R v Miller

The appellant alleged that the verdict was unreasonable or insupportable having regard to the evidence. Ultimately, the Court dismissed the appeal. In doing so, the Court clarified that the appellant must do more than merely to show discrepancies or inadequacies in the prosecution case. Rather, it is necessary to show that those weaknesses in the evidence “reduced the probative value of the evidence in such a way that the appellate court ought to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted”. While the appellant also appealed against his sentence, that aspect of the judgment is not considered in this note.

Sofronoff P and Morrison JA and Ryan J

8 June 2021

Background

The appellant was found guilty of one count of indecent treatment of a child under 16 who was under his care. He was acquitted on a second count of indecent treatment of the same complainant which he was alleged to have committed three years earlier. The appellant appealed against his conviction and sought leave to appeal against his sentence. [1].

The appellant appealed against his verdict on the basis that it was unreasonable or insupportable having regard to the evidence. The appellant submitted that three aspects of the complainant’s evidence rendered his conviction unreasonable. First, the complainant’s evidence about her age at “relevant times” was unreliable. Second, the complainant had not provided a full account to police of her degree of contact with the appellant after the alleged commission of the offences. Third, there was “significant inconsistency” in the preliminary complainant evidence. [10].

Additionally, the appellant submitted that the unreasonableness of the jury’s verdict was reinforced by the fact that the appellant gave evidence denying the allegations. [9], [25].

That the verdict of the jury was unreasonable or that it was unsupported by the evidence

The appellant relied upon the famous dictum in M v The Queen (1994) 181 CLR 487, 494–495:

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.” [11].

In considering this ground of appeal, the Court stated that “not enough attention” has been given to the limitations set down in M v The Queen (1994) 181 CLR 487. [16].

The Court emphasised that setting aside a jury’s verdict is a serious step. The appellate court must take account of the jury’s advantage in having seen and heard the witnesses. Quoting R v Baden-Clay (2016) 258 CLR 308, [66], the Court observed that a court of criminal appeal is “not to substitute trial by an appeal court for trial by jury”. [13].

There is a heavy burden on the appellant who must do more than merely identify weaknesses in the prosecution case. [18], [19]. The Court explained that:

“An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellant court ought to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted.” [18]. (Emphasis in the original).

Ultimately, the appellant’s submission that three aspects of the complainant’s evidence rendered his conviction unreasonable was dismissed. [22]–[24].

Whether the fact the accused gave evidence at trial is relevant

Relying on R v Oliver [2020] QCA 76, [89], the appellant also submitted that the unreasonableness of the jury’s verdict was “reinforced” by the fact that the appellant gave evidence denying the allegations. [25].

In the Court’s view, “[o]ther than in exceptional cases, it is impermissible for a jury to draw an adverse inference from the failure of accused person to give evidence, and, in a sexual case in particular, it is wrong for a jury to be told that it is reasonable to expect an accused to give evidence denying or contradicting the evidence of the complainant”. This is because of the accusatorial nature of the criminal trial. [27].

The Court explained that “[i]f the accused gives evidence and is found guilty, that verdict implies that the jury rejected the accused’s evidence as untrue. The appellant’s evidence can then hardly form a rational basis for a conclusion that the jury’s verdict was unreasonable unless there was something in that evidence which the jury was not entitled to reject”. [29].

If the law were otherwise, an accused, as a potential appellant, would face a disadvantage on appeal because it could be said that the appellant lacks the advantage of having given evidence. [31].

The Court also observed that a second reason why “an appellate court cannot use an accused’s election to give evidence in support of a conclusion that a jury’s verdict was unreasonable lies in the constitutionally entrenched requirement that an appellate court must not usurp the function of the jury”. [33].

A jury is appropriately placed to assess the credit of an accused who gives evidence. An appellate court is not in a position to make any such assessment. This is particularly so when the evidence is substantially constituted by bare denials. [34].

For these reasons, the Court dismissed the appeal. [35].

A Hughes of Counsel