Overturning a Jury Verdict: The Case of M v The Queen


For centuries, juries have played an important role in criminal trials, scrutinising all the evidence that is presented by both sides before attempting to reach a unanimous verdict.

But is a jury’s verdict always the end of the matter – or are there situations where verdicts can be set aside?

The case of M v The Queen [1994] has the answers.

M v The Queen: The Facts

The case involved a man charged with indecently and sexually assaulting his 13 year old daughter. Throughout the entire process, M maintained his innocence and vehemently denied the alleged acts.

As is often the case in sexual assault trials, the complainant’s testimony was the only evidence against the accused. However, a whole range of inconsistencies and implausible assertions arose from her evidence.

In addition, sexual assault experts who physically examined the complainant testified that there was no evidence of physical penetration as alleged.

Despite this, a jury found M to be guilty. M appealed the conviction all the way up to the High Court, arguing that it would be unsafe and unsatisfactory for the verdict to stand.

His appeal ultimately succeeded.

When Can a Jury’s Verdict Be Set Aside?

The High Court found that there are certain situations where a court can intervene to set aside a jury’s verdict.

The Court relied upon English case law which held that a verdict could be set aside if it was ‘unsafe or unsatisfactory,’ provided that a court had ‘some lurking doubt in our minds which makes us wonder whether an injustice has been done.’

Significantly, the English cases found that this ‘lurking doubt’ did not have to be based on evidence presented in the case, but could arise from the ‘general feel of the case as the court experiences it.’

For the lay person, this approach might seem dubious: implying that a jury’s verdict can be set aside based on the “vibe” of a case.

Fortunately, Chief Justice Anthony Mason, along with Justices Deane, Dawson and Toohey managed to clear things up for those of us left feeling a little lost.

The majority found that while this may be the case in England, Australian law does not allow a court to set aside a jury’s verdict ‘upon any speculative or intuitive basis.’

Rather, Australian courts require a much higher threshold to be satisfied before overturning a jury’s verdict.

That threshold is set out in section 6(1) of the Criminal Appeal Act 1912, which states that an appeal against conviction can only be allowed on the following grounds:

1. If the verdict is unreasonable or cannot be supported, having regard to the evidence;

2. If there has been a wrong decision of any question of law;

3. On any other ground whatsoever there was a miscarriage of justice.

Where one of these grounds is established and the court decides to set aside a verdict, the court will normally find that the verdict was ‘unsafe or unsatisfactory.’

What is a Miscarriage of Justice?

Those wishing to have a conviction overturned may benefit from understanding the meaning of a ‘miscarriage of justice’.

Contrary to popular opinion, a miscarriage of justice does not simply refer to situations where a court has convicted an innocent person.

A miscarriage of justice can also include cases where the court deems the jury’s verdict unsafe or unsatisfactory because there has been a:

‘failure in observing the conditions which, in the court’s view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that…the jury may have been mistaken or misled.’

Can a Judge Ever Direct a Jury to Return a Verdict

In other cases, a matter might be part way through a trial when it becomes apparent that there are serious problems with the prosecution evidence, such that the court is unable to support a verdict of guilty.

In these cases, a judge may intervene and direct a jury to return a verdict of ‘not guilty’, as occurred in one of our recent cases.

However, ‘directed verdicts’ are quite rare.

The case of Doney v The Queen sets out the circumstances whereby a trial judge can intervene and direct the jury to return a verdict of not guilty.

That case concerned an appeal against a conviction for knowingly importing cannabis resin.

The defence argued that the prosecution case depended on the evidence given by a sole witness, which was problematic in several ways – not the least of which was that the witness admitted to lying in a police interview, and then changed his story in order to conceal his past convictions for dishonesty offences.

The High Court found that a trial judge is able to direct a jury to return a verdict of not guilty where a verdict of guilty would be ‘unsafe or unsatisfactory.’

The test is that the evidence must be seen to be ‘so defective that, even taken at its highest, it could not sustain a verdict of guilty.’

This, however, is a very high threshold to meet – and even in cases where the evidence is ‘tenuous or inherently weak or vague’, the matter must still be left to the jury to decide.

So, all in all, courts can intervene to either direct the outcome of a case – or overturn a verdict of guilty – but these situations are rare.


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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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