HIGH COURT OF AUSTRALIA
20 A.L.R. 513
1 June 1978 - Brisbane 8 August 1978 - Sydney
8 August 1978 - Sydney
INTRODUCTION:
Application for Special Leave to Appeal Angelo Maric was convicted on three charges relating to two explosions which took place in George Street, Sydney in September 1972. His appeal against conviction was dismissed by the New South Wales Court of Criminal Appeal and this was an application for special leave to appeal against that dismissal. The facts sufficiently appear in the judgment of Gibbs ACJ.
COUNSEL:
H F Purnell QC and W D Hosking, for the applicant. R W Job QC and E O Pain, for the respondent.
JUDGES:
GIBBS, MASON, JACOBS, MURPHY and AICKIN JJ
JUDGMENTS:
Gibbs J.
This is an application for leave to appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales which by a majority dismissed an appeal by the applicant, Angelo Maric, against his conviction on three charges, namely: -
(1) that on 16 September 1972 he did maliciously by the explosion of a substance in premises at 668 George Street, Sydney, cause grievous bodily harm to Josef Martin;(2) that on 16 September 1972 he did maliciously put at 736 George Street, Sydney, an explosive substance with intent to do grievous bodily harm;
(3) that on 16 September 1972 he did maliciously place in a building at 736 George Street, Sydney, an explosive substance with intent to damage the building.
The second and third charges arose out of exactly the same facts but it was not suggested in argument that it was wrong for that reason to convict and sentence the applicant on both those counts and I need not consider that question.
The main ground of appeal before the Court of Criminal Appeal, and the basis of the present application, was that inadmissible evidence of a prejudicial kind was placed before the jury. Before turning to discuss the nature of that evidence and the manner of its admission, it is necessary to say something as to the circumstances of the case.
On the morning of 16 September 1972 a time bomb exploded in a shop at 668 George Street, Sydney, where Josef Martin carried on business. Martin was very seriously injured in the explosion. At about the same time a shopping bag containing another time bomb was found in premises at 736 George Street, Sydney, occupied by Risto Jadrovski. The bomb was carried into the street where it later exploded.
Martin and Jadrovski were both immigrants from Yugoslavia. Both had, or at least were thought to have hade some sort of association of a business kind with the Central Government of Yugoslavia and both had sold publications which had been printed in Yugoslavia. For this reason both had experienced hostility, or received threats, from opponents of the Yugoslavian Government, particularly from Croats. The applicant also was from Yugoslavia but he was a Croat. There was evidence that he had been an active member of a body known as the Croatian National Resistance in Australia, and that he had in his possession publications which advocated the use of violence by Croatians, including Croatians abroad, against those whom they regarded as their oppressors and those who supported those so-called oppressors. This, according to the case for the Crown, revealed the motive which the applicant had to commit the offences.
At the time of the offences the applicant was employed in Townsville. The Crown case was that it could be inferred from the evidence of a number of witnesses that the applicant was absent from Townsville from Friday, 15 September 1972 until the night of Sunday, 17 September 1972 and that he made false statements and gave false evidence in an endeavour to conceal his absence during that weekend. On 22 September 1972 the applicant left Townsville for Coober Pedy, his explanation being that he wished to obtain better paid work. He stayed in Coober Pedy for about a fortnight and then travelled to Perth where he afterwards set up house. In November 1972 in Perth explosives (namely gelignite and detonators) were found in his motor vehicle. He explained their presence by saying that he had obtained them in Coober Pedy for the purpose of engaging in opal mining. The bombs used in the offences appeared to have been made of gelignite, but the detonators used in the bombs were of a different kind from those found in the applicant's vehicle. There was evidence that the applicant was experienced in the use of explosives, having been trained as an armourer and having worked as a miner, and the Crown case was that he had the necessary skill to make a time bomb.
