'If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence'[56].
In their conclusion their Honours acknowledge that it is not uncommon for some aspects of the evidence in a trial to be less than wholly satisfactory although juries are usually well able to evaluate conflicts and imperfections of evidence. "In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention" [96].
73 The Crown case was, as I have already related, circumstantial. The jury were required to consider all of the evidence. That evidence is not to be considered piecemeal (The Queen v Hillier [2007] HCA 13 at [48]).
74 In Shepherd v The Queen (1990) 170 CLR 573, Dawson J (with whom Mason CJ, Toohey and Gaudron JJ agreed) said at 580:
"In Chamberlain [(1983) 153 CLR 521] Gibbs CJ and Mason J accept that evidence may have a cumulative effect and point out that it is the duty of the jury to consider all the facts together at the conclusion of the case. They say:
'At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence ma support its correctness; in such a case the jury should not be told to look at the evidence of each witness 'separately in, so to speak, a hermetically sealed compartment', they should consider the accumulation of the evidence.'
Gibbs CJ and Mason J apply the same principle to circumstantial evidence, saying that 'in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it.' They continue:
'It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference.'"
75 To my mind the Crown case was compelling and the jury were entitled to accept, to the requisite standard that it was the appellant that killed the deceased. The challenge to that finding was argued on a number of bases. I consider each of them in turn.