In response to a question about the Derek Bromley case by reader Jerry Fitzsimmons, Flinders University legal academic Dr Bob Moles explains why fresh evidence at appeal can help overturn an unsafe conviction, but the Crown cannot use fresh evidence to bolster its case.
The Crown has but one chance to prove its case against a person accused of a crime. It presents that case at trial, and once the Crown closes its case at trial, that concludes the case for the prosecution. It cannot re-open the case at trial. On the appeal it cannot present any additional evidence to try to prove the guilt of the accused. That would offend against the double-jeopardy principle.
The purpose of an appeal is merely to review the case put forward by the prosecution at trial.
As part of the appeal, the appellant can put forward “fresh evidence” to show that the conduct of the trial was unfair – the verdict was unsafe. In considering such fresh evidence, the court will merely ask if that evidence had been put to the jury at the trial, is there a reasonable possibility that it might have influenced the jury in arriving at their verdict – if so it will overturn the verdict as unsafe. It does not make its own determination of the guilt or innocence of the accused.
Fresh evidence is simply evidence which the accused could not reasonably have known about at the time of the trial.
The Crown can of course adduce evidence at the appeal to rebut the evidence put forward by the appellant.
What the Crown cannot do is to present additional evidence (beyond that which was presented at the trial) in an attempt to bolster its case against the appellant.
The principles stated by the High Court say that the appeal court “cannot usurp the function of the jury” – it cannot determine any factual question which has not been put to the jury at trial. The High Court says that a conviction cannot be maintained on the basis of any evidence which has not been put to the jury.
As I noted in the research report on the Bromley appeal, see from page 27: http://netk.net.au/Bromley/Bromley35.pdf
“The jury is at trial, and remains throughout the appellate process, the constitutional tribunal for deciding the criminal guilt of the accused “. Kalbasi v WA High Court.
This is why we said in relation to the Bromley appeal that allowing the Crown to put before the appeal court evidence about Bromley’s prior conviction in an attempt to persuade the court not to allow Bromley’s appeal to proceed (for an unrelated offence) was a breach of this fundamental rule.
So, in summary, fresh evidence is that adduced by an appellant to show there was a reasonable likelihood that the trial was unfair.
The Crown is not allowed to adduce fresh evidence to show the guilt of the appellant on any appeal.
Poppa, and Andrew, please let me say this about false accusation.
I was recently in Melbourne driving a milk tanker delivering cream to a dairy factory. I departed the factory and turned right out of the side street to a medium, which was a block from lights at the old Hume, Camperfield. Red light, I was in the turning right and straigh ahead lane, to turn right. Left turning lane beside me. I was crawling less than 20 moving into the intersection and a horn blast, I looked around and then a car drives around me on the outside turning right, driver waving his arm yelling,he accelerated and sped ahead some distance, pulled over. So I just kept crawling wondering WTF. The driver jumped out of his car and was pointjjng at his front guard and me. So I pulled into a service road and they came in. Now you talk about false accusation, bearing in mind they sent me to Maximum Prison for playing guitar in a public place and accused of stalking, breaking a restraining order. Back to to”incident”, an 18 year old driver with a 40 year old passenger witness maintain I side swiped the car on the right side, and they checked my left side bull bar, they maintained I moved into their left lane (lane splitting)to get around the corner. Now the intersection is dual highway with a centre medium, I had 2 lanes to move into, their is no physical possibility the prime mover bull bar could have inflicted a scratch on the outer edge of the right side door mirror, the right side door and a paint scuff on the right front guard wheel arch. So with this accusation I went into shock, trauma.
I didn’t deny, I went into procedure. Ring the boss, ring National Insurance Scheme, give details, get out of there. The absurdity blows my mind. If I was paranoid I could say it was a personal stitch up attempt, or a personal psychological attack. But I told my boss and insurance to tell them to get Fx.
WTF is going on?
I’m sorry, but I don’t know what an EAJS Trial is. However I agree, an innocent person who is suddenly accused of sexual assault is under enormous trauma and pressure and usually unable to think as clearly as he [because it is usually a ‘he’] otherwise would. And whilst it is true in theory that the prosecution has to prove the case, in practise, whether before a jury or a judge alone trial, there is a high likelihood that the jury or the judge [in a judge alone trial] will have bought into the narrative that all accusers are victims and to be believed and that therefore the accused must be guilty, even in the face of contradictory evidence. A barrister recently had to give evidence in a matter for a friend and made the comment “you forget how hard it is to give evidence – to be questioned and to answer in a witness capacity”. I think that is a really relevant observation. The lawyers and judges are so used to standing up and talking in a courtroom where it is all familiar to them, that they forget how difficult it is for anyone else to try to think straight under a barrage of questions. But the lawyers and judges are always careful to be gentle and considerate to the accuser because after all, this is a victim and one knows that she/he can be expected to be traumatised by what has happened to her/him and by the legal process. And if they are not gentle with the accuser they know they will be in trouble for not being “fair” to the accuser. But no one seems to worry about being “fair” to the befuddled defendant because of course, he is guilty, or at least, most probably guilty. If he makes a mistake, then it is “obvious” that he is lying to help himself. It is almost a no-win situation at the moment. I know a perfectly intelligent man who scored “borderline dementia” on a test and who made about 250 factual errors in his trial about things he knew quite well, and none of which helped his position. Clearly much of his evidence was not reliable and it was all discarded and he was convicted. Will he do any better at Appeal? Who knows?
Thanks for providing this explanation Andrew/Bob. So, my reason for seeking clarification was firstly, to receive the expert knowledge from both you well informed gents, and secondly, that Sue Neill-Fraser has had two appeals, and hopefully, a forthcoming High court appeal. Then there is the the Etter/Selby documents presented to the Tasmanian government. In all above examples, was ‘fresh evidence’ not forthcoming, or have I again missed something. I value the feedback from you both, but in all my ignorance of matters legal, I firmly believe this woman did not receive the proper ‘due processes’ of the legal system, and there appeared to be many. We can’t all be wrong, eg the record number of signatures on the SNF petition. Just a matter of stumbling on that “matinee jacket” in the search for justice, I guess.
My concerns are primarily for those who are VICTIMS of FALSE ALLEGATIONS in particular of sex crime. Such persons, likely being shocked into mental paralysis at the time of them being arrested purely on the say so of a self-claimed to be victim of a sex crime, are either incapable or unable to fathom as to why they were the target of such False Allegations. Indeed,as their mental trauma increases during the time leading up to what in Australia will be a mandatory Trial,they may well flounder as to how to even begin to prove they did not commit a crime that they did not commit. Their Defence Lawyer will explain that under the English Adversarial System(EAJS) it is for The Prosecution to prove their guilt and that they are not obliged to say anything. This leads an Accused into believing that only their Defence Lawyer can “save them” from a wrongful conviction. That is a naive and fateful self conviction of mind to adopt as it will be a Jury who will decide their fate. A Jury is a mix of characters, who will have their minds confabulated by what both the Defence & Prosecution Lawyers elect to tell them in regard to the case along with copious verbosity of Legalese and “Objections & Overulings” and orders from the Judge to disregard certain things already said to them. From this hotch potch of information a Jury is them ordered to make judgement as to whether The Accused” is guilty or not guilty. As only an Accused and their Accuser can really know THE TRUTH of the matter under such “scrutiny”, then it can only ever be by chance that Jury verdict reflects “The Truth”. In the absence of factual proof no person should be found guilty. However, they all too easily can be by a Jury denied hearing exculpatory evidence in favour of an Accused. Which is all too highly likely in that the aim of an EAJS Trial is to secure a conviction.