Ground 1 - The trial judge gave inadequate directions and erred in his directions on inferences and circumstantial evidence
18 Although the trial judge emphasised to the jury that the onus of proof lay upon the prosecution which must prove the relevant elements of the offence beyond reasonable doubt and provided detailed directions with respect to circumstantial evidence, the appellant said they were inadequate. In particular it was submitted that because the judge did not tell the jury that before an inference could be drawn it had to be the only rational inference available (Knight v R (1992) 175 CLR 495 at 502-503) the directions given were inadequate and the trial miscarried. The appellant particularly emphasised the reasons of McHugh J in Stevens v R [2005] HCA 65 at [25] where his Honour said that because the prosecution case was a circumstantial case it required a direction to "the jury that, if there is any reasonable hypothesis consistent with innocence of the [accused], it is their duty to acquit."
19 The defence at the trial was confined to an argument that the appellant was not involved in the events until late in the evening when he acted under duress. On the appeal it was submitted that his Honour had failed to give the jury adequate guidance as to an hypothesis consistent with his innocence of the count of murder, because, so it was suggested, if the deceased had died at an early time in the sequence of events, by 4 pm, it was suggested the evidence of the appellant's initial acts - going to the Rebel-sport store and adjusting cameras, was not sufficient to found a conviction for murder. This, so it was submitted, was an hypothesis consistent with innocence which had to be excluded before the appellant could be convicted.
20 I have no doubt that this ground of appeal should be rejected.
21 To my mind the submission now made by the appellant significantly understates the strength of the Crown case. That case was comprised of the early phone calls to and from the deceased, the journey to the Rebel-sport store to purchase the baseball bat and the sleeping bag, the manipulation of video surveillance cameras to avoid being filmed followed by a period of time when the deceased, Ben and the appellant were together undisturbed in the appellant's flat. They were in the flat together for at least 49 minutes following which at 4.06 both the appellant and Ben are seen in the car park without the deceased. Ben has changed his clothes and they proceed to change the number plates on the deceased's car while endeavouring to shield their activities from the video cameras. It was at 4.28 pm that Legarth arrived and stayed for about three hours.
22 I accept that the overwhelming inference from this sequence of events is that the deceased had either died by about 4.00 pm or was seriously ill by this time. The medical evidence is also consistent with death by this time. The killing occurred in the appellant's bedroom which was not accessed by Legarth whilst he was at the premises. The door was shut although for a period the appellant accessed the room.
23 The deceased was both drugged and violently attacked in the appellant's bedroom. It seems to me to be inconceivable, having regard to the evidence of their movements both before 3.00 pm and after 4.00 pm, that the appellant was not involved in the planning, preparation and carrying out of the killing. Rather than death at an early time being consistent with innocence it is to my mind but one of the elements in an overwhelming Crown case that the appellant carried out the killing together with Ben.
24 The trial judge summed up to the jury over part of two days. His Honour told them that the Crown carried the onus of proof "from start to finish" and "in relation to every element which the Crown is required to prove in relation to the crimes and the Crown must establish those matters beyond reasonable doubt." These directions were repeated on more than one occasion.
25 His Honour also addressed the jury in relation to inferences making plain the difference between an inference and speculation. He did this by using the example of a football match. His Honour said:
"During the course of addresses, you heard reference to drawing of inferences. Drawing of inferences, members of the jury, is a process of reasoning whereby you move from one or more established fact, or facts, to a further conclusion of fact. That process, which his open to you, is to be distinguished from mere speculation, a process which is not open to you.
