Court of Appeal (Qld)|2003-11-14|Before: McPherson, JA, Mackenzie and Wilson JJ, Separate reasons for judgment of each member of, the Court, each concurring as to the orders made
McPherson, JA, Mackenzie and Wilson JJ, Separate reasons for judgment of each member of, the Court
Catchwords
CRIMINAL
LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
- MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES
INVOLVING MISCARRIAGE -
Source
Original judgment source is linked above.
Catchwords
CRIMINALLAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL- MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCESINVOLVING MISCARRIAGE -MISDIRECTION AND NON-DIRECTION - where appellants convicted of murder - whereappealed convictions - whereprior to victim's death Aboud taped conversationswith others regarding prospect of deceased's death - where allegedly attemptingto gain reassurance of untruth of such - - where claimed not serious aboutcarrying out killing - where told police she knew ofno-one who might wish toharm deceased - where issue of lies and their effect on credibility andinferences of guilt raised by prosecutionin respect of Aboud and Stanley -where trial judge directed jury regarding lies and consciousness of guilt inrespect of Stanleybut not Aboud - whether adequate directions given - whetheromission fundamental flaw - whether no miscarriage of justice notwithstandingthe omission
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE -
MURDER - PRACTICE AND PROCEDURE - ALTERNATIVE VERDICTS
- DIRECTION TO JURY
WHERE EVIDENCE POINTS TO MURDER OR NOTHING - where directions in respect of
Stanley included elements of murder
and manslaughter - where jury told in
respect of Aboud only that she was charged with counselling or procuring the
killing - where
no alternative verdict of manslaughter left in respect of Aboud
- where prosecution case conducted so that only verdicts open on
evidence in
respect of Aboud were murder or not guilty - whether error of law in not
leaving open verdict of manslaughter - whether
failure to so direct entitled
Aboud to have verdict set aside
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF -
DIRECTION TO JURY - where evidence of calls made to deceased by Stanley prior
to death - where call records showed
cell sites through which calls were
relayed - where Stanley sought to draw inference that he was at another
location at time of
incident - where other circumstantial evidence existed -
where directions given as to effect of evidence of telephone billing origins
and possibility of reasonable inference consistent with innocence being drawn -
where appellant claimed such evidence was intermediate
fact - where trial judge
treated evidence as one element of circumstantial case - whether correct in so
treating - whether direction
needed that such evidence was an intermediate fact
needing to be proven beyond reasonable doubt by prosecution - whether verdict
unsafe and unsatisfactory
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND
NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING
OF JUDGE - PARTICULAR
MATTERS - CONTROL OF PROCEEDINGS - SEPARATE TRIALS AND ELECTION - where joint
trial of co-accused- whether
separate trials should have been ordered - whether
potential for unfairness - whether such resulted in substantial miscarriage of
justice or improper prejudice against the Stanley
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS -
PARTICULAR GROUNDS - MISCELLANEOUS GROUNDS ON WHICH A NEW
TRIAL IS GRANTED OR
REFUSED - whether on above bases verdicts unsafe and unsatisfactory
Criminal Code 1899 (Qld), s 606
Chamberlain v The Queen (No 2) [1984] HCA 7
(1984) 153 CLR 521, cited
Edwards v
The Queen [1993] HCA 63
(1993) 178 CLR 193, applied
Gilbert v The Queen [2000] HCA 15
(2000) 201 CLR 414, applied
R v Davidson [2000] QCA 39
CA
No 369 of 1999, 28 July 2000, applied
R v Rehavi [1998] QCA 28
(1999) 2 Qd R 640, cited
R v Willersdorf [2001] QCA 183
CA No 333 of
2000, 15 May 2001, cited
Shepherd v The Queen [No 5] [1990] HCA 56
1990 170 CLR
573, applied
Webb & Hay v The Queen [1994] HCA 30
(1994) 181 CLR 41, applied
Judgment (66 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE - MISDIRECTION AND NON-DIRECTION - where appellants convicted of murder - where appealed convictions - where prior to victim's death Aboud taped conversations with others regarding prospect of deceased's death - where allegedly attempting to gain reassurance of untruth of such - - where claimed not serious about carrying out killing - where told police she knew of no-one who might wish to harm deceased - where issue of lies and their effect on credibility and inferences of guilt raised by prosecution in respect of Aboud and Stanley - where trial judge directed jury regarding lies and consciousness of guilt in respect of Stanley but not Aboud - whether adequate directions given - whether omission fundamental flaw - whether no miscarriage of justice notwithstanding the omission
