Appeals against conviction on indictment: Process, outcome and NSW reform after Kalbasi v Western Australia

Abstract

The High Court's recent decision in Kalbasi v Western Australia (Kalbasi) should present no obstacle to the adoption of the New South Wales Law Reform Commission's proposed reform to the "common form" conviction appeal legislation. The statutory expression "substantial miscarriage of justice" clearly requires clarification. While the proposed reform separates process and outcome considerations into different grounds of appeal, this would not deny the potential for interaction recognised in Kalbasi – process flaws inhibiting the court's ability to assess the appropriate outcome. With respect to outcome assessment, the Kalbasi majority considers that the appeal court should form its own view whether the evidence proves guilt. The reform proposal, respecting the jury's constitutional role, asks how a reasonable jury would view the evidence. Consistently with all Kalbasi judgments, the proposal recognises that where a process error denies the defendant a fair trial, the appeal should be upheld without regard for outcome.