THE GENERAL RULE
2.1 At common law, there is no appeal against an acquittal by a court of competent jurisdiction after a trial on the merits of a criminal charge.1 This is the case however the acquittal arises: whether upon consideration of the evidence by the jury, or upon the jury’s being directed by the judge to return a verdict of not guilty, and whether or not such an outcome arises from an error of law.
2.2 Section 5A(2)(a) of the Criminal Appeal Act 1912 (NSW) allows the Attorney General or Director of Public Prosecutions to submit to the Court of Criminal Appeal “any question of law arising at or in connection with the trial” where that question is one of general importance for future trials in New South Wales. However, any determination by the Court is treated as precedent only. It does not affect the verdict or outcome of the trial from which the question originated. It should be noted that “[t]he mere fact that the trial judge has made an error of law will not be sufficient” to bring the section into operation.2
THE DEVELOPMENT OF THE RULE IN AUSTRALIA
2.3 In Australia, prior to federation, there were minor deviations from the general rule that a person acquitted of a criminal charge cannot be retried. For example, except where renounced by statute or charter, there remained the inherent prerogative of the Crown in Council to hear appeals from colonial courts on any matter (civil or criminal). However, in relation to criminal matters, this jurisdiction was exercised rarely, and there are no reported incidents of leave being granted to hear an appeal against acquittal unless that verdict had been imposed by an appellate court reversing a conviction at trial, within a series of appeals begun by the accused.3 Departures from the principle existed (and in some cases still exist) in the statutory rights of Crown appeal against the decision of a justice which are available in Queensland,4 Victoria5 and the Australian Capital Territory.6
2.4 After federation, there was some uncertainty over the extent of jurisdiction provided by s 73 of the Commonwealth Constitution. That section confers upon the High Court “jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders and sentences” of any justice or justices exercising the original jurisdiction of the High Court, of any court exercising federal jurisdiction, and any Supreme Court from which at the time of federation an appeal lay to the Queen in Council.7 A series of cases8 established that s 73 provided only a limited right of Crown appeal against acquittal:
[a]n application for special leave to appeal from a judgment of acquittal is a rare thing ... [T]he terms of the Constitution are sufficiently wide to enable us to entertain an appeal from a judgment of acquittal. The judgment of acquittal in this case is the judgment of a court of criminal appeal and is contrary to the verdict of the jury and not in accordance with the verdict of the jury. We would not, of course, go behind a verdict of not guilty.9
THE BASIS OF THE RULE: SUFFICIENCY OR SATISFACTION?
2.5 A direction of acquittal may be given by a trial judge at any time during the trial, but most commonly occurs at the close of the Crown case in response to a submission by the accused that there is no case to answer. In the absence of such a submission, the judge is not bound to withdraw the case from the jury unless it is patently clear that the trial should be stopped because a fundamental ingredient of the charge is missing.10
2.6 There has been some dispute both in Australia and in England as to the basis upon which such a submission may be founded. Although the law is now settled in Australia by the decision of the High Court in Doney v R,11 it is helpful to consider the nature of the contending propositions.
The narrower view
2.7 What has been called the “narrower” view12 (which has now prevailed) is that a submission of “no case to answer” can succeed only where the evidence for the Crown, taken alone and at its highest, is insufficient to establish beyond reasonable doubt the guilt of the accused.13 In determining such an application the judge will assume that the jury will accept the whole of the proofs in favour of the Crown which the evidence on its face is capable of establishing.14 It is irrelevant that a witness upon whose evidence reliance is placed in order to sustain the Crown’s case may have been discredited in cross examination; or that there is evidence central to the Crown’s case which is inconsistent with other evidence which may seem more persuasive. The determination of whether there is evidence, excluding any evidence militating in favour of the accused, which is capable of satisfying the jury beyond reasonable doubt of the accused’s guilt is a question of law for the trial judge, whose direction the jury is bound to accept.15 The judge must not pay any regard to the quality of the evidence or venture any finding or opinion about its plausibility or persuasive force, for these are matters dealing not with sufficiency but with satisfaction, and therefore of fact and for the jury.16
Rationale of the narrower view
2.8 The decision of the judge to withdraw a case from the jury on the grounds that there is insufficient evidence to justify a conviction, is an example of the traditional control exercised by judges over juries. In this context, that control operates, in the interests of both the community and accused person, to prevent a jury’s consideration of proofs which are in law insufficient.17 Its justification lies in the distinction between the judicial function and that of the jury. It is true that an ultimate question of fact may be withdrawn from the jury and vested in the trial judge “under the pretence that it [is] a question of law”.18 But absent any rule of this kind there is a relatively clear demarcation between the functions of judge and jury:
- The judge does not decide which facts have been proved, but assumes that all evidence favouring the prosecution has been accepted; that all facts capable of being proved by that evidence have been proved; and that all inferences capable of being drawn from those facts have been drawn so as to prove further facts; and
