R v Hytch [2000] QCA 315

Judgment (193 paragraphs)

[1]

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES - admissibility of statements made by deceased as to her intentions - consideration of Walton v The Queen

[2]

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE GROUNDS FOR INTERFERENCE WITH VERDICT - GENERALLY - whether direction to the jury relating to the evidence of the deceased's intention was flawed - whether direction suggested to jury a mutual arrangement between the accused and the deceased to meet on night in question

[3]

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE GROUNDS FOR INTERFERENCE WITH VERDICT - GENERALLY - whether the jury should have been directed that an alleged lie was an "intermediate fact" which must be proved beyond reasonable doubt

[4]

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE GROUNDS FOR INTERFERENCE WITH VERDICT - GENERALLY - consideration of direction to jury as to whether lies were capable of amounting to consciousness of guilt

[5]

[6]

[7]

Bull, King & Marotta v The Queen (2000) 74 ALJR 836, considered

[8]

Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, referred to

[9]

Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, considered

[10]

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, referred to

[11]

Macrae (1995) 80 A CrimR 380, considered

[12]

M v R [1994] HCA 63; (1994) 181 CLR 487, referred to

[13]

R v Mogg [2000] QCA 244, CA No 317 of 1999, 20 June 2000, referred to

[14]

R v RNS (1999) NSWCA 2117, referred to

[15]

RPS v The Queen (2000) ALJR 449, referred to

[16]

Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, referred to

[17]

Walton v The Queen [1989] HCA 9; (1988-9) 166 CLR 283, applied

[18]

Zoneff v The Queen (2000) 74 ALJR 895, referred to

[19]

Ruddy Tomlins & Baxter Solicitors for the appellant

[20]

Director of Public Prosecutions (Queensland) for the respondent

[21]

[1] McMURDO P: I have read the reasons for judgment of Mackenzie J and agree with him that the appeal against conviction should be allowed, the conviction set aside and a new trial ordered. I only wish to add these comments to his statement of the relevant facts, issues and reasons, with which I agree.

[22]

Statements made by the deceased as to her intention

[23]

The statements made by the deceased first, that she intended to meet the appellant at or about the time she disappeared and second, that at that meeting she intended to falsely tell him that she was pregnant in order to extort money from him, were not admissible as hearsay statements as they were not evidence of the truth of those statements. They were admitted as circumstantial evidence of conduct on the part of the deceased from which her state of mind at the relevant time could be inferred (Walton v The Queen [1989] HCA 9; (1988-1989) 166 CLR 283, Wilson, Dawson, Toohey JJs at 305). The deceased's intention at the time she made the statements was relevant because it can be inferred that a person will act in accordance with their stated intention (Walton at 300).

[24]

[2] One difficulty is that as in Walton the truth of the deceased's stated intention was relevant in order for the stated intention to have real probative value. But this does not preclude its admissibility as evidence of facts (that she stated an intention first, to meet the accused and second, to then falsely tell him she was pregnant in order to extort money from him) from which inferences could be drawn (that she acted in accordance with that stated intention). See Walton at 302-303. Her stated intentions were not merely hearsay assertions; they were relevant first to the fact in issue as to whether she did meet the appellant shortly before she disappeared and second to the fact in issue as to whether the appellant did anything to harm her at that meeting (Walton at 304). They were not in themselves any evidence that the appellant met her and discussed the false pregnancy for they were not admitted as evidence of their truth.

[25]

[3] There was a deal more other evidence that the deceased did in fact act in accordance with the deceased's stated intention in Walton than in this case. There was nevertheless some additional evidence here that the deceased met the appellant and that he then did something to harm her: her observed conduct on the evening immediately before she disappeared strongly suggested that she was waiting to meet someone; the appellant left a party in his car, alone, and had the opportunity to meet with the deceased at about the time she disappeared; unexplained blood consistent with the deceased's was found on the appellant's sandal. This constituted admissible evidence from which the jury could have concluded that her statements as to her intention were true. The jury was therefore entitled, if they wished, to infer the deceased acted in accordance with either or both of her stated intentions.

[26]

[4] The evidence of the deceased's stated intention first, to meet the appellant and second, to tell him that she was pregnant in order to extort money from him was admissible in law applying Walton, recently followed by the High Court in Bull v The Queen (2000 74 ALJR 836).

[27]

[5] For the reasons given by Mackenzie J the learned trial judge's direction on this issue did not sufficiently and carefully explain to the jury the limited use to be made of the evidence of the deceased's statements of intention. The verdict must be set aside.

[28]

[6] Although the appeal against conviction must be allowed and the conviction set aside in any case, some consideration should be given to this ground of appeal which claims the verdict was unreasonable in order to determine whether a new trial should be ordered.

[29]

[7] I am not at this stage persuaded, on the evidence taken at its most favourable for the prosecution, that a properly instructed jury, acting reasonably, must have entertained a doubt as to the appellant's guilt: M v R [1994] HCA 63; (1994) 181 CLR 487, 493. A new trial should be ordered.

