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Harcourt, Christy --- "Lurking Doubt and the Dangers of Co nviction – A Critique of New Zealand’s Judicial Approach to Appeals from ‘Unreason able’ Jury Verdicts" [2010] NZLawStuJl 8; (2010) 2 New Zealand Law Students’ Journal 405

Last Updated: 24 October 2012



“... 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 laypeople 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 been

* 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 challenge us to strive for improvement, so that rules and procedures are constantly refined, examined and improved to reflect changing attitudes.

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 Act 1961. Recently the section has been under scrutiny and the rules and principles that guide judicial use of it have been discussed and 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 the

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 [2007] NZCA 510; [2008] 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. Some 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 discussion in Munro of the English authorities in this area. The English have often referred in their judgements to the concept of “lurking doubt,”11 which (arguably) authorises judges to have regard to a more visceral reaction to a case than that which has traditionally been 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. The 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, they have ultimately reached the same destination, in that this ground of appeal has been accepted in theory but has faltered in its execution. Much of 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 for miscarriages of justice under the jury system, and the clear purpose of section 385(1)(a) to reduce this possibility, great care must be taken by 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 [86].

11 Originally put forward in R v Cooper (Sean) [1969] 1 QB 267 (CA).

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 justice.”12

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 same wording.15

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 the pronouncement of the verdict is the end of the matter.17 This is

12 R v Munro, above n 8, at [253].

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

relevant meaning.

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 [1935] 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 suffered may include a sense of injustice at having been wrongfully accused, stigma of being charged with an offence, and possible costs in 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 [89].

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 [20]. Glazebrook J goes on to quote as follows from Whitehorn

v The Queen [1983] 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 decisions.

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 cases, 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 case a 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. As mentioned 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 [59].

23 R v Ramage [1985] 1 NZLR 392, at 395.

24 Ibid, at 393.

25 R v Munro, above n 8, at [96].

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 today:29

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 jury.

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. However, 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 outcome.31

26 Pattenden, above n 20.

27 R v Munro, above n 8, at (for example) [220], [224].

28 R v Ramage, above n 23.

29 Ibid, at 393.

30 Ibid.

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 sufficient grounds for an appeal and that as long as there is evidence to support the conviction the conviction should stand even if the Court feels some 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 in 1950.

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 objectionable 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 case was

32 R v Mareo (No 3) [1946] NZLR 660.

33 Ibid, at 670.

34 Ibid.

35 R v Ross [1948] 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 [87]).

38 R v Kira [1950] NZLR 420.

39 Chamberlain v R [1984] HCA 7; (1984) 153 CLR 521 (HCA).

40 Ibid, at 531.

41 Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 (HCA).

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 the appellate judges. Again, the dangers of this will be discussed more fully below.

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 section

42 Ratten v The Queen [1974] 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 on the 17th of November 2004. Just south of Manakau, he collided with a car travelling north. Ms Aldridge, who was driving the other car, died 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. The defence argued that Ms Aldridge caused the collision by crossing the centre line into the path of Mr Munro. Given the polarity of these 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 argument.

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 of 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 [108].

45 Ibid, at [111].

46 For example, some important diagrams of the crash scene were presented to the jury as fact when they were actually a reconstruction of the 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 had been 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 doubt as to the guilt of the appellant.”52

This assessment was a weighty task for the judges in Munro, given that

Munro, above n 8, at [221]). 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 [1].

48 Ibid, at [93].

49 Ibid, at [104].

50 Ibid, at [113].

51 Juries in Criminal Trials, above n 2, at 13.

52 R v Munro, above n 8, at [86].

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 the jury 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 accept

53 Ibid, at [96].

54 R v Munro, above n 8, at [194].

55 Ibid.

56 R v Munro, above n 8, [197].

57 Ibid, at [199].

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: rather, the 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 intoxication, his alleged bad driving earlier in the evening and his statements after the collision. In relation to this evidence, the Court said that:60

... [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 existing safeguards against injustice the jury retains a degree of discretion which in turn contains a margin of error. This is of course necessary 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 [232].

59 Ibid, at [112].

60 Ibid, at [219].

(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 a jury must have thought? The Court considered that the change reflected the statutory wording more accurately, as it focuses on what conclusion a 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 perform.”61

Based on the judgement in Munro, this task involves reviewing the relevant evidence and deciding whether the jury understood it sufficiently and gave it the appropriate weight. Particular emphasis was given to deciding what actions the jury was “entitled” to 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 case.

The tendency of New Zealand appellate courts to shy away from the ultimate question can also be seen in their rejection of the English “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 court should

61 Ibid, at [86].

62 Discussed below in Part III A “England’s Position: Overview”.

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 where 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 aside.

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. The only problem is that it misses the whole point.

63 R v Corbett [1975] 2 SCR 275 (SCC).

64 R v Munro, above n 8, at [88] (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 record.

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 “invited

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 [87]). 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 [1]). 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 [13].

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 below.

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 themselves.72

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 was:74

...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 [17].

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 [22].

72 Owen v R, above n 9, at [17]. 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 uncertainty and 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 interfere with 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 provision is 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 the 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 whether the 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 the

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” [2006] Crim LR 809, at 810).

76 Patrick Devlin Trial By Jury (Methuen & Co Limited, London, 1966), at 63 (emphasis

in the original).

77 Ibid.

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 analysis) use instinct to decide that the verdict was nevertheless sound, why should a judge not be able to examine a flawless trial and (following analysis) use instinct to decide that the verdict was nevertheless defective?83

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 [58].

79 Leigh, above n 75, at 815.

80 Dookran v The State (Trinidad and Tobago) [2007] UKPC 15, 29 Rodger LJ for the Court.

81 R v Munro, above n 8, at [25].

82 Owen v R, above n 9, at [17].

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 in “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 where a court experiences such doubt it can be a signal of an analytical error:85

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 – whereas the

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 [2000] 1 SCR 381 (SCC).

86 R v Munro, above n 8, at [88].

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 where judges 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 things right, and they should not be restricted from doing so. This difference in opinion may not “[lend] itself to any extensive elaboration of 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 by judicial conservatism.

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 “bogs down courts in their day-to-day work and all too often deflects judges from their proper endeavour in an appeal of this character.”88 Their proper endeavour is to determine whether the accused has been rightly or wrongly convicted. The section states that an appeal should 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 English Court of Appeal did not trouble itself with that sort of artificiality: it simply said the evidence was too old to ground a conviction on it.

87 R v Ramage, above n 23, at [395].

88 R v Munro, above n 8, at [240].

89 [2009] UKHL 20; [2003] 2 Cr App R 13, at 27.

90 R v Munro, above n 8, at [250].

The same result in Bell could of course have been reached by using what Hammond describes as the “artificiality” of an analytical approach 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 it. 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 American 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” [2006] 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

York, 2003).

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 truth and 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 legal principles.

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 into 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 jury’s separation from the judge is vital. It preserves the jury’s role as primary fact finder, and facilitates the implementation of its other functions such as representing the community and the community’s conscience and protecting the legal system against arbitrary or oppressive government.98 If the judge impinges on this role too extensively then the foremost purpose of the jury system will be defeated.

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 the decision 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. Nevertheless, when the occasion arises its purpose must be remembered and implemented without reservation. It is fitting to conclude with the 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 12.

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 during them.

99 Ruth Brandon and Christie Davies Wrongful Imprisonment: Mistaken Convictions and their

Consequences (George Allen & Unwin Ltd, London, 1973), at 258.

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