- The judge does not ask whether he or she is satisfied beyond a reasonable doubt, but whether the hypothetical reasonable juror could upon the prosecution’s evidence be satisfied beyond a reasonable doubt. The judge’s assessment of the evidence is not the only reasonable response to it, and it may be reasonable for the jury to be satisfied in either direction where the judge would not be satisfied in any.19 The satisfaction of the reasonable juror is assessed by “[pitching] the requirements of the test at the lowest level at which a reasonable man may achieve satisfaction to the requisite degree”.20
Objection to the narrower view
2.9 The narrower view has been regarded with a degree of caution because its strict application means that judges must reject a submission of no case to answer even where they are convinced that the evidence, although sufficient, is unreliable. For example, the prosecution’s case may rest on evidence of identification whose quality is poor (eg because it depends on a fleeting glance). Rigid application of the narrower view means that the judge must nevertheless allow the jury to determine the weight of such evidence. Although this preserves the function of the jury, it may unfairly put a person to trial or even result in an unjust conviction.21
The broader view
2.10 The apprehension that evidence which is sufficient but unsatisfactory may result in a miscarriage of justice by dint of an unjust conviction by the jury, underpins the view that the trial judge is authorised to direct a verdict of acquittal when the evidence is considered to be so unsatisfactory, in point, for example, of credibility or cogency, that a conviction founded upon it would be unsafe.22 Until rejected in several decisions in various States,23 the view that a trial judge can direct an acquittal other than in circumstances where the evidence will not support a verdict of guilty tended to be put on one of two bases:
- the trial judge can stop the case where there is but a “scintilla” of evidence;24
- the trial judge can stop the case where a verdict of guilty would be unsafe or unsatisfactory.
The second of these two approaches was described in Doney25 as “a more robust view” than the former and appears to have developed in England following the passage of the Criminal Appeal Act 1966 which allowed for the setting aside, on appeal, of unsafe or unsatisfactory verdicts.
2.11 The broader view was rejected in favour of the narrower view in England in Galbraith26 and in New South Wales in R v R.27 Both cases admit the possibility of difficulty with the narrower view at the “borderland”, that is, where it is practically difficult to draw a clear distinction between the existence of evidence and the reliability of evidence, as (for example) between the fact of identification and the quality of identification. But the difficulty depends entirely on the trial judge’s first coming to a conclusion about the weight or character of the evidence for the Crown, such as that it is weak, or inconsistent or tenuous or otherwise of poor quality; and these are all judgments about the facts which are forbidden to the trial judge since they fall squarely within the province of fact and are thus reserved to the jury. Once it is plain that in determining whether a submission of “no case” is made out the judge must resolutely avoid any determination about the character or plausibility of the evidence, there should not be any considerable difficulty in applying the test which the High Court has now established.
Objection to the broader view
2.12 Moreover, once it is appreciated that independent power may be exercised by an appellate court to set aside a jury’s verdict on the grounds that is it unsafe or unsatisfactory,29 the foundation of the broader view fails. In Morris,30 Mason CJ restated the test he and Gibbs CJ had formulated in Chamberlain31 that a finding by a court of criminal appeal that a conviction is unsafe or dangerous requires the Court to make an independent assessment of the evidence, and to overturn the verdict not when it disagrees with the jury’s conclusion but when it concludes that on that evidence a reasonable jury ought to have had a reasonable doubt. This is a question of fact. In Morris, Deane, Toohey and Gaudron JJ stated that the question of whether a verdict is unsafe or unsatisfactory:
involves a Court of Criminal Appeal undertaking an independent examination of the relevant evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused. That function is not discharged merely by a consideration of whether there was a sufficiency of evidence to sustain a conviction, for it is clear that a verdict may be unsafe or unsatisfactory notwithstanding that there was evidence sufficient to entitle a reasonable jury to convict ... A Court of Criminal Appeal must make an independent assessment of the evidence, both as to its sufficiency and its quality.32
2.13 At both the trial and appeal stages, the test of sufficiency of evidence is the same: the capacity of the evidence to satisfy a reasonable jury beyond a reasonable doubt.33 If there is sufficient evidence, the decision at trial as to whether the evidence is satisfactory to the requisite degree is a matter for the jury. Whether the jury should or could have been satisfied to the requisite degree is a matter for the appeal court. Hence, the appeal court stands in a different position from the trial judge, in that it reassesses the totality of the evidence according to a test encompassing, but wider than, the sufficiency test:
The usurpation of the jury’s function of weighing evidence is contrary to accepted principle governing jury trials. Although that proposition has been eroded to the extent that three judges on appeal may now say that a conviction though open on the evidence would be unsafe, it would not be warranted to confide that power to a single judge guided only by his own unaided and uncorrected assessment of the testimonial weight.34
The narrower view prevails
2.14 In Doney the High Court expressed the principle thus:
[I]f there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.35
2.15 The High Court went on to point out that the power reserved to a court of criminal appeal to set aside a verdict on the grounds that it is unsafe or unsatisfactory, does not involve an interference with the traditional division of functions between judge and jury in a criminal trial; and that there are no grounds for adding that power to the armoury of a trial judge.36