[2]
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - PRACTICE AND PROCEDURE - ALTERNATIVE VERDICTS - DIRECTION TO JURY WHERE EVIDENCE POINTS TO MURDER OR NOTHING - where directions in respect of Stanley included elements of murder and manslaughter - where jury told in respect of Aboud only that she was charged with counselling or procuring the killing - where no alternative verdict of manslaughter left in respect of Aboud - where prosecution case conducted so that only verdicts open on evidence in respect of Aboud were murder or not guilty - whether error of law in not leaving open verdict of manslaughter - whether failure to so direct entitled Aboud to have verdict set aside
[3]
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE - DIRECTION TO JURY - where evidence of calls made to deceased by Stanley prior to death - where call records showed cell sites through which calls were relayed - where Stanley sought to draw inference that he was at another location at time of incident - where other circumstantial evidence existed - where directions given as to effect of evidence of telephone billing origins and possibility of reasonable inference consistent with innocence being drawn - where appellant claimed such evidence was intermediate fact - where trial judge treated evidence as one element of circumstantial case - whether correct in so treating - whether direction needed that such evidence was an intermediate fact needing to be proven beyond reasonable doubt by prosecution - whether verdict unsafe and unsatisfactory
[4]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - PARTICULAR MATTERS - CONTROL OF PROCEEDINGS - SEPARATE TRIALS AND ELECTION - where joint trial of co-accused- whether separate trials should have been ordered - whether potential for unfairness - whether such resulted in substantial miscarriage of justice or improper prejudice against the Stanley
[5]
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISCELLANEOUS GROUNDS ON WHICH A NEW TRIAL IS GRANTED OR REFUSED - whether on above bases verdicts unsafe and unsatisfactory
M J Byrne for the appellant in Appeal No 98 of 2003
[15]
J R Hunter for the appellant in Appeal No 99 of 2003
[16]
Legal Aid Queensland for the appellant in Appeal No 98 of 2003 and Appeal No 99 of 2003
[17]
Director of Public Prosecutions (Queensland) for the respondent
[18]
[1] McPHERSON JA: I agree with the reasons of Mackenzie J. The appeal by Aboud against her conviction is allowed; the verdict is set aside, and a new trial ordered.
[19]
[2] As to the appellant Stanley, the appeal against conviction is dismissed.
[20]
[3] MACKENZIE J: The appellants were convicted of murder. The victim, who had been in a relationship with Aboud, was found with a bullet wound to his head in a shed at Gracemere near Rockhampton in the early hours of 16 February 2001. The Crown case was that the appellant Stanley and one John Allen Bell were involved in the actual killing and that Aboud was a counsellor or procurer. Bell was tried jointly with Aboud and Stanley but the jury was discharged in respect of him when reference to material, prejudicial to him but which had been excluded from evidence, was inadvertently referred to by counsel for Aboud in his address.
[21]
[4] In addition to a ground that the verdict of murder against her was unsafe and unsatisfactory, two specific grounds were argued. One was that the learned trial judge failed to direct the jury adequately upon alleged lies told by the appellant. The second was that the learned trial judge erred in not leaving a verdict of manslaughter to the jury in her case.
[22]
[5] To put this ground in a proper setting, the evidence established that prior to the killing the appellant not infrequently had conversations with friends and people with whom her acquaintanceship was more remote with a reoccurring theme that the deceased may be killed. On occasions she presented herself as trying to gain reassurance that what was being said to her about that possibility was untrue. She recorded, on occasions, an exculpatory explanation of these conversations. There was evidence that she and the appellant Stanley had had conversations about the subject. It was submitted on her behalf that it was Stanley rather than she who was the instigator of the conversations. There was also evidence that Stanley apparently harboured affection for her. One aspect of the defence case was that while the appellant Aboud may have engaged in conversations of this character, she was not desirous of about bringing about the death of the victim.
