New Zealand Law Students Journal
Last Updated: 24 October 2012
LURKING DOUBT AND THE DANGERS OF CONVICTION: A CRITIQUE OF NEW ZEALAND’S APPROACH TO APPEALS FROM ‘UNREASONABLE’ JURY VERDICTS
“... miscarriage of justice cases are about justice in the most
fundamental sense. They are not just about checking that the
formal dotting of
‘i’s and crossing of ‘t’s took place, and respecting
juries. Formalism is simply not enough.”1
Trial by jury is a fundamental part of New Zealand criminal law. It is seen
(on the whole),2 as the best system for determining outcomes in
criminal cases – the main argument being that juries consist of impartial
concerned only with the justice in each case, not blinded by legal
politics and who represent the views and standards of society.3 Sir
William Blackstone declared long ago that “trial by jury has ever
* Final year student for BA/LLB(Hons), Victoria University of Wellington. This article is an abridged version of a paper submitted as part of the Honours programme in 2008. My grateful thanks to Dr Yvette Tinsley and Nessa Lynch for their advice, likewise to Josh Forde and Amelia Romanos for their assistance. I must also acknowledge the support of my marvelous parents and siblings. I look forward to joining the public law team at Buddle Findlay in November 2010.
1Grant Hammond “The New Miscarriages of Justice” (2006) 14 Waikato LR 1, at 16.
2 The general rule is that every accused person shall be tried before a jury (Crimes Act
1961, s 361A), and in cases where the maximum penalty for the offence is 14 years or
more, it is mandatory. (Crimes Act 1961, s 361B(5)). In many cases however, the right to such a process will depend on a range of factors including the type of offence, its maximum penalty, and the defendant’s preference. (New Zealand Law Commission Juries in Criminal Trials: Part One – A Discussion Paper (New Zealand Law Commission, Wellington, 1998) at 22).
3 New Zealand Law Commission, above n 2, at 12. The Law Commission expressed the
main functions of the jury as follows:
• a fact finder;
• the conscience of the community;
• a safeguard against arbitrary or oppressive government;
• an institution which legitimizes the criminal justice system; and
• an educative institution.
esteemed, in all countries, as a privilege of the highest and most
beneficial nature,”4 while Thomas Jefferson called it
“the only anchor yet imagined by man by which a government can be
held to the principles
of its constitution.”5 Of course, not
all countries have such a system – indeed, one prominent commentator has
remarked that “the very conception
of a jury might be thought
absurd.”6 Nevertheless, it is for better or worse the system
that has been adopted in New Zealand.
The question of whether the jury system as a whole is a successful one is
beyond the scope of this paper. Certainly it has its faults,
and has at times
been the subject of passionate controversy. Occasional high profile
injustices, such as the OJ Simpson
trial, call into question the principles
of impartiality and justice so crucial to the jury system. Such occasions
to strive for improvement, so that rules and procedures are
constantly refined, examined and improved to reflect changing
In New Zealand the development of the jury system has taken many forms, both
undisputed and controversial. This paper will examine
only one aspect –
that of the ability to appeal against a jury decision simply because the jury
got it wrong. Most common law
jurisdictions allow for this opportunity in some
form.7 In New Zealand it is called the ground of
“unreasonableness,” and appears in section 385(1)(a) of the Crimes
Recently the section has been under scrutiny and the rules and
principles that guide judicial use of it have been discussed
updated. Most notably this discussion took place in late 2007 in the Court
of Appeal with the case of R v Munro.8 Also significant was
4 John Trusler (ed) A summary of the constitutional laws of England, being an abridgement of
Blackstone’s Commentaries (Printed for the author [J Trusler] at the Literary Press, London,
1788), at 119.
5Andrew A Lipsomb and Albert Ellery Bergh (eds) The Writings of Thomas Jefferson, Volume
Seven (Thomas Jefferson Memorial Association, Washington, 1903), at 408.
6John Baldwin and Michael McConville Jury Trials (Clarendon Press, Oxford, 1979), at 1. To demonstrate this point, Baldwin and McConville go on to quote a passage from Oppenheimer: “We commonly strive to assemble 12 persons colossally ignorant of all practical matters, fill their vacuous heads with law which they cannot comprehend, obfuscate their seldom intellects with testimony which they are incompetent to analyse or unable to remember, permit partisan lawyers to bewilder them with their meaningless sophistry, then lock them up until the most obstinate of their number coerce the others into submission or drive them into open revolt.”
7 For example, Criminal Appeal Act 1968 (UK), s 2.
8 R v Munro  NZCA 510;  2 NZLR 87 (CA).
later decision of Owen v R,9 where the Supreme
Court affirmed the reasoning in Munro and added some observations
of its own. The principle that has emerged is a refinement of the existing
law in New Zealand and
is as follows:10
The correct approach to a ground of appeal under s 385(1)(a) is to
assess, on the basis of all of the evidence, whether
a jury acting
reasonably ought to have entertained a reasonable doubt as to the guilt
of the appellant.
The Munro principle was reached after careful examination of
the historical approach both in New Zealand and overseas.
importance was placed on the need for New Zealand to be “in line”
with comparable jurisdictions, but only to
the extent that this fit in with what
was seen as the right conclusion for New Zealand. This is most evident in the
in Munro of the English authorities in this area. The
English have often referred in their judgements to the concept of
doubt,”11 which (arguably) authorises
judges to have regard to a more visceral reaction to a case than that which has
allowed in New Zealand.
