R v Daley; ex parte A-G (Qld)

[2005] QCA 162

Queensland Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal and new trial and inquiry after conviction
3. › Pardon, commutation of penalty, reference on petition for pardon and inquiry after conviction
4. › Reference to court
5. › Whether miscarriage of justice
6. › New ballistics evidence casting doubt on whether offence occurred
7. › New witness statements showing animosity and possible fabrication by complainants
8. › Whether conviction should be set aside
9. › Criminal Code 1899 (Qld), s 672A
1. Criminal Law
2. › Appeal and new trial and inquiry after conviction
3. › Miscarriage of justice
4. › Prosecution's duty of fairness
5. › Failure to adduce forensic evidence
6. › Whether failure to present ballistics evidence constituted flaw in conduct of trial
7. › Whether accused lost real chance of acquittal
1. Criminal Law
2. › Appeal and new trial and inquiry after conviction
3. › Fresh evidence and new evidence
4. › Distinction between fresh evidence on appeal and evidence on reference under s 672A
5. › Broader discretion on reference to ensure justice done
6. › Criminal Code 1899 (Qld), s 672A

Quick Take

On a reference under s 672A of the Criminal Code 1899 (Qld), the court has a broader discretion to receive evidence than on an ordinary appeal, and is not confined to the Ratten v The Queen test for fresh evidence. The prosecution's failure to adduce available forensic evidence that would have undermined the Crown case can constitute a flaw in the conduct of the trial amounting to a miscarriage of justice, even where the accused's own counsel did not raise the issue at trial. The question on such a reference is not whether the accused's legal representation was incompetent, but whether a miscarriage of justice has occurred.