Whitehorn v The Queen [1983] HCA 42

High Court of Australia Gibbs C.J. Murphy, Brennan, Deane and Dawson JJ. Whitehorn v The Queen [1983] HCA 42

ORDER Application for special leave to appeal granted. Appeal allowed. Order of the Supreme Court of South Australia (Court of Criminal Appeal) set aside and in lieu thereof allow the appeal and quash the conviction.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 8 Gibbs C.J. and Brennan J.

We have had the advantage of reading the reasons for judgment prepared by our brother Dawson. We agree with the conclusion which he has reached. However, we do not consider it necessary to discuss the question whether a judge presiding over a criminal trial has the power to call a witness of his own motion and without the consent of either the Crown or the accused. In the present case we are content to assume that the facts that neither the prosecutor nor the judge called the complainant as a witness did not in themselves provide a ground for setting aside the conviction, that the confessional evidence was rightly received and that the learned trial judge was correct in refusing to take the case from the jury. Notwithstanding that, on those assumptions, no error occurred at the trial, the case is one in which the Court of Criminal Appeal should have held that the verdict of the jury should be set aside on the ground that it was unreasonable, and should accordingly have quashed the conviction.

In our opinion a court of criminal appeal, acting under a statute in the form of s. 353 of the Criminal Law Consolidation Act 1935 SA, as amended, which, as our brother Dawson has pointed out, is a common form in Australia, should allow an appeal if having regard to all the evidence it concludes that it would be unsafe, unjust or dangerous to allow a verdict of guilty to stand. If the court reaches such a conclusion in a particular case, that means that it thinks that it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused in that case. We agree with what our brother Dawson has said on this aspect of the matter.