This paper examines the development of judicial thinking in New
Zealand on the issue of appeals on the ground of unreasonableness.
current position on section 385(1)(a) will be considered, primarily in light of
the recent decisions of Munro and Owen, including to what extent
this reflects the attitude that New Zealand judges have taken in the past. A
comparison is drawn with the
way that the English courts treat the same
issue. While the two jurisdictions have taken quite different routes,
ultimately reached the same destination, in that this ground of
appeal has been accepted in theory but has faltered in its execution.
its virtue has become lost in the marshes of legal conservatism and analysis,
particularly in New Zealand. A great deal
could be gained by placing
more faith in judicial instinct and judgment. Indeed, given the potential
of justice under the jury system, and the clear purpose of
section 385(1)(a) to reduce this possibility, great care must be taken
judges in such appeals not to repeat the same mistakes that the jury may have
made. With such
9 Owen v R (11 December 2007) NZSC SC 25/2007.
10 R v Munro, above n 8, at .
11 Originally put forward in R v Cooper (Sean)  1 QB 267
drastic consequences at stake, judges must not be hampered by a rule which
restricts them from making the right decision.
As put by Hammond J,
“at some point there must be an end to analysis: what is needed on an
appellate review ... is detachment,
sagacity, and in Hugo Young’s
memorable phrase, an ‘unseducible engagement’ with
A. Section 385(1)(a)
Before embarking on an examination of the approach that the New Zealand courts have taken to unreasonableness appeals over the decades, it is useful to consider the meaning and significance of section
385(1)(a) itself. The section provides that on any appeal to the Court of
Appeal or the Supreme Court, the appeal must be allowed
if the Court is of the
opinion 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.”13 The current section (apart from some minor
amendments)14 was incorporated as part of the overall scheme of
the Crimes Act when the Act was introduced in 1961. Before that it had existed
as section 4 of the (now repealed) Criminal Appeal Act 1945 in substantially the
While the section is rarely used successfully, it is today a very important
part of our legal system as one of the safeguards against
injustice. Of course
it is only one such safeguard,16 but it may nevertheless be said
that subject to the effect of section 385, in jury trials
of the verdict is the end of the matter.17
12 R v Munro, above n 8, at .
13 Crimes Act 1961, s 385(1)(a).
14 The Supreme Court Act 2003, s 48(1) made several changes but none which affect the
15 In the older Crimes Act of 1908 there was no reference to appeals based on
unreasonableness, but the Court of Appeal had the power to order a new trial or change a conviction if it considered that this was necessary due to some error at the trial stage. (Crimes Act 1908, s 445 (repealed)).
16Others include the “golden thread” of the presumption of innocence (Woolmington v
DPP  AC 462), as well as the standard of proof of beyond reasonable doubt. There is also the law regulating the use of evidence, and the preservation of the Governor General’s prerogative of mercy in section 406 of the Crimes Act. The Bill of Rights Act
1990 also contains some relevant protections, particularly in sections 24 (Rights of
persons charged) and 25 (Minimum standards of Criminal Procedure).
17 New Zealand Law Commission Compensation for Wrongful Conviction
or Prosecution – A
reflected by the fact that the burden of proof for appeals under section
385(1)(a) shifts to the appellant.18 The terrible consequences of a wrong conviction are obvious – in the words of the Law Commission in
Being convicted and serving the full sentence for an offence may be the
most severe misfortune to befall an innocent person. It
entails the greatest
loss of liberty and disruption to normal life. At the other end of the scale are
those charged with a criminal
offence but discharged without ever having been
held in custody or brought to trial. For them, the injury or loss
may include a sense of injustice at having been wrongfully
accused, stigma of being charged with an offence, and possible
preparing a defence before charges were dropped.
It is important therefore, that the section is given its proper weight and
not narrowed unacceptably.
Apart from (potentially) protecting the innocent, the value of section
385(1)(a) is that its existence protects the integrity of the legal system.
It provides a ground for appeal against a jury
verdict in certain
cases where none of the conventional grounds for doing so exist – that is,
“in the absence of
fresh evidence, a trial irregularity, or an error
in the summing-up.”20 This reflects a recognition that the
jury system is (like any system) an imperfect one, and that following
all the correct
procedures does not necessarily prevent injustice. As
Glazebrook J remarks in Munro, “the cause of the continued
acceptance of trial by jury will not be served by treating a jury’s
verdict ... as unchallengeable
or unexaminable.”21 Of
course, a delicate balance must be reached between restricting the
opportunity for review on this ground to few
Discussion Paper (New Zealand Law Commission, Wellington, 1998), at 3.
18 R v Munro, above n 8, at .
19 Compensation for Wrongful Conviction or Prosecution, above n 17, at 4. Also useful is Baldwin
& McConville’s discussion of these protections and their view that “... safeguards of this
kind do not always prevent the conviction of innocent men.” (Baldwin and McConville above n 6, at 69).
20 Rosemary Pattenden “Noticeboard” (2008) 12 EvPro 2, at 4.
21 R v Munro, above n 8, at . Glazebrook J goes on to quote as follows from Whitehorn
v The Queen  HCA 42; (1983) 152 CLR 657: “To the contrary, so to treat a
jury’s verdict of guilty could sap and undermine the institution of trial
by jury in
that it would, in the context of modern views of what is desirable in
the administration of criminal justice, be liable to be seen
as a potential
instrument of entrenched justice.”
enough cases so that the authority of the jury is maintained, while at the
same time leaving the door sufficiently ajar so
that the section is
a realistic help to those few who are the victims of wrong or unfair
Glazebrook J in Munro has also pointed out that successful appeals under the section are likely to be rare, as cases which have insufficient evidence would (it is to be hoped) have been “weeded out at an earlier stage.”22 It was also noted in Ramage, the earlier leading New Zealand case on the subject, that “a decision as to whether a verdict was unreasonable or cannot be supported having regard to the evidence is not one which lends itself to any extensive elaboration of reasons.”23
Presumably this means that a successful appeal under the section could be
both a rare event and a poorly explained one. Why, after
reviewing the same
evidence that was before the jury, an appellate court may feel that there should
have been a different result,
may well be hard for the judges to explain –
particularly without appearing to break the rule put forward in many of the
that “it is not enough that [the] Court might simply disagree with
the verdict of the jury.”24 Yet this lack of information
could lead to real uncertainty about the circumstances in which the section is
to be used, and potential
inconsistency in the case law.
