Determination with regard to ground 3
- As I have said, I shall deal with this ground succinctly. My opinion can be expressed by way of the following propositions.
- First, it was, with respect, an error for her Honour to direct the jury initially that primary facts needed to be proven beyond reasonable doubt. The submission of the Crown prosecutor that that error needed to be corrected was, with respect, clearly correct: see the judgment of Dawson J in Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, relied upon in many subsequent decisions of this Court.
- Secondly, it was correct of her Honour to say by way of correction that the primary facts needed only to be "established" to the satisfaction of the jury, without providing a specific standard of proof. No standard of proof has been assigned by the criminal law to "establishment" of primary facts in a circumstantial case.
- Thirdly, it was, with respect, confusing for her Honour to introduce the concept of "intermediate" facts into that correction. The term had not previously been used. Furthermore, neither party had submitted that this was a case in which the judge might need to direct the jury that, if they formed the view that certain intermediate facts were "indispensable" to proof of guilt, then they would need to be proven beyond reasonable doubt: see Shepherd v The Queen, R v Merritt [1999] NSWCCA 29, Burrell v R [2009] NSWCCA 163; (2009) 196 A Crim R 199, R v Davidson [2009] NSWCCA 150; (2009) 75 NSWLR 150.
- Fourthly, I respectfully agree with the analysis of Spigelman CJ in R v Davidson at [10] and following, in which the Chief Justice spoke of the element of "redundancy" in informing a jury, which has already been told that the elements of the offence must be proven beyond reasonable doubt, that any intermediate fact that, in the assessment of the jury, is indispensable to arrival at that destination, must also be proven beyond reasonable doubt. I say that because the proposition would seem necessarily to follow, and not seem to be liable to misapprehension by a jury.
- Fifthly, it is true that the dichotomy between a so-called "strands in the cable" case and a so-called "links in the chain" case is a primitive one: see the judgment of the Court in Burrell v R at [97]. But in my opinion this was a case in which a large number of primary facts were relied upon, the absence of no particular one of which would have been fatal to the Crown case, especially bearing in mind the undisputed presence of the applicant in the car park, in the company of the co-accused, when the deceased was shot and stabbed: see the judgment of Simpson J in R v Davidson at [74].
- Sixthly, and relatedly, in my opinion there were no indispensable intermediate facts about which a direction needed to be given in this case, depending on how the jury chose to reason. For example, I do not accept the oral submission for the applicant that the proposition that the applicant took a knife from the nearby family business was, or could have been, an indispensable intermediate fact that needed to be proven beyond reasonable doubt before the jury could return a verdict of guilty of murder.
- Seventhly and finally, there was no error in her Honour directing the jury that an essential part of proof beyond reasonable doubt of the offence was rejection of alternative hypotheses to the same standard. The latter is an entirely orthodox extrapolation of the former. If it had not been said, the summing-up may have been liable to criticism. And I have never understood it to have been held that the reference to the need for rejection of alternative rational hypotheses is a wrongful gloss on the criminal standard of proof.
- In short, I accept that the correction of the initial error featured an unnecessary refinement that may have confused the jury. But I do not believe it can be characterised as a significant error, and certainly not as constituting a miscarriage of justice. And I am fortified in my opinion about that by the fact that defence counsel sought no redirection about the matter.
- I would not uphold this ground.