R v Botrus [2020] NSWSC 1449 | Case summary

LEGAL PRINCIPLES

The starting point for the discussion of these issues is the judgment of the High Court in Shepherd v The Queen (1990) 170 CLR 573 ("Shepherd").
Mason CJ observed in Shepherd (at 575): I agree with Dawson J and McHugh J that Chamberlain v R (No 2) (1984) 153 CLR 521; 51 ALR 225 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. I am also in general agreement with the reasons given by Dawson J for the conclusion that the giving of such a direction is not required either as a matter of law or in order to ensure conformity with the general standard of proof in criminal cases. [Emphasis added.]
He also observed, as to Chamberlain v The Queen (No 2) (1984) 153 CLR 521 ("Chamberlain") at 536, as follows (at 576): In the first sentence in that passage it would have been more accurate to refer to "an intermediate fact as an indispensable basis for an inference of guilt".
Dawson J (with whom Toohey and Gaudron JJ agreed) identified the issues under consideration in the matter as follows (at 577 and 578): The applicant, who was convicted of conspiring to import heroin into Australia, made application for special leave to appeal upon a number of grounds. Only one of those grounds now remains, leave having been refused upon the others. The remaining ground as I understand it is, in effect, that the trial judge erred in failing to direct the jury that, in so far as the prosecution case rested upon circumstantial evidence, they might only infer the applicant's guilt where each fact upon which the inference was based was proved beyond reasonable doubt. A direction in those terms has, apparently, come to be known as a "Chamberlain direction" and was said to be required by the decision of this court in Chamberlain v R (No 2) (1984) 153 CLR 521; 51 ALR 225.
A well-known passage of the judgment of Dawson J appears at 579 of Shepherd. I shall extract a slightly larger extract from his Honour's judgment than is often referred to, placing in italics those parts significant to the present case: Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved. The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed. 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. [Emphasis added.]
His Honour then stated, after reference to a passage from Chamberlain, as follows (at 580 and 581): Up to that point, Gibbs CJ and Mason J offer no support for the proposition that a jury may only draw inferences against an accused from facts which have been proved beyond reasonable doubt. But their Honours add (and this would appear to be the main passage relied upon by the applicant in this case): 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. Now that passage considered in isolation may support the applicant's submission, but it cannot do so in the light of the passage which precedes it. It is, I think, quite plain that, in saying that a "fact as a basis for an inference of guilt" must be proved beyond reasonable doubt, their Honours are referring to an intermediate fact which is a necessary basis for the ultimate inference. They must be doing so, for it is otherwise not possible to say, as they do previously, that the jury can draw an inference of guilt from a combination of facts, none of which viewed alone would support the inference. And of course it is quite correct to say that an intermediate fact which is an indispensable step upon the way to an inference of guilt, whether it be a fact derived from a single piece of evidence or a conclusion of fact drawn from a body of evidence, must be proved beyond reasonable doubt if the ultimate inference is to be the only reasonable hypothesis. [Emphasis added.]
Dawson J returned to Chamberlain at 585. His Honour observed: The judgments 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. [Emphasis added.]
After categorising the evidence in Shepherd, Dawson J held (at 586): Whilst it was possible to categorise the evidence in this manner and, no doubt, convenient for certain purposes to do so, it was not necessary for the jury to reach any conclusion upon the evidence in one category before considering the evidence in another. Indeed, the only proper course for the jury to adopt was to consider all the evidence together. Nor was it necessary for the jury to reach any particular intermediate conclusion of fact in making an inference of guilt on the part of the applicant, other than the obvious one, tantamount to an inference of guilt, that the applicant was engaged in a combination of the kind alleged against him. Of course, the jury could not properly have made that inference unless they were satisfied that, upon the whole of the evidence in all three categories, there was no reasonable explanation consistent with the applicant's innocence. [Emphasis added.]
Reference may also be made to the judgment of McHugh J in Shepherd (at 593) as follows: In a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt. This is likely to be the case where the incriminating facts relied on to establish the inference are few in number. But the more facts that are relied on to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond reasonable doubt to establish guilt beyond reasonable doubt. Consequently, even when guilt beyond reasonable doubt cannot be inferred unless certain facts are proved, it may still be open to infer guilt beyond reasonable doubt even though each fact is not proved to that standard. Thus, in the example that I have given, the facts proved on the balance of probabilities were essential to the determination of guilt beyond reasonable doubt. But the determination could still be made even though all those facts were not proved beyond reasonable doubt. [Emphasis added.]