Fortunately, Munro was unusual in that the appeal was that the
jury’s decision was unreasonable based on the evidence as a whole, not
just a specific
part of it.25 This obliged the court to not only
decide what the rule under the section should be, but also to review the whole
of the evidence
in detail to determine the outcome. The application of the rule
to the facts is thus clearly and extensively explained, making the
valuable demonstration of how the section works.
Before moving on to an analysis of this and other New Zealand
decisions one further point must be noted to avoid confusion.
above, section 385(1)(a) provides a ground for review even “in the absence
of fresh evidence, a trial irregularity,
or an error in the
22 R v Munro, above n 8, at .
23 R v Ramage  1 NZLR 392, at 395.
24 Ibid, at 393.
25 R v Munro, above n 8, at .
summing-up.”26 Munro was a successful appeal on the
basis of unreasonableness, but the case also contained trial
irregularities and summing-up errors.27 Such flaws can be
legitimate grounds for appeal in themselves, but this would be done through
another method, as a separate justification
for appeal. In this case the flaws
contribute to the overall inadequacy of the process that Mr Munro went through
at trial, but the
point is that based on the evidence his appeal would have been
successful in any event.
B. New Zealand’s Position: Unreasonable Jury Verdicts
1. Overview: Pre-2007
Prior to Munro, the authoritative case in New Zealand for the use of
section 385(1)(a) was that of R v Ramage.28 The test for
determining such appeals was expressed in that case by Somers J, and is largely
the wisdom that prevails in New Zealand
A verdict will be [unreasonable] if the Court is of the opinion that a jury
acting reasonably must have entertained a reasonable
doubt as to the guilt of
the applicant. It is not enough that [the] Court might simply disagree
with the verdict of the
Ramage was an unsuccessful appeal. The facts and evidence were briefly
reviewed by Somers J, and he took care to point out areas of dispute.
it is quite clear from his judgment that he had no real concern about
the verdict – he described one piece
of fiercely disputed evidence as
simply “not a vital fact.”30 He also briskly dealt with
claims of jury misdirection due to some neglect of the Crown to prove the
requisite intention, saying
that it had not affected the
26 Pattenden, above n 20.
27 R v Munro, above n 8, at (for example) , .
28 R v Ramage, above n 23.
29 Ibid, at 393.
31 R v Ramage, above n 23, at 397. Although misdirection would not justify an appeal
under section 385(1)(a) it is relevant in the sense that it clarifies what Mr
Ramage would have had to prove to be successful. Somers
J was of the opinion
that there were no such material errors, so the justification for the appeal
solely came down to the reasonableness
of the jury’s decision.
The case law prior to Ramage need only be mentioned in summary. R v
Mareo32 was decided in 1946 under the Criminal Appeal Act
1945. It was held that the best way to determine whether a verdict could not be
supported having regard to the evidence was the English approach of whether the
trial or verdict was “unsatisfactory.”33 It was also
noted that a miscarriage of justice must be apparent, not a simple difference of
opinion on the part of the appeal judges.34
Two years later in R v Ross35 it was said that a
new trial would be ordered where the verdict was not one that a jury of
twelve reasonable men could reasonably
and properly have found. Interestingly,
the Court also remarked that a weak case against the appellant was not
for an appeal and that as long as there is evidence to
support the conviction the conviction should stand even if the Court feels
doubt about it.36 Perhaps it could be said that this is the same
comment as the one made in Mareo, that a difference of opinion is not
enough. Nevertheless, a legitimate difference of opinion is one thing,37
but a real appellate doubt about the correctness of a conviction
may be quite another. These issues will however be discussed
in more detail
below. The reasoning in Ross was approved in R v Kira38
Finally, the Australian case of Chamberlain v R39 must be
mentioned. In a joint judgment, Chief Justice Gibbs and Justice Mason held that
an appellate court has the jurisdiction to
reverse the verdict of a jury even
where there was sufficient evidence to support it and the trial itself was not
in any other way.40 This power is a limited
one however, and Their Honours took pains to stress that the jury is the
primary fact finder and
appellate courts have no right to usurp their role.
This view follows the judgment of Dawson J in Whitehorn v The
Queen41 in which the following approach from an earlier
32 R v Mareo (No 3)  NZLR 660.
33 Ibid, at 670.
35 R v Ross  NZLR 167.
36 Ibid, at 168.
37 For example, in Munro it was observed that “reasonable minds might disagree on findings of fact.” (R v Munro, above n 8, at ).
38 R v Kira  NZLR 420.
39 Chamberlain v R  HCA 7; (1984) 153 CLR 521 (HCA).
40 Ibid, at 531.
41 Whitehorn v The Queen  HCA 42; (1983) 152 CLR 657
rejected: “it is the doubt in the court’s mind upon its review and assessment of the evidence which is the operative consideration.”42
Gibbs CJ and Mason J saw as more appropriate the approach in
Whitehorn that the appellate court must simply decide whether
the verdict was one open to the jury to make. The rejection of the earlier
approach is however, problematic. If (as stated in Chamberlain),
an appellate court may reverse the verdict of a jury even where there was
sufficient evidence to support it and the
trial itself was
not objectionable in any other way, then the doubt in the court’s mind is
indeed the operative factor.
There is conflict between the statement on the one
hand that a verdict may be reversed even where there was sufficient
evidence to support it and the concept on the other hand that the appellate
court’s role is merely to decide whether the verdict
was open to the
jury. If there was sufficient evidence to support it then naturally it was
open to the jury to make it. This
approach conceivably narrows the court’s
power significantly, and plays down the importance of a difference of opinion by
appellate judges. Again, the dangers of this will be discussed more fully
2. R v Munro
(a) The Facts and the Arguments
Although in essentials it follows the example set by Ramage, Munro
is now the leading case on section 385(1)(a) in New Zealand.
It is necessary to introduce the case carefully as some new
observations were made and the facts are complex.