FOOTNOTES
1. Thomson v MasterTouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397 at 403 per Deane J.
2. R v J (1987) 9 NSWLR 615 at 616 per Lee J.
3. Thomson v MasterTouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397 at 403-404.
4. Justices Act 1886 (Qld) s 209(1) and 222(1).
5. Justices Act 1958 (Vic) s 155 (1) and (4).
6. Magistrates Court Act 1930 (ACT) s 207 and 208.
7. Thomson v MasterTouch TV Service Pty Ltd (No. 3) (1978) 38 FLR 397 at 404.
8. Attorney General for New South Wales v Jackson (1906) 3 CLR 730; R v Snow (1915) 20 CLR 315.
9. R v Wilkes (1948) 77 CLR 511 at 526 per Dixon J.
10. R v Trotter (1979) 22 SASR 64 at 68.
11. (1990) 171 CLR 27. See 2.14.
12. So described by Gleeson CJ in R v R (1989) 18 NSWLR 74 at 77. And see R v Galbraith [1981] 1 WLR 1039; R v Prasad (1979) 23 SASR 161; Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410.
13. R v Trotter (1979) 22 SASR 64.
14. Doney v R (1990) 171 CLR 207; R v Murphy (1985) 4 NSWLR 42; R v Pahuja (1987) 49 SASR 192.
15. R v Prasad ((1979) 23 SASR 161 at 162, 163 per King CJ.
16. H Glass, "The Insufficiency of Evidence to Raise a Case to Answer" (1981) 55 Australian Law Journal 842 at 844, citing amongst others Plomp v R (1963) 110 CLR 234 at 246; Raspor v R (1958) 99 CLR 346 at 350.
17. Cf Justices Act 1902 (NSW) s 41; Wentworth v Rogers [1984] 2 NSWLR 422; Carlin v Thawat Chidkhunthod (1985) 4 NSWLR 182.
18. Salmond on the Law of Torts (15th ed, Sweet & Maxwell, 1969) at 553, dealing with proof of the absence of reasonable and probable cause in the tort of malicious prosecution. Another example was s 23 of the Defamation Act 1974 (NSW), omitted by clause (5) of Schedule 1 of the Defamation (Amendment) Act 1994 (NSW), which provided that whether there was a defence of qualified privilege was to be determined by the court. However, in such cases, any primary facts in dispute are to be decided by the jury, if the jury is the tribunal of fact in the case.
19. Glass at 851-852.
20. Glass at 852.
21. R v Galbraith [1981] 1 WLR 1039 at 1040.
22. R v Falconer-Atlee (1974) 58 Cr App R 349; R v Mansfield [1977] 1 WLR 1102.
23. R v Prasad (1979) 23 SASR 161; Attorney General's Reference (No. 1 of 1983) [1983] 2 VR 410; R v R (1989) 18 NSWLR 74.
24. See for example R Kidston, "Invitations to 'Stop the Case'" (1956) 30 Australian Law Journal 339.
25. (1990) 171 CLR 207 at 213.
26. [19181] 1 WLR 1039.
27. (1989) 18 NSWLR 74.
28. See especially Mezzo v The Queen (1986) 27 CCC (3d) 97 at 130-132 per Wilson J.
29. Chamberlain v R (No. 2) (1984) 153 CLR 521: Morris v R (1987) 163 CLR 454.
30. Morris at 461-2.
31. Chamberlain at 534.
32. Morris at 473.
33. Glass at 846-847.
34. Glass at 845.
35. Doney at 214-215.
36. Doney at 215.
