2 The main injuries sustained by the deceased were 36 individual fractures of the rib cage, which had in consequence collapsed causing suffocation. The pathologist's opinion was that they had been caused by a "fairly severe blunt injury to the chest, blunt meaning not with a sharp object but something fairly blunt and a broad base ... it could have been a leg, shoe, fist, forearms, anything with a nice flat surface". There were signs of a scuffle in the vegetable patch where the body was found.

3 The deceased lived on his own and evidence called from other residents and frequenters of the Bakers Beach Road was to the effect that no strangers other than the appellant had been observed in the area that day. The appellant had been living at Melrose in a caravan park and had last seen his father about two months before. On Wednesday 8 November he had hitch-hiked to Bakers Beach and received a lift to the door of his father's house. He had virtually no money and had been asking other members of his family for money. When first interviewed by police he said he had visited his father at about 1.00pm and stayed about two hours engaging in general conversation which did not involve any discussion about money. He had then walked four or five miles towards the highway and when nearly there had received a lift in a gravel truck. When interviewed later, after having been identified in a line up as a person seen walking towards Marana Drive in the late afternoon, he had admitted returning to his father's home at about 5.45pm claiming that he had returned to pick up his jacket which he had left on the fence. He said he did not see his father then and had not stayed long - "Just picked me coat up and left". That night he returned to Latrobe and entered his brother's house. During a conversation with his brother he made no mention of the fact that he had made a lengthy journey that day from Melrose out to Bakers Beach to see his father.

4 On Saturday 11 November the appellant was told by his brother that his father had died. He showed no emotion or other reaction and merely asked the whereabouts of a person who owed him money, saying that he wished to collect the debt of $120.00. Later that day when told by police that his father had not died of natural causes but had been found in the garden beaten to death, his response was, "Oh, right."

5 The other significant evidence in the circumstantial case against him was that his clothing, taken from him on Saturday 11 November and which he acknowledged to have been wearing when he visited his father, had blood stains upon it which were shown not to be of his grouping but of one which the jury could conclude was that of his father, and that such a grouping is shared by only a very small percentage of the population, on one study as little as 2.4%. When interviewed by the police after the blood analysis had been obtained, this exchange occurred:

"Q As a result of scientific examinations blood the same type as your father's and which is not your blood type has been located on your clothing which you were wearing when you left your father's. How did the blood the same type as your father's get on to your clothing?

A Oh. Don't know. Don't know really.

Q Would you like to think about it for a moment?

A No not really.

Q Is there any explanation at all that you can give me for that?

A No No explanation.

Q Do you completely understand what I have just said to you?

A Yes.

Q I'm of the belief that the blood got on to your clothing at the time you were assaulting and killing your father. Is there anything you wish to say about that?

A No plea to that.

Q Pardon?

A No plea (or no answer). I just went out there and had a talk to him that's all."

6 The appellant, on his trial, elected to give evidence by way of an unsworn statement. It read:

"My name is Aaron Jeffrey. I did not kill my father."

7 The first ground of appeal is that the verdict of the jury was unsafe and unsatisfactory and against the weight of the evidence. Mr Kable on the appellant's behalf conceded that there was nothing in the quality of any part of the evidence which was unsafe or unsatisfactory, but submitted that the evidence was insufficient to enable a jury to be satisfied of guilt beyond reasonable doubt. In my view there is no substance in this ground. The case for the prosecution was purely circumstantial, it is true, but the circumstances were such as to point strongly to the accused being the author of the crime. He had the opportunity, it was a remote area where no other strangers were observed, the presence on his clothing of blood of his father's limited grouping was strongly suggestive that it had come from his father and there was evidence of the telling of a lie which the jury might have found flowed from a consciousness of guilt. These were the main elements of the circumstantial case, and they and the other matters I have mentioned were clearly sufficient, in my view, to enable a jury to be satisfied not only that the guilt of the accused was a reasonable inference to draw, but that there was no other hypothesis consistent with innocence reasonably open. In reaching that conclusion they were entitled to take into account the lack of any explanation from the appellant at his trial, not as a positive element of the Crown case but as a reason for satisfaction as to the non-existence of any innocent hypothesis, for as Kitto J said in Zanetti v Hill [1962] HCA 62; (1962) 108 CLR 433:

"On a charge under s.65(1) (of the Police Act 1892-1952 (WA)) there is no more reason than there is in any other case ... why a prima facie inference which by itself would not be strong enough to exclude reasonable doubt may not be hardened into satisfaction beyond reasonable doubt by a failure of the defendant to provide satisfactory evidence in answer to it when he is in a position to do so."