[23]
[6] The issue of lies and their effect was referred to by the Crown Prosecutor in his final address to the jury. He said there were lies which simply affected credibility and lies which in themselves were an admission of guilt because of an inference that may be drawn that the person, because they told a lie, "...may well be guilty of the offence...". He identified three lies of the latter character. One was that Stanley had said that he had not been to Gracemere on the night in question. Another related to Bell. The third was expressed in the following terms in his address:
[24]
"...Ann Aboud's statement where she said, `I can't be of any assistance to you. I've got no idea,' when she's got tape-recordings of herself talking to someone planning or stopping the planning of a killing of a de facto husband..."
[25]
[7] Although the formulation of the alleged lie is in quotation marks in the transcript of the address it actually appears to represent a paraphrase of the substance of what the appellant Aboud said in a conversation with police officers on the occasion when they were breaking the news to her that the deceased person had been found. In the summing up, the learned trial judge said the following:
[26]
"Now, Mr MacKenzie for the prosecution urged you to have regard to what he said were lies told by each defendant. He urged you to consider carefully what each defendant said when first spoken to by the police. I'll deal with each in turn, that is each defendant in turn."
[27]
[8] He then stated that the point being made by the Crown Prosecutor was that lies told when each was first questioned could be used by the jury as evidence of the guilt of each of the defendants. He then directed them about the nature of the lie alleged against Stanley and gave a direction, about which no complaint is made, setting out the steps required to be taken by Edwards v The Queen[1993] HCA 63; (1993) 178 CLR 193. The context of the direction makes it plain that he was discussing the principles with regard to the case against Stanley.
[28]
[9] There was no reference immediately following that discussion to the lie relied on as evidence of consciousness of guilt in the case of Aboud. During the course of his directions about the case against Stanley, the learned trial judge referred to "...the lies told by Mr Stanley" as "...the most significant part of the prosecution case...". He then reminded the jury in some detail of the defence submissions on the subject.
[29]
[10] After he had finished his direction with regard to the case against Stanley he gave the jury directions with regard to the case against Aboud. No direction was given as to the lie relied upon in the Crown address as a lie told by her. No direction specific to the case of Aboud was given as to the use to which lies could be put. As the matter stood at the end of the summing up, the learned trial judge had said that the prosecution urged the jury to have regard to alleged lies told by each accused and, in particular, what each accused had said when first spoken to by the police. He had said that he would deal with each in turn. However no direction was given on that subject by the learned trial judge in respect of Aboud. The fact that he said that he would deal with each accused person in turn suggests an oversight in not giving directions as to the use to which the alleged lie against Aboud could be put and factors specific to her case that the jury should consider in that context rather than a deliberate decision that it was not a lie that could be relied upon as evidence of guilt. There is no direction that it could not be used to establish consciousness of guilt. If, as appears to be the case, the direction was omitted by oversight, the issue is what consequences flow from the omission.
[30]
[11] There was no application for a redirection. However that is not fatal if there has been a fundamental omission from the summing up. As the matter stood at the end of all of the directions, the lie relied on by the prosecution in relation to Aboud was never defined by the learned trial judge. Nor was there any discussion of matters specific to Aboud's case that were appropriate for the jury to take into account in assessing whether to treat what Aboud had said as an indication of consciousness of guilt.
[31]
[12] The jury was reminded by the learned trial judge that the essence of Aboud's case was that she was never serious about being a party to the victim's death despite her many references to the prospect of his death to other people. The defence submission that it was unlikely that there was a plan between her and the other accused to bring about his death because no one would include her in such a plan because of her propensity to discuss the subject widely with other people was repeated. Those propositions would be relevant to the issue of whether there was a lie at all in her initial conversation with the police, but the direction was not focused in that way. There was also reference to her reaction to the news of the victim's death, but not with particular reference to the issue whether the statements allegedly to the effect that she knew of no one who might harm him were in fact lies.
