. The indictment charged eight offences relating to separate incidents on 26, 28 and 29 September 1983. It is necessary to give an abbreviated account of those incidents and the charges arising therefrom.

2. The first incident on 26 September 1983 concerned a humiliating sexual attack upon Mrs T. in her home. After the attack Mrs T. noticed that an amount of $50.00 was missing from her purse. Arising out of this incident the applicant was charged with threatening to inflict actual bodily harm by means of an offensive weapon with intent to have sexual intercourse and with stealing the sum of $50.00. On the first count the applicant was acquitted by direction of the trial judge (Matthews D.C.J.), her Honour taking the view that there was insufficient evidence to establish intent to have sexual intercourse. The applicant was acquitted on the charge of stealing.

3. The second incident, which occurred on 28 September 1983, involved the breaking into a home at Warrawee, the stealing of a car key, and the stealing of a blue Sigma motor vehicle. This incident gave rise to two charges being the third and fourth counts in the indictment. The applicant was convicted on both counts.

4. The third incident on 29 September 1983 involved a series of humiliating sexual assaults on a young woman, Mrs H. After the assaults, Mrs H. noticed that some money was missing from her home. Later she discovered that some jewellery was also missing. This incident gave rise to four charges being the fifth, sixth, seventh and eighth counts in the indictment. The applicant was also convicted on these counts.

5. The trial of the applicant was affected by error from its outset. That error had its foundation in the trial judge's refusal of an application for separate trials of the charges arising from each of the separate incidents. Her Honour took the view that the evidence relating to the charges arising out of the first and second incidents was admissible in relation to the charges arising out of the third incident. It is not now in issue that the evidence relating to the first incident was not admissible in proof of the charges arising out of the third incident. That evidence being inadmissible, the charges relating to the first incident should have been severed from the indictment: De Jesus v. The Queen [1986] HCA 65; [1986] HCA 65; (1986) 61 ALJR 1; 68 ALR 1. Nor is it in issue that the refusal to sever the charges from the indictment culminated in a serious misdirection in the summing up to the jury. The jury was erroneously instructed that the evidence as to the attack on Mrs T. (evidence which was highly prejudicial in nature) might be used to corroborate other evidence as to the identity of the applicant as the perpetrator of the offences committed against Mrs H.

6. An appeal against the convictions was dismissed by the Court of Criminal Appeal of the Supreme Court of New South Wales (Street C.J., Lee and Lusher JJ.) on the ground that although there had been a serious error of law in the trial there had been no substantial miscarriage of justice. From that decision the present application is brought to extend time for applying for special leave to appeal and for special leave to appeal.

7. The decision of the Court of Criminal Appeal was based on its view of the strength of the admissible evidence as to the accused's guilt of the offences charged in the fifth, sixth, seventh and eighth counts in the indictment. It is convenient to refer to those offences as "the H charges". The position was put by Street C.J. (with whom Lusher J. agreed) in the following manner:

"The question for us is whether it can be said with
confidence that this jury must inevitably have
returned this same verdict, even if there had been
no evidence whatever before this jury in the (H.)
charge of the facts relating to the (other)
attack."

"There is simply an inadequate basis for any jury
to have failed to have been satisfied beyond
reasonable doubt of the guilt of the (applicant) on
the (H.) charges."

"... I am persuaded that, notwithstanding the
prejudicial significance of what I conceive to be
the erroneous directions in the summing-up ...,
nevertheless, even if that error had not been in
the summing-up, and if the evidence had been
confined as it ought to have been ..., no
reasonable jury, properly instructed, could have
failed to convict on this Crown case".

"... I find it impossible to conclude that a jury
might possibly ... bring in a verdict of not
guilty".

8. Section 6(1) of the Criminal Appeal Act 1912 (N.S.W.) ("the Act") expressly provides that the Court of Criminal Appeal may dismiss an appeal against conviction notwithstanding, inter alia, a wrong decision on a question of law in the course of a criminal trial "if it considers that no substantial miscarriage of justice has actually occurred". The sub-section posits that not "every departure in the course of a trial from compliance with the relevant law or rule of procedure results of necessity in a miscarriage of justice": Driscoll v. The Queen [1977] HCA 43; (1977) 137 CLR 517, per Barwick C.J. at p 525.

