Doney v The Queen

The application for special leave to appeal raises two issues. The first is whether there was any evidence capable of corroborating the account given by Freeman. The second is whether the trial judge erred in holding that he had no power to direct the jury to enter a verdict of not guilty on the ground that, although there was evidence sufficient to sustain a conviction, a verdict of guilty would be unsafe and unsatisfactory. The Court of Criminal Appeal held that the applicant's conviction was not unsafe or unsatisfactory. That aspect of its decision is not challenged other than on the basis that there was nothing to corroborate the account given by Freeman. Rather, it is put that, even if there was corroborative evidence, the applicant was denied the right to have the trial judge who heard and observed the witness, Freeman, determine whether, in his view, a guilty verdict would be unsafe or unsatisfactory.

The only evidence directly linking the applicant to the importation of the cannabis resin was that given by Freeman. The only evidence left to the jury as capable of corroborating that account was a handwritten note which was given to a taxi driver some four weeks after the container was landed in Sydney and released to shipping agents. By that time Freeman had arranged for and assisted in the removal of some boxes from the container, but the container and the rest of its contents remained at the premises of the shipping agents. Answering a radio call, the taxi driver went to an address in Summer Hill. There a person, not the applicant, gave him $20, a key and the handwritten note. He was instructed to go to a garage at an address also in Summer Hill, as written on the note. He was told to collect some boxes from the garage and to take them to a panel van at an intersection in Balmain, details of which were also written on the note. The note contained instructions that, if the panel van was unattended, the boxes were to be left in the van. The taxi driver went to the garage which was under police observation. The police made their presence known and, at their request, the taxi driver carried out the rest of his instructions. The boxes in the garage and those collected by the taxi driver and delivered to the panel van in Balmain were part of the contents of the container which had earlier been landed in Sydney. Evidence was given by a handwriting expert that, in his opinion, the note was written by the applicant.

It was argued that the handwritten note could not corroborate the evidence of Freeman because, although it linked the applicant to the contents of the container, it did so only at a time when the importation was complete. The note, it was said, was consistent with his involvement in the distribution of the cannabis resin but it did not implicate him in the offence charged, namely importation. Alternatively, it was put (although, on analysis, this proves to be the foundation of the first argument) that the note was circumstantial evidence and could not corroborate Freeman's evidence unless all reasonable hypotheses, other than guilt of the offence charged, were excluded.

The essence of corroborative evidence is that it "confirms", "supports" or "strengthens" other evidence in the sense that it "renders [that] other evidence more probable": Reg. v. Kilbourne [1] , per Lord Simon of Glaisdale. It must do that by connecting or tending to connect the accused with the crime charged in the sense that, where corroboration of the evidence of an accomplice is involved, it "shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused": R. v. Baskerville [2] .

1. [1973] A.C. 729, at p. 758. 2. [1916] 2 K.B. 658, at p. 667.

It is well settled that corroboration may be in the form of circumstantial evidence: Baskerville [2] : see also Reg. v. Tripodi [3] ; Reg. v. May [4] , per Gibbs J.; Reg. v. Lindsay [5] , per Zelling and Wells JJ.; Medcraft v. The Queen [6] . Circumstantial evidence is evidence which proves or tends to prove a fact or set of facts from which the fact to be proved may be inferred. Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded: see Hodge's Case [7] ; Peacock v. The King [8] ; Martin v. Osborne [9] ; Thomas v. The Queen [10] ; Plomp v. The Queen [11] ; Barca v. The Queen [12] . But, if some lesser standard will suffice, the existence of other reasonable hypotheses is simply a matter to be taken into account in determining whether the fact in issue should be inferred from the facts proved: see Peacock [13] , where Griffith C.J. noted the different considerations applicable to circumstantial evidence in civil and criminal cases.

