The new proviso - Just like the old one

One of the reforms introduced by the Criminal Procedure Act 2009 was a change to the structure of what had previously been standard form criminal appeal grounds. The old statute required an appellant on a conviction appeal to establish one of three things:

• That the verdict was unreasonable or unsupported by evidence;
• That there was a wrong decision on a question of law; or
• That on any other basis there was a miscarriage of justice.

These three grounds were then qualified by the proviso that the appeal would not be allowed if the prosecution showed that there was no substantial miscarriage of justice. Under the new Act, the proviso was folded into the substantive appeal grounds, so that the court must allow the appeal if and only if:

(a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or
(b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or
(c) for any other reason there has been a substantial miscarriage of justice.

At the time this reform was introduced, there was uncertainty about how the changed appeal grounds would operate. Sibanda v R [2011] VSCA 285 has now confirmed that the change did not affect the law's previous understanding of what the 'substantial miscarriage of justice' test meant. That is, in accordance with Weiss, the court must make its own independent assessment of the evidence and decide whether, having due regard for the limitations of proceeding on the record, it was proven beyond reasonable doubt that the accused was guilty. In Sibanda, Sifris AJA, with Nettle JA specifically concurring on this point, held:

64 It was submitted by the applicant that the use of the words ‘substantial miscarriage’ in sub-ss 1(b) and (c), and the absence of those words in sub-s 1(a), indicates that a different test is imposed by sub-ss 1(b) and (c). The applicant submitted that unlike sub-s 1(a), where the test or task of an appellate court is set out in Weiss at paragraph 41, the test should depart from that stated in Weiss and be one of materiality, in the sense of an error or irregularity depriving the applicant or appellant of a fair or real chance at acquittal.
65 I reject the submission. The effect of the amendment was to reverse the onus and simplify the appeal grounds. There is nothing in the language, context or structure of the section or in the explanatory memorandum to indicate that a different test is to be applied. A change in the onus and simplification of the appeal grounds does not indicate any substantive change to the test or the approach to be taken by the appellate court. For the reasons given, the applicant has not discharged the onus.

At first glance, this makes a lot of sense, as there is nothing to indicate that Parliament intended to move away from the Weiss test. However, given the focus on the Weiss approach of showing whether the court is satisfied in the guilt of the accused, a shift in the onus of proof has significant practical implications. Obviously, the accused cannot be required to show that his or her guilt was proven beyond reasonable doubt, because that makes no sense. Is the accused required to show that the court cannot be satisfied of his guilt beyond reasonable doubt? If so, the difference between that test and the test for a verdict being unreasonable is narrowed substantially. It also means that, applied strictly, any specific error in the trial is potentially relevant only in two ways. Either it demonstrates a fundamental irregularity in the Wilde sense, or it becomes a factor that means the court must place less weight on the jury's verdict as a consideration in determining how to approach matters of credit and the like. I expect that while Sibanda is the first substantive word on this subject, it isn't the last.

Sadly, despite the extensive analysis the court engaged in in Sibanda on the application the proviso, another bench dealing with a similar issue two days later in LA v R [2011] VSCA 293 managed to pass over the issue and, if the headnote is correct, mess up the transitional provisions of the Criminal Procedure Act and so apply the old test. In LA, the date of sentence was 30 March 2010. According to clause 10 of Schedule 4 of the Criminal Procedure Act, the appeal provisions of that Act apply when a person is sentenced on or after the commencement date of the Act, which was 1 January 2010, almost 3 months before LA was sentenced. So, despite both cases involving a clear conflict of evidence of the complainant and accused, both cases really boiling down to whether the complainant consented (erroneous belief in consent in the circumstances outlined by the complainant being unlikely), the court in LA dismissed the issue of the proviso with minimal analysis while using the wrong Act. This is the sort of error that one expects that, if t had been committed by an inferior court, would lead to a successful appeal. Responsibility for this lies as much with the Crown as with the court, which appears to have failed to emphasise the new test (and may ever have referred to the wrong provisions!) and failed to analyse the trends in the cases since Worsnop on how a misdirection on the fourth element of rape should influence the application of the proviso and extrapolate on how that influences the new appeal grounds.

In concluding, it is interesting to note Neave JA's observation in Sibanda:

the decision in Worsnop v The Queen and the cases following it, demonstrate the need for legislative change to clarify and simplify the required mens rea for rape. The current provisions have failed to implement the recommendations made by the Victorian Law Reform Commission, which were intended to ensure that a person who sexually penetrates another person, whilst being aware that the latter is not or might not be consenting to penetration, is guilty of rape.

Given that Neave JA was chair of the VLRC when it made those recommendations, she is likely frustrated with how the law has developed in this area and how ineffective the legislative provisions have been. One hopes for a legislative solution, though with it now being over a year since Worsnop, that seems increasingly less likely.