[32]
[13] Regrettably, in my view the omission of specific directions as to lies and consciousness of guilt in relation to Aboud is a fundamental flaw in the summing up. Unfortunately the case is another example of one where the prosecution case was unlikely to be greatly advanced by relying on an alleged lie as consciousness of guilt. To prove that the appellant had lied when she said that she knew of no one who might wish to harm the deceased, it was necessary for the jury to accept that she had engaged in conversation with her co-appellant which was seriously concerned with bringing about the deceased's death. In reaching that point in their reasoning, the jury would have effectively rejected the defence case that she was never serious about the killing of the deceased. There was then no need to resort to the question whether the lie was told out of consciousness of guilt to reach this conclusion. It is implicit in the finding about the true nature of her conversations that the lie was told to hide the nature of the association. To consider separately whether the lie was told out of consciousness of guilt at that point would be otiose.
[33]
[14] One issue remains. It is whether, notwithstanding the omission of a direction specific to Aboud's case on the subject, no miscarriage of justice occurred. Because of the logical process of reasoning referred to above, it may be thought that the concept of lies as consciousness of guilt may not have played a prominent part in the jury's verdict. However, it is not possible to be confident that the absence of specific directions relating to factors to be taken into account in relation to the issue, which had not been excluded from their consideration, did not affect her chances of acquittal. The fact that the concepts involved were properly explained in the direction with regard to Stanley does not suffice to remedy the defect. The proviso cannot apply. The appeal must succeed on this ground.
[34]
[15] The learned trial judge did not expressly leave the alternative verdict of manslaughter to the jury in the case of Aboud. He had, with respect to Stanley, given a conventional direction as to the elements of murder and manslaughter. With regard to Aboud he told the jury that she was charged as a person who counselled or procured one or other of the other accused to kill the victim and that she was not charged on any other basis. If they found that one of the other accused had committed the murder they needed to be satisfied beyond reasonable doubt that she was serious about having him killed. That involved finding that she intended that the plan to kill him be carried out, or that she procured one or other of the other accused to kill the victim knowing they intended to do it.
[35]
[16] The case was conducted on the basis that so far as the appellant Aboud was concerned the only verdicts open on the evidence were murder or not guilty. Because of the way the case was conducted, it is not obvious that there was any basis upon which a verdict of manslaughter could be returned against Aboud if Stanley was convicted of murder. While it is not necessary now to decide the question in view of what has been said about the need to allow the appeal on another ground, in my view the failure to direct the jury as to an alternative verdict of manslaughter in the case of Aboud would not have entitled her to have the verdict of murder set aside. R v Rehavi[1998] QCA 28; (1999) 2 Qd R 640, as explained in R v Willersdorf[2001] QCA 183, supports this conclusion.
[36]
[17] Since I am satisfied that there is a prima facie case against Aboud, it is undesirable to express the reasons for the conclusion in detail since there must be an order for a retrial rather than an acquittal in her case.
[37]
[18] The appeal by the appellant Stanley was argued within the framework of grounds that he should have been separately tried from Aboud, that the verdict was unsafe and unsatisfactory and, by leave, that the learned trial judge had failed to direct the jury properly about certain evidence relating to telephone calls at around 8.30pm because the summing up did not include a direction that unless the jury could exclude beyond reasonable doubt the hypothesis that the appellant was in Yeppoon at about 8.30pm, they ought to acquit.
[38]
[19] To understand the submissions it is necessary to summarise the evidence against Stanley. The basis upon which the prosecution case was conducted was that the killing of the victim with a firearm occurred at about 8.30pm on 15 February 2001. That time was fixed by the evidence of residents of Gracemere who said that they had heard a "gunshot" or a "small explosion" at about 8.30pm or a little later. The man Bell and the appellant had acquired a white Falcon Sedan earlier that day in Rockhampton. A vehicle of that description with an unknown number of occupants was observed driving slowly past the shed where the victim was found at about 6.40pm on the evening of 15 February.
[39]
[20] On the morning of 16 February the appellant approached a scientific officer at the scene of the killing. He said that the deceased was a friend of his and was in a relationship with Aboud. He said that the victim had travelled by bus to Gracemere from Yeppoon the previous evening. The appellant said that he had had a conversation with the deceased at about 6.00pm in which the deceased told him that he was experiencing trouble with the radiator of a vehicle and that he would see him the next day.
