DPP v Asling

2 Mr Tinney SC, who appears with Ms Flynn for the prosecution, has contended that such a direction would not have been necessary at common law, and that, in any event, s 61 of the Jury Directions Act 2015 ('the Act') precludes a judge from giving such a direction to the jury.

3 In particular, Mr Tinney submitted that the prosecution case is not dependent, either solely or substantially, on the evidence of witness P or witness C or both of them, as to the admissions made to them by the accused. He submitted that apart from the evidence of those two witnesses, as to those admissions, there is other evidence on which the jury would be entitled to convict. That evidence includes the evidence of the witness, witness A, in combination with other circumstantial evidence, including the evidence of witness P relating to the theft by him and the accused of the blue Ford vehicle (which witness P identified as being the vehicle that was burnt near the scene of the killing) and the evidence of witness P that in the early hours of 13 December 2003 Blewitt and the accused both visited him at his home looking as if they had both been out for the night. Accordingly, Mr Tinney submitted that, at common law, a judge would not have been obliged to have given the prudential direction that is now in issue.

4 In any event, Mr Tinney submitted that s 61 and s 62 of the Act has expressly abolished such prudential directions, so that a judge is specifically precluded from giving any such directions to the jury. He contended that the plain language of those two provisions is to that effect. In support of his submissions, he referred to the evident purpose of the Act, namely, to simplify directions to juries, by abolishing the requirement for (or indeed the practice of giving) a number of directions that had been held, by appellate courts, to be necessary in criminal trials. Mr Tinney also referred to background materials in relation to the Act. In particular, he referred to the report by the Department of Justice published in 2015 entitled 'Jury Directions: A Jury-Centric Approach'. Mr Tinney noted that in chapter 15 of the report, the authors recommended against adopting a proposal that would include a provision permitting the trial judge to direct the jury that 'essential facts', specified by the judge to the jury, must be proven beyond reasonable doubt. The report expressly recommended the adoption of the provision, in the form that was enacted in s 61 and 62 of the Act.

5 Mr Tinney further referred to the Explanatory Memorandum to the Jury Directions Bill 2015, which noted that section 61 reformed the law on directions, by replacing common law rules, on what must be proven beyond reasonable doubt, with new provisions, namely, that the only matters that a judge may direct the jury, must be proven beyond reasonable doubt, are the elements of the offence charged, or an alternative offence, and the absence of any relevant defence.

6 Mr Tinney also referred to the Second Reading Speech by the Attorney-General, which was to similar effect.

7 In those circumstances, Mr Tinney submitted that the effect of the Act is to preclude a judge giving the prudential direction relating to the evidence of witness P and witness C of the admissions made to them by the accused as to his involvement in the killing of Kinniburgh.

8 In response, Mr O'Connell SC, who appears with Mr M Goldberg for the accused, has submitted that, properly construed, s 61 does not preclude the judge from giving such a direction. In particular, he noted that s 61 of the Act requires the judge to direct the jury that the elements of an offence must be proven beyond reasonable doubt. Each of the admissions, about which witness P and witness C have given evidence, are evidence which, if accepted by the jury, would be sufficient to prove the element of participation by the accused in the killing of Graham Kinniburgh. In those circumstances, Mr O'Connell submitted, the Act does not preclude a judge from giving a direction that, to rely on the evidence of an oral admission made out of court, to prove an element of the offence, the jury must be satisfied as to the making of that admission, and as to its truthfulness, beyond reasonable doubt.

9 In order to address the issue that has been raised, it is convenient, first, to consider the position that would have applied at common law, before the enactment of s 61 and s 62 of the Act.

10 For that purpose it is not necessary to decide whether, if not for the evidence of witness P and witness C as to the admissions made to them by the accused, the jury could otherwise be satisfied beyond reasonable doubt of the guilt of the accused. There is, I consider, some merit in the submission made by Mr Tinney that, apart from the evidence of those two witnesses as to the admissions made to them by the accused, the evidence of witness A, combined with other evidence, would be sufficient to entitle the jury to convict the accused.

11 Nevertheless, it cannot be gainsaid that the evidence by both witness P and witness C, as to the direct admissions made to them by the accused as to his involvement in the killing of Kinniburgh, would significantly enhance the strength of the prosecution case, if the jury were satisfied as to that evidence. In particular, it must be borne in mind that the evidence of witness P and witness C, if accepted, is that the accused made to each of them a full admission of his involvement in the murder of Kinniburgh. This is not a case in which the admission, in question, related to a particular fact or facts, or to an element of the crime. Rather, in the instance of each witness, the alleged admission made to them by the accused was a full confession to his guilt of the crime with which he is charged.

