Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259

This version of the judgment has been prepared by: Dr Robert N Moles and Bibi Sangha
Underlining where it occurs is for editorial emphasis]

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Mickelberg 2004 West Australian Supreme Court - appeals allowed

Mason CJ

This case involves the convictions of Raymond and Peter Mickelberg [RM and PM; together “the Ms”]. I am in agreement with Toohey and Gaudron JJ. My comments relate to the submission that:
this Court has power to receive fresh evidence in an appeal from a Court of Appeal [CA];
to the effect of the concession made in this Court by counsel for the respondent that pins were placed in the WABS cheque when it was photographed in Canberra by Dr Hilton Kobus and not before;
to Peter Mickelberg's contention, raised in this Court for the first time, that his convictions are unsafe and unsatisfactory;
to the test to be applied by an intermediate appellate court when deciding to set aside a conviction on the ground of fresh evidence.

The Ms sought to place before this Court additional evidence which was not before the CA. Over the years this Court has consistently maintained that it has no power to receive fresh evidence in the exercise of its appellate jurisdiction. They argued that the relevant decisions are wrong and should not be followed. Before turning to the argument, I should identify the nature of the additional evidence on which they sought to rely.

The Ms sought to establish:
That evidence given by police witnesses as to the date of the photographing of the fingerprint on the WABS cheque was wrong.
That evidence given by police witnesses that the print had disappeared when the cheque was returned by Dr Kobus from Canberra was wrong.
That the negatives tendered in evidence purporting to be the original negatives of photographs of the fingerprint taken by Dr Kobus in Canberra, are not the original negatives but are copies which must have been made by the police after the originals had been sent by Dr Kobus from Canberra. According to the Ms the originals are not in evidence.
That, following his conviction, PM gave instructions to appeal against his conviction for conspiracy.
That the chassis number said by the police to be that of a burned-out car in Wanneroo was not the chassis number of a 1965 Ford Falcon sold by Mr and Mrs Allen in May 1982. According to the Ms the significance of the new evidence is that it would throw a cloud of doubt over the inference to be drawn from the presence of RM's print on the WABS cheque. The evidence is intended to provide an explanation for PM's failure to appeal within time against his conviction for conspiracy. A subsequent application for an extension of time was refused. The evidence is intended to displace part of the evidence linking PM with the conspiracy, that is, his connection with the car allegedly used in the execution of the conspiracy.

The Crown did not accept the additional evidence and sought the opportunity to test it by cross-examination and to adduce evidence in reply should the Ms argument prevail. S73 of the Constitution confers upon the High Court jurisdiction "to hear and determine appeals from all judgments, decrees, orders, and sentences" of the persons and bodies referred to. The Ms contended that this power should be widely construed, that it contains no fetter preventing the Court from considering fresh evidence and that prima facie, apart from policy considerations, the Court is empowered to receive fresh evidence for the general purpose of doing justice.

The powers of the Court "are of the widest character which true appellate jurisdiction may possess":  Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan 1931, and that s.73 contains no express fetter preventing the Court from considering fresh evidence. But unless the reception of fresh evidence is truly a part of the Court's appellate jurisdiction, then the absence of such a fetter is irrelevant.

The authorities in this Court stand clearly for the proposition that the reception of fresh evidence is not a part of the appellate jurisdiction of the Court. The Ms challenged the reasoning on which these authorities are based on the ground that the reasoning depended on old English authorities which have been overtaken by more recent decisions. They made the point that, at a time when an appeal lay from this Court to the Privy Council, the Court was influenced by the circumstance that the Court of Appeal and the House of Lords did not receive fresh evidence. As it is now clearly established that both the CAppeal and the House of Lords receive fresh evidence, there has been a material development which justifies reconsideration of the existing authorities.