[40]
[21] A statement was given to the police in which he described his friendship with Aboud and his observations of apparent difficulties in her relationship with the deceased. He described his movements on the morning of 15 February to them. He said that he had picked the deceased up from Aboud's house in Yeppoon and dropped him at the bus stop so that he could catch a bus to Gracemere. He and Bell went to Rockhampton to purchase a vehicle. He had returned to Yeppoon with Bell after which the appellant returned to Rockhampton in his own vehicle. He had attempted to telephone the deceased but received no answer. He rang again either at 5.45pm or 6.15pm and offered to come to Gracemere and pick him up to drive him back to Yeppoon. The deceased declined because he was proposing to work all night on a radiator. The appellant then went back to Yeppoon with Bell. After dropping him off at about 7.00pm he visited Aboud staying at her home for some time. After that he went home.
[41]
[22] Later on 16 February he gave another statement to the police. In it he admitted that he had been to Gracemere on the evening of 15 February. (There was other evidence from the proprietors of a fish and chip shop tending to support the fact that the appellant had been in Gracemere on that evening about 6.00pm). He said that he and Bell had driven to Rockhampton in Bell's newly acquired vehicle. The appellant had rung the deceased at around 6.00pm. When the deceased declined the offer of a lift back to Yeppoon, Bell had told the appellant that they and someone called Mario had to go see the deceased. When asked by the appellant what was going to happen, Bell said that they were going to go in and advise the deceased to treat Aboud properly and leave her alone, otherwise he would have an accident. The appellant said that he knew of Mario as someone who was involved in "straightening people out" and that he was an expert in "lingual persuasion" rather than physical violence.
[42]
[23] The appellant told the police that he went with Bell to Gracemere and was dropped off at about 6.45pm about 1.5 to 2km from the shed where the victim was found with instructions to keep a look out for a particular vehicle and call Bell if he saw it. By this time it was dark. (There was independent evidence that on that evening sunset was at 6.33pm). After about 20 to 25 minutes Bell returned and told him that the deceased had "agreed to it". They went back to Yeppoon which took about 35 minutes. He told the police that he loved Aboud as a friend or like a sister but was not infatuated with her. (Certain writings identified as his were located and indicated antipathy toward the victim and affection towards the appellant Aboud).
[43]
[24] According to the call records relating to the appellant's mobile phone, calls were made to the deceased at 17.57.20, 17.59.12 and 18.00.18. According to the records all of these calls made a connection. The first lasted 16 seconds, the second 5 seconds and the third 49 seconds. The first two were relayed through the Rocky East cell site. The third was relayed through the Rockhampton cell site. Then at 19.32.22 there was a call relayed through the Rockhampton cell site to Aboud but its status is recorded as "no answer/busy". At 20.19.11 there was another call, which had the same result, relayed through the Yeppoon cell site. There was then another call at 20.28.11 to a number which has no significance for present purposes; the cell site which relayed the call, which dropped out, is not ascertained. Then at 20.29.07 there was another call relayed through the Yeppoon cell site to Aboud's phone but, once again, the status is recorded as "no answer/busy".
[44]
[25] There was evidence that calls were made from Aboud's mobile to the appellant's at 15.11 for 12 minutes and at 19.10 for 16 seconds on 15 February. The appellant's mobile phone was a digital GSM phone, the signals of which travel by line of sight. The maximum operating range from a base station is 35.5km subject to reduction if weather conditions are not favourable.
[45]
[26] An employee of Optus gave evidence without objection that the names of the cell sites were descriptions for billing purposes not a definitive description of the locality from which the call was made. "Rockhampton" refers to sector 1 of a tower on Mt Archer. "Yeppoon" could refer either to sector 2 of the station on Mt Archer or one on a hill at Yeppoon. "Rocky East" was one of three Rockhampton CBD sectors situated at Rockhampton Hospital in the Rockhampton city area.
[46]
[27] The witness said that the nearest available base station would be sought out by the call. If all channels at that station were in use the signal would attempt to connect with another available base station within range. Once that connection was made the call was directed to the number called.