9. Where an error of law occurs in the course of a criminal trial the accepted test of whether or not there has been a substantial miscarriage of justice is whether "the appellant may thereby have lost a chance which was fairly open to him of being acquitted": Mraz v. The Queen [1955] HCA 59; (1955) 93 CLR 493, per Fullagar J. at p 514.

10. In Driscoll, Barwick C.J. expressed the relevant test as follows (at p 524):

"It has, in my opinion, correctly been said that
the test of miscarriage in relation to the proviso
to s.6(1) is whether the court is satisfied that no
reasonable jury, properly directed, could have
failed to return a verdict of guilty on the
evidence before it had it applied itself to its
task in a proper manner, making in favour of the
accused the presumption of innocence and bearing in
mind the necessity that the charge be proved beyond
all reasonable doubt: see Reg. v. McGibbony [1956] VicLawRp 68; (1956)
VLR 424, at pp 426-427; or, put another way,
that no reasonable jury properly directed could
fail in the performance of their duty on the
evidence before them to have convicted the accused
of the charge laid against him."

11. The test formulated by Barwick C.J. allows that a Court of Criminal Appeal may conclude that no miscarriage of justice has occurred by reason of its own assessment of the strength of the prosecution case, the Court considering "for itself the evidence and the inferences properly available therefrom" (Driscoll, at p 525).

12. Although the position may be different where the ground of appeal relied on relates to claims, for example, that the verdict was unsafe or unsatisfactory (Morris v. The Queen [1987] HCA 50; (1987) 61 ALJR 588; 74 ALR 161), that fresh evidence is available (Gallagher v. The Queen [1986] HCA 26; (1986) 160 CLR 392) or that there was a procedural irregularity (Lawrence v. The Queen [1931] HCA 41; (1981) 38 ALR 1), neither in the other judgments in Driscoll nor in any subsequent decision of this Court has there been an express endorsement of the view that where the trial is affected by an erroneous statement of the law to be applied by the jury or an error of law resulting in the receipt of inadmissible evidence or the rejection of admissible evidence the question of miscarriage of justice may be answered by an appellate court's assessment of the strength of the prosecution case. In Driscoll, the majority appear to have rejected that approach, at least in cases in which credibility is in issue. Gibbs J. (with whom Mason and Jacobs JJ. agreed) stated (at pp 542-543):

"The case against the applicant may well have been
thought to be a strong one. However, ultimately it
depended on questions of credibility. It is
possible that the jury accepted the police evidence
as to the records of interview, and gave weight to
that evidence in reaching their final conclusion,
and that they would not have been satisfied to
accept that evidence if the testimony of Mr
Heazlewood as to his conversation with
Detective-Sergeant Morey had been admitted. Having
regard to that circumstance, and to the possible
effect of the admission of the inadmissible
evidence, I find it impossible to say that the
errors have not affected the result or that the
jury would certainly have returned the same verdict
if the errors had not occurred. I am not satisfied
that no substantial miscarriage of justice has
occurred ...".

13. With respect to those who hold a contrary view, I am unable to accept that the question which arises when there has been an error of law in the course of a trial resulting in a wrong statement of the legal principles relevant to the jury's consideration of its verdict or the receipt of inadmissible evidence or the rejection of admissible evidence is ever to be answered by reference to an appellate court's view as to the strength of the prosecution case. An argument that the similarly worded proviso to s.423 of the Criminal Law (Amendment) Act 1883 (N.S.W.) empowered a Court to affirm a conviction notwithstanding the wrongful admission of evidence if satisfied that there was sufficient evidence to support the conviction was firmly rejected by the Privy Council in Makin v. Attorney-General for New South Wales (1894) AC 57. The Privy Council was on that occasion constituted by Lord Herschell L.C., Lord Watson, Lord Halsbury, Lord Ashbourne, Lord MacNaghten, Lord Morris and Lord Shand. The forthright words in which their Lordships rejected the argument bear repetition (pp 69-70):

"It is obvious that the construction contended for
transfers from the jury to the Court the
determination of the question whether the evidence
- that is to say, what the law regards as evidence
- established the guilt of the accused. The result
is that in a case where the accused has the right
to have his guilt or innocence tried by a jury, the
judgment passed upon him is made to depend not on
the finding of the jury, but on the decision of the
Court. The judges are in truth substituted for the
jury, the verdict becomes theirs and theirs alone,
and is arrived at upon a perusal of the evidence
without any opportunity of seeing the demeanour of
the witnesses and weighing the evidence with the
assistance which this affords.

