It’s too early to say whether the Privy Council’s Barlow decision marks a tectonic shift in the law governing criminal appeals—or a minor refinement—but it does offer much-needed reassurance about appellate courts’ willingness to do justice

Last Thursday the Privy Council dismissed John Barlow’s appeal. It held that the case against him was overwhelming, and the Board felt sure of his guilt. The case marks a change in the law governing criminal appeals. It could have big systemic implications, including for royal prerogative of mercy cases.

A jurisprudential debate has been rumbling along for years, in legislatures and appellate courts. The extent to which it was exercising our own Court of Appeal’s senior members became clear in 2006, when within the space of a few months Justices Hammond and Young both publicly offered their thoughts—Hon Justice Grant Hammond, “The New Miscarriages of Justice” (Harkness Henry Lecture, August 2006); Hon Justice William Young “Reflections on the Role of the Court of Appeal in Conviction Appeals” (address to NZLS Criminal Law Symposium, November 2006).

The conundrum is this: how to confer sufficiently broad discretion on appellate courts that they are meaningfully able to fulfil their review function, but not such a wide discretion that the primacy of the jury verdict, which underpins our criminal justice system, is undermined?

Justice Young, Court of Appeal President, took the conservative side of the argument:

Whatever faults the system of trial by jury may have, it enjoys a large measure of public confidence. Subject to appeals, a jury’s finding one way or the other is almost always treated as being the end of the story. From the point of view of most judges, it would be a pity to adopt procedures which might tend to reduce the public regard for jury verdicts. I have no doubt that this has itself been an influential factor in the conservative approach taken in New Zealand.

But Justice Hammond said:

For my part, I entirely concur with what was said by Lord Bingham extra-judicially in his Sir Dorbji Tata Memorial Lecture in New Delhi in 1999: “Appellate courts should be ready to exercise the full powers conferred upon them in any case where it appears that a miscarriage of justice has or may have occurred, whether or not there is fresh evidence before them and whether or not the original trial was tainted by legal misdirection or procedural irregularity.” … At the end of the day, 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.

It is the same clash of values that prompted Robert Lithgow QC to quit the Court in high dudgeon in 2005, and that has dogged the Ministry of Justice in its approach to royal prerogative of mercy applications. Public perceptions that the Ministry’s approach is unduly narrow and prescriptive have driven increasingly strident calls for a Criminal Cases Review Commission to be established in New Zealand, that to date have been brushed aside.

Barlow sent up the first public smoke signal that a long line of New Zealand appellate authority had been reversed, but the Privy Council was in fact only applying a recent New Zealand Supreme Court decision, called Matenga.

Matenga is temporarily suppressed, pending retrial. But according to the extracts reproduced in Barlow, before the Court of Appeal can apply what is known as “the proviso” in section 385 of the Crimes Act—which allows the Court to dismiss an appeal if no substantial miscarriage of justice has occured—it must, like the Privy Council in Barlow, feel sure of the appellant’s guilt and satisfied that the trial was fair. Instead of attempting to predict what a jury might or might not have done if the irregularity said to constitute the miscarriage had not happened, the Court must itself consider the whole record of the trial (either excluding bad evidence as in Barlow, or incorporating fresh evidence as in Bain), and reach its own view of the proper verdict.

One can only speculate about what has driven what is, essentially, a policy decision by the Supreme Court. It might, in part, be a recognition that New Zealand had fallen out of step with other jurisdictions, such as the English “lurking doubt” jurisprudence, and the High Court of Australia in Weiss.

In 2006, Justice Young noted the risks to the judiciary of a gulf opening up between popular and legal approaches to the concept of miscarriage of justice. The general public is interested in factual guilt or innocence. That is the ultimate endeavour of the criminal justice system, too, but case names will readily spring to mind in which it has not always looked that way.

Highly publicised miscarriages of justice force the courts to confront the reality of error. Over the last half-dozen years, the volume’s been turned up in New Zealand.

There are three reasons to be circumspect about Matenga and Barlow, and realistic about their likely effects.

The Supreme Court has addressed what was arguably a semantic fiction anyway, whereby the Court of Appeal dressed up its own views about the weight of evidence as a “notional proxy” of what view the jury would have reached.

“The proviso” is not triggered in all appeal cases. First, a miscarriage of justice has to be established; the question is then whether the appeal should in any event be dismissed, because the miscarriage was not “substantial”. In other words, there will continue to be lots of appeal cases unaffected by Matenga, in which the Court of Appeal will continue to apply its existing criteria for excluding flawed evidence or admitting fresh evidence, or deeming a mistake or irregularity to have been inconsequential.

Matenga also leaves unresolved the vexed issue of what the Court should do when satisfied that there has been both a procedural irregularity and a factually correct guilty verdict (at what point does process trump outcome, or vice versa, in assessing the significance of a miscarriage of justice)?

But in spite of all that, I am going to hazard the view that this is quite a big deal.

Matenga explicitly says that the Court of Appeal is the ultimate arbiter. As such, it must take responsibility for reviewing all of the evidence and independently assessing guilt before dismissing an appeal. It establishes a presumption that the Court will do something substantive about miscarriages of justice—not just genuflect before the jury.

It’s also important for what it doesn’t say. It is an implicit acknowledgement by the Supreme Court that the battle for public confidence is being lost, and the onus is on appellate judges to try to get it back.

In providing advice on the royal prerogative of mercy, the Ministry of Justice is closely guided by appellate authority. Principally, the Ministry is concerned with the very threshold questions that are unaltered by Matenga (eg. whether there is credible and cogent fresh evidence that would warrant reopening the case). But Matenga does offer something that is as relevant to the Ministry’s work as the Court of Appeal’s—because the Ministry is an “ultimate arbiter” too.

Finally, those who would see a Criminal Cases Review Commission established in this country often fail to grasp that whoever makes the threshold decisions, cases are sent back to the courts for determination; free pardon is rare. The Court of Appeal’s philosophy is, therefore, as important as that of the review body. Notwithstanding the necessary independence, there is a finely-calibrated relationship; each must keep a wary eye on what the other is doing. A Criminal Cases Review Commission that was philosophically at odds with the Court of Appeal would raise real questions about whether it was serving the interests of justice.

Matenga is a quiet recognition by senior appellate judges that they are the linchpin in all of this. Doing justice is their job and, whether they like it or not, so is public relations. Cataclysm’s not their style, but I think Matenga’s a master stroke, that might be a catalyst.