All this evidence did no more than create a suspicion that the applicant may have committed the offences charged. However, evidence that connected him with those offences was given by police officers who said that in March 1974 he made a number of oral admissions which, if believed, clearly showed his complicity in the offences and according to the submission of the Crown showed that he had not merely made the bombs but had placed them in the premises at Sydney. It was alleged that he had said that he had done this for Croatia. The applicant, who gave evidence, denied that he had made these admissions.
It is now possible to consider the matters upon which the applicant relies in making the present application. On the sixth day of the trial (which lasted for 19 days) the Crown called as a witness one Norman David Pratt who was asked to recount a conversation which he had had with the applicant and one Steve Brbic in the North Perth hotel early in October 1972. There was evidence that Brbic was the Australian President of the Croatian National Resistance in Australia, and had set up in Sydney a branch of that body of which the applicant had become the Vice-Treasurer. Pratt, a Canadian, was employed by Brbic at night to work in Brbic's cleaning business. Before Pratt gave evidence of the conversation he was questioned, in the absence of the jury, not only as to the events at the North Perth hotel but also as to another conversation with Brbic at a dance at Mount Hawthorne in November 1972. He said that, although the applicant was also present on that occasion, he could not say whether the applicant had heard the relevant conversation. After the voir dire had concluded, on the seventh day of the trial, the Crown Prosecutor announced that the pressed only the evidence of the conversation at the hotel, and the learned trial judge explained to Pratt that he would not be asked to give an account of what was said at the dance. Pratt then resumed his evidence in the presence of the jury. He said that he was asked by Brbic to go to the hotel, and that he there met the applicant and Brbic and had drinks with them at a table. He was then asked what was the conversation which he had at the table but apparently misunderstood the question and gave an account of what Brbic had said when he made the arrangements for the meeting. The learned trial judge was then prompted to take over the questioning, which proceeded as follows: -
HIS HONOUR: Q. - That is how you came to be there?A. - That is right.
Q. - You got there?
A. - Yes.
Q. - Then did you meet this Angelo?
A. - Yes.
Q. - What ws then said by Brbic?
A. - Steve said he had come down from Queensland and he had done a job in Sydney on the way down and that it was a good job and that it had come off good.
Q. - Would you repeat that?
A. - Steve said that Angelo had come down from Queensland and that he had done a job in Sydney.
Q. - Did he say that was done after he left Queensland, or before, or what?
A. - After, and that it was a good job and that it had come off well.
CROWN PROSECUTOR: Q. - Yes?
A. - In the meantime Angelo was saying he was in a hurry and he would like to leave.
HIS HONOUR: Q. - Did he say where this job was?
A. - Yes, in George Street.
CROWN PROSECUTOR: A. [sic] - Did the accused say anything?
A. - No, just that he wanted to leave.
It later appeared that the purpose of the meeting had been to ask Pratt to go to Fremantle to witness the forthcoming marriage of the applicant.
Pratt was then cross-examined and said in response to questioning by counsel for the accused that when he gave evidence at the committal proceedings of the conversation at the North Perth hotel he had not said anything about the job being in George Street. The learned trial judge, who had the depositions before him, appeared to think that the questions being put by counsel were contrary to what had in fact occurred at the committal proceedings. In fact the witness was right and the judge was wrong for it appears that Pratt in his evidence before the magistrate had said that George Street was mentioned in the conversation at Mount Hawthorne, but had not said that it was mentioned at the North Perth hotel. Counsel for the applicant tried to explain that the witness's reference to George Street had been in relation to a different occasion, but the learned trial judge again took over the questioning as follows: -
Q. - You said you first went to work with him in July?A. - Correct.
Q. - Then you met Angelo with Brbic at the North Perth hotel early October 1972?
A. - That is correct.
Q. - Then this conversation occurred we are talking about. Then you said later on in the evidence that in November there was a dance at the Mount Hawthorne Town Hall?
A. - Late October.
Q. - You fix that how?
A. - They usually have it the last Friday or Saturday in the month.
Q. - On this occassion you met Mrs Brbic?
A. - Correct.
Q. - And Mrs Maric?
A. - That is right.
... . .