In Ronald v Harper 1910 this Court unanimously rejected the submission that it had jurisdiction to receive further evidence in support of an application for a new trial; it said the Court had no such jurisdiction, and referred to Flower v Lloyd 1877 UK, where the CA decided that it had no power to receive fresh evidence and that it would be a dangerous practice to allow it. Birch v Birch 1902 UK expressed the same opinion. However, the references were not central to the reasoning in the cases and made the point of policy that it would be undesirable for the Court to exercise such a power. The other members of the Court made no reference to the position of the CA and confined themselves to the jurisdiction of the High Court under the Constitution. Barton J was "strongly disposed" to think that there was no such jurisdiction. O'Connor J observed:    

"It is abundantly clear from sec.73 of the Constitution that the High Court can review a judgment of a State Court only by way of appeal. Acting on that view the Commonwealth legislature, in equipping this Court for the discharge of its duty, has recognized its authority to act in respect of the judgments of State Courts exercising State jurisdiction in no other way than by appeal. To determine as a Court of first instance the facts upon which these new grounds of appeal rest would be obviously to exceed the jurisdiction vested in this Court by the Constitution."

Griffith CJ said that it was clear that the primary judgment "would not be set aside unless there were, at least, a reasonable probability that the new evidence sought to be given would make a difference in the result". However, this was neither a statement of principle nor the formulation of a test for the receiving of fresh evidence, but merely an indication that the plaintiff had not been harmed by the Court's lack of jurisdiction.

Since Ronald v Harper, this Court has consistently maintained that it lacks power to receive fresh evidence, whether due to Constitutional limitation or to the absence of express statutory authority: see Victorian Stevedoring; Davies and Cody v The King 1937; Grosglik v Grant (No. 2) 1947; Crouch v Hudson 1970.

Underlying this uninterrupted stream of authority are 2 propositions.
1 An appellate court, in hearing an appeal, is called upon to redress error on the part of the court below. In deciding whether there was error, the appellate court looks to the materials which were before the court below. It is otherwise if, according to the statute governing the jurisdiction of the appellate court, the appeal is by way of rehearing. Then the court of appeal is not restricted to the materials on which the court below gave its decision and may receive additional evidence, including evidence as to matters which have taken place subsequent to that decision: Victorian Stevedoring contrasted the appellate functions of the Privy Council and the CA UK. The PC's prerogative jurisdiction was to decide whether the judgment complained of was right when given on the materials before the court below:  Ponnamma v Arumogam1905; Donegani v Donegani 1835; but cf Judicial Committee Act 1833.

The appeal to the CA UK, on the other hand, was by way of rehearing: Victorian Stevedoring, and enabled it to receive further evidence when hearing an appeal. Thus, the Court was entitled and ought to hear the case as at the time of rehearing: Attorney-General v Birmingham, Tame, and Rea District Drainage Board 1912. But the jurisdiction of the CA differed from that of a court hearing an appeal in the strict and proper sense of the term. The Court of Appeal's discretion to receive further evidence has been much discussed in England:Curwen v James 1963; Murphy v Stone-Wallwork (Charlton) Ltd 1969; Mulholland v Mitchell 1971; McCann v Sheppard 1973. But that discussion throws no light on the answer to the question presently under consideration. It seems that the House of Lords has power to receive further evidence in civil appeals. Just what is the source of the power is not altogether clear. Murphy v Stone-Wallwork: "Your Lordships' House has no similar rules of procedure governing your Lordships, but I have no doubt that your Lordships have ample power to admit further evidence ..."

The Directions as to Procedure applicable to Civil Appeals to the House of Lords provides for the making of an application for leave to introduce fresh evidence. The Rule appears to assume the existence of an authority to receive such evidence but the authority is not identified.Barder v Caluori 1988: "In appeals from the High Court to the CA, and from the CA to your Lordships' House, there is a discretion to admit evidence relating to supervening events where refusal to admit it would plainly cause serious injustice." The reference was to a supervening event which invalidates an assumption or estimate made at the time of the hearing of a matter. The calculation of damages may be based upon an assumption which is invalidated or falsified by subsequent events. That is a special situation because the court below has made an assumption or estimate as to a specific matter which has later been proved to have been erroneous.

