BROADCASTS.com

b'

This week on Legally Speaking with Michael Mulligan:

An appeal in a criminal case does not involve asking the judges hearing the appeal to retry the case. It\\u2019s a review of what took place at the original trial.

The Court of Appeal can allow an appeal if the verdict at trial was unreasonable and not supported by the evidence, if there was a wrong decision made by a trial judge on a question of law, or if there was a miscarriage of justice.

When a trial is decided by a judge without a jury, the trial judge would provide detailed reasons explaining how they arrived at their decision. That permits a review of the legal analysis when there is an appeal.

Where, however, there is an appeal from a jury verdict, there are no reasons for judgment so appeals will focus on legal rulings the trial judge made during the trial and the instructions they gave to the jury.

One of the things that juries are commonly told is that they should follow the trial judge\\u2019s instructions with respect to the law because, if the judge makes a mistake with respect to the law, that can be reviewed on an appeal.\\xa0

Even when the Court of Appeal determines that a trial judge made a wrong decision on a question of law, a new trial may not be ordered if the mistake could not have impacted the outcome of the trial. The language used when there is such a finding is that there was \\u201cno substantial wrong or miscarriage of justice\\u201d.

In the appeal of the Andrew Berry murder conviction, which is discussed on the show, the defence argued that the judge made several legal errors concerning the admissibility of evidence. The Crown\\u2019s submissions were that the decisions made by the judge were not mistakes but, if they were, they would not have changed the result of the trial.

Also on the show, an application for a ban on publication of evidence provided to the accused during the criminal contempt prosecutions for members of the Rainforest Flying Squad and others is discussed.

In criminal cases, the Crown is required to provide disclosure of all the evidence gathered by the police. This is an important requirement to help prevent wrongful convictions. In Canada, there have been several instances of innocent people being convicted because exculpatory evidence was not given to them.

When evidence is provided to an accused person or their lawyer it is often referred to as disclosure material.

There is a legal requirement called an \\u201cimplied undertaking\\u201d that prohibits the disclosure material from being used for any purpose other than the defence of the criminal case.

In the case discussed, one or more of the more than 400 people being prosecuted for criminal contempt failed to keep the disclosure material they received confidential, and it ended up in the hands of journalists.

The Crown was successful in applying for an order that the journalists do not publish the contents of the disclosure material unless and until it was used in open court.

Finally, on the show, a man convicted of drug offences and sentenced to six years in jail based on evidence from a disgraced former Victoria police officer is discussed.

The man was connected to the drugs in question based on a key allegedly found by the former police officer that opened a safe in which the drugs were located. The former police officer claimed that he found the key and put it in his pocket before officers assigned to take photographs of the room where he said he found it did so.\\xa0 \\xa0

The former police officer was subsequently alleged to have engaged in 13 counts of improper disclosure of information, 3 counts of deceit, 2 counts of discreditable conduct, and 1 count of neglect of duty.

Follow this link for the cases discus