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Barlow v. The Queen (New Zealand)
Factual and Procedural Background
The Appellant was convicted in November 1995 of murdering Victim A and Victim B during a pre-arranged business meeting in The City on 16 February 1994. Two earlier trials had ended in hung juries; the third jury convicted after 27 hours of deliberation, and the Appellant received a life sentence. The Court of Appeal dismissed his appeal in August 1996.
Over a decade later the Appellant petitioned the Governor-General under section 406 of the Crimes Act 1961, seeking a reference back to the Court of Appeal based on newly discovered evidence. Acting on advice from the Ministry of Justice and an external reviewer (Attorney Fisher), the Governor-General declined the request.
In July 2008 the Appellant sought special leave from the Judicial Committee of the Privy Council to appeal the 1996 dismissal, again relying on the fresh evidence. The Respondent objected, arguing (1) absence of jurisdiction and (2) that the new evidence did not make the conviction unsafe. A three-member Committee adjourned the matter for argument before a five-member Committee which delivered the present judgment.
Legal Issues Presented
- Whether the Privy Council retained jurisdiction, notwithstanding constitutional changes and the prior refusal of mercy under section 406, to entertain an appeal against the 1996 Court of Appeal decision.
- Whether admission of scientifically unsustainable comparative bullet-lead analysis (CBLA) evidence at trial constituted a “miscarriage of justice” under section 385(1)(c) of the Crimes Act 1961.
- Whether, applying the proviso to section 385(1), the conviction should nevertheless stand because no substantial miscarriage of justice had actually occurred.
Arguments of the Parties
Appellant's Arguments
- The fresh scientific report from Expert Witness 2 demonstrates that Expert Witness 1’s CBLA testimony—asserting that three scene bullets were Geco brand from the Appellant’s box—was scientifically unfounded, rendering the conviction unsafe.
- The Privy Council’s jurisdiction is preserved by section 52(1)(b) of the Supreme Court Act 2003 because the underlying Court of Appeal decision predates 1 January 2004.
- The overlap between issues considered by the Governor-General and the court does not bar judicial review of the conviction itself.
Respondent's Arguments
- The application is, in substance, an impermissible attempt to reverse the Governor-General’s refusal of mercy; therefore the Board lacks jurisdiction (citing Thomas and Walker).
- Even if jurisdiction exists, the new evidence merely shows “consistency” and does not undermine the overall circumstantial case; the conviction remains safe.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Thomas v The Queen [1980] AC 125 | Opinions given on a section 406(b) reference are not appealable to the Privy Council. | Distinguished; the current appeal concerns the original conviction, not a section 406 opinion. |
| Walker v The Queen [1994] 2 AC 36 | Privy Council lacks jurisdiction where appeal raises new matters unrelated to conviction or sentence. | Held inapplicable; Appellant challenges his conviction directly. |
| Pitman v The State [2008] UKPC 16 | Fresh evidence on mental state may ground a Privy Council appeal. | Cited to confirm availability of jurisdiction in fresh-evidence cases. |
| British Coal Corporation v R [1935] AC 500 | Legislative competence to restrict Privy Council appeals. | Noted there is no comparable New Zealand statute barring this appeal. |
| Bain v The Queen [2007] UKPC 33 | Standard approach to section 385(1) prior to Matenga. | Board notes possible tension with Matenga but ultimately applies Matenga. |
| R v McI [1998] 1 NZLR 696 | Earlier interpretation of “miscarriage of justice.” | Superseded by Matenga analysis. |
| Matenga v The Queen [2009] NZSC 18 | Re-stated test for miscarriage and proviso under section 385(1). | Adopted as governing framework for current analysis. |
| R v Sungsuwan [2006] 1 NZLR 730 | Part of jurisprudential backdrop to Matenga. | Cited within Matenga discussion. |
| Weiss v R (2005) 224 CLR 300 | Australian test for applying proviso—focus on inevitability of verdict. | Informative; Matenga endorses with qualifications. |
| Wilde v The Queen (1988) 164 CLR 365 | Unfairness must “go to the root” of proceedings. | Used to evaluate whether trial was unfair. |
| Howse v The Queen [2006] 1 NZLR 433 | Adoption of Wilde principle by Privy Council. | Applied in assessing trial fairness. |
| State of New Jersey v Behn (2005) | US decision undermining reliability of CBLA. | Reinforces conclusion that Expert Witness 1’s opinions were unsound. |
| USA v Mikos (2003) | Further U.S. scepticism regarding CBLA. | Cited as background for discrediting CBLA. |
Court's Reasoning and Analysis
Jurisdiction. The Board held that section 52(1)(b) of the Supreme Court Act 2003 expressly preserves its jurisdiction over criminal decisions made before 1 January 2004. Similarity of subject-matter to the section 406 mercy application does not negate the court’s power.
Miscarriage of Justice. Applying Matenga, the Board identified a miscarriage: Expert Witness 1’s assertions that the three scene bullets were Geco bullets from the Appellant’s box were scientifically untenable and should not have gone before the jury.
Fair Trial Inquiry. Relying on Wilde and Howse, the Board ruled that admission of the erroneous opinion did not, of itself, render the trial unfair because the defect did not strike at the root of the proceedings.
Application of the Proviso. The Board assessed whether, on the admissible evidence, a guilty verdict was the only reasonable outcome. After excluding the impugned portions of Expert Witness 1’s evidence, but retaining the unchallenged finding that the scene bullets were compositionally “consistent” with Geco ammunition, the Board examined:
- The Appellant’s presence at the crime scene around the relevant time.
- His immediate disposal and alteration of the CZ 27 pistol, silencer, and matching ammunition.
- Deliberate removal of the pistol’s original barrel, filing of the firing pin, and substitution of the magazine.
- Multiple inconsistent statements to investigators and to Witness B.
Taking the circumstantial case as a whole, the Board concluded it was overwhelming. Even without the discredited CBLA opinion, the evidence of opportunity, possession and destruction of potential murder-weapons, and post-offence conduct left no reasonable doubt.
Holding and Implications
Holding: APPLICATION FOR LEAVE GRANTED; APPEAL DISMISSED.
Although a miscarriage occurred through admission of unreliable CBLA testimony, the Privy Council held that no substantial miscarriage of justice actually occurred. The conviction therefore stands. The decision reaffirms Matenga as the operative standard for New Zealand miscarriage-of-justice analysis and signals judicial caution toward legacy CBLA evidence while emphasising that its exclusion does not automatically invalidate otherwise compelling circumstantial cases. No new precedent was set beyond clarification of these principles, and the immediate effect is that the Appellant remains lawfully convicted.
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