The process of factual reasoning in which you engage, is to be undertaken in the light of the directions I have given to you concerning onus of proof. Perhaps I can give you a somewhat homely example of the distinction between drawing a proper inference and mere speculation. Go back to last weekend and you will remember, members of the jury, that it started to rain last Thursday night and, happily, we can say, it has kept on raining ever since. Assuming last Saturday afternoon you were driving around the suburbs of Sydney around quarter to five, just as darkness was falling, and you were passing by a suburban oval. You see 26 young men. 13 in garb which was basically green. 13 in garb which was basically red, and all very muddy and they are walking off a rectangular field and at the end of each end is a pair of rugby posts, accompanied by three other people; one dressed, say, in a yellow garb basically, and two others otherwise dressed. The one dressed in yellow garb is carrying a football. Now, members of the jury, it would be a perfectly proper inference for you to draw that those 26 young men had just competed in a game of rugby league football. Why is it so? Facts known: winter, football season. Saturday afternoon, a time when football is often played. Thirdly, a suburban oval marked as a rugby field. 26 young men, 13 each side; quarter to five, about the time when a game of football ends' muddy young men leaving a muddied field; football in the hand of somebody who is a referee. A perfectly proper inference for you to draw is that they had just played a game of rugby. You can draw from those facts this: they had a game of rugby league, even though you had not seen a ball kicked, passed or a tackle made. A perfectly proper inference to draw.
Now, say one of the young men in red had a big grin on his face. It would be mere speculation for you to conclude that he had that big grin on his face because the side in red had just won the match. For all you know, it may be the first time that season that the red team had managed to avoid being beaten by more than 50 points. It may be that he had scored a try. Who knows. There is nothing upon which you can draw a proper inference as to why he is smiling. There are a whole lot of reasons why he is smiling. But, there is no fact that you can look to to draw a further conclusion of fact as to why he was smiling. If you do so, it is mere speculation. That, members of the jury, is a process of reasoning which is forbidden to you.
But, as I have said, you are perfectly entitled to draw inferences, and I have explained to you what an inference is and I hope that example, members of the jury, is helpful to you in understanding the difference between speculation and inference."
26 After addressing the jury in relation to the appellant's defence his Honour turned to deal with the evidence. Identifying the essential elements in the Crown case as the evidence on the video of the movements of both the appellant and Ben. His Honour said:
"You have had the Crown saying that the actions you see from thereon right through to the time you see the wheelie bin heading out of the garage are absolutely consistent with only one thing, that from the start to finish, including the manipulations of the cameras, and there were a number of them members of the jury, the accused was in it, assisting Ben from start to finish. The accused of course said, 'No, no I only assisted Ben after he threatened me, after Mr Legath left the flat.'
Remember the accused told you that when Legath left the flat he was having a shower, and he came out of the shower, it was then that the accused says that he first became aware that any misfortune had occurred to the deceased at all, and it was then that Ben threatened him. He says, this is what the accused tells you, and again I remind you members of the jury he bears no onus. He says that it was not until Legath had left the flat, and Legath left the flat, according to the accused, when the accused was under the shower. So it couldn't have been too long after, you might have thought, Legath left the flat.
The accused points to the time when he first became aware that some misfortune had fallen to the deceased. Members of the jury, an easy reference to when it was that Legath had left the flat is picked up in the still photographs contained in Exhibit Q, which is put down as being eastern standard time, about 7 minutes to 9. In fact as we know, it's about 7 minutes to 8 real time. Then the accused says that he first became aware that misfortune in any way had fallen to the deceased.
Of course the Crown case is that you are perfectly entitled when looking at the whole of the evidence to infer the participation of the accused in the murder of the deceased."
27 His Honour then contrasts the Crown case and that of the appellant saying:
"The Crown case is that the accused accompanied the man Ben to the Rebel Sport store where a baseball bat and a sleeping bag were purchased. They returned - I am just repeating the Crown case members of the jury. I'm not putting it anything else but that. This is the Crown case. They returned to the block of flats. They go to the entrance, the ordinary entrance, the buzzer is pushed, then they go downstairs and go in through the basement because, you will remember, again it's common ground, that the accused had a remote control to the garage door. You then see the accused, and he admits it, adjusting it - to use a neutral phrase - the camera above the lift; camera 3.
The Crown says you would not accept the accused's explanation that he was just doing it because Ben suggested it was, as I understand, out of alignment. Go upstairs. You see the arrival of the deceased. You then see on the film the involvement of the accused coming down. The Crown says when he's down in the basement he is obviously keeping a lookout, the discussions in the basement with the man Ben, various adjustments to various cameras in the basement by the accused.
The accused says the camera's being adjusted because Ben was going to do something, change the number plates on the deceased's car. The Crown says you would not accept that. The Crown says when you look at the continuation of the video, at all stages the accused seems calm, he seems to know what he's doing, he's with the man Ben, and the Crown puts it of course a lot of the activity, including the adjustment of cameras, occurs well before Mr Legath leaves the premises just before 8 o'clock in the evening."