The principle that justice requires cases to be decided as far as practicable upon the basis of facts, rather than assumptions or estimates in relation to those facts and subsequently found to be incorrect, may require such cases to be treated differently. The House of Lords' power to receive further evidence, is not, in my view, a reliable guide to the jurisdiction of this Court under s73 of the Constitution. The power of the English courts to set aside orders or to order new trials on the basis of further evidence was significantly affected by the Supreme Court of Judicature Act 1873 (UK) which vested in the CA the jurisdiction to order a rehearing; Re Barrell Enterprises 1972. The developments in the law in this respect in England are therefore not of direct relevance to the interpretation of s.73 of the Constitution which governs the appellate jurisdiction of this Court.

The second basic proposition underlying the stream of authority already mentioned is that s.73, in conferring appellate jurisdiction on this Court, contains nothing to suggest that the Court is "to go beyond the jurisdiction or capacity of the Court appealed from": Victorian Stevedoring,. Indeed, by differentiating between original and appellate jurisdiction and by making different provisions for their exercise, the Constitution reinforces the notion that, when it refers to the appellate jurisdiction, it is speaking of appeals in their true or proper sense.

Isaacs J (dissenting) in Werribee Council v Kerr 1928 stated that no appeal from a State court exercising federal jurisdiction could be a rehearing because it would involve this Court exercising original jurisdiction as State judicial power. Whether this could be done under ss75 and 76 and 51(xxxix) of the Constitution is not a matter that needs to be discussed. Victorian Stevedoring referred to The Commonwealth v Brisbane Milling Co Ltd 1916 which inclined to the view that it was not possible to confer the additional power on the Court by way of a grant of original jurisdiction. There are two statements which may appear to be inconsistent with the course of authority in this Court. The first is Scott Fell v Lloyd 1911: "If necessary in the interests of justice the Court could send the case back to the Supreme Court for the purpose of obtaining further evidence." There may well be cases where this course may properly be followed: Pantorno v The Queen 1989. But it must be read subject to the cases which follow it and especially Ronald v Harper.There is no foundation in M's submission that the decisions of this Court are based upon misconceptions about the powers of the English Court of Appeal or that the jurisdiction of that Court is a reliable guide to the appellate jurisdiction of this Court under s73.

It remains for me to consider the argument that the grant of appellate  jurisdiction necessarily gives the appellate court power to do complete justice between the parties and that such a power entails the power to receive further evidence.

There is force in the argument that, in the light of contemporary notions of justice, a grant of appellate jurisdiction to a court should be understood as empowering the court, in its discretion, to receive further evidence with a view to determining whether the decision of the court below was erroneous and, if so, what order should be made in its place. On the other hand, the authorities make it clear that in 1900 a mere grant of appellate jurisdiction would not be understood as carrying with it a power to receive further evidence. Moreover, the division between the original and appellate jurisdiction of the Court makes it all the more difficult to sustain this aspect of the argument. As noted inVictorian Stevedoring, to do complete justice between the parties litigant by making an order which the court below had not jurisdiction or power to make "smacks rather of original jurisdiction". However, it may be that the existence of a discretion to receive evidence of supervening facts on matters which were the subject of assumption or  estimation in the courts below: Barder v Caluori; is properly part of appellate jurisdiction. It may be that appeals in Constitutional cases stand in a different position; the Court possesses an original jurisdiction in Constitutional matters. For the purposes of disposing of the present case, it is not necessary to decide these questions. Accordingly, I reserve my opinion on them.

My conclusion is that the Court has no power to receive the further evidence which the applicants seek to adduce . That conclusion should not be understood as denying the capacity of Parliament to confer on the Court power to receive fresh evidence in appeals, at least in those appeals which involve the exercise of federal jurisdiction.