Further, I refer to a closing passage of the judgment of McHugh J where he states (at 594): Jurors are under a duty not to find an accused person guilty of an offence unless they are satisfied beyond reasonable doubt of that person's guilt. But they are not under a duty to find any particular fact beyond reasonable doubt. Indeed, absent any statutory direction to the contrary, they are under no duty to find any particular fact: see Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171 at 197-201.To direct the jury that, as a matter of law, they cannot find an accused person guilty of an offence unless they find a particular fact beyond reasonable doubt would be to trespass upon their right to determine whether, upon evidence properly admitted, the guilt of the accused had been proved beyond reasonable doubt. If, absent a Chamberlain direction, the jury would be persuaded beyond reasonable doubt of the guilt of the accused, how can they be directed to disregard a fact, proved on the balance of probabilities, which they would use to reach that degree of persuasion? No doubt a trial judge has the right to suggest to the jury that they might think that, on the evidence, they could not be satisfied that the accused was guilty beyond reasonable doubt unless they found that a particular fact was proved beyond reasonable doubt. But the existence of that right in the trial judge provides no support for the proposition that the jury must be directed that they cannot rely on a circumstance to found an inference of guilt unless that circumstance is proved beyond reasonable doubt. [Emphasis added.]
The Crown relied upon the judgment of the New South Wales Court of Appeal in Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150 ("Davidson"). In that matter Spigelman CJ (who wrote additional observations) and James J agreed with the judgment of Simpson J (James J also agreed with the then Chief Justice). The then Chief Justice was particularly concerned with the reliance placed in Davidson upon R v Merritt [1999] NSWCCA 29 ("Merritt"). His discussion, in that respect, is instructive in the present matter.
Spigelman CJ observed at [2] as follows: [2] I wish to add some observations with respect to the reliance placed by the appellant on the decision of this Court in R v Merritt [1999] NSWCCA 29. That was a circumstantial case with an unusually circumscribed set of circumstances. Indeed there were, relevantly, only two circumstances and each was necessary to be established in order to inculpate the accused.
His Honour observed that members of the Court in Merritt had subsequently dismissed the case as one where there was a "paucity of evidence" (Davidson at [5], citing Merritt).
After referring to passages from Dawson and McHugh JJ in Shepherd, the then Chief Justice stated (at [8]): [8] In a case like R v Merritt, where there were only two intermediate facts, it was, to use the language of Dawson J, neither "unnecessary" nor "confusing" to give such a direction. In a case such as the present where there are numerous separate facts, of varying degrees of probative force, it could very well be confusing to do so. The prospect of confusion is a matter which has been emphasised in later cases: see for example Minniti v The Queen (2006) 196 FLR 431 at 446 [45]; Hannes v Director of Public Prosecutions (Cth) (No 2) (2006) 205 FLR 217 at 362 [665].
His Honour also referred to Velevski v The Queen (2004) 76 ALJR 402; [2002] HCA 4 ("Velevski"). (This judgment was also relied upon by the Crown as to the further alternative direction sought). The Chief Justice stated at [9]-[11]: [9] That part of the reasoning in R v Merritt which states that a direction of a particular kind is "usually" required may need to be reassessed in the light of subsequent authorities. I refer particularly to the passage (at [70]) where the joint judgment states, when a trial judge is deciding whether to give directions with respect to matters that are or might be intermediate facts: "The trial judge should … ask whether the jury might reasonably regard certain facts as intermediate facts even if, as it happened, his Honour did not regard any of the facts in that light. … In our opinion, where one or more facts might reasonably be regarded as intermediate facts, it would usually be essential for the trial judge to identify those facts and instruct the jury that if the jury considered that such facts were indispensable links in their chain of reasoning towards an inference of guilt, they would need to be satisfied of them beyond reasonable doubt before convicting." [10] There is an element of redundancy in this analysis. If it be the case that a jury believes that particular facts are "indispensable links in their chain of reasoning towards an inference of guilt" then it is unlikely that a jury could come to a conclusion that the offence was established beyond reasonable doubt unless that fact were so established. Indeed, that is so unlikely as to need no specific direction. The very hypothesis, that is, that the jury itself regarded a particular fact as an "indispensable link" would prevent the jury convicting in view of the clear direction always given about the obligation of the Crown to prove guilt beyond reasonable doubt. There may be circumstances in which a jury needs to be informed of a matter that should be obvious, however, in my opinion the proposition in R v Merritt (at [70]) that it is "usually essential" to give the direction therein referred to is not consistent with subsequent authority. [11] In Velevski v The Queen (2002) 76 ALJR 402; 187 ALR 233 the prosecution relied on certain alleged lies which were said to indicate a consciousness of guilt. With respect to this submission Gleeson CJ and Hayne J said (at 410 [43]-[44]; 244 [43]-[44]): "[43] It was next submitted that, even if it was permissible to leave the alleged lie to the jury in the way it was, it was necessary, in the circumstances, to give the jury a direction that they could rely upon an intermediate fact as a link in a chain of reasoning only if satisfied beyond reasonable doubt of that intermediate fact. Stated in that form the proposition is legally accurate but its recitation to the jury would be of no assistance unless its application to this case were explained. How that could have been done in this case was not made