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This matter is of particular interest as it concerned an appeal against conviction and sentence following a judge alone trial. The appellant argued that by misinterpreting some evidence and overlooking other evidence the trial judge had engaged in a “fault of process” of fact finding so that this case should be set aside as it fell within the third limb of s 668E(1) Criminal Code 1899. However, the appellant accepted that the outcome was open to the judge on the evidence. In rejecting the appeal, the Court explained that a “fault with the process” as an aspect of miscarriage of justice must involve a departure from the essential requirements of a fair trial. In a judge alone trial, if there is no “failure of process” in this sense, the only basis for disturbing a conviction upon the basis of incorrect factual findings is if they had resulted in an outcome that was not reasonably open.
Sofronoff P and McMurdo and Mullins JJA
28 May 2021
The judgment is instructive as to the principles to be applied in an appeal from a judge alone trial. The appellant had been convicted of rape and attempted rape and sentenced to concurrent terms of four years’ and two years’ imprisonment, suspended after 20 months. He argued that the trial judge had erred by applying irrelevant considerations or incorrect facts to the determination of his credibility and reliability, with the result that the convictions should be set aside as a miscarriage of justice within the third limb of s 668E(1) Criminal Code 1899 (“the Code”). , .
In the course of her reasons, her Honour traversed various aspects of the appellant’s evidence which she did not consider had “reflect[ed] well on his credit” and which in her view were indicative of a “largely self-serving narrative”. . The appellant contended that the process by which his evidence was rejected by the trial judge was flawed – an argument which the court did not accept. –.
The nature of an appeal against a conviction after a trial by a judge without a jury
Section 615C(1) of the Code provides that in a trial by a judge sitting without a jury:
(a) the judge may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury; and
(b) any finding or verdict of the judge has, for all purposes, the same effect as a finding or verdict of a jury.
Section 668E(1) enables an appeal against conviction where:
(a) the verdict of the [judge] is unreasonable or cannot be supported having regard to the evidence;
(b) the verdict should be set aside on the ground of a wrong decision of any question of law; or
(c) on any ground whatsoever, there was a miscarriage of justice,
provided that the Court may dismiss the appeal if it considers that there is no substantial miscarriage of justice which has actually occurred..
In R v O’Dempsey  QCA 364,  the President stressed that an appeal against conviction under s 668E(1) is not a rehearing and may only be brought on one of the grounds specified, modified to a judge alone trial. .
Essentially, the appellant’s core argument was that the trial judge had misinterpreted some evidence and failed to have regard to other evidence and as such, the “process” by which she rejected the defendant’s evidence failed; and accordingly his case fell within the third limb of s 668E(1). .
In addressing that argument, the court relevantly noted that the fault of process which was found by the High Court in Fleming v The Queen (1998) 197 CLR 250;  HCA 68 was of a kind which was identified by Gleeson CJ in Nudd v The Queen (2006) 80 ALJR 614;  HCA 9. Therein, his Honour clarified the aspect of process, and a failure of process, as an aspect of a miscarriage of justice as a ground of appeal under the third limb of s 668E(1). From the reasoning in that judgment it is apparent that the “fault with the process” which was found by the High Court in Fleming v The Queen involved “a failure of process” amounting to a departure from the essential requirements of a fair trial. . That is how “fault with the process” is to be understood in the context of Fleming v The Queen.
The Court was not of the view that the process by which the evidence had been examined by her Honour was flawed to the extent that a miscarriage of justice had resulted. The errors which had been made at trial were differentiated from ones which went to the process to be followed to secure a fair trial and a fair outcome:
“There was no legal principle which governed the judge’s fact finding which was not applied. The errors (if any) were in the interpretation and assessment of the evidence and its significance. In a case involving ‘no failure of process’ in the relevant sense, the only ground for disturbing a conviction after a judge alone trial, upon the basis of incorrect factual findings, could be if they had resulted in an outcome which was not reasonably open and that ground of appeal was disavowed.” .
In the result, the appeal against conviction was dismissed.