8 The next ground of appeal is that the learned trial judge erred in law in permitting the witness Alastair Montgomery Ross to give evidence of the percentages of various blood groupings within the Tasmanian population when the factual basis of that evidence was not properly proved before the court. Mr Ross was a forensic scientist employed at the State Forensic Science Centre in Adelaide. He held a Fellowship in Blood Transfusion Serology and a Master's Degree in Medical Technology. For ten years he was employed at the Blood Bank in Adelaide as a biologist dealing with all aspects of blood grouping and transfusion work. His present duties included identification and grouping of biological material such as blood. His expertise in this field was not challenged. He examined blood stains on the clothing taken from the appellant and on clothing worn by the deceased when his body was found. He was able to determine that some blood stains on the respective clothing had common blood groupings. Some stains had in common haptaglobin and phosphoglucomutase or PGM groupings and two had, in addition, a grouping known as the GC group. Those two stains were from the right shoulder of the deceased's jumper and the left knee of the appellant's trousers respectively. Using empirical data assembled by Mr Presser, a forensic scientist from Hobart who gave evidence of his own research into the incidence in Tasmania of haptaglobin and PGM groupings in the population, he expressed the opinion that approximately 7.6% of the Tasmanian population would carry the combination of identical haptaglobin and PGM groupings. Using certain empirical data as to the incidence of GC groupings in the Tasmanian population assembled by a Professor Mitchell, who was not called to give evidence as to how his statistics had been arrived at, he expressed the opinion that a combination of all three groupings would be found only in 2.4% of the Tasmanian population. Using his own research in South Australia as to the incidence of GC grouping in that State, which was slightly higher than in Tasmania, in conjunction with Mr Presser's proved figures, he calculated an incidence of a little under 4% of the population carrying all three identical groupings. The appellant challenges the use by Mr Ross of Professor Mitchell's hearsay figures in expressing the opinion that the coincidence in Tasmania of all three groupings could be 2.4% of the Tasmanian population.

9 Professor Mitchell was identified by Mr Ross as a scientist in the same field as himself. Mr Ross said that he worked in the Department of Human Variation at Latrobe University in Victoria. He said he had met him several times at conferences. Mr Ross said he had read two articles published by Professor Mitchell in a journal called "Human Heredity" which publishes many articles on blood group gene frequencies and population genetics. It is printed in Switzerland and the editorial staff come from many different countries. To be selected for publication, any articles are first vetted by two referees expert in the field. Both publications had related to blood group gene frequency studies of the Tasmanian population, one being published in 1983 and the other in 1989. The frequencies were said to have been determined by a study of samples taken from Red Cross blood donors within Tasmania. In the second Paper Professor Mitchell examined the population for GC frequencies, the samples being taken from a wide area of Tasmania, but excluding the populations of Launceston and Hobart. It was from this source that he obtained the incidence of GC groupings which, if added to the combination of identical haptaglobin and PGM groupings produced the figure of 2.4%.

10 I am of the view that this evidence was not inadmissible as hearsay. In Borowski v Quayle [1966] VicRp 54; [1966] VR 382, Gowans J had to deal with evidence from an expert who purported to identify a drug known as "Evacillin" as a form of penicillin and thus an antibiotic, notwithstanding that he had not, himself, analysed it. At pp386-387 his Honour said of evidence that the expert had experience in learning with respect to antibiotic substances and penicillin and that he could have supported his statement by reference to works of authority in pharmaceutical practice:

"This evidence would have been directed to matter travelling outside opinion and dependent to a degree upon knowledge based upon hearsay. But this is an area where the hearsay rule does not apply and the matter dealt with in the evidence would clearly have been admissible. In Wigmore on Evidence, 3rd ed, vol 2, pp 784-5, para 665(b), it is said: 'The data of every science are enormous in scope and variety. No one professional man can know from personal observation more than a minute fraction of the data which he must every day treat as working truths. Hence a reliance on the reported data of fellow-scientists, learned by perusing their reports in books and journals. The law must and does accept this kind of knowledge from scientific men. On the one hand, a mere layman, who comes to court and alleges a fact which he has learned only by reading a medical or a mathematical book, cannot be heard. But, on the other hand, to reject a professional physician or mathematician because the fact or some facts to which he testifies are known to him only upon the authority of others would be to ignore the accepted methods of professional work and to insist on finical and impossible standards. Yet it is not easy to express in usable form that element of professional competency which distinguishes the latter case from the former. In general, the considerations which define the latter are (a) a professional experience, giving the witness a knowledge of the trust-worthy authorities and the proper source of information, (b) an extent of personal observation in the general subject, enabling him to estimate the general plausibility, or probability of soundness, of the views expressed, and (c) the impossibility of obtaining information on the particular technical detail except through reported data in part or entirely. The true solution must be to trust the discretion of the trial judge, exercised in the light of the nature of the subject and the witness' requirements. The decisions show in general a liberal attitude in receiving technical testimony based on professional reading.'"