28 At the end of the first day of the summing up his Honour took care to discuss any issues requiring attention with counsel. No reference was made to circumstantial evidence until the court resumed on the following day. The matter was raised by the Crown who indicated that counsel for the appellant sought a "circumstantial direction not of the links in the chain type, if I can call it that, but the strands in the cable type." His Honour indicated that he would give the direction provided at para 2-510 of the Supreme Court Bench Book. Counsel for the appellant agreed that would be a suitable direction. Counsel also agreed with his Honour the evidence which comprised the circumstances relevant to the Crown case.
29 Subsequently, his Honour gave the following further directions to the jury:
"Now members of the jury, you will recall that yesterday I gave you directions about the drawing of inferences and you will remember I gave you an example relating to football about the difference between drawing proper inference and mere speculation. Mere speculation being, as I directed you, a process of reasoning which is forbidden to you. That direction is important because in this case the Crown relies upon what lawyers call circumstantial evidence. And I will now give you a direction relating to circumstantial evidence.
Now, members of the jury, I have already told you the onus of proving the accused's guilt in respect of charges which it brings against him is on the Crown. It must establish, as I have told you, his guilt beyond reasonable doubt. That means that in respect of each of the essential elements, ingredients or elements of the charges, you must be satisfied that the Crown has established its case before you would be entitled to bring in a verdict of guilty on any charge that you believe the Crown has established beyond reasonable doubt.
I have also told you that your function as a fact finding tribunal in this case goes beyond coming to a conclusion that you were satisfied that a particular basis of fact has been established by the evidence. Your function also extends, as I have told you, to drawing reasonable inferences or conclusions from the facts you find to be established.
Now, here, in this case members of the jury, the Crown relies upon evidence which is described as circumstantial evidence. First, the Crown relies upon evidence that the accused, and as I understand him Ben, went shopping, when the baseball bat and the sleeping bag were purchased.
Secondly, the Crown of course relies upon the video player. The CCTV, Ex. X, about which much has been said and about which you have seen now on a number of occasions and of course you are at liberty to see again at your leisure.
Thirdly, the Crown relies upon the fingerprints of the accused which were found firstly on the bin, secondly on the garbage bag which was over the deceased's legs and thirdly you will recollect the cornflake packet in the bin. That is a circumstance upon which the Crown relies.
Next, the Crown relies upon the evidence of phone calls which is found in Ex. AA and you will recollect that the Crown took you to phone calls such as the one which is number 28 from the accused's phone to Legath at 18.09, number 28, and the one, number 31, at 19.15. I will not go into that in any more detail. There are other calls, of course, referred to. You have the exhibits. The Crown says that is another circumstance upon which it relies. It also relies, members of the jury, upon the circumstance of the removal of the body of the deceased in the wheelie bin from the block of units to the position where it was subsequently found in the street. It also relies in another circumstance, upon the fact that the accused and Ben took the deceased's car from the premises, Ben driving. There is not [sic] issue, but the accused accompanied him.
Now they are the circumstances upon which the Crown relies as circumstantial evidence. Circumstantial evidence, members of the jury, is evidence of a basic fact or facts from which you, are asked to draw a conclusion as to a further fact or facts. In other words, as I described to you yesterday, drawing a proper inference.
Circumstantial evidence is sometimes contrasted with direct evidence. That is, evidence from a person who says that he saw or she saw or otherwise perceived a fact or facts which the Crown relies upon as establishing its case. Now there is nobody here who says - I saw somebody attack the deceased. Now, there is no such evidence of that type.
And such direct evidence, they not only take the form of a witness saying, as I have just said, that he or she saw, the accused doing the act which the Crown says constitutes the alleged crime. It may take another form, such as a video recording showing the accused, or Ben committing that act. There is no such evidence here, of course. Plenty of video evidence but no video evidence of the act which gave rise to the deceased's death, or evidence of a person who says that he or she heard an admission being made. Again, no such evidence of doing the act. No such evidence this case.