[47]
[28] In cross-examination the witness said she expected that the Mt Archer stations would have a more extended coverage area than those in the CBD because of Mt Archer's elevation and clearer line of sight. It was apparent that the witness did not profess to have technical expertise to explain precisely the orientation of the particular sectors on Mt Archer. She confirmed that the Yeppoon antenna had a bearing of 250 degrees although she could not say precisely what that implied, particularly with respect to the likelihood of a call from Gracemere being received by that cell. However, she said that as a matter of logic she assumed that the Rockhampton sector would be principally directed towards the city and Yeppoon towards Yeppoon. The question whether a signal from Gracemere would only be picked up by a base station at Mt Archer or Yeppoon if the base stations at Rocky East, Rockhampton, Rockhampton CBD 1 and CBD 2 were congested was raised but not answered definitively. So was the question whether 8.30pm on a Thursday night was likely to be a peak operating period for mobile telephones. It is difficult to see how the witness' answer that it was unlikely had any higher status than the jury's own view on that subject.
[48]
[29] The learned trial judge gave a comprehensive direction as to the effect of this evidence. He concluded by telling the jury that because of the evidence of the telephone billing origins it was a reasonable inference consistent with innocence that the appellant was in or near Yeppoon at the time of the killing, unless the jury rejected the evidence as to when the sounds relied on by the Crown as these of the shooting were heard, or the jury found the remainder of the prosecution's circumstantial case so overwhelmingly indicative of guilt that the mere possibility that the call came from Gracemere was elevated to the level of "a relative certainty". He concluded by saying that all other things being equal, it seemed on the evidence that the probabilities were that the call was made from Yeppoon or somewhere on the Yeppoon side of the range. He repeated what he had said about the only basis upon which the hypothesis consistent with innocence could be rejected.
[49]
[30] It was submitted that there had been a failure to give a direction that the evidence regarding the telephone calls was an "intermediate fact" which had to be proved beyond reasonable doubt by the prosecution. It was accepted that if the learned trial judge, who was not asked to redirect on the issue, was correct in acting on the basis that it was one element of the circumstantial case against Stanley rather than an intermediate fact, the direction could not be criticised.
[50]
[31] In Edwards at 203, Brennan J referred to a passage from the judgment of Dawson J in Shepherd v The Queen [No 5] [1990] HCA 56; (1990) 170 CLR 573, 583 in which the observation was made (after an analysis of Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521) that various items of evidence upon which the prosecution relies to establish an intermediate fact are not required to be proved beyond reasonable doubt but an intermediate fact, if it is to be the basis of an inference or inferences leading to a verdict of guilty, is required to be proved beyond reasonable doubt. Brennan J then said:
[51]
"Chamberlain [No 2] requires that no element of the offence be inferred adversely to an accused unless the intermediate facts, from which the inference is drawn be proved beyond reasonable doubt. But, as Shepherd holds, Chamberlain [No 2] imposed no requirement that the jury accept beyond reasonable doubt every piece of inculpatory evidence relevant to the existence of an intermediate fact. The evaluation of evidence is a matter for each juror to approach in the light of his or her experience of life but the standard of proof beyond reasonable doubt governs the finding of facts essential to the guilt of the accused on the offence charged. The pieces of evidence are `strands in a cable' tending to establish a material fact, but intermediate facts established by evidence are links in the chain of proof of the fact to be inferred. The standard of proof applies to links; it says nothing about the strands.
[52]
If the ultimate facts - those which constitute the elements of the offence charged - are to be inferred from intermediate facts, the standard governs both the finding of the intermediate facts and the drawing of the inference from them."
[53]
[32] Deane, Dawson and Gaudron JJ at 210 made observations that are not inconsistent with that statement of principle. In this case there was a body of circumstantial evidence including the presence of the appellant at Gracemere early in the evening of the killing, the fact that he had lied about his presence there, which the Crown submitted betrayed consciousness of guilt, other evidence tending to suggest that he harboured an affection for the co-accused Aboud, that he felt antipathy towards the deceased for the way he believed he was treating her and that he had on more than one occasion in the past engaged in conversations that contemplated the death of the victim. In this setting it is in my view wrong in principle to elevate the evidence which the defence relies on as tending to suggest that the appellant was in the Yeppoon area at the time relied on by the Crown as the time of the killing to the status of an intermediate fact. It is merely one piece of the circumstantial matrix relied on by the Crown to prove beyond reasonable doubt that the appellant was involved, at Gracemere, in the killing of the victim. It was therefore correct to direct the jury in the terms referred to in [28] above.