11 A similar approach has been taken in the case of R v Abadom [1983] 1 All ER 364 where an expert, having identified the refractive index of glass found in the offender's shoe as the same as that in the broken window of the locus in quo, and having given evidence that he had consulted statistics compiled by the Home Office Central Research Establishment and had found that the refractive index referred to occurred in only 4% of all glass samples investigated by the Establishment, proceeded to express an opinion that there was a very strong likelihood that the glass from the shoe originated from the window. Kerr LJ, delivering the judgment of the Court of Appeal, said, at p367:

"In the context of evidence given by experts it is no more than a statement of the obvious that, in reaching their conclusion, they must be entitled to draw on material produced by others in the field in which their expertise lies. Indeed, it is part of their duty to consider any material which may be available in their field, and not to draw conclusions merely on the basis of their own experience, which is inevitably likely to be more limited than the general body of information which may be available to them. Further, when an expert has to consider the likelihood or unlikelihood of some occurrence or factual association in reaching his conclusion, as must often be necessary, the statistical results of the work of others in the same field must inevitably form an important ingredient in the cogency or probative value of his own conclusion in the particular case. Relative probabilities or improbabilities must frequently be an important factor in the evaluation of any expert opinion and, when any reliable statistical material is available which bears on this question, it must be part of the function and duty of the expert to take this into account.

However, it is also inherent in the nature of any statistical information that it will result from the work of others in the same field, whether or not the expert in question will himself have contributed to the bank of information available on the particular topic on which he is called on to express his opinion. Indeed, to exclude reliance on such information on the ground that it is inadmissible under the hearsay rule might inevitably lead to the distortion or unreliability of the opinion which the expert presents for evaluation by a judge or jury. Thus, in the present case, the probative value or otherwise of the identity of the refractive index as between the fragments and the control sample could not be assessed without some further information about the frequency of its occurrence."

12 In a note concerning the case in the All ER Annual Review 1983, at pp195-196, Adrian Zuckerman writes:

"It is, however, to be noted that there is no magical difference between the fact of the refractive index of the glass in question - which had to be proved by admissible evidence - and the refractive index of the glass examined in the reported experiments that gave rise to the statistics, and on which the expert was allowed to rely without the need of proof by admissible evidence. Facts from which statistics are derived are not any the less facts because the expert draws a general conclusion from them; they cannot be said to be opinion - they are the foundation for opinion. The reason why the facts in this last category need not be proved in the ordinary way is this. Their importance does not lie in the accuracy of each individual fact reported but in the general pattern that emerges from the accumulation and totality of such facts. This totality is not likely to be distorted by a mistake here and there. The generality that the expert derives from statistical data is not really different from the generalisations we form about ordinary affairs, such as those concerning recent possession of stolen goods, or silence in the face of a direct accusation. By contrast, the refractive index of the glass in question is crucial in the litigation, and a mistake about it may make all the difference between acquittal and conviction. It is right, therefore, that we should insist here on admissible evidence. Kerr LJ put it as follows:

'... where the expert relies on the existence or non-existence of some fact which is basic to the question on which he is asked to express his opinion that fact must be proved by admissible evidence ...' (supra) at p368."

13 In my view the factual material relied upon by Mr Ross was shown by the evidence to be part of the corpus of his field of science. He, himself, was shown to be a person with a knowledge of trustworthy authorities and proper sources of information and with the necessary expertise to evaluate the plausibility of the data relied upon and of the conclusion it sustained. His own research in South Australia as to the incidence of GC groupings in that State also gave him some measure by which to evaluate the reported findings of Professor Mitchell. The primary facts upon which he relied were the actual groupings in the exhibits. They had to be proved by admissible evidence, as indeed they were. But the rule against hearsay does not operate to prevent the use of statistical or scientific data proved to come from a reliable source even though its author does not directly attest to it. This ground has not been sustained in my opinion.

14 Grounds 3, 4 and 5 can be considered together. They are:

"Ground 3

The learned Trial Judge erred in law in instructing the jury that if they found that the accused's answers to the Police with respect to the purpose of his second journey to the deceased's home were a lie, they could be satisfied that the reason for the lie was a consciousness of guilt and if they reached that decision they could utilize that evidence and that conclusion in reaching their ultimate decision as to whether the accused was guilty of the crime of murder.

Ground 4

The learned Trial Judge erred in law in authorizing the jury to utilize any answer to the Police made by the accused with respect to the purpose of his second trip to the deceased's house which the jury found to be a lie to support or corroborate other evidence tending to prove the accused's guilt of the crime of murder.

Ground 5

The learned Trial Judge erred in law in his directions to the jury with respect to the factual issue of the accused telling the Police that the purpose of his return to his father's place on the second occasion on the Wednesday afternoon was to retrieve his jacket and the use the jury could make of such answer in the event they found the answer not to be in accordance with the facts and a lie and/or further, the directions to the jury were confusing and not in accordance with law and thereby resulted in a miscarriage of justice."