clear. It was submitted that the jury may (but need not) have concluded that the telling of the lie settled any reasonable doubt that consideration of the other evidence tendered at trial allowed. If the jury followed this path, it would, so it was said, make the telling of the lie an indispensable intermediate fact. It was the possibility that the jury might reason in this way that called, so it was submitted, for judicial instruction about how it should be undertaken [44] The argument should be rejected. It proceeds from a premise about the way in which the jury might approach the task which is wrong. It assumes that the jury will consider the evidence in separate and isolated compartments. That assumption is not made because the evidence relates to different steps in a chain of reasoning, but solely because it suits the appellant's immediate forensic purposes to isolate one of the pieces of evidence as the critical element that will conclude the issue of guilt. Once it is accepted, as it was, that the telling of the lie was not necessarily an intermediate indispensable fact in this case, it becomes apparent that the jury had to consider the evidence as a whole. The lie was not a separate fact which, together with other facts, would form links in a chain of reasoning." (Footnotes omitted) [Emphasis added.]
Then after referring to the circumstances relied upon by the appellant as indispensable intermediate fact in Davidson, his Honour observed (at [17]-[19]): [17] With respect to each of these matters, as in Velevski, it would be wrong to suggest that "the jury will consider the evidence in separate and isolated compartments" (see [11] above). That is not how the evidence was adduced or how it was relied upon. Nor is it in any way appropriate to regard each of these matters as essential steps which must be separately determined as distinct intermediate facts. They, and the other facts cannot "be considered piecemeal", to use the terminology from Hillier. [18] The statement in Merritt at [71] set out at [5] above, that a direction "would usually be essential" does not accord with the principle affirmed most recently in Keenan set out at [14] above that a direction of this character is "often" required. Nor does it reflect the basic proposition, also most recently affirmed in Keenan, set out at [15] above, that directions of this character do no more than 'amplify' the basic direction of proof beyond reasonable doubt. The circumstances of the case must determine the need for any further amplification, such as additional directions of the kind mentioned in Merritt. [19] For the reasons I have set out at [10], the emphasis always given to the Crown's obligation to prove guilt beyond reasonable doubt will often be adequate, in a particular case, with respect to a matter which the jury may reasonably regard as an indispensable intermediate fact
In the light of this judgment of Shepherd, Simpson J stated as follows (at [70]-[75]): [70] On the appeal senior counsel took a slightly different direction. He invoked the decision of this Court in Merritt, a joint judgment of Wood CJ at CL, James and Adams JJ. There the Court said: "Ultimately, of course, it is for the trial judge to determine whether to give directions that relate the standard of proof to what are, or might be intermediate facts 'which constitute indispensable links in a chain of reasoning towards an inference of guilty' … it is important in this regard, we think, to appreciate that the trial judge should, in considering this question, ask whether the jury might reasonably regard certain facts as intermediate facts even if, as it happened, his Honour did not regard any of the facts in that light … in our opinion, where one or more facts might reasonably be regarded as intermediate facts, it will usually be essential for the trial judge to identify those facts and instruct the jury that if the jury considered that such facts were indispensable links in their chain of reasoning towards an inference of guilt, they would need to be satisfied of them beyond reasonable doubt before convicting." " … we think that it was both desirable and necessary that his Honour should have identified for the jury the crucial factual issues and assisted them to apply to them the legal rule requiring proof beyond reasonable doubt of the Crown case and, in particular, directed them that if they regarded any particular fact as being an indispensable link in the chain of proof, then that fact must be proved to their satisfaction beyond reasonable doubt before they could convict." (italics in original; bold added) [71] It will be observed that the judgment in Shepherd proceeds on the basis that it is the judge who decides whether an "intermediate fact" is of an "indispensable character" such as to warrant or require a direction of the kind sought. In Merritt it is proposed that the decision of what fact or facts are "indispensable" can be left to the jury (although the judgment also recognises that a judge might in appropriate circumstances, identify these facts). [72] In my opinion, this was not a case in which the jury ought to have been left to determine for itself which fact or facts was or were indispensable to their reasoning. To the extent that the ground of appeal raises Merritt (which it does only obliquely) I would reject it. [73] The ground of appeal, as framed, is focused upon a direction in accordance with Shepherd, and the facts said to be "indispensable" are clearly identified. [74] Whether a fact on which the Crown relies as part of a circumstantial case is or is not "indispensable" may be tested by asking whether, in the absence of evidence of that fact, there would nonetheless be a case to go to the jury. If the answer is in the affirmative, even if the Crown case is weakened, even considerably, the fact is not "indispensable". Where the answer is in the negative, the fact is "indispensable" and the jury should be directed accordingly. [75] I do not accept that any of the proposed facts was "indispensable" within the reasoning of Shepherd. Certainly, the telephone call evidence was very powerful, especially that of 2 March to which I have referred to above. But that does not make it "indispensable" and, even without that evidence, there was still a case that incriminated the appellant. [Original emphasis.]