Mr Munro was convicted in September 2006 of the charge of causing death while driving with excess blood alcohol under section 61(1)(b) of the Land Transport Act 1998. Mr Munro appealed his conviction using section 385(1)(a) of the Crimes Act 1961. In June 2007 the appeal was allowed. The conviction was quashed and a verdict of acquittal entered
– a result (one may assume) of some significance to Mr Munro, who thus
avoided the imposition of penalties entailing up
to five years in prison, up
to $20,000 in fines and the disqualification of his licence for up to a
year.43 However, given the infrequency with which the
42 Ratten v The Queen  HCA 35; (1974) 131 CLR 510, at 516 (HCA).
43 Land Transport Act 1998, s 61(3).
is successfully used the outcome was also significant for
the development of the law in this area.
The actual events giving rise to the case, while tragic, are
relatively simple. Mr Munro was driving south towards Wellington
17th of November 2004. Just south of Manakau, he collided
with a car travelling north. Ms Aldridge, who was driving the other
at the scene. The complications arose in the different contentions on either
side about who caused the collision.
The Crown case was that Mr Munro
caused the collision by crossing the centre line into the path of Ms Aldridge.
argued that Ms Aldridge caused the collision by crossing the
centre line into the path of Mr Munro. Given the polarity
arguments, much depended on what assessment and weight was given by the jury
to the different categories of evidence.
Unfortunately, almost all of these categories were under dispute in
some way. The account of the sole eyewitness to the
collision was in doubt due
to a mistake she made in recalling the directions that the two vehicles had been
travelling in when they
collided. This mistake caused the prosecution to
conclude at trial that the evidence was neutral and did not assist either
party.44 The Court of Appeal disagreed, saying that since the
vehicles had ended up pointing in the opposite directions to which they had
been travelling, the mistake was understandable, and that there “must
be a reasonable possibility that Ms Clisby was wrong
about the direction of
the cars but that everything else she said was correct.”45
This meant that her account strongly supported the defence
It also became clear that the physical crash evidence itself was
astonishingly badly handled and documented, both at
the time of the crash and
during the trial. This lead to opposing views between crash experts about which
vehicle had crossed the
centre line corresponding exactly with the opposing
views between prosecution and defence. The issues surrounding the mishandling
the evidence also led to criticism in the Court of Appeal about the trial
process itself and aspects of the summing up.46
44 R v Munro, above n 8, at .
45 Ibid, at .
46 For example, some important diagrams of the crash scene were
presented to the jury as fact when they were actually a reconstruction
prosecution expert’s opinion. (R v
Finally the evidence regarding the potentially impaired state of both
drivers was contentious. It was undisputed that a blood
test taken from Mr Munro
after the accident showed that he was over the legal alcohol limit.47
Indeed, this was the very reason why it was so important to prove that
Mr Munro caused the accident and consequently the death
of Ms Aldridge
– it was clear that the “driving with excess blood
alcohol” part of the offence was
satisfied. This was where other factors
came to be of great consequence: accounts from other drivers alleged Mr Munro
driving badly earlier in the evening,48 and there was
evidence that Ms Aldridge was also impaired due to cannabis consumption,49
and cell phone use.50
(b) Munro’s acquittal: the correct test applied
Such uncertainties and contentions as those described above about different parts of the evidence are not uncommon in criminal trials. Once evidence has been deemed admissible by the judge, it is the jury’s job as primary fact finder to decide which parts to give credence to. They must be able to “sift through the evidence, understand it, weigh it up, assess the credibility of witnesses, and apply the law to the facts.”51
This is what makes the task difficult for appellate judges. They may not
simply review the evidence and make their own decision –
that is the
jury’s role. They must review the evidence in relation to the decision
the jury came to, and decide whether there
is a sufficient correlation between
the two. As mentioned above, in this case the judges articulated
their task as
to “assess, on the basis of all the evidence,
whether a jury acting reasonably ought to have entertained a reasonable
to the guilt of the appellant.”52
This assessment was a weighty task for the judges in Munro, given
Munro, above n 8, at ). Again, these sorts of errors are procedural ones and could give rise to grounds for appeal in themselves. They are mentioned merely to demonstrate the kind of issues that the jury had to deal with. Undoubtedly these errors were confusing for the jury and most likely contributed to their wrongful conviction of Mr Munro.
47R v Munro, above n 8, at .
48 Ibid, at .
49 Ibid, at .
50 Ibid, at .
51 Juries in Criminal Trials, above n 2, at 13.
52 R v Munro, above n 8, at .
the challenge to Mr Munro’s conviction was based on the evidence as a whole and not merely on certain parts.53 The evidence has been briefly outlined here, but this does not give a proper picture of its complexity
– in particular with regards to the crash site evidence
and the differences in expert opinion. Every detail had
to be reviewed by the
Court and the approach taken by the jury carefully examined. It is not proposed
to undertake the same exercise
here; however some of the Court’s
comments are useful for determining how exactly it was decided that
ought to have entertained a reasonable doubt.
The principal matter that the jury had to decide was which of the expert
theories to prefer as to how the collision occurred. This
was the key point
as it was essentially the same as deciding who was responsible for it. After
comprehensively reviewing the crash
site evidence the Court of Appeal turned
to the decision of the jury and noted the following points:
- Due to the approximate equality in expertise between the experts, the jury were not entitled to choose between them on this basis.54
- The advantage of the Crown’s expert in having attended the scene of the crash shortly after the accident was significantly diminished because he did not take any notes of value at that time.55
- Despite the importance of impression, a jury must assess a
witness “clinically and in a detailed manner rather than purely impressionistically.”56 The Court expressed some concern that the jury may have been unimpressed with the defence expert due to the negative impression he made on them even though his evidence was convincing.
- The forensic crash evidence itself was “at best neutral”
and there was “no rational reason for the jury
to reject the defence
explanation as not being reasonably possible.”57
This led to the conclusion that the jury had not been entitled to
53 Ibid, at .
54 R v Munro, above n 8, at .
56 R v Munro, above n 8, .
57 Ibid, at .
the Crown’s version of events as proving on its own that the collision
had happened in the way the Crown had described.