15 In substance Mr Kable argued that the alleged lie that the purpose of the appellant's second visit to his father's property was to retrieve his jacket was no more than a denial that he had killed his father, that while it might damage the credibility of any exculpatory statements made by him, it could have no probative weight enhancing the case against him and that in any event the jury could not use it unless they were satisfied beyond reasonable doubt that the lie flowed from a consciousness of the appellant's guilt, and they were given no adequate directions as to this requirement.

16 The lie in question, in my view, clearly went further than a mere denial of guilt. In Gionfriddo and Faure v R (1990) 50 A Crim R 327, Crockett and O'Bryan JJ said, at pp332-333:

"The important thing to bear in mind is that a mere false statement or false denial is not enough. The lie must at least relate to a material issue. If it does not then it is difficult (unless there is accompanying conduct which places a different complexion on the lie) to understand how that lie can be indicative of guilt. Then again a lie consisting of a bald denial of guilt made in or out of court (as is we suppose the case in every contested trial) which is only shown to be a lie by proof by the prosecution of the crime charged axiomatically is not a lie that that can assist in proof of guilt. For it to do so would be for the prosecution to lift itself by its own bootstraps."

17 This lie involved collateral falsehoods. It asserted that the appellant had left his jacket at his father's property while he walked without it "a couple of miles" back towards the highway and retraced his steps for the purpose only of retrieving it and that all he had done at his father's property on his return was to pick it up and leave. If the jury accepted the Crown evidence that he was seen by several witnesses wearing the jacket at a time consistent only with that second journey back to Bakers Beach it was implicit in this falsehood that his purpose was not the innocent one he claimed, and if they found it to have been deliberate, the fact that he told a lie by way of explanation of his presence at about the time when the deceased received his fatal injuries related to a very material issue. Furthermore it was not a lie "only shown to be a lie by proof by the prosecution of the crime charged" but was capable of being demonstrated as a lie by witnesses contradicting the assertion that he did not have his jacket with him and by other circumstances from which the inference might be drawn that he must have known such assertion to be untrue.

18 A lie of this kind does more than serve the purpose of discrediting any exculpatory version advanced by the accused person. In Regina v Lucas [1981] 1 QB 720 Lord Lane CJ, in delivering the judgment of the Court of Appeal, laid down four criteria for a lie told out of court to have a positive value to the Crown case as providing corroboration of the evidence of an accomplice. At p724 he said:

"To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated that is to say by admission or by evidence from an independent witness."

19 But it is not only in cases requiring corroboration (whether of an accomplice, of a sexual complainant or otherwise) that such a lie may add weight to the Crown case. In Broadhurst v The Queen [1964] AC 441 the Privy Council acknowledged its capacity to strengthen a (partly) circumstantial case. At p457 Lord Devlin, delivering their Lordships' reasons, said:

"It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if upon the proved facts two inferences may be drawn about the accused's conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness."

20 The crux of Mr Kable's complaint is that he submits that such a lie as that allegedly told by the appellant cannot be used by the jury as evidence of the appellant's guilt unless they are satisfied beyond reasonable doubt that it was told out of a consciousness of guilt of the crime charged and that if this does not present an insurmountable logical obstacle, the jury were given no assistance from the learned trial judge as to how they should embark upon a consideration of such a finding. Prior to Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, the authorities do not seem to directly address the standard of proof required for a finding that the lie proceeded from a consciousness of guilt before any weight could be given to it at all. In the passage I have cited from Broadhurst v The Queen (supra), at p457, Lord Devlin spoke of the accused's untruthfulness in certain circumstances being a factor which the jury can properly take into account as strengthening the inference of guilt, but said, "What strength it adds depends, of course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness." He did not say that if there were possible reasons for the lie other than guilt the lie could have no value at all. What he said does not preclude a jury which accepts the possibility of there being some innocent reason for the lie nonetheless determining that guilt is more probably the explanation and taking that forward to a final analysis of whether they are satisfied of guilt beyond reasonable doubt. This does not seem to me to be essentially different from adding into the final analysis a finding that a disputed statement capable of an incriminatory interpretation was probably made, and if made, probably intended as a statement against interest, although the jury might not be able, at the end of the day, to exclude all reasonable doubt about either the fact that it had been made or the proposition that its proper interpretation is an incriminatory one.

21 In Chamberlain v The Queen (No 2) (supra) Gibbs CJ and Mason J had said, at p536:

"Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence."

22 In a number of cases thereafter, specific reference can be found to a requirement that the jury must be satisfied beyond reasonable doubt that the lie has been told from a consciousness of guilt before the fact that it was told can have probative value. Thus in The Queen v Evans (1985) 38 SASR 344 King CJ (with whose judgment Jacobs J agreed), after referring to the four criteria laid down in R v Lucas (supra) said, at pp347-348:

"I think that as a result of Chamberlain v The Queen [1984] HCA 7; (1984) 58 ALJR 133 a fifth point should be added relating to onus of proof. That case is authority for the proposition that a fact or facts from which guilt is to be inferred must be proved beyond reasonable doubt. Whatever questions may remain to be explored as to the precise reach of that decision in relation to evidentiary facts, it clearly applies to a fact which is to be relied upon as corroboration. It follows, in my opinion, that before a lie can be used as corroboration, the tribunal must be satisfied beyond reasonable doubt from evidence other than that of the witness whose evidence requires corroboration, that it is a lie and must also be satisfied to draw the inference beyond reasonable doubt that the lie results from a consciousness of guilt on the part of the accused."