It is impossible to deny that such a change of
the law would be a very serious one, and that the
construction which their Lordships are invited to
put upon the enactment would gravely affect the
much cherished right of trial by jury in criminal
cases. The evidence improperly admitted might have
chiefly influenced the jury to return a verdict of
guilty, and the rest of the evidence which might
appear to the Court sufficient to support the
conviction might have been reasonably disbelieved
by the jury in view of the demeanour of the
witnesses. Yet the Court might under such
circumstances be justified or even consider
themselves bound to let the judgment and sentence
stand.

These are startling consequences, which strongly
tend in their Lordships' opinion to shew that the
language used in the proviso was not intended to
apply to circumstances such as those under
consideration.

Their Lordships do not think it can properly be
said that there has been no substantial wrong or
miscarriage of justice, where on a point material
to the guilt or innocence of the accused the jury
have, notwithstanding objection, been invited by
the judge to consider in arriving at their verdict
matters which ought not to have been submitted to
them.

In their Lordships' opinion substantial wrong
would be done to the accused if he were deprived of
the verdict of a jury on the facts proved by legal
evidence, and there were substituted for it the
verdict of the Court founded merely upon a perusal
of the evidence. It need scarcely be said that
there is ample scope for the operation of the
proviso without applying it in the manner contended
for."

14. The passages above cited recognize that it is fundamental to the integrity of the administration of criminal justice that no person should be convicted of a criminal offence on which he is indicted save by the verdict of a jury following a trial in which the relevant principles of law are correctly applied. That precept, in my view, remains unaffected by the proviso. It is not negated in express words. There is no basis for such implication. Recognition of this precept renders the proviso neither nugatory or otiose. Indeed, as Fullagar J. observed in Mraz, regard must be had to this precept in the process of construction of the proviso. His Honour stated (at p 514):

"It (the proviso to s.6(1)) ought to be read, and
it has in fact always been read, in the light of
the long tradition of the English criminal law that
every 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."

15. Recourse to this fundamental precept in interpreting the proviso places limitations on what a Court of Criminal Appeal is entitled to do in exercising its discretion to utilize the proviso. Where there has been an error of law in the course of the trial a Court of Criminal Appeal is not entitled to undertake an independent assessment of the evidence with a view to determining whether a jury, properly instructed in the law in a trial where the rules of procedure and evidence are strictly followed, would on the available evidence have convicted the accused. That process is tantamount to the accused being tried with the Court of Criminal Appeal as the tribunal of fact: clearly a contravention of the fundamental precept.

16. Where there is an error of law the proviso may be applied when it can be said that the law was correctly applied by the jury notwithstanding the error. On occasions it may be discernible from the course of the trial that the law was correctly applied. For example, the error may relate to a formal matter not bearing directly on guilt or innocence, a matter not in issue in the trial, or a matter which did not arise at the trial as a reasonable possibility: see Saad v. The Queen [1987] HCA 14; (1987) 61 ALJR 243, at p 245; [1987] HCA 14; 70 ALR 667, at p 670. On other occasions it may be discernible from the verdict returned.

17. However, unless it can be said that notwithstanding the error the law was correctly applied, it is not possible to say that the accused person has received what the law guarantees, viz. the verdict of a jury arrived at by correct application of the relevant legal principles. If that cannot be said then it cannot be said that there has been no substantial miscarriage of justice. The possibility that an accused person may have been denied that which the law guarantees cannot, in my view, be made good by an appellate court's assessment that the evidence warranted a conviction, even if that assessment be expressed, as in the present case, in terms of inevitability.

