Jeffrey v R [1991] TASSC 114

Jeffrey v R [1991] TASSC 114 - TASSC 1991 case summary — Zoe

[14]

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.

[17]

"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.'"

[34]

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.

[52]

"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."

[56]

"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."

At a glance

Court

Decision date

Before

Source

Judgment (84 paragraphs)

Jeffrey v R [1991] TASSC 114 (23 December 1991)

Parties

Cases Cited (8)