Mallard v The Queen [2005] HCA 68

HIGH COURT OF AUSTRALIA

GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

ANDREW MARK MALLARD APPELLANT

AND

THE QUEEN RESPONDENT

Mallard v The Queen [2005] HCA 68 15 November 2005 P77/2004

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Criminal Appeal of the Supreme Court of Western Australia dated 3 December 2003 and, in place thereof, order that the conviction of the appellant be quashed, and that there be an order for retrial of the appellant.

On appeal from the Supreme Court of Western Australia

Representation:

M J McCusker QC with J J Edelman for the appellant (instructed by Clayton Utz)

B W Walker QC with B Fiannaca for the respondent (instructed by Director of Public Prosecutions (Western Australia))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Mallard v The Queen

Criminal law – Appellant convicted of murder – Appellant petitioned for mercy – Attorney-General referred petition to Court of Criminal Appeal – Whether non-disclosure of exculpatory evidence by prosecution denied appellant a fair trial or fair chance of acquittal – Scope of jurisdiction of Court of Criminal Appeal on Attorney-General's reference under s 140(1)(a) Sentencing Act 1995 (WA) – Duty to consider the "whole case" – Whether Court of Criminal Appeal erred in refusing to consider evidence adduced at trial – Whether jury verdict unreasonable or unsupportable – Whether jury verdict could not be supported having regard to the evidence – Whether a substantial miscarriage of justice occurred – Whether a retrial should be ordered.

Appeal – New trial – Petition for mercy – Reference of whole case to Court of Criminal Appeal – Scope of proceedings in Full Court.

Words and phrases – "fresh evidence", "new evidence", "whole case", "as if it were an appeal".