1. [1916] 2 K.B. 658, at p. 667. 2. [1961] V.R. 186, at pp. 190-191. 3. [1962] Qd R. 456, at p. 459. 4. (1977) 18 S.A.S.R. 103, at p. 117. 5. [1982] W.A.R. 33, at p. 40. 6. (1838) 2 Lewin 227 [168 E.R. 1136]. 7. (1911) 13 C.L.R. 619, at pp. 634, 651-652, 661. 8. (1936) 55 C.L.R. 367, at pp. 375, 381. 9. (1960) 102 C.L.R. 584, at pp. 605-606. 10. (1963) 110 C.L.R. 234, at p. 252. 11. (1975) 133 C.L.R. 82, at pp. 104, 109. 12. (1911) 13 C.L.R., at p. 638.

It is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt. In the case of an accomplice's evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused's involvement in the events as related by the accomplice: see Baskerville; Reg. v. Hester [14] .

The note given to the taxi driver, if accepted by the jury as having been written by the applicant, connected him with the cannabis resin imported into the country some few weeks earlier. The note and its employment in the transaction with the taxi driver might be capable of explanation on some basis other than that its author was knowingly concerned in the importation of the cannabis resin. But, given that it was only a matter of some few weeks since the container had been landed in Sydney, it was open to the jury to reason that it was likely, although not inevitable, that the person who wrote the note, thus exercising dominion over the boxes from the container by directing the removal of some of them to some other place, was a person who had been knowingly concerned in the importation of its contents. That probability, if accepted by the jury, would itself tend to confirm the account given by Freeman. Accordingly, as held by the Court of Criminal Appeal, the trial judge was correct in his ruling that the note was capable of constituting corroborative evidence. The contrary argument made on behalf of the applicant must be rejected.

The question whether a trial judge may direct a jury to return a verdict of not guilty if, in his or her opinion, a guilty verdict would be unsafe or unsatisfactory was adverted to but left unanswered in Whitehorn v. The Queen [15] . There is no doubt that it is a trial judge's duty to direct such a verdict if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict: see, for example, Plomp [16] ; Reg. v. Prasad [17] ; Reg. v. R. [18] . And it may sometimes happen (although it should be but rarely) that evidence is withdrawn because it becomes apparent that, although technically admissible, it has no or insignificant probative value in comparison with its prejudicial effect, with the consequence that, if the remaining evidence will not support a guilty verdict, a verdict of not guilty must be directed: see, as to the discretion to reject technically admissible evidence, R. v. Christie [19] ; Harris v. Director of Public Prosecutions [20] ; Driscoll v. The Queen [21] ; Harriman v. The Queen [22] ; and, as to the withdrawal of evidence and the subsequent direction of a verdict of not guilty, Reg. v. R. [23] . However, the question raised when, for whatever reason, the evidence will not sustain a verdict of guilty is distinct from that raised in the present case where the evidence of Freeman, if believed, is itself sufficient to sustain the applicant's conviction.

1. (1983) 152 C.L.R. 657, at p. 689. 2. (1963) 110 C.L.R., at p. 246. 3. (1979) 23 S.A.S.R. 161, at p. 162. 4. (1989) 18 N.S.W.L.R. 74, at p. 77. 5. [1914] A.C. 545, at p. 560. 6. [1952] A.C. 694, at p. 707. 7. (1977) 137 C.L.R. 517, at p. 541. 8. (1989) 167 C.L.R. 590, at p. 619. 9. (1989) 18 N.S.W.L.R., at p. 76.

There appear to have been two distinct notions allowing a power to a trial judge to direct a verdict of not guilty other than in circumstances where the evidence will not support a verdict of guilty. The earlier notion, adopted by some judges in Victoria prior to the decision in Attorney-General's Reference (No. 1 of 1983) [24] , was that a verdict of not guilty might be directed if there were but a scintilla of evidence. A more robust view to the effect that a trial judge should stop a trial if, in his or her opinion, a verdict of guilty would be unsafe or unsatisfactory appears to have developed in the United Kingdom following the passage of the Criminal Appeal Act 1966 U.K. which allowed for the setting aside, on appeal, of unsafe or unsatisfactory verdicts: see Reg. v. Falconer-Atlee [25] , and Reg. v. Mansfield [26] . The argument that a similar power in the trial judge derives from the common criminal appeal provisions in Australia has been rejected in South Australia in Prasad , in Victoria in Attorney-General's Reference (No. 1 of 1983) and in New South Wales in Reg. v. R.. The current view in the United Kingdom is stated in Reg. v. Galbraith [27] , in these terms:

(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.