In view of the above
points Glazebrook J stated that:58
This was not a case where experts might disagree and the jury was
entitled to choose between competing hypotheses:
concessions made by the Crown, and lack of evidence underpinning key elements
of the Crown case, mean that the jury,
acting properly, could not reasonably
find the appellant guilty beyond reasonable doubt.
This conclusion was supported by the fact that the Court had already decided that it was not open to the jury to reject the eyewitness account in its entirety, which it viewed as supporting the defence argument.59
The remaining Crown evidence was then minutely examined,
specifically the elements pointing to Mr Munro’s
his alleged bad driving earlier in the evening and his statements after the
collision. In relation to this evidence,
the Court said
... [it] would not have been sufficient on its own, or in conjunction with
the expert evidence, to sustain a guilty verdict. While
this other evidence
was probative of the fact that Mr Munro was drunk and driving very
badly, it could never be relied
upon to prove that Mr Munro had in fact
caused the collision ...
This significant and unequivocal statement coupled with a very
convincing review of the evidence makes it hard to deny
that the jury certainly
seems to have made a serious mistake with Mr Munro’s conviction. The case
therefore appears to be a
glowing demonstration of the effectiveness of the
stated principle and of section 385(1)(a). It proves that within the
safeguards against injustice the jury retains a degree of
discretion which in turn contains a margin of error. This is of course
for the jury to function properly but it can also lead to inaccurate results in
some cases. Munro was such a case.
58 Ibid, at .
59 Ibid, at .
60 Ibid, at .
(c) Summary of the Munro approach
The principle put forward in Munro for determining appeals
under section 385(1)(a) is simple and clear in its wording. As demonstrated
above, it also reflects
the law on this issue as it has been understood by
judges in New Zealand for a considerable period of time. The only real change
to the 1985 test from Ramage is a replacement of the word
“must” with “ought.” This seems at least intuitively to
be a constructive
development, as it would tend to broaden the rule to apply
to more cases – how will an appellate court ever really know what
must have thought? The Court considered that the change reflected
the statutory wording more accurately, as it focuses on what
reasonable jury would have come to, and not on the potentially
different opinion of the appellate
court – in other
words, it “emphasises the task that the court has to
Based on the judgement in Munro, this task involves reviewing
the relevant evidence and deciding whether the jury understood
and gave it the appropriate weight. Particular emphasis was
given to deciding what actions the jury was “entitled”
take with regard to the evidence. This will (it is suggested) determine whether
the appeal should be allowed or rejected, because
it will reveal any mistakes
the jury may have made in considering the evidence. The problem however, is that
this does not the address
the question of whether the accused is guilty or not
guilty of the offence. The purported assessment of whether the jury ought to
have entertained a reasonable doubt as to the guilt of the appellant seems
in practice to translate into an assessment
of whether the jury’s
decision was one which it was legally open to them to make. For Mr Munro
this secured the
correct outcome, but this may not always be the
The tendency of New Zealand appellate courts to shy away from the ultimate
question can also be seen in their rejection of
“lurking doubt” approach, which places considerable importance
on the doubts a judge may feel about
some convictions.62 It is
interesting to note that the Court in Munro comments that such
a doubt in isolation is “not sufficient grounds on which an appeal
61 Ibid, at .
62 Discussed below in Part III A “England’s Position:
deem a conviction unsafe.” Like the Canadian Court,63
the Court in Munro sees these appellate doubts as useful only as a
“trigger for fuller review,” and emphasises that “it is only
a jury’s verdict is unreasonable on all the evidence ...
that an appeal court may properly differ from it.”64 The
general view seems to be that the English are right about everything
except this one point – it is the degree
of evidence supporting
the decision that matters, not some obscure or detached feeling that appellate
judges may experience.
In a comparison of American and English law on unreasonable jury
verdicts, Meador has commented that:65
No longer is the English court limited to determining whether there is
evidence from which the jury could have found as it did. There
may be enough
evidence to support a verdict of guilty, yet the court nevertheless may set it
Looking purely at section 385(1)(a), this would appear to describe New
Zealand’s approach as well – yet it has not been
reflected in the
case law, and certainly not in Munro. The doubts of appellate judges are
the whole point of the provision, the whole foundation which justifies
overturning a jury decision
even though there is nothing apparently wrong
with it in the conventional sense – yet we have rejected such doubts as
irrelevant. A later comment from the same author observes that in England the
system “... is geared to keeping the judicial
eye on the ball, on whether
the defendant is guilty or not guilty of the offense. American appellate
courts at times seem to
direct their attention to everything except
that central issue.”66 The same criticism can be
applied to New Zealand’s approach. The development of the rule has been
consistent over time
and a simple to understand, logically analytical
rule has emerged – it even produces the right result in most cases.
only problem is that it misses the whole point.
63 R v Corbett  2 SCR 275 (SCC).
64 R v Munro, above n 8, at  (emphasis added).
65 Daniel J. Meador Criminal Appeals: English Practices and American Reforms (University
Press of Virginia, United States of America, 1973), at 90.
66 Ibid, at 92.
3. Owen v R
The decision of Owen v R was delivered in the Supreme Court shortly
after Munro, and it represents the last page in the story of
New Zealand’s approach on unreasonableness appeals to the present
date. Owen had been found guilty of five counts of sexual violation. The
Supreme Court refused his appeal (under section
385(1)(a)), but also
reviewed the correct approach to be taken in such cases. The reasoning in
Munro was accepted almost in its entirety and the rule put forward by the
Court of Appeal was confirmed as correct.67 With typical economy,
Tipping J also listed the following points from Munro which the
Supreme Court accepted:68
- The appellate court is performing a review function, not one of substituting its own view of the evidence.
- Appellate review of the evidence must give appropriate
weight to such advantages as the jury may have had over the appellate court.
- The weight to be given to individual pieces of evidence is essentially a jury function.
- Reasonable minds may disagree on matters of fact.