23 In Pahuja v R (1989) 40 A Crim R 252, although it was unnecessary to the decision of the South Australian Court of Criminal Appeal to pronounce upon the necessary standard, Bollen J referred with approval to the manner in which the learned trial judge had directed the jury, saying at p265:

"In this case the leaned trial judge adequately directed the jury in clear terms that the lie (if found to be one) could be used at all, if and only if, they found it proved beyond reasonable doubt that he lie was 'motivated by a consciousness of guilt'. I do not think that any 'failure' to leave the lie as capable of corroborating the girl's evidence can be put aside in considering the direction on 'lies'. The jury had been told that this lie (if so found to be) could not corroborate her story. They knew that. They were correctly told that a lie, if 'motivated by consciousness of guilt', could lead to a finding that the lie was told by a guilty person. But they were warned about the need for caution and the need to be satisfied on that 'motivation' beyond reasonable doubt."

24 So too in Gionfriddo and Faure v R (supra) at the conclusion of the passage at p333 already cited, Crockett and O'Bryan JJ said:

"The relevance or usefulness to a prosecution case of an untrue assertion is that it can be added to other evidence in an endeavour to prove guilt. That is to say, it assists in proving guilt. To do this, as we have emphasised, the lie must relate to a material issue. But in addition the jury must be satisfied that the only reasonable explanation for telling the lie is the accused person's consciousness of guilt of the crime charged against him - not of some other wrongdoing or because of some other reason to lie about the matter. Moreover, the jury generally must in substance be so told."

25 "The statement that a particular act or omission of the accused shows a 'consciousness of guilt' means no more than that the conduct in question provides some evidence of guilt.

26 Whether the particular conduct does provide evidence of guilt depends upon the tribunal's interpretation of the conduct in the light of the surrounding circumstances, including any innocent explanation which is put forward.

27 Nor does such conduct usually provide conclusive evidence of guilt. But it may point towards guilt or, to put it another way, make guilt more probable. In such a case, the particular conduct of the accused becomes one of the circumstances upon which the ultimate finding of guilt is based.

28 Although false statements by the accused seem to have been accorded special treatment in the books, they are but one instance of potentially incriminating conduct. A false statement, for present purposes, is quite indistinguishable from other conduct on the part of the accused such as flight, the suppression of evidence or a sudden change of lifestyle. The list is endless. Such conduct is capable, depending on the circumstances, of being regarded as more consistent with guilt than innocence or, to repeat myself, rendering guilt more probable.

Nor, in my opinion, are the principles to be applied any different whether the search is for corroboration of a Crown witness or merely for proof of the Crown case."

29 In the Court of Criminal Appeal of New South Wales in The Queen v Heyde (1990) 20 NSWLR 234 the "Chamberlain" approach was repeated by Clarke JA with whose reasons Gleeson CJ and Studdert J expressed agreement. At p244, after referring to Chamberlain, he said:

"Accordingly where the prosecution seeks to rely on a lie by the accused as confirmation of its case it must satisfy the jury beyond reasonable doubt from evidence other than that of the witness whose evidence it is sought to corroborate that the accused has told a deliberate lie and that the inference should be drawn, upon a consideration of all the evidence, that he did so because his perception was that the truth was inconsistent with his innocence: see generally R v Evans (supra) at p348."

30 However, in my respectful opinion the decision of the High Court in Shepherd v R [1990] HCA 56; (1990) 97 ALR 161 cast a different complexion on the pronouncements (other than that of Gray J in Gionfriddo) to which I have referred concerning the standard of proof required and demonstrates that a lie of the kind in question, even though not proved beyond reasonable doubt to have emanated from a consciousness of guilt may still be pressed in aid of the Crown case and given such weight as the jury sees fit to give it having regard to the degree of probability they find there is that it was told because of a consciousness of guilt. At the end of the day, having regard to the possibility of other reasonable explanations for the lie, they may entertain a reasonable doubt about the fact of guilt, but the mere existence of such a possibility does not necessarily create a reasonable doubt in respect of the ultimate question.