It is convenient to approach the argument in the present case by reference to the view enunciated in Galbraith, noting, however, that there is some difficulty in reconciling proposition 2(a) (which has some similarity with the position earlier adopted in Victoria) with proposition 2(b). 1. [1983] 2 V.R. 410. 2. (1973) 58 Cr. App. R. 348, at p. 357. 3. [1977] 1 W.L.R. 1102, at pp. 1106-1107; [1978] 1 All E.R. 134, at p. 140. 4. [1981] 1 W.L.R. 1039, at p. 1042; [1981] 2 All E.R. 1060, at p. 1062.

The acceptance or rejection of evidence involves an inference as to its truth, which inference is, at least in part, based on "a principle of faith in human veracity sanctioned by experience": Wigmore, Evidence, vol. 1A (1983), p. 954, referring to an unverified citation from Starkie's Evidence (1824). It is usual not to so categorize the inferences involved in the acceptance of direct or testimonial evidence and to treat the process of inference as confined to circumstantial evidence. But it is appropriate here to draw attention to the fact that the drawing of inferences extends beyond circumstantial evidence because the purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful. That means that not only is proposition 2(b) in Galbraith correct but, so far as it refers to "inconsistent" evidence, proposition 2(a) cannot be accepted.

The question whether, in the words used in Galbraith, evidence has a "tenuous character" or an "inherent weakness or vagueness" may raise, but is not restricted to, the question whether the evidence is truthful. Quite apart from any question of truthfulness, there may be something in the nature of the evidence that brings its probative value into question so that the trial judge must consider whether some warning should be given. And, as earlier noted, there may be rare cases in which it will be necessary to consider whether, although the evidence was not initially excluded as a matter of discretion, it should be withdrawn from the jury's consideration.

Evidence that attracts a warning is evidence that has been adjudged, either generally or in the particular case, as having probative value such that, subject to warning, it can be taken into account by the jury in its deliberations. Assuming an appropriate warning, the weight to be given to that evidence is as much a matter to be determined by inference based on the jury's collective experience of ordinary affairs as is the question whether evidence is truthful. And, of course, the same is necessarily true of evidence that does not require a warning.

It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

It is necessary only to observe that neither the power of a court of criminal appeal to set aside a verdict that is unsafe or unsatisfactory (as to which see Whitehorn, Chamberlain v. The Queen [No. 2] [28] and Morris v. The Queen [29] ) nor the inherent power of a court to prevent an abuse of process (as to which see Jago v. District Court (N.S.W.) [30] ) provides any basis for enlarging the powers of a trial judge at the expense of the traditional jury function. The power of a court of criminal appeal to set aside a verdict on the ground that it is unsafe or unsatisfactory, like other appellate powers, is supervisory in nature. Its application to the fact-finding function of a jury does not involve an interference with the traditional division of functions between judge and jury in a criminal trial. Nor does the existence in a trial judge or a court of powers to stay process or delay proceedings where the circumstances are such that the trial would be an abuse of process.

1. (1984) 153 C.L.R. 521. 2. (1987) 163 C.L.R. 454. 3. (1989) 168 C.L.R. 23.

The Court of Criminal Appeal was correct in upholding the trial judge's ruling that he had no power to direct the jury to enter a verdict of not guilty on the ground that, in his view, a verdict of guilty would be unsafe or unsatisfactory.

The matters raised by this application warrant the grant of special leave to appeal. However, the appeal must be dismissed.