Q. - And then you said at that dance Brbic mentioned again certain things, and then you added: "Then he said again that Angelo did a good job for him in Sydney and that it had come off and that he was good at making bombs also?"
A. - Correct.
Q. - Did he mention any particular part of Sydney?
A. - George Street.
Counsel for the applicant protested at the admission of this evidence, and his Honour then gave a direction to the jury in the following words: "Members of the jury, I do not want this inquiry to range far and wide; it is only evidence which is admissible strictly against the accused which I am concerned with. The only reason this is led is as follows: there are circumstances in which an allegation may be made about you in your presence and where, if it were not true, you would be expected to say 'No, that is not correct, you have got the wrong man, it is not me' or 'I did not do it', and if in those circumstances you would expect a person to say something rather than say nothing you may, in your wisdom, and it is a matter for you, say he has acquiesced in that fact. The Crown is inviting you to say that the first time this witness was introduced to Maric and was told 'Now, he has come from Queensland, he has done a job for me in Sydney, it is a good job, it came off well, I want you to be a witness at his wedding', that that very introduction might be interpreted by you, Maric having made no answer to it, except to have the arrangement made for the wedding so to speak, that he was acquiescing in what was said . . . What Mr Luland [counsel for the applicant] is saying is that the discussion at the dance between Brbic and this man, where it was repeated again, was the occasion on which George Street was mentioned. What I am saying is that upon that evidence the prosecutor was asking what was this occasion that it had been indicated, and the answer is it was indicated as George Street."
Counsel for the applicant then applied for the discharge of the jury but his application was refused. At the conclusion of Pratt's evidence, the learned trial judge said that he proposed to read to the jury some passages from Pratt's evidence and to leave it to them what the evidence meant. He then said to the jury: -
In the evidence given in the lower court, members of the jury, and in the evidence in chief, these questions were asked amongst others, concerning their presence together in the North Perth Hotel early in October.'Q. - Did Brbic say anything to you in front of the accused?
A. - Yes.
Q. - What did he say, please?
A. - He said Angelo had come down from Queensland and prior to this he had done a job in Sydney, it was a good job and it had come off.
Q. - Was there any mention of marriage?
A. - Yes. He mentioned he wanted me to be a witness, for Angelo in Fremantle and I agree to this.'
Later on he said there was a discussion at a dance, and he said that Angelo did a good job for him in Sydney and then these questions followed:
'Did he mention any particular part in Sydney?
A. - George Street.
Q. - Was Queensland mentioned?
A. - Yes.
Q. - In what context?
A. - That he had a phone call from somebody in Queensland and that somebody was coming down to Sydney and he wanted me to meet him.'
He added that he had read this evidence "so that this dispute about what was said in the lower court can be interpreted by you".
The applicant gave evidence denying that he had overheard any conversation between Pratt and Brbic about doing a good job for Brbic; in cross-examination he was not asked about the mention of George Street, or of making bombs. In the course of the summing up, the learned trial judge reminded the jury of Pratt's evidence as to the conversation at the hotel, and said: "He said that the job had been identified as being in George Street although it seems clear when one studies all this transcription of the evidence that in lower court he rather indicated that the last remark had been said previously, when they were talking about arrangements to meet this man and I tell you simply to disregard it." He did not mention Pratt's evidence that the applicant was good at making bombs. He directed the jury as to the circumstances in which a statement made in the presenca of an accused person may be treated as an admission. Towards the end of his summing up he gave a summary of the Crown case which began as follows: "The Crown says that its case against the accused is - if I may put it in an inverse order - admissions made to the police, an admission made to Pratt, an admission by implication."