Closely related to the further evidence which Ms sought to introduce was the use which they attempted to make of a concession made by the Crown that pins had not been placed in the WABS cheque before it was sent to Canberra on 16 July and that pins were placed in the cheque when it was photographed in Canberra by Dr Kobus. Both elements of the concession are relevant to the question: when was the photograph of the cheque which was admitted into evidence at the trial taken? The Crown submitted that the concession itself amounted to fresh evidence.

True it is that the presence of the pin marks in the cheque was not observed at the trial and that it could have been noticed then. To the extent that the evidence relates to the actual presence of pin marks in the cheque, the evidence is not fresh. But the facts which are the subject of the concession are facts which were not proved or admitted at the trial or in the Court of Criminal Appeal. No doubt material which explains or records what happened in the courts below, including the trial court may be introduced in an appeal in this Court. But the concession is not material which falls into this category. Although the concession seeks to explain something that was put in evidence at the trial, it asserts new facts relevant to the issues which arose for determination at the trial. The concession amounts to further evidence. The fact that it is undisputed evidence does not suffice to give this Court jurisdiction to consider its effect.

I agree with the conclusion of Toohey and Gaudron JJ that the CA failed to determine the whole case referred to it and that the question whether PM's convictions are unsafe and unsatisfactory is fairly arguable. I agree also that special leave to appeal should be granted to PM to enable the Court of Criminal Appeal to consider, by reference to the whole of the evidence, excluding of course the further evidence sought to be adduced in this Court, whether his conviction for conspiracy is inconsistent with the acquittal of BM and whether his convictions are unsafe and unsatisfactory, notwithstanding that the convictions were not challenged in the CA on these grounds. Although the failure to argue the points in that Court would in other circumstances be a strong reason for refusing special leave to appeal, the fact that the Executive Government referred the whole case to the CA for determination under s21 of the Criminal Code (WA) is a decisive countervailing factor.The reference indicates the existence of public concern about the propriety of the convictions. That concern will not be satisfied unless there is a judicial decision resolving the contention that the convictions are unsafe and unsatisfactory, when that contention is fairly arguable. Largely related to that question is the argument that PM's conviction for conspiracy cannot stand alongside BM's acquittal.

Whether or not the reluctance of this Court to grant special leave to appeal on the basis of argument presented for the first time in a case before this Court is founded upon the nature of its appellate jurisdiction or, as I am inclined to think, the exercise of discretion is a question which was not argued before us. But it would be surprising if there was a want of jurisdiction when the Court has made many statements dealing with the way in which a discretion may be exercised to allow a point not argued in the courts below to be raised within this Court for the first time. It is clear that only in exceptional  circumstances is special leave to appeal granted when the point relied upon was not taken at trial or in a Court of Criminal Appeal: Millard v The King 1906; Giannarelli v The Queen 1983. Equally, a point cannot be raised for the first time on appeal when it could possibly have been met by calling evidence below: Coulton v Holcombe 1986; Water Board v Moustakas1988; Pantorno v The Queen. However, that is not the case in relation to the points which PM now seeks to raise. They are points of law based necessarily upon the facts as proved in evidence in the courts below, and as such may be entertained in this Court in the interests of justice: O'Brien v Komesaroff 1982; Pantorno v The Queen.

It is unnecessary to decide the question in order to grant special leave to Peter Mickelberg. The points relied upon in this Court for the first time fell within the scope of the reference to the CA and should have been pronounced upon by that Court as part of its consideration of the whole case. This Court therefore possesses jurisdiction to consider the matter on appeal for the same reasons as I have already given in favour of the grant of special leave.

