Mickelberg v The Queen

Facts

Ray Mickelberg and his brothers were convicted of a gold swindle perpetrated against the Perth Mint. On appeal to the High Court, the applicants contended that the prosecution had failed to disclose to the defence certain material which was relevant to the creditworthiness of a key prosecution witness, and that this non-disclosure had occasioned a miscarriage of justice.

Issues

1. Whether the prosecution's failure to disclose material relevant to the credit of a key witness constituted a miscarriage of justice warranting a new trial. 2. Whether the High Court has jurisdiction to receive fresh evidence on a criminal appeal and, if so, on what principles.

Holding

The High Court (by majority) dismissed the appeal, holding that the non-disclosure, while capable of amounting to a miscarriage of justice in appropriate circumstances, had not on the facts established a substantial miscarriage of justice sufficient to warrant setting aside the convictions.

Ratio decidendi

A prosecutor owes a duty to the court and to the accused to disclose material that may be relevant to the defence or to the credit of prosecution witnesses; failure to discharge that duty may constitute a miscarriage of justice, but an appellate court will only intervene where the non-disclosure has occasioned a substantial miscarriage of justice.

Obiter dicta

Mason CJ (in dissent on the result) emphasised that the prosecutorial obligation of disclosure is not merely a matter of professional courtesy but a fundamental requirement of the fair trial guarantee; he considered that any material capable of affecting the credit of a witness whose evidence was central to the Crown case should be disclosed as a matter of course. Several justices also observed that the jurisdiction of the High Court to receive fresh evidence on a criminal appeal is narrow and will be exercised only in exceptional circumstances.

Significance

Mickelberg v The Queen is a leading Australian authority on the prosecutorial duty of disclosure in criminal proceedings and is regularly cited for the proposition that the Crown's function is to assist the court in the administration of justice rather than to secure a conviction at all costs.

Key authorities

• Strikeman v The Queen Strikeman v The Queen (1983) 57 ALJR 326considered
• Ratten v The Queen Ratten v The Queen (1974) 131 CLR 510considered
• Mraz v The Queen Mraz v The Queen (1955) 93 CLR 493applied
• R v Apostilides R v Apostilides (1984) 154 CLR 563cited
• Doney v The Queen Doney v The Queen (1990) 171 CLR 207cited
• R v Ward R v Ward [1993] 1 WLR 619considered