No Substantial Miscarriage of Justice : the History and Application of the Proviso to Section 385(1) of the Crimes Act 1961

Abstract

The proviso to s 385(1) of the Crimes Act 1961, which takes its name from its introductory phrase, “provided that”, confers a significant appellate power on a court of criminal appeal, for by it, the court may dismiss an otherwise meritorious indictable conviction appeal if the court considers that “no substantial miscarriage of justice has actually occurred”. The proviso has, however, received little academic attention. This paper examines the proviso’s history and application, and in particular, why the proviso was enacted, the device’s treatment by the courts and the issues to which it gives rise. The proviso’s origins lie in the Exchequer rule, a creature of the nineteenth century common law, which held that any error at trial entitled the losing party to a retrial. The proviso was enacted throughout the common law world to reform this rule and in New Zealand in 1893 to prevent it from taking effect. Whereas the Exchequer rule adopted a formal and absolutist approach to trial error by declining to assess its significance, the proviso invited courts of appeal to evaluate both the effect of error and the evidence for the purpose of determining whether justice had, in fact, miscarried. Both here and elsewhere, however, the courts treated the proviso with hostility, for the device, it was said, could usurp the role of the (lay) jury. This aspect shaped the proviso’s role in the criminal jurisdiction when various means of appeal to which it was coupled later emerged. It also shaped the courts’ view of their role under the proviso, and in particular, limited the scope of an appellate jurisdiction to make findings of fact. By reference to analogous harmless error devices in the United States of America, we find that the proviso has been applied in New Zealand in two ways since the advent of modern rights of appeal. First, when error has not affected the outcome of the proceeding, and second – and irrespective of jury usurpation – when the defendant’s guilt is sufficiently clear from the record. Neither approach has, however, been closely considered here. Instead, our courts have oscillated between both. Our courts have also been inconsistent in their application of the proviso and ideas reminiscent of the Exchequer rule have endured. Consequently, we find that the proviso has had a narrow curative role in the disposition of indictable criminal appeals in New Zealand. The relationship between the proviso and its attendant grounds of appeal has been problematic because of the linguistic and conceptual tension between the former and the latter. So too has the identification of incurable error, that is, trial error which is beyond the proviso’s curative power. The latter problem has given rise to a variety of common law approaches ranging from the fundamental error jurisprudence of the Australian High Court to constitutional structural error, a concept of the United States’ Supreme Court. None of the approaches to incurable error has, however, proved satisfactory so that it remains unclear which errors are potentially subject to the proviso’s power. The paper then outlines a principled approach to the proviso that would deal with the problems discussed: the stunted fact-finding function on the part of courts of criminal appeal, the shifting conceptual basis for the proviso’s application, the friction between the proviso and its grounds of appeal and the vagaries of incurable error.