The evidence brought out by the questions put by the learned trial judge was of the most damaging character. The statement by Brbic that the applicant had done a good job in Sydney was insignificant in itself. It had a number of possible meanings consistent with the innocence of the applicant. Even if it were understood to mean that the applicant had done a good job for the Croatian National Resistance in Australia it would not have been enough to incriminate the applicant. The further circumstance, that Brbic had said that the job was done in George Street, made the statement much more harmful, although the jury might still have regarded it as equivocal, because there was no evidence to connect Brbic with the offences. However, to add further that Brbic had said that the applicant was good at making bombs was calculated to suggest strongly to the jury that the job which the applicant had done for Brbic was in some way connected with the bombing in George Street. It is hardly possible to conceive of evidence more likely to prejudice the jury against the applicant to his detriment.
It is unnecessary to consider whether on the state of the evidence it was open to the jury to conclude that the reference to George Street had been made in the hearing of the applicant, although on the version given by Pratt before the magistrate it had not. It is, however, clear that it was not established that the statement allegedly made by Brbic that the applicant was good at making bombs was heard by the applicant. There was no evidence on which it could have been found that he had acquiesced in the truth of that statement. It was rightly conceded by the Crown that the evidence was inadmissible, but it was nevertheless contended that special leave to appeal should be refused.
The first submission put on behalf of the Crown was that the learned trial judge had a discretion either to discharge the jury or to continue with the trial, and that the question which the Court of Criminal Appeal had to decide, and which it was submitted was rightly answered in the negative, was whether any error had been shown by the judge in exercising his discretion.
In support of this submission counsel cited the decision of the Court of Appeal in R v Weaver [1968] 1 QB 353;[1967] 1 All ER 277. In that case the evidence against the two accused men was overwhelming (see QB at 356) but evidence prejudicial to them was inadvertently elicited by their counsel in the course of cross-examination. The judge refused to discharge the jury, the accused were convicted and an appeal was brought. The appeal failed.
Sachs LJ said (QB at 359-60; All ER at 280): -
Cases parallel to the present one have been brought before the Court of Criminal Appeal on a considerable number of occasions in the course of the last few years and the modern practice has become well defined. In each of those cases it has, of course, been natural for counsel for the appellant of applicant to cite a trio of cases which are mentioned in Archbold's Criminal Pleadings, Evidence and Practice, 35th ed (1962) para 936; R v Peckham (1935) 25 Cr App R 125; ; R v Palmer (1935) 25 Cr App R 97, and ; R v Firth (1938) 26 App R 148. Those cases cannot, however, be looked at in isolation.As already stated, the modern practice evolved in the light of these cases is that in essence, as has now often been said (see, for instance, a passage which appears in ; R v Parsons [1962] Crim LR 631 at 632), whether or not to discharge the jury is for the discretion of the trial judge on the particular facts and the court will not lightly interfere with the exercise of that discretion.
It follows, as has been repeated time and again, that every case depends on its own facts. It also, as has been said time and again, it thus depends on the nature of what has been admitted into evidence, the circumstances in which it has been admitted and what, in the light of the circumstances of the case as a whole, is the correct course. It is very far from being the rule that in every case where something of this nature gets into evidence through inadvertence, the jury must be discharged.
This decision was followed in R v Palin [1969] 1 WLR 1544;[1969] 3 All ER 689, and ; R v Waring (No 2) [1972] Qd R 263 and somewhat similar views had earlier been expressed in ; R v Ball (1960) 77 WN (NSW) 605. It may now be accepted that the rule stated in the English authorities cited in ; R v Weaver, supra, which were followed in ; R v Hally [1962] Qd R 214 at 221, was too absolute: it is not an invariable rule that the jury must be discharged in such cases. However, in my opinion, it must be remembered that when a trial judge has refused an application to discharge a jury, and the accused has been convicted, the appeal then brought to the Court of Criminal Appeal is not against the failure to discharge the jury but against the conviction. In those circumstances, I cannot see any justification for deciding appeals in such cases on any different principle from that which applies in relation to criminal appeals generally, although of course one question will arise which will not arise in other cases, that is, whether the giving of the evidence was really the result of inadvertence, or whether it was given deliberately in an attempt to assist the accused. In practice the application of the principles stated by Sachs LJ in ; R v Weaver is not likely to lead to any different result from that which would arise if the appellate court, having decided that inadmissible and prejudicial evidence had been given, went on to consider whether a substantial miscarriage of justice had occurred. In any case, the evidence complained of on this appeal was not given inadvertently; the most prejudicial piece of evidence was given in response to a leading question asked by the judge.