- Under our judicial system the body charged with finding the facts is the jury. Appellate courts should not lightly interfere in this area.
- An appellant who invokes s 385(1)(a) must recognise that the appellate
court is not conducting a retrial on the written
It was also noted in Owen that the court in Munro had been
right to reject the English “lurking doubt” approach. They agreed
that it was not a proper basis on which
to allow an appeal, and said that it
67 The Supreme Court did state that they did not approve of the Court of Appeal’s use of the term “deemed unreasonableness.” This had been used in the context of a decision being deemed unreasonable if it fit within the description outlined in the rule put
forward. (R v Munro, above n 8, at ). The Supreme Court felt that this was skirting the
issue, saying that a decision “is either unreasonable or it is not.” (Owen v R, above n 9, at ). This was a minor criticism in the big picture however, and on the whole the approval of the Supreme Court affirms the reasoning in Munro as correct.
68 Owen v R, above n 9, at .
an approach which was instinctive rather than analytical.”69
Of course this paper suggests that it is partly this feature of the
approach that makes it attractive, but again the reasons
for this are outlined
C. The English Position: What Have We Lost?
1. England’s Position: Overview
Since 1968, the English equivalent of the unreasonableness ground of appeal
has been that of an “unsafe” verdict
– the Court of
Appeal “shall allow an appeal against conviction if they
think that the conviction
is unsafe.”70 The term
“unreasonable” had previously been used but it was replaced by the
concept of unsafe by the 1968 amendments.71 The New Zealand Courts
have commented that terms such as “unsafe, unsatisfactory or dangerous to
convict” commonly employed
by the English courts are merely symptoms of a
verdict being unreasonable and are not helpful tests in
Shortly after the legislative changes in 1968, the concept of “lurking doubts” appeared in the English Courts with the case of R v Cooper.73
Widgery J said that the question for appellate judges
...whether we are content to let the matter stand as it is, or whether there
is not some lurking doubt in our minds which makes us
wonder whether an
injustice has been done. This is a reaction which may not be based strictly on
the evidence as such; it is a reaction
which may be produced by the general feel
of the case as the court experiences it.
This approach gives appellate judges a significant amount of discretion. It
enables them to allow an appeal for no other reason than
that they have a
feeling – it could even be called a hunch – that an injustice has
been done. It is ingrained in most
lawyers to immediately recoil from
69 Ibid, at .
70 Criminal Appeal Act 1968 (UK), s 2. Minor amendments were made to the section in
1995 but the above part was left unchanged.
71 R v Munro, above n 8, at .
72 Owen v R, above n 9, at . The same argument could perhaps be made about the
word “unreasonable,” but for present purposes it is safe to view the terms as roughly corresponding.
73 R v Cooper, above n 11.
74 Ibid, at 271.
any expression so nebulous as “general feelings” for
important legal tests, as providing the ideal conditions for
confusion. From the perspective of the traditional principle that juries
are the primary fact finders,
it also appears to be a startling development
which hopelessly undermines their role.75 However, it must be
remembered that the ground of appeal is itself unusual. It is a last resort
provision, allowing for one further
check on a conviction where none of the
conventional objections exist. Of course appellate courts are reluctant to
jury verdicts for the very reason that they do not wish to be
seen as usurping the jury’s role – but the point of the
that they can if they feel it is necessary. As has been explained above, this
does not undermine the jury’s role
but actually protects it.
Brought down to essentials, the power is not even as radical as it may first
appear. It has long been accepted that some questions
are ones that it is
better for judges to decide – as demonstrated by the principle that juries
decide questions of fact but
questions of law are reserved for the judge. In
practice this is a difficult line to draw; while juries make decisions based on
facts, it can be necessary for a judge to decide whether the minimum
standard has been reached for a conviction to be able to stand.
A useful way of
thinking about it is as follows:76
Does this not, you may ask, make nonsense of the jury as a tribunal? If it
cannot be trusted not to give a verdict based on no evidence
at all, how can it
be trusted to give a true verdict? But there is in truth a fundamental
difference between the question whether
there is any evidence and the question
whether there is enough evidence.
A jury may decide a verdict based on their unanimous view of the
evidence, but the judge still has the discretion to determine
evidential minimum which the law requires has in fact been reached. In other
words, “what the minimum should be
is not a question of law but a question
for lawyers.”77 These sorts of discussions usually take place
in the context of the constitutional divide between judge and jury at
75 For example, Leigh has said that “... to set aside a verdict upon which a jury could properly arrive where there is no apparent flaw in the case strikes at the constitutional division of functions between judge and jury.” (LH Leigh “Lurking Doubt and The Safety of Convictions”  Crim LR 809, at 810).
76 Patrick Devlin Trial By Jury (Methuen & Co Limited, London, 1966), at 63 (emphasis
in the original).
trial level, but there is no compelling reason why the same justifications
cannot be applied to the power of appellate courts for
this particular ground
of appeal.78 Widgery J in Cooper – while seemingly
bestowing an extraordinary power on appeal judges – actually expresses
with more honesty than most
the true nature of this ground of appeal.
Nevertheless, the test from Cooper has been debated ever since it was
put forward in 1968 and its meaning largely whittled away. In a recent article
it has been
argued that Cooper should not be interpreted as
allowing a purely visceral reaction to a case and nor has it been applied in
that way, also that
the Court’s task in reviewing a conviction is an
analytical one.79 The Court in Munro agreed with this, and
referred for support to Dookran v The State (Trinidad and Tobago) in
which it was said that review must be based on an overall view of the
features of the specific case.80 They emphasised that the
jury’s role as fact finder must not be interfered with, and “any
inquiry into the safety of a
conviction must be conducted in the context of the
overall features of the case and the other evidence.”81 These
statements of orthodoxy are difficult to disagree with. Perhaps it does
seem on first reading that the lurking doubt
approach encourages a blithely
personal approach to determining appeals. It is however unlikely that this
is what was intended.
