MacKenzie v The Queen [1996] HCA 35

High Court of Australia Dawson Toohey Gaudron Gummow and Kirby JJ MacKenzie v The Queen [1996] HCA 35

ORDER

1. Appeal allowed.

2. Set aside the order of the New South Wales Court of Criminal Appeal in the appellant's appeal to that Court.

1. In lieu thereof, order that that appeal be upheld, the convictions and sentence quashed and that there be a new trial.

Cur adv vult

The following written judgments were delivered:—

3 December 1996 Dawson and Toohey JJ.

The circumstances giving rise to this appeal are detailed in the judgment of Gaudron, Gummow and Kirby JJ (the joint judgment).

Two questions are raised by the appeal. The first is whether, by reason of the appellant's acquittal on counts of perjury under s 328 of the Crimes Act 1900 NSW, his conviction on alternative counts of perjury under s 327 of the Act was thereby unsafe and unsatisfactory. On that question we are in agreement with the joint judgment that the verdicts were not necessarily inconsistent and would reject that ground of appeal for the reasons advanced by their Honours.

The other question is whether there was a failure by the trial judge adequately to direct the jury on the difference between giving evidence which is knowingly false and that which is mistakenly false. Their Honours would uphold this ground of appeal on the footing that the direction given was inadequate, with the consequence that the appellant lost a chance of acquittal which was fairly open to him. We would also uphold that ground; accordingly we would allow the appeal. Our reasons for reaching that conclusion follow.

This ground of appeal does not go to an issue whether the appellant's convictions were unsafe or unsatisfactory. It goes to the adequacy of the trial judge's direction. It must therefore take into account not only the terms of any relevant direction but also any request for a redirection and whether at the end of the day it appears that the trial may have miscarried by reason of any relevant direction or the failure to give such a direction [1] . The respondent's reliance upon decisions such as M v The Queen [2] , which are concerned with whether a verdict is unsafe or unsatisfactory, is therefore misplaced.