31 In Shepherd v R (supra) Mason CJ, Toohey, Gaudron and McHugh JJ agreed with Dawson J that Chamberlain v The Queen (No 2) (supra) is not authority for the proposition that in cases based on circumstantial evidence juries must be directed that they cannot use a fact as a basis for inferring guilt unless that fact is proved beyond reasonable doubt. Dawson J pointed out, at p164, that, while the inference the jury may be asked to make in a case turning on circumstantial evidence may simply be that of the guilt of the accused, in most, if not all, cases that ultimate inference must be drawn from some intermediate factual conclusion. Sometimes that intermediate conclusion may have to be identified. At p165 his Honour continues:

"On the other hand, 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), para 2497, pp 412-14 - 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.

As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact - every piece of evidence - relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately."

"The judgements 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 recognised 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."

32 In the present case the learned trial judge did identify one indispensable step in the reasoning process, namely the fact that the deceased died at or about the time the appellant had visited his home and thus had the opportunity to cause his death. No criticism has been made that this was inappropriate, and with respect it seems to me it probably was not inappropriate, but the fact that the appellant lied at all, let alone through a consciousness of guilt, was not an indispensable step in the reasoning process. It was, at best, but "a strand in the cable". In any event if a direction that proof beyond reasonable doubt of opportunity in the form put was not essential, it would have been too favourable to the appellant and an error which would not justify a complaint by him.

33 The learned trial judge gave correct and unchallenged directions as to the standard of proof required to establish guilt in a circumstantial case. With respect to the lie, his direction was as follows:

"Now I want to give you a third direction with respect to the evidence and this relates to the accused's jacket. He told the police, according to the police evidence - whether you accept it or not, it is up to you - that the reason he went back to his father's house was to recover his jacket which he had left on the fence and he just collected it and left I gather almost immediately - that is the picture in my mind about it. Now the Crown say that is a lie. You should accept, say the Crown, the evidence of those witnesses who said the accused was wearing that jacket both on his first departure from his father's house and on his return to it a bit later on that afternoon. Now what you make of that conflict, whether he is wearing it or not, is entirely up to you. But assuming that you do consider that the accused did tell a lie about the reason that he returned to his father's house, I tell you that as a matter of law you cannot infer from the lie alone - repeat alone, that he committed the crime. Now as you know people tell lies for all sorts of reasons and sometimes people tell lies for no reason at all. So first of all you would have to be satisfied that the reason for the lie was a consciousness of guilt - I am assuming of course that you find it is a lie, if you don't, you won't need to hear from me about this but assuming that you think well he did tell a lie about that, the next thing to say to yourself is, well, why on the evidence do we think he told that lie? If it was for no reason at all or, I don't know, some other reason other than trying to hide his guilt then it doesn't have any significance really does it? But if you think that he did tell a lie and if you think that he told a lie because he wanted to cover up his guilt or that he was conscious of his guilt, what then? And I want to repeat to you then you cannot immediately go to the end and say he must be guilty. That would be quite wrong. You would have to say to yourself is there other evidence which implicates the accused which we accept? If there is, you can then say we think that lie helps us reach that ultimate question. The lie itself cannot prove guilt. Lying with a consciousness of guilt only proves that in your mind you feel guilty, it cannot prove that you have actually done something. But in this case there is other evidence which you could accept - whether you do or not is up to you - from which you could draw an inference of guilt, whether or not you do is up to you, and in that process you could say lying in that knowledge of guilt helps us reach that conclusion, it corroborates our view, it lends strength to our view because we accept for example the blood evidence, we accept for example the maggot evidence, we accept for example other evidence and this lie told to cover up guilt, if you think that is what it was, corroborates or helps us to come to that conclusion. I have written this down: In short, the lie, if you think it was, is of no use unless you think it was given with a consciousness of guilt and if you do think that was the reason for the lie you can use the lie about the jacket to support or corroborate other evidence tending to prove guilt. You must not simply say in isolation from all the other evidence he lied about going back for his jacket therefore he must be guilty."

"... you've got to say to yourself: Now what evidence can we rely upon? What weight can be give it, for example; the blood evidence, for example; the maggot evidence, if I can call it that; the jacket evidence and so on, and then having decided how strong, if I can put it that way, you think it is, you then have to put them together in your mind and as I've said so many times but it's no important, ask yourselves that ultimate question: Is guilt the only rational inference that we can draw from that evidence?"

34 Counsel for the appellant submits that the learned trial judge failed to adequately explain to the jury that lies may be told for reasons other than a consciousness of guilt. In Lonergan v The Queen [1963] Tas SR 158 Burbury CJ said, at p160:

"As most false statements or denials may also be explicable upon some hypothesis other than the accused's implication in the crime, the judge would do well to point to other explanations and the danger of giving too much weight to a lie. (See Reg v May 1962 Qd. R. 456). The jury must clearly understand that it is only within strict limits that false statements and denials may be relied upon as independent proof of the affirmative of the issue."