[54]
[33] On the basis that the learned trial judge was correct in approaching the matter in that manner the verdict was not unsafe or unsatisfactory. There was a sufficient evidentiary basis for the jury to draw an inference to the exclusion of other inferences consistent with innocence that the appellant Stanley was a party to the murder of the victim.
[55]
[34] At appellate level the test is whether by reason of the joint trial there has been a substantial miscarriage of justice or, put another way, whether improper prejudice has been created against an accused (Webb & Hay v The Queen[1994] HCA 30; (1994) 181 CLR 41, 89).
[56]
[35] The categories of cases where it is appropriate to order separate trials are not closed. When making the decision at trial, typically, cases where separate trials are allowed are ones where one case is significantly weaker than the other, where there is a real risk that the weaker prosecution case will be made immeasurably stronger by reason of prejudicial material in the case of the other accused and where the degree of prejudice from evidence admissible only in the case of one accused to the case of the other is so great as to make it unfair to try the accused together. There is nothing to suggest that the learned trial judge misapprehended his function in that regard.
[57]
[36] When the evidence as it turned out is analysed, the case against Aboud depended on what she said about her interaction with the appellant, what she said to others and ultimately what inference the jury drew about her intentions and the extent of her involvement in encouraging the killing. One particularly important piece of evidence was that of Mrs Sheppard, which, if accepted, was strong evidence of Aboud counselling or procuring of the appellant. It also necessarily implied that he may be implicated.
[58]
[37] With regard to the case against him, the jury had before it, amongst other things of more marginal relevance to the present question, evidence that he had approached a police officer about a taped conversation in which Aboud had asked him about how she might go about killing the deceased and evidence that he had said to another person that he himself thought that the deceased should be done away with. There was evidence of him harbouring romantic designs on Aboud and of expressing antipathy towards the deceased for his perceived mistreatment of her. There was also a taped conversation between the two, some months after the killing, in which it was referred to in a somewhat cryptic way. It was for the jury to assess what interpretation should be placed on it in the context of the other evidence. There was also the initial false denial that he had been at Gracemere on the night of the killing.
[59]
[38] Analysis of the respective cases against the two appellants does not lead me to think that the decision to try the appellant together with Aboud created improper prejudice against him or led to a miscarriage of justice in his case.
[60]
[39] The learned trial judge informed the jury both during the evidence and in the summing up in terms that were appropriate that statements made out of the presence of another accused were inadmissible in evidence against anyone but the person making the statement. In Webb v The Queen, Toohey J (with whom Mason CJ and McHugh J agreed) said the following:
[61]
"... there are `strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. ...What King CJ referred to as `strong reasons of principle and policy' were discussed by his Honour in R v Collie, [1991] SASC 2996; (1991) 56 SASR 302 at 307-11. I respectfully agree with that discussion which emphasises that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts ... There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused (R v Harbach(1973) 6 SASR 427 at 433)."
[62]
[40] It was repeated in R v Davidson[2000] QCA 39 by de Jersey CJ and Davies JA "...that there are strong reasons of principle and public policy why joint offences should be tried jointly and the mere fact that one result of joinder will be that evidence admissible against one but inadmissible against the other accused will be before the jury is not a reason for ordering separate trials." They pointed out further that the exercise by the trial judge of the discretion conferred by s 606 of the Criminal Code 1899 (Qld) is rarely interfered with. It was however observed that that was not to say that the facts may never disclose such potential for unfairness that separate trials should never be ordered.
[63]
[41] The agreement of both majority and minority judges in Gilbert v The Queen (2000) 201 CLR 414 that the system of criminal justice as administered by appellate courts requires the assumption that as a general rule juries understand and follow the directions that they are given by trial judges must not be overlooked. There may be unusual cases of which Gilbert v The Queen is an example where it is appropriate, as the majority did, to reject the assumption that prejudice may never occur in the process of the jury's decision making. However, in my view, this is not such a case. This ground is therefore not made out. The appeal by the appellant Stanley must therefore be dismissed.
[64]
2. The verdict of guilty is set aside and a new trial ordered;
[65]
3. Remand the appellant in custody until further or other order of a court with jurisdiction to grant bail.
[66]
[43] WILSON JA: I agree with the reasons for judgment of Mackenzie J and with the orders he proposes.