Proven Miscarriages of Justice - Retrial or Acquittal? The Discretionary Power of the Courts of Appeal in Hong Kong and Australia

Abstract:     
In Hong Kong and Australia, Courts of Appeal possess a discretionary power to order either a retrial or an acquittal where the Court is satisfied a miscarriage of justice occurred at the trial. This power involves important public policy considerations in the administration of criminal justice. The relevant legislation in both jurisdictions is expressed in similar terms, although no statutory guidance is provided as to how the power should be exercised. This article examines how the Courts of Appeal in both countries exercise this discretion. The fundamental consideration is whether there is sufficiently cogent evidence to justify convicting the appellant. If there is not,then the appropriate order is an acquittal. If there is sufficient evidence to convict,then a retrial will be ordered unless it would be "unjust" to the appellant. The article discusses the recent decision of R v Thomas (No 3) which has considerably extended the circumstances where a retrial can be ordered.

Number of Pages in PDF File: 26

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