Where, however, the Crown's case depends on circumstantial evidence to some degree, then it relies upon evidence of a basic fact or facts from which you, the jury, are asked to infer or conclude that further fact or facts existed, being in this case the accused's guilt of the crime, because the onus of proof is on the Crown to prove its case beyond reasonable doubt as to every essential element or ingredient of the charge. Any such inference or conclusion from basic facts relied upon by the Crown must of course be a conclusion reached by you beyond reasonable doubt, having taken into consideration not only the material presented on behalf of the Crown but also any material presented on behalf of the accused, and having given careful consideration to the submissions of counsel on behalf of both the Crown and the accused.
I should add that a case on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence, depending upon the nature of the circumstances relied upon when considered as a whole, that is, all the circumstances considered together. And remember, members of the jury, yesterday I directed you to consider the whole of the evidence in the case, and do not compartmentalise it. That is, do not look at evidence individually or in isolation, and the degree of clarity and certainty to which that evidence may lead inevitably to a conclusion that the Crown has established its case or does not lead to the conclusion that the Crown has established its case.
It is essential that you examine the evidence with care and consider whether it is reliable before drawing any conclusions from facts which you regard as being established but which in your view it is not of such reliability to enable you to come to the conclusion which the Crown says you will come to, having taken into consideration the accused's evidence, and the character of evidence called on his behalf and having given due weight to the submissions of counsel on both sides, if that is your view then you must acquit."
30 To my mind the directions which his Honour gave adequately explained to the jury the nature of circumstantial evidence and how they could use it in their deliberations. His Honour was careful to tell the jury they could not speculate and that the prosecution carried the onus of proving its case beyond reasonable doubt. When considering these matters on the second day his Honour was careful to remind the jury of the illustration he had given and emphasised that they could only draw a "proper inference" which his Honour had explained by example was one where only one explanation for a known event was appropriate. His Honour contrasted a "proper inference" with "mere speculation" describing the latter as a process of reasoning which was forbidden to them.
31 Although McHugh J in Stevens v R [2005] HCA 65 at [25] spoke of the "requirement" that the jury be told that "if there is any reasonable hypothesis consistent with innocence … it is their duty to acquit," I do not believe his Honour should be understood as requiring that precise formulation be used by the trial judge. What is required is that the directions given ensure that the jury understand that if there is another reasonable explanation available "other than that the accused committed the crime charged the accused is entitled to be acquitted" (see Barca v R (1975) 133 CLR 82 per Gibbs, Stephen and Mason JJ).
32 In Grant v R 11 ALR 503 Barwick CJ emphasised that there is no rule of law that a trial judge must, in a circumstantial evidence case, give the direction in terms expressed by McHugh J (which is apparently derived from R v Hodge (1838) 2 Lewin CC 227 at 228). As Barwick pointed out the direction suggested in Hodge was "an amplification of the direction that the Crown must prove its case beyond reasonable doubt."
33 In Shepherd v The Queen (1990) 170 CLR 573 Dawson J said at 578:
"The learned trial judge gave the customary direction that, where the jury relied upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances: see Hodge's Case; Peacock v The King; Plomp v The Queen. Whilst a direction of that kind is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt. In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction. In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful. Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given. As Barwick CJ, speaking for the Court, observed in Grant v The Queen:
'Where the circumstances of the case seem to require that some such direction be given, the summing up regarded as a whole may prove to be, and generally may be likely to be, inadequate. On the other hand, having regard to the circumstances of the case and the nature of the summing up, the failure to give the special direction may not in a particular case result in an inadequacy of the summing up as a whole. It may none the less be concluded from the terms of the summing up that the jury were fully instructed.'"
34 In my opinion when read as a whole the directions given by the trial judge, in the present case, with respect to circumstantial evidence and the drawing of inferences were adequate.
35 Although the appellant suggested otherwise this is a matter where Rule 4 applies. At the beginning of the second day of his Honour's summing up he discussed and agreed with counsel the direction he proposed to give with respect to circumstantial evidence. The direction which his Honour gave faithfully reflected the directions which counsel asked him to give.
36 In these circumstances I see no justification for this Court to allow the matter to be raised in an appeal. Both the adequacy of the directions given and the failure of counsel to raise any difficulties with them at the trial are persuasive reasons to deny leave to raise ground 1.