The final matter concerns the appropriate test to be applied by an appellate court in deciding whether to set aside a conviction on the ground of fresh evidence. It is established that the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial. This test was endorsed in Gallagher v The Queen 1986: "no form of words should be regarded as an incantation that will resolve the difficulties of every case"; the court would need to conclude that "a jury might entertain a reasonable doubt about the guilt of the appellant"; the use of the expression "significant possibility" did not involve a different standard. I am in agreement with those statements. We were not asked to reconsider the correctness of the decision in Gallagher. I would grant the application by PM for special leave to appeal and allow the appeal to the extent necessary to allow consideration whether his conviction for conspiracy is consistent with the acquittal of BM and whether his convictions, or any of them, are unsafe or unsatisfactory. I would refuse the application by RM for leave to appeal.

Brennan J

Toohey and Gaudron JJ have canvassed the grounds of appeal which were argued in this case. I agree with the conclusions which they have arrived at. This Court has uniformly refused to receive fresh evidence in the exercise of its appellate jurisdiction in criminal cases. The principle was stated in Davies and Cody v The King 1937: "The only power of the court as a court of appeal is to consider and determine whether the judgment of the court appealed from was right upon the materials before that court ... In this case the court is invited to consider fresh evidence. The court has no power to consider that evidence."

The cases in this Court have spoken uniformly on this subject. I am unable to agree with Toohey and Gaudron JJ that, although this Court generally has no power to consider fresh evidence, the concession made in this Court by counsel for the Crown as to the photograph of the print on the cheque can be regarded in deciding whether the decision by the CA was correct. The jurisdiction of this Court is to pronounce the judgment which the CA should have pronounced: Craig v The King 1933; Pantorno v The Queen 1989 and therefore this Court is required to determine "whether the judgment of the court appealed from was right upon the materials before that court". That function cannot properly be performed by reference to materials that were not before the court appealed from. This Court is not a court of criminal appeal and it is not fitted to receive, test and evaluate evidence which has not been considered in the court appealed from. In an appeal which challenges the evaluation by the CA of the sufficiency of evidence to support a conviction or the cogency of fresh evidence not produced at the trial, this Court cannot have regard to facts which were not before the CA. The notion that the correctness of the decision of the court appealed from can be determined by reference to materials not before that court is inconsistent with the appellate nature of the jurisdiction exercised by this Court.

Their Honours leave open the question whether there is any practical difference between the formulations of the test for determining whether fresh evidence is such as to warrant the quashing of a conviction. The formulation which, in my respectful opinion, was settled by this Court inRatten v The Queen 1974; and in Lawless v The Queen 1979, is whether the jury, if the fresh evidence had been laid before it together with the evidence given at the trial, would have been likely to have entertained a reasonable doubt about the guilt of the accused. That was the formulation to which I adhered in Gallagher. The test has sometimes been expressed not in terms of "likely" but in terms of "might" Stafford v DPP 1974 UK; Gallagher; or in terms of "significant possibility"; Gallagher. Although I agree with Toohey and Gaudron JJ. that it is not necessary to elaborate in this case upon the differing nuances of these formulae or to decide between them, my preference for the "likely" formula remains.

That said, I come to the same conclusions as their Honours - indeed, I come to the conclusion in the case of RM more readily. In the case of PM, it is apparent that the evidence against him has not been subjected to the critical examination necessary to determine whether his convictions are supportable. I agree that the reference of PM's case to the CA required that examination to be made and that the matter should be remitted to that Court accordingly. That Court has authority to consider fresh evidence. In so saying, I do not imply any departure from the distinction to which I referred in Chamberlain v The Queen (No.2) 1984; between a case where the CA is satisfied that, on the evidence before the jury, it would be unsafe, unjust or dangerous to allow a verdict of guilty to stand and a case (such as Ratten) where the CA is satisfied that, had fresh evidence been available and produced at the trial, a different verdict would have been likely.

I would refuse RM leave to appeal. I would grant special leave to appeal to PM and allow his appeal, setting aside the order made by the CA in his case and remitting his case to the CA for determination in accordance with the judgments of this Court.