[30]

[8] As there may be a new trial in this matter I think it prudent to raise the following issue even though it was not a ground of appeal.

[31]

[9] The trial was a lengthy one and involved 13 court days of evidence. The summing up commenced on day 16 at 12.45 pm and concluded on day 17 at 3.12 pm. His Honour gave brief legal directions as to general matters and as to the elements of the offences of murder and manslaughter. His Honour then gave directions as to the use to be made of the statements of intention of the deceased and as to the evidence which the prosecution submitted constituted lies demonstrating a consciousness of guilt. From about 3.30 pm on day 16 until approximately 3 pm on day 17 the learned trial judge's summing up consisted of a fair and detailed precis of all the evidence given by each witness; this was recorded in almost 200 pages of transcript. The judge referred to neither the defence nor prosecution arguments in this lengthy summing up. This detailed summary of the evidence was neither necessary nor helpful in isolating the real issues for the jury's determination.

[32]

[10] A trial judge ordinarily has an obligation to sum up the respective cases of both the prosecution and the defence (R v RNS (1999) NSWCA 2117) and to remind the jury in the course of identifying the issues before them of the arguments of counsel (R P S v The Queen (2000) ALJR 449, 458). The onerous duties of a trial judge will ordinarily include identifying the issues, relating the issues to the relevant law and the facts of the case and outlining the main arguments of counsel: R v Mogg [2000] QCA 244, CA No 317 of 1999, 20 June 2000). That obligation was not met in this case.

[33]

[11] The appeal against conviction should be allowed, the conviction set aside and a new trial ordered.

[34]

[12] MACKENZIE J: This is an appeal against conviction for manslaughter and an application for leave to appeal against sentence. The appellant was charged with murder but convicted of manslaughter in a case where the girl's body has never been found. He was sentenced to imprisonment for nine years.

[35]

[13] The prosecution case was that the appellant and the girl, Rachel Antonio, who had recently turned 16 years of age, had for some time been in a clandestine relationship which the appellant did not wish to continue. It was alleged that on the night in question Rachel Antonio intended to meet him and make a false claim that she was pregnant, and that something happened during the course of the meeting which resulted in her death. In the circumstances a verdict of manslaughter rather than murder was clearly open to the jury, if they accepted that the appellant had killed her, since they may well have entertained a reasonable doubt as to the existence of an intent to kill or do grievous bodily harm.

[36]

[14] The prosecution case was circumstantial. The threads relied on by the Crown were the following:

[37]

1. That Rachel Antonio had expressed an intention to meet the accused on the evening in question and to make the false claim of pregnancy.

[38]

2. That the accused left a party at his residence, ostensibly to make some purchases of items in connection with the party, at about the time that Rachel Antonio was observed near a picture theatre in Bowen.

[39]

3. That the accused gave a false account of his vehicle breaking down to explain the period of his absence from the party, which was longer than necessary to make the intended purchases, and to explain the fact that some of his clothing had been discarded.

[40]

4. That a spot of blood identifiable as Rachel Antonio's was found on one of the sandals of the accused.

[41]

5. That the accused falsely denied being in a close relationship with Rachel Antonio.

[42]

[15] The matters argued on behalf of the appellant may be summarised as follows:

[43]

[16] Ground 1 - that the verdict was unreasonable;

[44]

[17] Ground 2 - that a ruling that there was no case to answer should have been made;

[45]

[18] Ground 4 - that statements made by the deceased to various persons the effect of which was that she intended to meet the accused or someone which other evidence might identify as the accused on Saturday evening should not have been admitted;

[46]

[19] Ground 5 - that there was an error in directing the jury that they could infer from the evidence of intention that the appellant had in fact met her on the night in question;

[47]

[20] Ground 6 - that it was an error to find that there was evidence of lies capable of amounting to consciousness of guilt concerning the breakdown of the appellant's motor vehicle, and the nature of his relationship with the deceased;

[48]

[21] Ground 7 - that the jury should have been directed that the alleged lie about the motor vehicle breaking down was an intermediate fact which must be proved beyond reasonable doubt; and

[49]

[22] Ground 8 - that evidence of the forensic scientist should have been ruled inadmissible.

[50]

[23] Grounds 1 and 2 may be put aside for the moment.

[51]

[24] Ground 4 was concerned with the admissibility of evidence of witnesses who had conversations with Rachel Antonio on the day she disappeared and on preceding days. The substantive part of the evidence for present purposes is that she said to some of the witnesses that she was meeting the accused or a person whom the jury might infer was the accused on the night she disappeared. To others she added that when they met she was going to tell him falsely that she was pregnant.

[52]

[25] In the case of the witnesses Taylor, Bulfin and Walker, evidence subsequently led from them extended to other things said by Rachel Antonio to them. However, the record of the preliminary argument at the pre-trial hearing on this issue shows that the additional evidence was sought to be led by then defence counsel for tactical reasons. There is nothing to suggest that counsel who eventually appeared at the trial resiled in any way from that tactical decision.

