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Precision in Criminal Law


The criminal law can require great precision, as a recent High Court case shows.

The accused gentleman in this matter had been acquitted of murder, but found guilty of manslaughter in the District Court of South Australia. His appeal to the state’s Court of Criminal Appeal was rejected and the High Court granted special leave so that it could hear the matter.

At issue were two major principles of the criminal law.

The first was the need for a jury to be unanimous in its deliberations as to the factual basis on which it might convict someone.

The second is what is called “the proviso”: the principle that says an appeal court should not alter a lower court decision, even if it disagrees with it, unless there has been a substantial miscarriage of justice.

The facts of the case were that the deceased had fallen to the ground twice during an altercation with the accused. There were a number of witnesses and CCTV footage.

The Crown case had been that the second fall had been the cause of death.

Then the expert doctor gave evidence that “overall obviously it’s a combination … either injury [the first or second fall] could have led to death on its own”.

After that, the Crown changed its case to say either fall could have been responsible.

The District Court jury was not directed that it must be unanimous in its deliberations as to the factual basis (that being the first fall, the second fall, or both falls).

All three members of the Court of Criminal Appeal found that the District Court judge had erred by not making a unanimity direction to the jury – but then the majority found that this error had not occasioned a substantial miscarriage of justice (the “proviso”) and so dismissed the appeal.

The High Court disagreed.

Chief Justice Kiefel and Justices Bell, Keane and Edelman said, “To dismiss the appeal as the majority [in the Court of Criminal Appeal] did is to disregard the requirement of a unanimous verdict on the part of the jury and to ‘substitute trial by an appeal court for trial by jury’.”

The conviction was quashed and the matter was sent back to the District Court for a new trial.

While this might be a more extreme example, all criminal matters require attention to detail. The team at Armstrong Legal specialises in criminal, and traffic, matters.

Image Credit – Roman Motizov © 123RF.com

Written by Andrew Fraser on November 13, 2018

Andrew represents clients in the ACT Supreme and Magistrates Courts as well as the NSW Local and District Courts of the Canberra region. He appears also before the ACT Civil and Administrative Tribunal in licensing, mental-health and other matters. His breadth of experience allows him to tailor his advice and submissions to ensure the best possible results for his clients. View Andrew's profile


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