It’s too early to say whether the Privy Council’s Barlow decision marks a tectonic shift in the law governing criminal appeals—or a minor refinement—but it does offer much-needed reassurance about appellate courts’ willingness to do justice

Last Thursday the Privy Council dismissed John Barlow’s appeal. It held that the case against him was overwhelming, and the Board felt sure of his guilt. The case marks a change in the law governing criminal appeals. It could have big systemic implications, including for royal prerogative of mercy cases.

A jurisprudential debate has been rumbling along for years, in legislatures and appellate courts. The extent to which it was exercising our own Court of Appeal’s senior members became clear in 2006, when within the space of a few months Justices Hammond and Young both publicly offered their thoughts—Hon Justice Grant Hammond, “The New Miscarriages of Justice” (Harkness Henry Lecture, August 2006); Hon Justice William Young “Reflections on the Role of the Court of Appeal in Conviction Appeals” (address to NZLS Criminal Law Symposium, November 2006).

The conundrum is this: how to confer sufficiently broad discretion on appellate courts that they are meaningfully able to fulfil their review function, but not such a wide discretion that the primacy of the jury verdict, which underpins our criminal justice system, is undermined?

Justice Young, Court of Appeal President, took the conservative side of the argument:

Whatever faults the system of trial by jury may have, it enjoys a large measure of public confidence. Subject to appeals, a jury’s finding one way or the other is almost always treated as being the end of the story. From the point of view of most judges, it would be a pity to adopt procedures which might tend to reduce the public regard for jury verdicts. I have no doubt that this has itself been an influential factor in the conservative approach taken in New Zealand.

But Justice Hammond said:

For my part, I entirely concur with what was said by Lord Bingham extra-judicially in his Sir Dorbji Tata Memorial Lecture in New Delhi in 1999: “Appellate courts should be ready to exercise the full powers conferred upon them in any case where it appears that a miscarriage of justice has or may have occurred, whether or not there is fresh evidence before them and whether or not the original trial was tainted by legal misdirection or procedural irregularity.” … At the end of the day, miscarriage of justice cases are about justice in the most fundamental sense. They are not just about checking that the formal dotting of “i”s and crossing of “t”s took place, and respecting juries. Formalism is simply not enough.

It is the same clash of values that prompted Robert Lithgow QC to quit the Court in high dudgeon in 2005, and that has dogged the Ministry of Justice in its approach to royal prerogative of mercy applications. Public perceptions that the Ministry’s approach is unduly narrow and prescriptive have driven increasingly strident calls for a Criminal Cases Review Commission to be established in New Zealand, that to date have been brushed aside.

Barlow sent up the first public smoke signal that a long line of New Zealand appellate authority had been reversed, but the Privy Council was in fact only applying a recent New Zealand Supreme Court decision, called Matenga.

Matenga is temporarily suppressed, pending retrial. But according to the extracts reproduced in Barlow, before the Court of Appeal can apply what is known as “the proviso” in section 385 of the Crimes Act—which allows the Court to dismiss an appeal if no substantial miscarriage of justice has occured—it must, like the Privy Council in Barlow, feel sure of the appellant’s guilt and satisfied that the trial was fair. Instead of attempting to predict what a jury might or might not have done if the irregularity said to constitute the miscarriage had not happened, the Court must itself consider the whole record of the trial (either excluding bad evidence as in Barlow, or incorporating fresh evidence as in Bain), and reach its own view of the proper verdict.

One can only speculate about what has driven what is, essentially, a policy decision by the Supreme Court. It might, in part, be a recognition that New Zealand had fallen out of step with other jurisdictions, such as the English “lurking doubt” jurisprudence, and the High Court of Australia in Weiss.

In 2006, Justice Young noted the risks to the judiciary of a gulf opening up between popular and legal approaches to the concept of miscarriage of justice. The general public is interested in factual guilt or innocence. That is the ultimate endeavour of the criminal justice system, too, but case names will readily spring to mind in which it has not always looked that way.

Highly publicised miscarriages of justice force the courts to confront the reality of error. Over the last half-dozen years, the volume’s been turned up in New Zealand.

There are three reasons to be circumspect about Matenga and Barlow, and realistic about their likely effects.

The Supreme Court has addressed what was arguably a semantic fiction anyway, whereby the Court of Appeal dressed up its own views about the weight of evidence as a “notional proxy” of what view the jury would have reached.

“The proviso” is not triggered in all appeal cases. First, a miscarriage of justice has to be established; the question is then whether the appeal should in any event be dismissed, because the miscarriage was not “substantial”. In other words, there will continue to be lots of appeal cases unaffected by Matenga, in which the Court of Appeal will continue to apply its existing criteria for excluding flawed evidence or admitting fresh evidence, or deeming a mistake or irregularity to have been inconsequential.

Matenga also leaves unresolved the vexed issue of what the Court should do when satisfied that there has been both a procedural irregularity and a factually correct guilty verdict (at what point does process trump outcome, or vice versa, in assessing the significance of a miscarriage of justice)?

But in spite of all that, I am going to hazard the view that this is quite a big deal.

Matenga explicitly says that the Court of Appeal is the ultimate arbiter. As such, it must take responsibility for reviewing all of the evidence and independently assessing guilt before dismissing an appeal. It establishes a presumption that the Court will do something substantive about miscarriages of justice—not just genuflect before the jury.

It’s also important for what it doesn’t say. It is an implicit acknowledgement by the Supreme Court that the battle for public confidence is being lost, and the onus is on appellate judges to try to get it back.

