GROUND 1: INDISPENSABLE INTERMEDIATE FACT DIRECTION
29The appellant contended, in reliance on Shepherd v R [1990] HCA 56; 170 CLR 573, that the trial judge should have directed the jury that to convict the appellant it had to find beyond reasonable doubt as "an indispensable intermediate fact" that the injuries to J were occasioned between 2.00 am and 3.30 am when J was in the sole care of the appellant. The appellant submitted that "it was critical in the logical process of reasoning to guilt" that the jury would have to find this (Outline of Submissions [20]).
30The principles upon which the appellant relied were stated by Dawson J in Shepherd in the following terms:
"... it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence, vol 9 (Chadbourn rev. 1981), par. 2497, pp. 412-414 - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence" (at p 579)
...
"The judgments in Chamberlain do not support the proposition that, in a case resting upon circumstantial evidence, the jury may only properly draw an inference of guilt upon facts - individual items of evidence - proved beyond reasonable doubt. Still less does the case establish that a direction in those terms should be given to a jury. Of course, it is recognized in Chamberlain that, if it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt. But to say as much is to do little more than state a truism. It does not mean that each item of evidence taken into account in reaching that conclusion must, considered separately, be established beyond reasonable doubt.
Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful" (at p 585).
31These principles were considered in Davidson v R [2009] NSWCCA 150; 75 NSWLR 150. In rejecting the appellant's case that there had been a deficiency in directions given at the trial, Simpson J (with the concurrence of Spigelman CJ and James J) said:
"[74] Whether a fact on which the Crown relies as part of a circumstantial case is or is not 'indispensable' may be tested by asking whether, in the absence of evidence of that fact, there would nonetheless be a case to go to the jury. If the answer is in the affirmative, even if the Crown case is weakened, even considerably, the fact is not 'indispensable'. Where the answer is in the negative, the fact is 'indispensable' and the jury should be directed accordingly.
[75] I do not accept that any of the proposed facts was 'indispensable' within the reasoning of Shepherd. Certainly, the telephone call evidence was very powerful, especially that of 2 March to which I have referred to above. But that does not make it 'indispensable' and, even without that evidence, there was still a case that incriminated the appellant."
32The principles were further considered in Burrell v R [2009] NSWCCA 163; 196 A Crim R 199. In that case the appellant contended that certain evidence described as the "Pajero evidence" related to an indispensable intermediate fact in the sense described by Dawson J. In rejecting this submission the Court said:
"[133] His Honour's direction was correct. The Crown case was not confined to the Pajero evidence in the sense that it was an indispensable intermediate fact. Although the primary thrust of the Crown case was that the Pajero evidence was the most likely means and time at which Mrs Whelan was abducted, it relied upon all of the circumstances of the case, including circumstances that had no direct link with the Pajero evidence or the other two main bodies of evidence ... ".
33The same approach was taken by this Court in Rees v R [2010] NSWCCA 84; 200 A Crim R 83 and in Wood v R [2012] NSWCCA 21. In Rees, Beazley JA pointed out that whilst the evidence in question was a strong piece of circumstantial evidence, it was not the only evidence that linked the appellant with the commission of the offences (see [55] and Wood at [555] - [570]).
34In the present case it was plainly essential that the jury conclude beyond reasonable doubt that the appellant had the opportunity to commit the crime with which he was charged. That was a matter of commonsense about which the trial judge was not required to give a direction separate from his explicit direction that the jury needed to be satisfied beyond reasonable doubt that the appellant murdered J.
35Contrary to the implication in this ground of appeal and the appellant's submissions, it was not necessary for the jury to find that the appellant had the opportunity to murder J for the whole of the period between 2.00 am and 3.30 am on 21 March 2008. It was critical that it find that the appellant had that opportunity at some stage within that period but it was not necessary for it to find that he had the opportunity for the entirety of the period. Thus, proof that T returned home at 3.30 am, rather than at some other time in the previous hour, was not crucial. There could be no doubt that the appellant was in fact alone with J for at least part of that period. The appellant admitted as much in his interview with the police.
36It was clearly integral to the jury's task that it find that the injuries to J occurred whilst J was alone with the appellant and not, for example, when J fell in the shower whilst T and the appellant were at home with him, or after T and Ms Malcolm returned home. Such a conclusion was obviously inherent in the jury being satisfied beyond reasonable doubt of the appellant's guilt. The manner in which the trial was conducted and in which the trial judge summed up to it, could not have left the jury in any doubt about this.
37As Dawson J recognised in the passages from Shepherd quoted in [30] above, separate directions about facts indispensable to the accused's guilt need not be given where the point that would be made by the directions is obvious and covered by general directions as to the need for the jury to be satisfied beyond reasonable doubt of the accused's guilt. That was the position here. This ground of appeal should accordingly be rejected.