Weiss v The Queen [2005] HCA 81

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

BOHDAN WEISS APPELLANT

AND

THE QUEEN RESPONDENT

Weiss v The Queen

[2005] HCA 81

15 December 2005

M50/2005

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made on 5 May 2004.

3. Remit the matter to the Court of Appeal of the Supreme Court of Victoria for its further consideration.

On appeal from the Supreme Court of Victoria

Representation:

P F Tehan QC with S T Russell and L C Carter for the appellant (instructed by Falcone and Adams)

J D McArdle QC with C B Boyce for the respondent (instructed by Director of Public Prosecutions (Victoria))

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

CATCHWORDS

Weiss v The Queen

Criminal Law – Appeal – Application of "proviso" that no substantial miscarriage of justice has actually occurred – Appellant convicted of murder – Evidence led at trial that should not have been adduced – Appellant appealed against conviction – Appeal court to review the whole case – Utility of reference to what a jury, the actual trial jury or a hypothetical reasonable jury, would have done.

Words and phrases – "proviso", "substantial miscarriage of justice", "substantial miscarriage of justice has actually occurred".

Crimes Act 1958 (Vic), s 568(1).

1. GLEESON CJ, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ. The important issue in this appeal concerns the operation of the proviso to s 568(1) of the Crimes Act 1958 (Vic) ("the Crimes Act") and how that provision is to be applied in criminal appeals conformably with the language and purpose of the statute which appears in common form throughout Australia.

The facts and disposition in the Court of Appeal

1. On 24 November 1994, Ms Helen Elizabeth Grey was murdered. She was beaten to death. In November 2000, the appellant was charged with Ms Grey's murder. 2. At the appellant's trial in the Supreme Court of Victoria, Ms Jean Horstead, with whom the appellant was living in 1994, was an important witness against the appellant. She swore that, on the night of the murder, the appellant had confessed to her that he had killed Ms Grey. Ms Horstead gave evidence that, although she had at first provided the appellant with a false alibi, some years after the murder, and after she had left the relationship with the appellant and moved to America, she had decided to tell the truth. Evidence was led that, some time after Ms Grey was murdered, the appellant formed and thereafter maintained a sexual relationship with a woman other than Ms Horstead. Over the objection of the appellant's counsel, the prosecution was permitted to adduce evidence in cross‑examination of the appellant that at the time the appellant began his relationship with the other woman (whom it is convenient to refer to as Renée) she was not yet 15 years old. It is not now disputed that evidence of Renée's age should not have been adduced. 3. To have intercourse with a girl under 16 years of age and to maintain a sexual relationship with her were serious crimes[1]. None of the criminal consequences of the appellant's conduct with Renée was mentioned to the jury. All that they were told was that she was not yet 15 and a suggestion was made in the course of the prosecutor cross‑examining the appellant, but not adopted, that Renée's age had been given as part of the reasons for Ms Horstead terminating her relationship with the appellant. The prosecution did not later suggest that maintaining a sexual relationship with an under‑age girl was a matter that went to the appellant's credit. 4. The appellant was convicted. On his appeal to the Court of Appeal of Victoria, the Court (Callaway and Batt JJA, Harper AJA) held unanimously[2] that the evidence of Renée's age had been wrongly admitted. Callaway JA (with whose reasons the other members of the Court agreed) rightly held[3] that the evidence of Renée's age was not relevant, that it could not be led to bolster the credit of Ms Horstead and that, if it did have any significant probative value, it was outweighed by its prejudicial quality because "[t]he jury became aware, in effect, that the [appellant] had had carnal knowledge of a girl of 14". 5. The Court of Appeal nonetheless dismissed the appellant's appeal, holding that the proviso to s 568(1) of the Crimes Act applied. 6. Having discussed the state of the authorities about the proviso and its application, Callaway JA concluded[4] that a distinction should be drawn between an appellate court asking whether, without the wrongly admitted evidence, the jury at the appellant's trial would inevitably have convicted him, and asking whether, without that evidence, any reasonable jury, properly instructed, would inevitably have convicted him. On the former test (the "this jury" test) Callaway JA concluded[5] that the appellant's conviction was inevitable; on the latter test (the "any reasonable jury" test) his Honour was of the opinion that it could not be said that the appellant's conviction was inevitable. That was so because[6]: