In Paul Ian Lane v The Queen  HCA 28 (20 June 2018) the High Court of Australia has, in a unanimous decision, allowed an appeal from the Court of Criminal Appeal of the Supreme Court of New South Wales (see Lane v R  NSWCCA 46 (22 March 2017)).
The appellant in the case had been charged with murder, which was alleged to have occurred during an altercation between the appellant and the deceased. The incident had been caught on CCTV footage showing the deceased on two occasions falling to the ground. The first time, the deceased had retreated towards a roadway, with the appellant chasing him. The deceased fell backwards and struck his head. The deceased rose to his feet and then could be seen to fall to the road a second time. After this second fall, the deceased lost consciousness and died in hospital nine days later. The appellant was acquitted by the jury of murder, but was found guilty of manslaughter.
The appellant appealed against his conviction to the Court of Criminal Appeal of the Supreme Court of New South Wales (see Lane v R  NSWCCA 46 (22 March 2017)).
In its decision, the Court of Criminal Appeal found that the trial judge was in error for failing to direct the jury that it must be unanimous in its deliberations as to the factual basis on which it might convict the appellant of manslaughter - whether it was the first fall of the deceased, the second fall, or both falls that resulted in his death. However, the majority of the Court of Criminal Appeal, dismissed the appeal under the proviso to section 6(1) of the Criminal Appeal Act 1912 (NSW), that is, on the basis that no substantial miscarriage of justice had actually occurred.
The majority of the Court of Criminal Appeal found that the evidence was not capable of supporting a finding "beyond reasonable doubt" that a deliberate act of the appellant caused the first fall. The absence of a specific unanimity direction did not prevent the jury from considering the appellant's guilt on the basis that his deliberate act caused the second fall and, having done so, it was not open to the jury to have had a reasonable doubt as to his being guilty of manslaughter by that unlawful and dangerous act.
The appellant appealed to the High Court by grant of special leave on the ground that the majority of the Court of Criminal Appeal had erroneously applied the proviso to section 6(1) of the Criminal Appeal Act 1912 (NSW) – a contention the High Court accepted. In this case the High Court noted that the case was left to the jury on the basis that it was open to the jury to convict the appellant by pooling individual jurors' conclusions on issues in respect of which the jury was required to be unanimous.
The High Court was of the view that irrespective of whether an appellate court might conclude that the evidence in respect of the first fall was incapable of supporting a conviction, it was distinctly possible that some jurors may have decided to support the conviction on the basis of the first fall alone. Dismissing the appeal, as was done by the majority of the Court of Criminal Appeal, was to disregard the requirement of a unanimous verdict on the part of the jury and to substitute trial by appeal court for trial by jury. The High Court held that such an error was capable of denying the application of the proviso because it means that it cannot be said that no substantial miscarriage of justice has actually occurred.
As a result, the High Court allowed the appellant's appeal, quashed his conviction and ordered a new trial.
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Paul Ian Lane v The Queen  HCA 28 (20 June 2018)
Lane v R  NSWCCA 46 (22 March 2017)
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