12 In that way, if the jury were satisfied beyond reasonable doubt as to the evidence of either of those two witnesses, as to the admissions made to them by the accused, the jury would be entitled to convict the accused. I have already given to the jury a number of preliminary directions, which I shall repeat in my final charge, as to a number of matters pertaining to the evidence of witness P and witness C, and to the evidence of witness A, which require the jury to proceed on the basis that the evidence of each of those witnesses might be unreliable, so that the jury must exercise particular caution in determining whether to accept the evidence of those witnesses, and in determining the weight that the jury would attach to that evidence. In such circumstances, it has become the common, if not invariable, practice of trial judges in this State to give directions to juries that, to rely on the evidence of such a witness as admissions of guilt said to be made to the witness by the accused, the jury must be satisfied, beyond reasonable doubt, of the truthfulness of the witness, and the truthfulness of the admission.[1] Such a direction has been given to ensure that a jury would only convict an accused, on such evidence, if it was satisfied beyond reasonable doubt of the guilt of the accused. In particular, such a direction was given at common law because of an apprehension that, if the jury were to apply a lower standard to accepting the evidence of such a witness, as to an admission made out of court by the accused, and relied on that evidence, in reaching its verdict, the jury might not give full weight to the standard of proof applicable in a criminal trial.

13 That, then, brings me to s 61 and s 62 of the Act, which provide:

61 What must be proved beyond reasonable doubt

Unless an enactment otherwise provides, the only matters that the trial judge may direct the jury must be proved beyond reasonable doubt are -

(a) the elements of the offence charged or an alternative offence; and

(b) the absence of any relevant defence.

1. If the trial judge directs the jury about a matter referred to in paragraph (a) or (b) in the form of a factual question under section 67(2) or (3), the trial judge must direct the jury that it must be satisfied of that matter beyond reasonable doubt.
2. Section 46(4)(b) of this Act and section 45 of the Crimes Act 1958 refer to specific matters that must be proved beyond reasonable doubt.

Examples

The trial judge may relate the evidence in the trial to directions under section 61 in many different ways, for example -

• when directing the jury that an element must be proved beyond reasonable doubt, the trial judge may refer to the evidence relied on by the prosecution to prove that element and direct the jury that it must be satisfied that that evidence proves that element beyond reasonable doubt; or
• where the only evidence relied on by the prosecution to prove an element is an alleged admission made by the accused, the trial judge may refer to the alleged admission and direct the jury that it must be satisfied that that evidence proves that element beyond reasonable doubt.

62 Abolition of common law obligation to give certain directions

Any rule of common law under which a trial judge in a criminal trial is required to direct the jury that a matter, other than a matter referred to in section 61, must be proved beyond reasonable doubt is abolished.

Notes

1 This provision abolishes -

• the rule attributed to Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 that in appropriate cases a jury must be directed that it must be satisfied beyond reasonable doubt of an indispensable intermediate fact; and
• the rule attributed to R v Sadler [2008] VSCA 198 that a jury must be directed that it must be satisfied beyond reasonable doubt of uncharged acts that the jury would use as a step in their process of reasoning towards guilt; and
• any other rule that requires a jury to be directed that it must be satisfied beyond reasonable doubt of any matter other than a matter referred to in section 61.

1. Section 4 applies generally to override any rule of law or practice to the contrary of this Act.

14 The critical question is whether those two provisions preclude me from giving the prudential direction, that I would have considered myself obliged to have given to the jury in the absence of such provisions.

15 It is useful, first, to consider, briefly, the history to the enactment of ss 61 and 62. The Act was initially enacted in 2013. It was re-enacted in 2015, incorporating the provisions contained in the earlier enactment, and including further provisions, including s 61 and s 62. The first tranche of the legislation, in 2013, was preceded, and indeed instigated, by a report by the Hon. Justice Weinberg of the Court of Appeal entitled 'The Simplification of Jury Directions Project' in August 2012.