The Primary Direction

It is possible to classify the circumstantial case brought by the Crown against the accused into five broad categories.
First, the circumstantial evidence demonstrated, it was submitted, that the assailant who was responsible for the stabbing of the deceased and who was captured on CCTV footage riding a motorbike and entering and exiting the hairdressing salon, was the accused. It was submitted that what was depicted was the accused's motorbike, jumper and helmet that were used in the offence. The motorbike which was used in the commission of the offence was ridden regularly by the accused around Tallowood Crescent prior to 11 January 2019 and the assailant had a similar build, height and ethnicity to the accused. Reference was also made to the similarity of boots found in a cupboard in the garage at the accused's home.
Secondly, the deceased's blood was found on the inside of the blue Henley branded hoodie which was seized from him when stopped in the car he was traveling with his father on 11 January 2019.
Thirdly, the motorbike had been stripped in the garage and when located by police had two fans blowing upon it. Two persons were observed, it was submitted, taking the removed parts of the bike from 83 Tallowood Crescent. The accused's blood was found on one of the forks of the bike. There was a wet towel located next to the bike, which, it was submitted, was used in attempt to wipe down the bike (somewhat unsuccessfully) in that the accused left behind the smear of blood.
Fourthly, the accused's phone seized by police when he was pulled over was logged into the account yocatchmee, on the Crown's case, the accused's account, on the application Wickr which contained messages sent to the account judgedby12. The Crown emphasised a number of entries from 11 January 2019 as well messages from judgedby12 that reference "Bona", who was a contact in the accused's phone.
Fifthly, the Crown relied on two classes of lie: credibility lies and lies evidencing a consciousness of guilt.
Whilst it is possible to categorise the Crown's circumstantial case in this manner as a convenient means of considering the issues associated with the primary direction sought by the accused, namely whether the Wickr messages of 11 January 2019 (or more particularly their authorship) were "links in a chain" or an indispensable intermediate fact (as well as similar questions arising with respect to alternative directions), it is not necessary for the jury to reach any conclusion upon the evidence in one category before considering all the evidence together or proceeding to consider another category such that the evidence would be considered in compartments: Shepherd at 586; Velevski at [44].
In my view, the suggested intermediate indispensable fact relied upon by the defence is, on a proper assessment of the Crown case, as exposed above, not an indispensable fact at all. Similarly to the case in Velevski, it may serve a forensic purpose of the accused to isolate one piece of evidence as critical to conclude the issue of guilt but the evidence in question is simply not an intermediate indispensable fact. The jury will consider the evidence as a whole.
To apply the analysis of Simpson J in Davidson (at [74]), even if the evidence in question (the Wickr messages of 11 January 2019) were wholly removed from the Crown case, there would remain a case to go to the jury.
The Wickr messages of 11 January 2019 are clearly important, but not indispensable. In Davidson, Simpson J considered a case where the Crown case would be weakened, even considerably, but her Honour nonetheless found that the fact was not indispensable. Here, I consider the Crown was correct to submit that it would still have a strong case to go to the jury, having regard to the above five other categories of evidence, even if the Wickr messages of 11 January 2019 (or the accused's authorship of them) were removed. The Crown case is a classic circumstantial "strands in the cable" case.
Further, this is a case where there are numerous separate facts (or for that matter categories of evidence as discussed above) of varying degrees of probative force. In those circumstances, the primary direction would, in my view, also be confusing. The jury needs to consider the evidence as a whole (see Shepherd at 593 and Davidson at [8]). The directions the Court will otherwise give as to the standard of proof and circumstantial evidence (which were without dispute (save as to the primary, alternative and further alternative directions sought) are appropriate and sufficient, including a direction that when the Crown has relied (wholly) on circumstantial evidence, an inference adverse to the accused can only be drawn when it is the only rational inference available.

R v Botrus

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