35 In R v Sutton (1986) 5 NSWLR 697, at p701, Street CJ, after delineating the matters to be taken into account when determining whether a lie can be used by the Crown in aid of proof of guilt, said:

"I shall add that reliance by the Crown on collateral conduct eloquent of guilt, such as flight or a lie, is fraught with the risk of miscarriage";

while in Forrest v R (1988) 35 A Crim R 421 King CJ said, at pp427-428:

"If the circumstances in which the evidence emerges or the arguments of counsel or the summing up might lead the jury to rely upon lies told in court or out of court as positive evidence of guilt, it is desirable that the judge give a full and clear direction as to the circumstances in which they can be properly so considered, drawing attention to other common motives for telling lies. If the judge in his summing up leaves lies to the jury for consideration as positive evidence of guilt, it is imperative that he gives such a direction."

36 It is submitted that in this case the learned trial judge should have instanced common motives for lying other than a consciousness of guilt and should have formulated hypotheses for consideration by the jury. In a case such as this I think the latter course could be highly dangerous. It is one thing for the defence, if they choose to do so, to advance alternative hypotheses, but for the judge to do so exposes the accused to the risk that the judge may not cover the whole field of possible hypotheses and might advance too few or, albeit unconsciously, put up skittles too readily bowled over. In my opinion, even though the learned trial judge did not instance common motives for lying, he adequately emphasised the necessity for a consciousness of guilt being the reason for the lie before the lie could have any positive evidentiary value and adequately emphasised the fact that lies can be told for a variety of other reasons.

37 In my view, none of the grounds of appeal has been sustained and the appeal should be dismissed.

38 I agree generally with the reasons published by my learned brother Cox J and wish to add only a few comments of my own.

39 Mr Kable, counsel for the appellant, advanced three principal attacks upon the summing up in this case. Firstly he said the verdict was unsafe and unsatisfactory. He did not analyse the evidence for the purpose of supporting this submission and simply referred the Court to the contents of Appeal Book No 5 which contains the final addresses of both counsel and his Honour's summing up. In putting his submission he made it clear that he did not attack the quality of the evidence and he agreed that accordingly his submission was tantamount to a "no case" submission. He said there was insufficient evidence for the jury to have convicted in a circumstantial case. This is a submission which can only really be considered after the other two substantial grounds of appeal have been disposed of because if those two passages of evidence have no probative value, or are inadmissible, there may be something in Mr Kable's submission.

40 His main point was that in directing the jury as he did at p16 of his summing up, the trial judge fell into error. He said that this was a threefold error. Firstly, he said that in a circumstantial case where corroboration is not the issue, a lie itself cannot provide positive evidence supporting the Crown case. In other words, the Crown case is not advanced if the lie told by the accused is proved. To prove the lie has simply the effect of destroying the accused's credit and making it impossible for the jury to rely on that material which is shown to be untrue. There is however ample material in the cases to demonstrate that the courts have accepted that a lie may strengthen the Crown case. My learned brother Cox J has referred to some of the principal authorities in his judgment and there is no need for me to repeat them.

41 Next Mr Kable said that the direction given by the trial judge was wrong and inappropriate because the trial judge did not make it plain that the jury had to be satisfied beyond reasonable doubt that he told a lie, and furthermore, he invited them if they "think" he told a lie to use that lie as evidence against him if, they were of opinion that the lie was told out of a "consciousness of guilt". It is clear that the phrase "consciousness of guilt" is one which was used by the learned trial judge but the context in which he used that expression and the subsequent directions that he gave about the use of each ingredient in the circumstantial case must be considered in putting that phraseology in context. For example, at pp75,76, his Honour said this:

"What weight can we give it for example, the blood evidence, for example, the maggot evidence, if I can call it that, the jacket evidence and so on, and then having decided how strong, if I can put it that way, you think it is, you then have to put them together in your mind, and as I have said so many times, but it's so important, ask yourselves that ultimate question, 'is guilt the only rational inference that we can draw from that evidence'."

42 Mr Kable argued that by suggesting to the jury that they might find that a lie was told out of a consciousness of guilt is to involve them in a process of circuitous reasoning. In other words, they are asked to infer a motive for the lie as being guilt before they have been able to determine the question of guilt. That is something that they can only do after they have considered the whole of the evidence at the conclusion of the case.

43 Mr Kable also submits that the jury should have been told that they must be satisfied that a consciousness of guilt was the only feasible explanation for the telling of the lie before they can utilise it as an ingredient of proof in a circumstantial case. In my opinion, there is something to be said for the notion that the phrase "consciousness of guilt" involves circular reasoning and, used alone without more, may lead a jury to approach their task without fully appreciating the logical steps involved. On the other hand "consciousness of guilt" is a phrase which has been used in many of the cases and, if used in the appropriate context should not normally lead to confusion or misunderstanding.

44 Mr Kable also submitted that the learned trial judge should have given some examples of non-incriminatory reasons for the accused lying as they may have found he did. This submission appears to be based on what Burbury CJ said in Lonergan [1963] Tas SR 158 when he said:

"As most false statements or denials may also be explicable upon some hypothesis other than the accused's implication in the crime the judge would do well to point to other explanations and the danger of giving too much weight to a lie."