16 The 2015 legislation was preceded by the report to which I referred, entitled ''Jury Directions: A Jury-Centric Approach''. Chapter 15 of that report is concerned with the provisions of Part 7 of the Act, which contains s 61 and s 62. It is clear from the report that the principal concern, that was sought to be addressed, related to difficulties that had arisen for trial judges charging juries in circumstantial cases, and in cases involving inferences, following the decisions of the High Court in Chamberlain v The Queen (No 2)[2] and Shepherd v The Queen.[3] In particular, as the report noted, difficulties arose in such a case, where the trial judge was required to determine whether the particular case before the jury had any 'indispensable intermediate facts', whether it was an 'ambiguous' case, or whether the case contained additional evidence that was of such importance that it would be prudent to give a direction requiring such evidence to be proven beyond reasonable doubt. In particular, the report addressed the difficulty for trial judges in identifying whether a particular circumstantial case was a 'chain' or 'cable' case.

17 The Explanatory Memorandum to the Jury Directions Bill 2015 similarly focused on the difficulties in identifying 'indispensable intermediate facts' as discussed in Shepherd. In his Second Reading Speech, the Attorney-General referred to those difficulties, and stated:

The Bill will return the law to where it was pre Chamberlain and Shepherd by providing that the trial judge may only direct the jury that it must be satisfied beyond reasonable doubt of the elements of the offence and the absence of any relevant defences.

18 It is correct, as Mr Tinney has pointed out, that following Chamberlain and Shepherd, the provision of prudential directions, to which I have referred, became more widespread, and was not confined to directions to a jury relating to inferences. Nevertheless, it is clear from the foregoing that the principal concern, sought to be addressed by s 61 and s 62, consisted of the difficulties in directing juries on the issue of drawing inferences, particularly in a case that was significantly circumstantial.

19 That brings me to the sections of the Act that are in question in this case. Section 61 is expressed in fairly wide, and unspecific terms, stating that 'the only matters' that the judge may direct the jury, must be proven beyond reasonable doubt, are the elements of the offence, and the absence of any relevant defence. The second example, provided under that section, is specifically directed to an admission made by the accused as to an element of the offence. Neither that example nor, I consider, the language of the section, is so specific as to preclude a judge giving a prudential direction, which the judge considers it in the interests of justice be given to the jury, relating to the evidence of a witness that the accused has made a full confession of guilt to that witness. In light of the well-established practice at common law, before the enactment of s 61, the evident intention of the legislation as expressed in the report, the explanatory memorandum and the Second Reading Speech, and the generality of s 61, I do not consider that that provision is such as to preclude a judge giving such a direction, where the judge considers that it is in the interests of justice that such a direction should be given to the jury.

20 For those reasons, I consider that s 61 and s 62 do not preclude a prudential direction, in relation to the evidence of witness P and witness C as to the confessions that the accused made to each of them of his involvement in the murder of Kinniburgh. In addition, I consider that, in the circumstances of this case, such a prudential direction should also be given to the jury concerning the hearsay evidence given by witness P relating to statements by Blewitt as to his involvement, and the accused's involvement, in the killing of Kinniburgh. That hearsay evidence is closely interwoven with the evidence by witness P as to the admissions made to him by the accused. In the particular circumstances of this case, if such a direction were not given in respect of that hearsay evidence, it would unnecessarily complicate the task of the jury in assessing the critical aspect of witness P's evidence. For the reasons I have set out above, I do not consider that s 61 precludes the provision of such a direction, particularly in circumstances where the source of the hearsay evidence (here Blewitt) is not available to give evidence, and that evidence is closely interconnected with the evidence as to the confession of guilt by the accused.

21 For the foregoing reasons I have reached the following conclusions:

(1) I should give a prudential direction in this case that, in order to accept the evidence of witness P and witness C as to the admissions made to them by the accused, the jury must be satisfied beyond reasonable doubt:

(a) The evidence of each of those witnesses is truthful and reliable.

(b) The admissions made by the accused were truthful.

(2) I do not consider that s 61 and s 62 of the Act alters or affects the obligation or capacity of a trial judge to give such a direction, relating to confessional evidence given in the circumstances of a case such as this, where the judge considers that it is in the interests of justice that such a direction be given.

(3) The hearsay evidence of witness P - as to what Blewitt told him as to his involvement and the accused's involvement in the killing of Kinnibugh - is closely interconnected with the evidence of witness P as to the admissions made to him by the accused, so that, in the circumstances, I should give a similar direction in respect of that aspect of witness P's evidence.

[1] See e.g. R v Kotzmann [1999] VSCA 27; [1999] 2 VR 123, 130 (Callaway JA); McKinney v R [1991] HCA 6; (1990) 171 CLR 468, 476.

[2] [1984] HCA 7; (1984) 153 CLR 521 ('Chamberlain').

[3] [1990] HCA 56; (1999) 170 CLR 573 ('Shepherd').