It was next submitted on behalf of the Crown that the majority of the Court of Criminal Appeal were justified in holding that no substantial miscarriage of justice had occurred. The test to be applied in determining whether the wrongful admission of evidence has caused a miscarriage of justice has been stated in a variety of ways. Stirland v Director of Public Prosecutions [1944] AC 315 at 321 is authority for the proposition that there will have been no substantial miscarriage of justice "where a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict". In Archbold: Pleading, Evidence and Practice in Criminal Cases, 39th ed at para 914, the principle is stated as follows: "Where it is established that evidence has been wrongfully admitted, the court will quash the conviction unless it holds that the evidence so admitted cannot reasonably be said to have affected the minds of the jury in arriving at their verdict, and that they would or must inevitably have arrived at the same verdict if the evidence had not been admitted. In considering this question, the nature of the evidence so admitted and the direction with regard to it in the summing up are the most material matters." At basis the question is whether the Court of Criminal Appeal can be satisfied that the irregularity has not affected the verdict and that the jury would certainly have returned the same verdict if the errors had not occurred - see Driscoll v R (1977) 15 ALR 47 at 69;51 ALJR 731 at 743.
In the present case the admissible evidence was sufficient to ground a conviction, but it was by no means overwhelming. In the end the crucial question was one of credibility - that is whether the jury believed that the applicant had made the oral confessions of guilt to which the police witnesses deposed. The case was one which needed to be approached with particular care. The jury had to guard against the danger that they might convict the applicant on mere suspicion engendered by his association with a body of Croats who were said to be bitterly hostile to other Yugoslavs such as Martin and Jadrovski, and by his possession of inflammatory literature.
It is in just such a case that inadmissible evidence of a prejudicial kind is likely to affect the verdict. I have already pointed out that the evidence wrongly admitted was highly prejudicial. It was central to the issues to be determined at the trial. The fact that the judge himself had elicited it may have given it added weight in the minds of the jury. I have, of course, not overlooked that the evidence was given on the sixth and seventh days of a trial that lasted for 19 days, but I cannot accept that it must be concluded that the jury had for that reason forgotten it. The case was a difficult one for any jury to consider, and they had spent many days listening to evidence much of which was quite inconclusive; it may be that the clear pungent statement attributed to Brbic that the applicant had done a good job for him in George Street, Sydney, and was good at making bombs may have seemed to the jurors a damning piece of independent evidence, and because of its importance and its nature it may have remained uppermost in their minds. In all the circumstances I find it quite impossible to be sure that the scales were not tipped against the accused by the wrongful admission of this evidence.
The directions given by the learned trial judge after the evidence was given and during his summing up could not have undone the damage caused by the admission of the evidence. In fact the judge did not tell the jury to disregard the evidence. Sometimes, particularly where inadmissible evidence has slipped out by inadvertence, it is best to refrain from mentioning it again, since to do so might merely impress it on the minds of the jurors. In the present case the judge took the course of directing the jury to Pratt's evidence, without making any reference to the remark that the applicant was good at making bombs, first, almost immediately after the challenged evidence had been given, and again at the conclusion of Pratt's testimony. I cannot but think that if it had been intended to instruct the jury to confine their attention to the admissible parts of Pratt's evidence it would have been more helpful to say so directly; one cannot be sure that the jury took the hint that the judge no doubt intended to give them by his omission of any reference to the evidence wrongly admitted. In the summing up itself his Honour gave an express direction to the jury to disregard the mention of George Street, but did not instruct them to disregard the mention of the applicant's skill at making bombs. He later referred to an "admission by implication" made to Pratt. From these remarks the jury may have thought that it was proper to regard the evidence in question as an admission.