45 However, as Mr Bugg pointed out, there may be some difficulty in using or giving credible examples of other reasons for the lie told by the accused in this case. He said that in any event Mr Slicer, who appeared as defence counsel at the trial, had given such examples in the course of his address to the jury. Mr Bugg also made this point, that when first questioned by the police the accused denied having gone back to his father's house on the day of his death. However, he was subsequently put into an identification parade and identified by witnesses after being asked by the police in his hearing to identify, if they could, the man whom they had seen walking towards the deceased's residence on the afternoon of his death. Mr Bugg suggests, and plainly it must be so, that the accused would then have realised that he had been seen going to the house and that further denial of that fact was useless. Accordingly, when he took part in the record of interview, he did not maintain the earlier denial but gave as an explanation for his second visit to the house his need to recover his jacket which he had left there on the first visit. He also stated that his visit had been extremely short and he didn't see his father on that occasion.

46 As the author of the article Can Lies Corroborate, (1989) LQR 552 said at p553, "The number of lies on a given point is also relevant". He cites in support of that proposition Pitman v Burn [1926] SASR 207 at p212 per Napier J He also points out in the same passage, "but a lie need not relate to the whole issue in dispute: for example, it need not amount to a complete denial of opportunity". These are two very relevant considerations in the present case. If the accused had immediately, upon being questioned, admitted his presence at his father's house on the second occasion, the strength of the inference that could be drawn from the lying explanation as to his reason for being there may have been considerably less. Also, as Mr Bugg pointed out, at the time of the accused's interrogation by the police, the Crown witnesses had not been able to establish time of death. Therefore the accused, if he was the murderer, was the only one who would have been aware of the significance of his having been at the house at the time in question. It seems to me that this is a point of considerable materiality.

47 For these reasons I think that it can be said that the lie in this case was clearly upon a material issue. (See The Queen v Lucas [1981] 1 QB 720). It may also be seen to be deliberate and it is plain from the evidence of the witnesses who saw the accused coming and going from his father's house, that their evidence could properly be regarded as independent evidence establishing that lie in that they saw him wearing his jacket as he was going towards the house. I am therefore of opinion that the lie in question could have amounted in the jury's eyes, if properly directed, to a lie which had the potential to strengthen the Crown case. See Khan v The Queen [1967] AC at pp462,463.

48 The real issue is whether or not the jury were left with the impression that they could engage upon a process of circular reasoning. I think the correct method of approach was for them to ask themselves whether or not the accused's statement was proved to be a lie. If they were satisfied of that, they should then have been told that if there were other feasible explanations for the lie, it had no probative value and should be discarded at that stage. However, if they thought it had the potential to assist in determining the issue of guilt, they should then weigh it, along with the other circumstantial evidence in the case, to say whether or not, upon the whole of the material, that was the only reasonable or rational inference available as to the accused's reasons for telling the lie and if they came to that conclusion they could then utilise the lie in the process of determining whether or not the Crown had discharged its onus of proving guilt beyond a reasonable doubt. Having regard to the substance of the summing up as a whole, I am not persuaded that the learned trial judge's directions on this issue were erroneous or that they may have been misconceived or misconstrued by the jury.

49 I agree with what my learned brother Cox J has said as to the admissibility of the evidence of Alastair Montgomery Ross and there is nothing which I can usefully add.

50 Returning to the ground which challenges the sufficiency of the Crown case, it seems to me that the evidence of the blood stains on the appellant's clothing was crucial and their significance as part of the Crown case may well be contrasted with the blood stain evidence recently considered by the South Australian Court of Criminal Appeal in The Queen v Owen (Unreported, 26 September 1991). I mention this case as there are several superficial similarities between it and the present appeal. In Owen the blood stains found on the accused's clothing could have come from the deceased but such groupings as were possible also occurred in about 50% of the general population. In the present case that percentage was much lower - as low as 2.4% on one view.

51 One issue which has concerned me is the absence of any compelling evidence of motive although this was not raised as a point of particular significance by counsel for the appellant. The significance of absence of evidence of motive in a circumstantial case has been commented upon in the past, (see Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, per Menzies J at pp249,250 and Askeland v The Queen, Serial No 59/1983, per Neasey J at p22).

52 Here there was no evidence that the accused had animosity towards his father or that he expected financial gain from his father's death. There was, accordingly, no evidence of a pre-existing state of mind on his part from which an intent to kill his father could be inferred. However, whilst the absence of such material was undoubtedly a factor which may weigh heavily with a jury, it was not, in my opinion, of such overwhelming significance that their verdict must be characterized as unsafe or unsatisfactory.

53 I am not persuaded that on the evidence available the jury ought to have acquitted and I therefore reject this ground of appeal.

54 For the reasons expressed by Cox J I agree that none of the grounds of appeal has been sustained and the appeal should be dismissed.