In providing advice on the royal prerogative of mercy, the Ministry of Justice is closely guided by appellate authority. Principally, the Ministry is concerned with the very threshold questions that are unaltered by Matenga (eg. whether there is credible and cogent fresh evidence that would warrant reopening the case). But Matenga does offer something that is as relevant to the Ministry’s work as the Court of Appeal’s—because the Ministry is an “ultimate arbiter” too.

Finally, those who would see a Criminal Cases Review Commission established in this country often fail to grasp that whoever makes the threshold decisions, cases are sent back to the courts for determination; free pardon is rare. The Court of Appeal’s philosophy is, therefore, as important as that of the review body. Notwithstanding the necessary independence, there is a finely-calibrated relationship; each must keep a wary eye on what the other is doing. A Criminal Cases Review Commission that was philosophically at odds with the Court of Appeal would raise real questions about whether it was serving the interests of justice.

Matenga is a quiet recognition by senior appellate judges that they are the linchpin in all of this. Doing justice is their job and, whether they like it or not, so is public relations. Cataclysm’s not their style, but I think Matenga’s a master stroke, that might be a catalyst.

Comments (6)

by Graeme Edgeler on July 15, 2009
Graeme Edgeler

It always struck me as odd that we use the preogative of mercy as a mechanism to pardon the innocent (contrast with the US, where it is used to pardon the guilty).

I don't think it too semantic to point out that if you're innocent, you don't need to be forgiven. Indeed, if you are innocent, and the Government accepts that you are innocent, then the government ought to be begging your pardon for erroneously convicting you.

The change the Court of Appeal brought about in Munro (.pdf) was I think, very much for the best; it's nice to see that the new approach to appeals has also factored into questions over the use of the proviso. Contrary to Crown assertion, intense appellate scrutiny does not undermine public confidence in juries, it enhances it.

by Claire Browning on July 15, 2009
Claire Browning

Thanks Graeme. Have to disagree with you though about the significance of Munro. Yes, the Court addressed a couple of 385(1)(a) niceties. But I think if you read the judgment again, you'll find it spends most of its time justifying the former status quo, not signalling a "new approach". And far from being "factored in", its essential findings and observations are precisely what have now been overruled by the Supreme Court in Matenga.

by Graeme Edgeler on July 15, 2009
Graeme Edgeler

I guess I'm going more off the hearing than the judgment. Both the Crown and the Appellant were in agreement that if the test the Court of Appeal had been applying for overturning was applied in the instant case, then the appeal would fail. I certainly think it moved the appellate system in the right direction.

I'll confess that I haven't read Matenga (I did try in the vain hope that someone in the Courts would have inadvertantly posted it on-line despite the publication ban), but if as you imply it goes even further than the change in Munro that can only be a good thing.

by Claire Browning on July 15, 2009
Claire Browning

Uh ... I'll confess that I haven't been able to read the whole thing either, although I, like you, certainly tried!  The best I could do (trying to get a little "scoop", you understand) was the quite full extracts reproduced in Barlow, which is available here on the Privy Council website. (I might need a tutorial from you, Graeme, about how to make a link to a .pdf.)

However, trusting the Privy Council to have quoted and interpreted accurately, there is no question that it does go even further - it is a fundamental shift.  With a couple of small qualifications, the Supreme Court has adopted the High Court of Australia's approach in Weiss.  One of the qualifications is that whereas under Weiss the jury's verdict is to be taken into account as part of the trial record, under Matenga the appeal court must form its own view.

The available extracts focus on the proviso, and 385(1)(c).  I don't know whether the Court in the remainder of its judgment addressed the implications for Munro and 385(1)(a).  If not, it does raise interesting questions about whether / how the two approaches could co-exist.

by Claire Browning on July 16, 2009
Claire Browning

Now having read the judgment - emailed to me this morning courtesy of the University of Otago law library, by my old LAWS 101 tutor, who is also a Pundit reader! -

  1. Blanchard J, writing for the Court, reaffirms that the proviso is not engaged in 385(1)(a) or (d) cases. If either (a) or (d) is satisfied, there will necessarily have been a substantial miscarriage of justice. The judgment addresses 385(1)(c) and the proviso.
  2. There is no mention of Munro - the leading judgment on 385(1)(a). As noted above, the premise on which the Court of Appeal proceeded in Munro is rather different, in a couple of key respects: whether the crucial perspective is that of the Court itself, rather than the hypothetical jury; and the Court's function as "ultimate arbiter". As also noted above, it remains unclear whether / how the two different philosophical approaches could comfortably co-exist. I doubt that they can, without looking very peculiar.
  3. By the Supreme Court's standards, it is an unusually brief judgment. The extracts reproduced in Barlow accurately reflect the gist of it.
by Graeme Edgeler on July 17, 2009
Graeme Edgeler

An interesting decision, but I'm intrigued by some of the detail. For example, I had understood that the English Appeal Courts (in criminal cases, at least) didn't get the power to grant a re-trial until 1968.

Indeed, when we were adopting the langauge from their 1907 Act  in 1945, there were calls for us to go further than the UK by specifically allowing for appellate-ordered retrials (see for example the NZLJ article "The Necessity for a Court of Criminal Appeal").

[My memory is perhaps a little fuzzy - the call may have gone to the specific circumstances in which such could be ordered, which may have been more limited - I have the footnote for the title, but not the text]

There's also an interesting debate to be had about what we intended by adopting their statutory language in 1945. The practice in England evolved substantially from its passage in 1907 - were we adopting their intention, or their practice? The English Courts were very reticient when first applying their new-found powers on appeal, but by 1945 had grown substantially more courageous (see for example R v Wallace 23 Cr. App. R. 32 and R v Barnes 28 Cr. App. R 141). Our court's adoption of the initial reticence lasted until very recently.

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