Kiefel CJ
Bell J
Gageler J
Keane J
Nettle J
Gordon J
Edelman J
11.
that the forensic purpose that justifies such a course will be adopted by the parties, rather than upon independent scrutiny by the members of the court[1].
Secondly, the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community[2]. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.
It should be understood that when the joint reasons in M v The Queen[3] spoke of the jury's "advantage in seeing and hearing the witnesses" as being "capable of resolving a doubt experienced by a court of criminal appeal" as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury's assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness' evidence by reference to the
- ↑ SKA v The Queen (2011) 243 CLR 400 at 410–411 [30]–[31]; see also at 432–433 [116] per Crennan J.
- ↑ Kingswell v The Queen (1985) 159 CLR 264 at 301 per Deane J; Brown v The Queen (1986) 160 CLR 171 at 201–202 per Deane J; Katsuno v The Queen (1999) 199 CLR 40 at 63–64 [49] per Gaudron, Gummow and Callinan JJ; Cheng v The Queen (2000) 203 CLR 248 at 277–278 [80] per Gaudron J; Alqudsi v The Queen (2016) 258 CLR 203 at 208 [2], 231–232 [58] per French CJ, 273–274 [195] per Nettle and Gordon JJ; R v Baden-Clay (2016) 258 CLR 308 at 329 [65] per French CJ, Kiefel, Bell, Keane and Gordon JJ.
- ↑ (1994) 181 CLR 487 at 494, 495 per Mason CJ, Deane, Dawson and Toohey JJ.
