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Chapter 1: What Supreme Court judgment is discussed in this episode?
Okay, and welcome back to this verbatim reading of the Supreme Court judgment that was delivered end of March, 2026, the one in which David Tamahede's conviction was quashed. So here it is without any delay. Let's jump into part two. Approach to the proviso, the principles. it is helpful to first set out Section 3851 in full. The subsection provides as follows. 1.
On any appeal against conviction, the Court of Appeal or the Supreme Court must allow the appeal, if it is of the opinion, a. that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or b.
b. That the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or c. That on any ground there was a miscarriage of justice, or d. That the trial was a nullity.
and in any other case shall dismiss the appeal, provided the Court of Appeal or the Supreme Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favor of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. This court, in R v. Martinge, addressed the approach to the proviso.
The court made the following points of relevance to the present case arising from its interpretation of Section 3851c. First... Whether there has been a miscarriage of justice is the initial inquiry. The proviso is only engaged whether there has been a miscarriage of justice as that term is used in Section 3851C, namely, an error capable of affecting the result of the trial.
Not every error or irregularity in the course of a trial will have that effect, and the effect is to be assessed in the context of the trial overall.
Second, as is common ground in this case, it is not appropriate for the appellate court to apply the proviso where there has been a fundamental error at trial making the trial unfair, and so in breach of the rights of a defendant as guaranteed by Section 25A of the Bill of Rights.
It is also not generally appropriate to apply the proviso where the outcome turns on the assessment of the credibility and reliability of witnesses. Where the proviso is not available, the appeal must be allowed. The court in Lundy summarised the effect of an unfair trial in the Section 385 context in this way.
Some errors are so serious that they cannot be saved by the proviso, even if the appellate court is satisfied of the defendant's guilt. Such errors are characterized as fundamental, or radical, or said to go to the root of the proceedings, or to undermine the integrity of the trial, so that it has lost the character of a fair trial according to law.
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Chapter 2: What principles guide the approach to the proviso in legal appeals?
This court in Lundy accordingly observed there was no taxonomy of errors. One of the issues here is the impact of Mr Harris' evidence, which is now accepted to be untrue. The Privy Council in Arvers Barlow made the well-settled point that a trial is not made unfair simply because some potentially misleading evidence has been admitted.
R v Southen provides a helpful illustration of a case where the wrongful admission of evidence was found to have given rise to a fundamental error. Mr Southen was found guilty of murder. The victim had been stabbed. Mr Southen challenged his conviction on the basis passages from his police video interview, which were played to the jury, were prejudicial.
He argued these passages meant he was deprived of the opportunity of a verdict of manslaughter and of his right to a fair trial. The Court of Appeal accepted his argument that this was not an appropriate case for the application of the proviso. He had run the defenses of provocation and self-defense, and the trial judge accepted there was evidential basis to leave these defenses to the jury.
The challenged parts of the video statement undermined those defenses because they made it plain the appellant had been up for stabbing before and had been in prison where he attended an anger management course.
To illustrate the impact of this evidence on intent, the court said what the jury wrongly learnt about the appellant's earlier actions may have led it to think he would have known the consequences of stabbing the victim and had a propensity to stab people.
Hence, it was more likely the jury might have decided he intended to cause the deceased bodily injury by stabbing, which he must have known was likely to cause death. and that he was reckless about that, as he had stabbed before.
The prejudicial effect of the inadmissible evidence was exacerbated by the omission of any directions from the trial judge on the topic, and where counsel's failure to object was contrary to the appellant's instructions. The Court of Appeal in Southend rejected the Crown's submission.
The proviso to Section 385 should nonetheless be applied on the basis it was unlikely the jury placed weight on the inadmissible evidence, and because there was sufficient evidence for the jury to infer murderous intent from the nature and number of the wounds, and from the general circumstances.
The court said the gravity and significance of the evidence was such as to drive the conclusion the error was fundamental so that the proviso was unavailable. The appeal was allowed and a new trial directed.
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Chapter 3: What constitutes a miscarriage of justice according to Section 3851?
The court went on to say that, In order to come to the view that the verdict of guilty was inevitable, the court must itself feel sure of the guilt of the accused. These passages do not preclude the possibility that it may not be appropriate for a court to apply the proviso because the case considered by the jury at trial is too different to that now advanced before the appellate court.
This situation may arise, for example, where the evidence given at trial has to be assessed in a new light given a critical change in the case. The respondent also draws support from the statement in Matinga that the appellate court is to consider all admissible evidence in undertaking the proviso exercise.
However, the court in Matinga was dealing with a case where Crown evidence had been wrongly admitted. Not surprisingly then, the court was making it clear that in exercising the proviso, the court would only look at the admissible evidence remaining. Nor does it follow that the Crown will always be able to rely on fresh evidence to bolster difficulties with its case at trial.
Rather, whether that is possible will turn on compliance with the procedural protections in Section 25 of the Bill of Rights, and on the extent and significance of any new evidence advanced to support the new theory.
As to the last point, it is clear from the passages of Martenga set out above that the court was not precluding the possibility of cases where the Bill of Rights guarantees may prevail and require a retrial. The use of the word necessarily makes that plain. That is unsurprising, given the importance of those rights and the absolute nature of the right to a fair trial.
the reality that there may be situations where, despite the existence of the proviso, a retrial may be necessary, is also apparent from the recognition in Martenga that the exercise of the proviso is not generally appropriate in cases turning on witness, honesty and reliability.
Martenga plainly contemplates there will be situations where the appellant court should not embark on that exercise at all. The Crown is right that fresh evidence appeals necessarily involve considering aspects of a case that the jury has not heard. It will be a matter of degree, and most new evidence cases are not likely to throw up the issues we are faced with here.
In particular, the fundamental shift in the Crown case, including two likely crime scenes in a larger geographical area. Further, it is necessary to keep in mind the need not to stultify the purpose of the proviso, and so avoid pointless retrials. The decision of this court in Guy v. R is helpful in this context.
Mr. Guy's appeal against conviction was allowed by a majority on the basis that material not called in evidence at Mr. Guy's trial was improperly provided to the jury. The majority found this gave rise to a miscarriage of justice because the trial judge did not know about the material. No direction was given to the jury to counter the potential prejudice.
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