Barca v The Queen

Barca v The Queen - [1975] HCA 42 - HCA 1975 case summary — Zoe

[67]

You see, this is what you have: you have to evaluate each piece of this circumstantial evidence and analyse how it builds up because, it is the Crown case; and ultimately it builds up to a point where, as reasonable men, you can come to no other conclusion than that he was the man who committed this murder; and it starts with the evidence of him going to build this shed; creating, the Crown says, an opportunity; and it starts with him doing that, and it goes on with him taking the deceased away, ostensibly to go to work - with his coat - and they do not go to work; they go down and they are drinking in the hotel, and from then on the deceased is never seen again alive and the accused does not go back to the house until twenty to three or three o'clock. In that time, the Crown says, by fair inference, and being consistent with no other explanation, this murder was done; and it says that immediately he set out to establish a false alibi for himself, being back at one o'clock, and being in the nail shop at five to one; that was the vital period he knew, so the Crown says, the important time to have his alibi for, and it was between one o'clock and three o'clock the Crown says, when the deed was done and if you take those circumstances, the circumstances of the lies he told the police from the start, the fact that he was seen in this hotel, which he now admits - and if you accept that final interview he was there and the woman is right - and if you accept her evidence, the deceased was wearing his coat - and you might well ask yourselves how it got back into the house - the deceased did not bring it back, and there were only two of them in the car - then you have the manufacture of these receipts, and that goes on to it; and then you have this record of interview in which he admits specifically that he set out to create this false alibi; and then you have the finding, firstly by the police, under his house of the sock and the tin; and then you have him going and digging up his rifle; and by fair inference the Crown would say - from this evidence, on his way to get rid of that forever - and if that had happened of course nobody would have been able to say that that rifle fired that bullet - and you have the evidence of Letherbarrow that that is the rifle that fired that cartridge, and that, as I apprehend it, is not challenged.

[90]

After they had finished lunch the applicant and the deceased left the deceased's home in the applicant's car. According to statements made by the applicant to the police they drove together to the railway station at St. Marys where the deceased, who was a shift worker, intended to catch a train to his employment. The applicant said that he left the deceased at the railway station at about 12.45 and then, after visiting two different shops for the purpose of buying nails, returned to the deceased's home at about 1 p.m. According to his statements he remained there working on the shed during the afternoon until he returned to his own home at Cambridge Park which he reached at about a quarter to six. There is no doubt that he was back at the shed by 3 p.m. and the account which he gave of his movements after that time was not challenged either by the police in the course of his questioning or at the trial. However, there was evidence on which the jury could have been satisfied that the account given by the applicant of his movements before 3 p.m. was false. At the committal proceedings Mrs. Petula had corroborated the statement of the applicant that he had returned to the deceased's home at about 1 p.m. but at the trial she said that in fact the applicant had not returned until about 3 p.m. She said that she had given false evidence at the committal proceedings because she had been threatened by Carmello Barca that if she did not do so he would stab her. Moreover, it was established that at some time between 12.30 and 1 p.m. that day the deceased entered the bar of the Waggon Wheel Hotel near St. Marys and ordered a schooner of beer and a schooner of lemonade and some of the statements subsequently made by the applicant to the police could have been regarded as amounting to admissions that the lemonade had been for him. There was also evidence that the applicant subsequently obtained receipts for the purchase of nails in circumstances that might perhaps have suggested that he was endeavouring to concoct evidence as to the time at which he made the purchase on the Thursday and thus to fabricate support for his account of his movements at about 1 p.m. on that day.

[113]

The remarks made by the learned trial judge when he intervened at the conclusion of the address by defence counsel could only have been understood as meaning that it would be wrong for the jury to accept that the evidence was consistent with the hypothesis that the murder had been committed by Carmello Barca. In other words, the jury were in effect directed to reject one of the main arguments put forward on behalf of the defence, and to decide one issue of fact in favour of the prosecution. This was a misdirection. It was for the jury to decide for themselves whether they were satisfied that the evidence as a whole was inconsistent with the hypothesis that Carmello Barca and not the applicant had murdered the deceased. Of course it was not proved that Carmello Barca had committed the murder. Moreover, the learned trial judge was perfectly correct in saying that there was no evidence that the applicant took the deceased to Carmello Barca's house or that Carmello Barca fired the shots that killed the deceased. However, although a jury cannot be asked to engage in groundless speculation it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference. If the jury think that the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed the crime charged the accused is entitled to be acquitted. The learned trial judge told the jury that there was no evidence that Carmello Barca was involved in the killing; this was incorrect, for there was some circumstantial evidence - far too slight, it is true, to support a positive finding of guilt - pointing to his involvement. The evidence showed that Carmello Barca had at least as strong a motive to kill the deceased as that attributed to the applicant, that he had been enraged at the deceased's behaviour and had in consequence threatened him and that he had threatened Mrs. Petula in an endeavour to persuade her to give false testimony as to the time at which the applicant returned to her house after he had driven away with the deceased. In these circumstances it was open to the jury to think that the hypothesis that Carmello Barca had committed the murder could reasonably be based upon the evidence. Moreover, in the very special circumstances of the case, and particularly having regard to the evidence as to the custom amongst Calabrians, the evidence that Carmello Barca had killed Mrs. Petula's first husband might properly have been regarded by the jury as further circumstantial evidence supporting that hypothesis. It should therefore have been left to the jury to consider whether the suggested hypothesis that Carmello Barca had committed the murder was reasonable and consistent with the evidence since unless they rejected that hypothesis they could not have been satisfied of the guilt of the applicant. Further, the learned trial judge directed the jury that they could not understand the statement made by the applicant from the dock - "There are some things with reference to this case that I do not want to say" - as meaning that the applicant's family had committed the murder and that he was trying to protect them. It was not for the judge but for the jury to decide what meaning should be attached to the statement and what inferences should be drawn from it.

[120]

It is trite law that a statement made in the presence of a party is only evidence against him of the truth of the matter asserted if he has in some way admitted its truth. If an accused person denies the truth of a statement when it is made and there is nothing in his conduct and demeanour from which the jury, notwithstanding his denial, could infer that he acknowledged its truth in whole or in part, it would accord with accepted practice to exclude the statement altogether: R. v. Christie [15] . In any case, where evidence is admitted of statements made in the presence of an accused it is in general desirable that the judge should explain to the jury that they can only use the statements as evidence of the truth of what was stated if they are satisfied that the accused has by his speech, silence or conduct admitted their truth. The applicant clearly denied the statement that his sister had given him a rifle and there was no evidence that by his demeanour or conduct he accepted its truth. That statement had no evidential value and would have been better excluded. The answers given by the applicant in response to the statements made by the police concerning their enquiries as to the movements of the deceased on the early afternoon of Thursday 27th September, although in themselves admissible, did not amount to admissions of the truth of those statements, which were no evidence of the fact that the enquiries were made or of the result of the enquiries. The learned trial judge did not regard it as necessary to give the directions that were sought as to the effect of this evidence but it needs to be remembered that principles of law that seem elementary to an experienced judge may be quite novel to a jury and also that particular care may be called for in the case of written records of interview. When tendered in evidence these exhibits may be present before the jury throughout their deliberations and may, to an inadequately instructed jury, provide a ready source from which to cull prejudicial material which they may put to impermissible use. However, in the present case it is not necessary to consider the effect of the failure to give a direction as to the effect of the evidence as to the statements made in the presence of the applicant, because for the reasons already given the conviction cannot stand.

At a glance

Court

Decision date

Before

Source

Judgment (154 paragraphs)

Parties

Cases Cited (1)