However, I do not base my conclusion simply on the fact that the directions given by the learned trial judge after the evidence had been wrongly admitted were not sufficient to undo the damage. In my opinion the evidence was so damaging that no directions could certainly have removed its detrimental effect. The only possible course open to the learned trial judge was to discharge the jury. For all these reasons it cannot be held that no substantial miscarriage of justice has occurred in this case.
Finally it was said on behalf of the Crown that this is not a case appropriate for the grant of special leave. The court has an unfettered discretion to grant or refuse special leave in every case although it is necessary for an applicant to make a prima facie case showing special circumstances: Eather v R (1915) 20 CLR 147;; Shaw v R (1952) 85 CLR 365 at 381, 382. The present case is one in which there was a serious irregularity at the trial which was likely to lead to a miscarriage of justice. In my opinion the case has that special character which warrants the grant of special leave to appeal.
I would grant special leave to appeal and would allow the appeal and order that the conviction be set aside and that there be a new trial.
Mason J. For the reasons given by Gibbs J I would grant special leave to appeal, allow the appeal and order that the conviction be set aside and that there be a new trial.
Jacobs J. I agree with the orders proposed by Gibbs J and with his reasons.
Murphy J. The applicant, Mr Maric, was convicted of maliciously causing grievous bodily harm by the explosion of a substance, of maliciously placing an explosive substance with intent to do grievous bodily harm and of maliciously placing an explosive substance with intent to damage a building.
His appeal to the New South Wales Court of Criminal Appeal was dismissed by a majority, and he now seeks special leave to appeal to this court.
He claims that inadmissible and prejudicial evidence was admitted on the seventh day of his trial (this was conceded by the Crown); the evidence, which was hearsay and did not come within any exception to warrant its admission, suggested that the applicant was a bomb maker who had done a good job which had "come off" in Sydney. The applicant's counsel applied for discharge of the jury. The trial judge refused. The trial continued for another 12 days but this reference to Mr Maric as a bomb maker was not mentioned again to the jury.
Section 6 of the Criminal Appeal Act 1912 (NSW) provides: -
(1) The court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.(2) Subject to the special provisions of this Act, the court shall if it allows an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.
... . .
Section 8(1) provides: "On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make."
The onus was on the applicant to satisfy the Court of Criminal Appeal that a miscarriage of justice had occurred. The majority of the court considered that if there was any miscarriage of justice, it was not a substantial miscarriage because the case against the applicant was very strong and that the prejudicial evidence would have been forgotten or submerged in the course of the lengthy trial, especially as it was not mentioned again by the trial judge or by either counsel. Mr Justice Larkins, who dissented, held that a substantial miscarriage had occurred.
It is questionable whether this is a proper case for special leave, but I would grant it.
THE APPEAL
An appeal to this court whether civil or criminal, is a true appeal and this court should do what the court below should have done. In my opinion, there was a miscarriage of justice and I am not satisfied that no substantial miscarriage of justice has actually occurred. However strong the case against him, Mr Maric was entitled to a fair trial and this means that inadmissible, highly prejudicial evidence should not be put before the jury.
As there was no direction to ignore the evidence, the jury were entitled to take it into account in arriving at their verdict. The conviction should not be allowed to stand.
This raises the question whether a new trial should be ordered. A new trial is discretionary and should not be ordered unless, "having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make".
Once the trial judge introduced (although inadvertently) the prejudicial material, there was no chance of a fair trial for Mr Maric. No direction would have cured the error. The only proper course was to discharge the jury. The trial record reveals that the prosecution was placed in a very difficult position. Despite this, the prosecution should have supported the application for discharge. From then on, Mr Maric was subjected to a trial which must be regarded as unfair and to a verdict of guilt which, although it cannot be allowed to stand, is undoubtedly prejudicial in the event of any retrial.