The lurking doubt approach never suggested that
appellate judges should do anything less than look at the overall features of
the case and other evidence. The difference is in what actions they may take as
a result of that review. In this respect the
two approaches are talking
at cross purposes – the lurking doubt approach is rejected because it is
seen as “instinctive
rather than analytical”82 when it
is actually instinctive and analytical. All judicial decisions are.
If it is acceptable for a judge to examine a faulty trial and (following an
use instinct to decide that the verdict was nevertheless sound, why
should a judge not be able to examine a flawless trial and (following
use instinct to decide that the verdict was nevertheless
78 See also Glazebrook J’s comment in Munro, that “as to the concern about the constitutional divide between judge and jury, this is clearly more of an issue at the trial level than it is at the appellate level.” R v Munro, above n 8, at .
79 Leigh, above n 75, at 815.
80 Dookran v The State (Trinidad and Tobago)  UKPC 15, 29 Rodger LJ for the Court.
81 R v Munro, above n 8, at .
82 Owen v R, above n 9, at .
83 This is not to suggest that a fair trial is not of vital
importance. See Hammond J’s comments on the importance of a fair trial
“The New Miscarriages of Justice” (2006)
2. The Value of Lurking Doubts
Legal realists would say that once deciding on the correct decision in a
case, judges are always able (if necessary) to justify it
in a conventional way
so that their purpose is served.84 This has echoes in the lurking
doubt debate, where similar results are achieved by simple differences in
expression. In rejecting
lurking doubts as a proper basis for
interfering with a jury decision, the Canadian Supreme Court has noted that
a court experiences such doubt it can be a signal of an
Close scrutiny might reveal that the jury reached its verdict pursuant to an
analytical flaw, or judicial experience about the need
for special caution in
evaluating certain types of evidence might lead an experienced
appellate judge to conclude
that in a given case the jury’s fact-finding
process was flawed and thus the result was unreasonable.
This statement was heartily approved of in Munro86 - but is
it not merely a more conservative way of saying that if on reviewing the
evidence an appellate judge experiences a doubt
about a verdict (perhaps
even a “lurking” doubt), then they may overturn it? We may be
assured that many judges
do this in any case. The only difference is that the
above approach suggests that judges achieve such a result by finding that the
jury made an analytical error or otherwise that their own wider
experience of certain types of evidence should prevail
14 Waikato LR 1, at 10. Professor JC Smith’s discussion in his article “Criminal Cases and the Criminal cases Review Commission” (1995) 145 NLJ 533, at 534 is also helpful. The principle that a judge may approve a verdict despite evidence of a faulty trial is supported by the proviso in section 385(1) of the Crimes Act 1961. The proviso allows for an appeal to be dismissed even where (for example) the trial was faulty in some way, if the Court of Appeal is of the view that no substantial miscarriage of justice occurred as a result.
84 Brian Leiter “Legal Realism” in Dennis M Patterson (ed) A Companion to Philosophy of Law and Legal Theory (Blackwell Publishers, Oxford, 1996) 269, at 270 comments that “... observation of court decisions ... shows that judges are deciding based on their response to the facts of the case – what they think would be “right” or “fair” on these facts – rather than because of legal rules and reasons.” He quotes an American judge who confessed as follows: “I saw where justice lay, and the moral sense decided the court half the time; I then sat down to search the authorities ... but I almost always found principles suited to my view of the case.” (Emphasis added).
85 R v Biniaris  1 SCR 381 (SCC).
86 R v Munro, above n 8, at .
Cooper test simply says that if necessary they may overturn it,
without requiring that they disguise their actions so artificially.
It may be contentious whether the change in judicial attitude since
Cooper has been a real change or merely a masking of reality with words.
Either way, it is not necessary to stubbornly avoid a situation
might need to use their judgement. Protecting the role of the jury is a noble
cause, but the unreasonableness
or unsafe provisions exist because they
sometimes get it wrong. Then we look to the appellate courts to put
and they should not be restricted from doing so. This difference
in opinion may not “[lend] itself to any extensive elaboration
reasons,”87 but it does not follow that it is therefore
invalid. It is generally agreed that this particular power of appellate
judges upholds the integrity of the jury system – that is the focal point
of this ground of appeal, which keeps getting obscured
In a separate judgment in Munro, Hammond J voiced similar concerns
with the way in which the law has been expressed in this area. He
referred to the
simple language of section 385(1)(a), and questioned the need
for the endless quest for a workable test, saying that it
down courts in their day-to-day work and all too often deflects judges from
their proper endeavour in an appeal of
Their proper endeavour is to determine whether the accused has been
rightly or wrongly convicted. The section states that an
be allowed if the verdict was unreasonable, so the unreasonableness is
what judges should examine, rather
than trying to fit everything within
traditional analytical parameters. He gives the example of R v
Bell,89 a sexual abuse case about incidents that had occurred
more than 30 years earlier, and points out that:90
As a matter of “pure” analysis one could say that Bell
raised a Ramage point: how could anybody reasonably rely on
evidence which just could not be tested properly after all those years? The
Court of Appeal did not trouble itself with that sort of artificiality:
it simply said the evidence was too old to ground a conviction
87 R v Ramage, above n 23, at .
88 R v Munro, above n 8, at .
89  UKHL 20;  2 Cr App R 13, at 27.
90 R v Munro, above n 8, at .
The same result in Bell could of course have been reached by
using what Hammond describes as the “artificiality” of an analytical
like the one expressed in Ramage.91 But it would
have been analytically much more complex, as well as being an exercise in
pointless legal footwork. The discretion to
make a decision based purely on the
unreasonableness of a conviction has been statutorily bestowed on appellate
judges. There is
no need to justify the power any further than that. If we had
no faith in the ability of judges to use discretionary power appropriately,
we would not appoint them.
