Fresh Evidence: Role of Appeal Court
| Published date | 01 February 2008 |
| DOI | 10.1350/jcla.2008.72.1.472 |
| Author | Annabelle James |
| Date | 01 February 2008 |
| Subject Matter | Privy Council |
Privy Council
Fresh Evidence: Role of Appeal Court
Bain vThe Queen [2007] UKPC 33
The appellant was convicted of five counts of murder in 1995 following
the allegation that he had killed five members of his family and had then
staged a scene making it look as if his father had killed the other four
before committing suicide. He had appealed to the Court of Appeal of
New Zealand on the grounds that there was fresh evidence which, had
it been adduced at trial, might reasonably have led the jury to return a
different verdict. The Court of Appeal concluded that no miscarriage of
justice had occurred as, had any reasonable jury considered the new
evidence in conjunction with the old evidence, they would still have
found the appellant guilty.
The appellant appealed to the Privy Council on the following
grounds:
1. the Court of Appeal had erred in conferring upon itself the power
to decide where the truth lay and, in doing so, had not paid
sufficient regard to what was known of the jury’s thinking pro-
cesses in this case;
2. the Court of Appeal had made a decision in relation to matters
which the jury had not had a chance to consider, and had thus
usurped the role of the jury;
3. the Court of Appeal had failed to take into account the contra-
dictory affidavits of witnesses who had not been cross-examined;
and
4. the Court of Appeal had failed to appreciate the extent to which
the case had changed from that on which the jury had based its
verdict.
H
ELD
,
ALLOWING THE APPEAL
,
QUASHING THE CONVICTIONS AND OR-
DERING A RETRIAL
, the new evidence led to the conclusion that a
miscarriage of justice had occurred. One aspect of the evidence related to
the motive and mental states of both the appellant and his father and
was a matter that the jury should have been given the opportunity to
assess. Had they had the opportunity to do so, they may well have
reached a different decision.
Other aspects of the fresh evidence related to issues that an appellate
court could not fairly resolve without having the opportunity to cross-
examine certain witnesses. Again, these were issues that the jury had
not had the opportunity to consider.
The Court of Appeal had acted beyond its powers in assuming a
decision-making role with regards to certain pieces of fresh evidence and
in reaching conclusions as to the impact of the admission of such
evidence on the minds of reasonable jurors.
34 (2008) 72 JCL 34–35 The Journal of Criminal Law
doi:1350/jcla.2008.72.1.472
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