A new trial should not be ordered as of course. I pointed out in Demirok v R (1977) 14 ALR 199 that a balance must be achieved between the interests of society in prosecuting charges and the interests of society and the individual in avoiding multiple criminal trials. A new trial should not be ordered unless the balance is clearly in favour of that course. The strong prejudice against double jeopardy is one of the best traditions of our system of criminal justice: "The . . . idea, . . . deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity as well as enhancing the possibility that even though innocent he may be found guilty" (; Green v United States (1957) 355 US 184 at 187).
There is a sound reason why a new trial should not be ordered in circumstances such as this. The prosecution (as well as the trial judge) have a responsibility for ensuring that no miscarriage of justice occurs. If inadmissible highly prejudicial evidence is introduced, causing a miscarriage, and the trial continues over the objection of the accused, the prosecution has little to lose if on appeal the almost automatic result, even if substantial miscarriage is shown, is a new trial. The prosecution should be as concerned as the accused to see that no miscarriage occurs and, if it does, that every endeavour is made to minimize its effect, and if an incurable irregularity (as this was) occurs during the trial, it should support an application for discharge. The sanction on the prosecution for failing to discharge its responsibility is that a new trial may not be ordered in the event of a successful appeal against conviction.
I take into account also the fact that Mr Maric has been imprisoned for a long time as a consequence of the charge and conviction.
The appeal should be allowed, the conviction quashed. A new trial should not be ordered.
Aickin J. I have had the advantage of reading the reasons for judgment of my brother Gibbs. I agree with his account of the circumstances and do not repeat it here. I also agree that the evidence in question was plainly inadmissible, and indeed it was not contended before us that it was admissible. The trial judge made a serious error and one likely to be prejudicial to the applicant.
This case does not appear to me to be one where the Court of Criminal Appeal should have used the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) and dismissed the appeal on the basis that notwithstanding the manifest error "no substantial miscarriage of justice has actually occurred".
The role of the court is, however, a different one; it is not every error, or possible error, of a Court of Criminal Appeal which constitutes a basis for special leave. Attempts to define or describe the circumstances which make a matter special have failed and have indeed been abandoned: see White v R (1962) 107 CLR 174 at 176, where the court said in respect of an appeal against sentence: "Efforts over a long period of years to define the effect of the word 'special' have broken down but it remains true that what we are required to look for is something that is special in the case. Prima facie we do not think a case is special unless it involves some point of law of general application and, therefore, of importance. This case involves no point of law, none whatever, and we do not think that in such a case we should intervene unless there appears to have been a gross violation of the principles which ought to guide discretion in imposing sentences."
The present case involves no point of law of general application or importance. It may without unfairness be described as involving an elementary question of admissibility.
It is impossible to say with any degree of certainty in the case of a trial lasting some 19 days what impact a particular piece of evidence may have had. However, it is at least possible, if not probable, that a fact elicited by a question from the trial judge himself may even after the balance of the trial have a significant effect on the jury's mind, especially when it was of so damning a character. Indeed, as Larkins J said in the Court of Criminal Appeal: "How could the tag of bombmaker and a good one at that, hung upon the appellant by Brbic, ever be forgotten by the jury?" It is certainly impossible to be satisfied that it would not have that effect. The evidence was highly prejudicial to the applicant and the error was not wholly corrected by a direction to the jury as my brother Gibbs points out, even if it was one capable of correction in that way.
The case seems close to the line but, notwithstanding some hesitation, I am prepared to agree that special leave should be granted. If special leave is granted, it is clear that the appeal should be allowed and a new trial ordered.
ORDER:
Order Special leave to appeal granted.
Appeal allowed. Order of the Supreme Court of New South Wales (Court of Criminal Appeal) set aside and in lieu thereof order that the conviction be set aside and that there be a new trial.
SOLICITORS:
Solicitor for the appellant, J P White, Public Solicitor. Solicitor for the respondent, Crown Solicitor for the State of New South Wales.