In New Zealand, the continual justification of the power of appellate
judges under section 385(1)(a) and (more worryingly)
the ongoing efforts
to disguise it as something else are an impediment to it functioning
effectively. The existence
of this ground of appeal in our Crimes Act and its
long survival in the common law demonstrates the generally accepted need for
We have recognised that while the jury system is the best one we can devise, it
remains fallible. To most people the conviction
of an innocent person is
unthinkable – the ultimate example of a legal system failing its
community. In practice
it is an alarmingly real risk. In his article
“The New Miscarriages of Justice,” Hammond J refers to an
photographic exhibition which records the stories of many
unfortunate people wrongly convicted of violent crimes.92 He
remarks that “something like eighty juries had been
91 Indeed, in his article mentioned above “Lurking Doubt and The Safety of
Convictions”  Crim LR 809, Leigh uses (at 812) precisely such an artificial analytical
approach in examining the case of Bell. He argues that although the decision was apparently based on the residual discretion of the appeal court, the true reason was that the delay in bringing the case prevented the defendant from being given a fair trial. Therefore, “the discretion is not being exercised on the basis of some inchoate hunch, but upon the basis that a procedural step, which might have established that the case should not be left to the jury was, for whatever reason, not taken.” The argument here however, is that it is always possible to fit a decision within an analytical framework if
need demands. It is not necessary to do so for this ground of appeal, which allows appeal
judges on reviewing the evidence to simply change the verdict if they feel that it is necessary in the interests of justice. If an appellant has a procedural complaint, this can be pursued through other channels – it is not what the unsafe or unreasonable provisions
are designed for.
92 Taryn Simon, Peter Newfield and Barry Scheck The Innocents (Umbrage Editions, New
completely wrong, which should stop any professional judge dead in his or her
tracks. Mostly they were wrong because the line between
truth and fiction had
become blurred.”93 Criminal trials almost invariably at some
point challenge the legal system to define this indefinable line between
fiction. The unreasonableness appeal is simply a way of attempting to
catch those wrong convictions that slip through the net
of our system. It
reflects that the idea of criminal sanctions being imposed on innocent people
causes us to wish to err on the
side of caution. Perhaps it may mean that some
guilty go unpunished, but as Lord Woolf CJ has commented:94
... while it is important that justice is done to the prosecution and
justice is done to the victim, in the final analysis the
fact remains that it is
even more important that an injustice is not done to a defendant.
This statement has echoes as far back as Abraham’s debate with God over
the fate of the city of Sodom:95
Will you sweep away the righteous with the wicked? ... Far be it from you to
do such a thing – to kill the righteous with the
wicked, treating the
righteous and wicked alike! Far be it from you! Will not the Judge of all the
earth do right?
The famous exchange ends with God admitting that he would spare the whole
city if it contained even a tiny proportion of good people.
We too would
rather spare the wicked for the sake of the innocent than sacrifice the
innocent for the sake of the wicked.96 What is really in issue
with this ground of appeal is how to reflect this in practice and yet balance
the cause with other important
93 Hammond above n 1, at 1.
94 Bell, above n 89, at 27.
95 Hebrew Scriptures, New Revised Standard Version (American Bible Society, New
York, 1989) Genesis 18:22.
96 Indeed, this principle is generally accepted in most academic discussions of this topic.
For example, Baldwin & McConville (above n 6, at 69) comment that: “... the conviction of the innocent represents a greater affront to justice than the acquittal of the guilty.” Blackstone himself stated that in law it is “better that ten guilty men should escape rather than one innocent man should suffer.” (Trusler, above n 4, at 219). More recently, the Victoria Law Commission has remarked on the double jeopardy rule that “... the principle of not putting a person in jeopardy twice is surely only valid where the accused
is acquitted, not when he is unjustly convicted.” (Law Reform Commission of Victoria
The Role of the Jury in Criminal Trials (Victoria Law Commission,
Victoria, 1985), at 79).
The principle which represents the greatest impediment to the
unreasonableness appeal translating coherently from theory
practice is that of the constitutional divide between judge and jury. Like all
other countries that use the jury system, New
Zealand remains committed to its
principles and purpose. Like McCart, we believe that “no better system has
yet been devised
to determine facts. Whatever faults it may have, they have
proven to be endurable.”97 In order for the system to function
at all, the fundamental principles that guide it must be adhered to. The
from the judge is vital. It preserves the
jury’s role as primary fact finder, and facilitates the implementation
its other functions such as representing the community and the
community’s conscience and protecting the legal
arbitrary or oppressive government.98 If the judge impinges
on this role too extensively then the foremost purpose of the jury system will
The problem is particularly striking in appeal cases, where the careful
decision of a jury is submitted to judges who have
not heard the
evidence and have had nothing to do with the case until it comes
before them on paper. Indeed, the type
of appeal in section 385(1)(a) blurs the
constitutional line more than ever – not only may the appeal judges review
of the jury, but they may do so even where the jury has apparently
followed all the correct procedures in reaching their decision.
Yet such is the
nature of unreasonableness appeals. In protecting the integrity of the system
they create an exception to it.
Until this is understood and accepted the power conferred by section
385(1)(a) will continue to be obscured in court judgements and thus
restricted in value. The debate as to whether such an appeal
is a transgression
of constitutional principles or a protector of them is fruitless and
irrelevant, because it is both.
It is to be hoped that the jury system is
effective enough that this ground of appeal does not need to be used often.
when the occasion arises its purpose must be remembered and
implemented without reservation. It is fitting to conclude with
following remark from a study of the consequences
97 Samuel W. McCart Trial By Jury: A Complete Guide to the Jury System (Chilton Books Ltd, New York, 1965), at 165.
98 Juries in Criminal Trials, above n 2, at
of wrongful convictions:99
... no matter how many emendations are made to any legal system, mistakes
will inevitably be made. Perhaps we should more honestly
face this fact. If
our aim is to find the truth of the matter rather than to uphold the existing
rules of the legal game, then surely
this should apply after trials as well as
99 Ruth Brandon and Christie Davies Wrongful Imprisonment: Mistaken Convictions and their
Consequences (George Allen & Unwin Ltd, London, 1973), at 258.