18. In the present case there is a basic reason why the question of miscarriage of justice cannot be answered by an appellate court's assessment of the evidence. The error concerned the wrongful use of evidence to prove factual matters the burden of proving which at all times rested on the prosecution. In cases of trial by jury it is the constitutional function of the jury to determine questions of fact: see Hocking v. Bell [1945] HCA 16; (1945) 71 CLR 430, at p 440; Chamberlain v. The Queen (No.2) [1984] HCA 7; (1984) 153 CLR 521, at p 598. Save possibly in the rare case in which all relevant matters of fact are the subject of admissions, as appears to have been the case in Yager v. The Queen [1977] HCA 10; (1977) 139 CLR 28, it is in any given case open to a jury, properly instructed and acting consistently with its duty, to fail to be satisfied at the required standard as to any matter which the onus-bearing party is required to establish. This is particularly so in a criminal trial in which proof is required beyond reasonable doubt. To allow a verdict to stand notwithstanding that evidence was improperly admitted or that the jury was invited to make impermissible use of evidence in determining factual questions is to overlook the fact that the jury may well not have been satisfied as to those matters solely on the remaining evidence. If the proviso allows such a course of action it allows for the decision of an appellate court to trespass upon and undermine the role of the jury in a criminal trial. I cannot accept that such a consequence was intended by or is implicit in the proviso to s.6(1) of the Act.

19. In the present case the central disputed issue was that of the identity of the applicant as the perpetrator of the offences charged. Were this the only live issue in the trial then it may have been possible, in the context of the trial judge's summing up, to discern from the jury's verdict of not guilty to the charge of stealing from Mrs T. that the jury did not accept that the applicant was Mrs T.'s assailant, and accordingly did not rely on the evidence relating to the attack on Mrs T. for its verdict of guilty in relation to the H charges. However, it was for the prosecution to establish all elements of the offences charged. Those elements were not, and, consistent with the defence, could not have been the subject of admissions. Thus, in relation to the charge of stealing from Mrs T. it was necessary for the prosecution to establish that the money was in fact taken by the person who perpetrated the assault. There was no direct evidence on this matter: it was a matter to be inferred solely from the evidence of Mrs T. that "some time later" she noticed that "there was about $50.00 missing out of my purse". In these circumstances the jury may well not have been satisfied that the money was taken, or that it was taken by the intruder. That being so, the verdict of not guilty does not foreclose the possibility that the jury was of the view that the applicant was or was probably the assailant and had regard to the evidence concerning the sexual attack on Mrs T. in reaching its verdicts of guilty to the charges arising out of the attack on Mrs H. Accordingly, it cannot be said that the jury must have arrived at its verdicts on those charges solely by reference to the admissible evidence. It follows, in my view, that it was not appropriate for the proviso to be applied in relation to the convictions arising out of the attack on Mrs H.

20. The convictions on the charges relating to the blue Sigma motor vehicle are in a different category. The relevant offences occurred two days after the attack on Mrs T. No suggestion was made during the course of the trial that there was any relevant connection between the evidence relating to the attack on Mrs T. and the evidence relating to the charges concerning the blue Sigma motor vehicle. Nor was there any suggestion that the evidence relating to the H charges might be used to support convictions on the charges relating to the blue Sigma motor vehicle. In summing up the trial judge treated the incidents as separate and discrete and, save in so far as her Honour instructed the jury that the evidence relating to the attack on Mrs T. and that the evidence as to the presence of a blue Sigma motor vehicle outside Mrs H.'s home might be used to corroborate evidence as to the identity of the applicant as Mrs H.'s assailant, instructed the jury that each incident was to be evaluated upon the separate evidence given in relation thereto. In recounting the evidence relevant to the blue Sigma charges no suggestion was made that the presence of such a vehicle outside Mrs H.'s home in any way touched upon the applicant's guilt of those charges. In these circumstances it seems to me that there is no basis for thinking that the verdicts given on those charges could have been given other than on the evidence admissible in respect of the charges or could have been prejudicially affected by the joinder in the indictment of the charges relating to the attack on Mrs T.

21. I would extend time for applying for special leave, grant such leave, allow the appeal as to convictions on the fifth, sixth, seventh and eighth counts in the indictment, order a new trial thereon and dismiss the appeal as to convictions on the third and fourth counts.

ORDER

Application for special leave to appeal granted.

Appeal dismissed.