[53]

[26] According to Walton v The Queen [1989] HCA 9; (1988-9) 166 CLR 283, a deceased's statements of intention are admissible on the basis that generally people do not assert intentions they do not have and generally they will carry out the intentions they assert. In this case proof of the existence of Rachel Antonio's intentions is a step towards proving that she met the accused on the night in question. It is a premise of this process that the statement of intention was sincerely made. It is an inference from the existence of the state of mind that the person had carried out the expressed intention.

[54]

[27] The majority judgment of Wilson, Dawson and Toohey JJ sets out the principle of admissibility in the following passage:

[55]

"Whilst it may be well established that statements will found an inference concerning a state of mind, there are relatively few reported cases on the subject and its limits have not been fully explored: see generally Cross on Evidence, 6th ed. (Cross and Tapper, 1985), pp 465-475. It may be true in some cases to say that statements made by a person indicating his state of mind involve no element of hearsay.

[56]

But in other cases a person's statements about his state of mind will only have probative value if they are truthful and accurate and to rely upon them is to rely to some extent upon the truth of any assertion or implied assertion contained in them. To that extent an element of hearsay may be said to be present. This case is an example. But the element of hearsay need not necessarily preclude evidence of that kind being treated as conduct from which an inference can be drawn rather than as an assertion which is put forward to prove the truth of the facts asserted. The distinction between the two approaches is one which can be fine, but it is one which in principle ought to be drawn."

[57]

[28] Standing alone, the fact that she said she intended to meet the accused could only satisfactorily prove that she did all within her power to effect the intention. If the evidence established that there was no opportunity for a meeting to have occurred the inference could not be drawn that the meeting occurred. The capacity to draw an inference that it had occurred depends, in the circumstances of this case, on the existence of other evidence capable of supporting the conclusion that it did occur.

[58]

[29] The prosecution relied on evidence of the accused's absence from a party at his home at a time when Rachel Antonio was in the Queen's Beach area to prove at least an opportunity to meet her. It also sought to establish that the explanation why he was absent from the party for longer than necessary to make the purchases he intended to make, and for not making one of them at all, was false. A blood spot on one of the accused's sandals, as to which no direct explanation has been given by the accused, was also part of the prosecution case that he met her on the night she disappeared.

[59]

[30] It is perhaps paradoxical that the prosecution also claims that the accused lied as to the existence of a close relationship between him and the girl, since to allege that provides an increased opportunity for blood to have got on the sandal innocently at some other time, if the jury were to accept the prosecution proposition that the relationship was much closer than he was prepared to admit.

[60]

[31] However, the purpose of the prosecution's reliance on this alleged lie is to provide another piece of circumstantial evidence that supports the ultimate conclusion that the accused met Rachel Antonio on the evening in question. In other words the prosecution argument was that the lie as to the closeness of the relationship assisted in drawing an inference that he was in her company on the night of her disappearance, a fact which he wished to conceal because to reveal it would tend to implicate him in her disappearance.

[61]

[32] It was a fundamental question for the jury whether they were satisfied the appellant met Rachel Antonio on the evening she disappeared. In approaching that question, they had for consideration the evidence of her stated intention to meet him and the evidence of what he did during the evening, his explanation that the duration of his absence from the party was due to his vehicle breaking down, his denial of a close relationship with her and the blood spot on his sandal (which, subject to a problem of strict proof referred to later, was contended to be that of Rachel Antonio). If they were satisfied that he did meet her, the issue of whether the appellant caused her death during the meeting was of critical importance.

[62]

[33] If on the approach taken by the majority to the evidence in Walton the test is that evidence of state of mind is admissible if it is a relevant fact, or a fact relevant to a fact in issue (Mason CJ 288; Wilson, Dawson and Toohey JJ 304; Deane J 307), evidence that Rachel Antonio intended to meet the accused would be admissible since the fact that they met was a relevant fact and her intention to meet him was relevant to that fact.

[63]

[34] The question whether the girl spoke of being pregnant was only a live issue for the jury if they found that they had met. According to Walton, the function of evidence of what she said she intended to say to the appellant was to lead to an inference, if the jury were prepared to draw it, that she had an intention of telling him that she was pregnant and carried it out.

[64]

[35] In Walton, there was evidence that the deceased woman's intention was to go shopping for presents when she met the accused. The evidence was admitted but appears, so far as can be ascertained, to be innocuous in the context of the case. In the present case the fact that the girl's stated intention was to say something which would have been, at the least, unwelcome news to the appellant may immediately have had a tendency to suggest in the minds of the jury an explanation, which was otherwise absent, why the accused may do something which harmed her if she said it.

[65]

[36] If evidence that she expressed an intention to claim falsely that she was pregnant is admissible under the principle in Walton, it would be relevant to a fact in issue, whether the accused did something to her which caused her death. Its potential to influence the jury's deliberations on the issue of whether he killed her is clear. The effect of what she said on the appellant would in all probability have appeared to be an important issue to the jury. The conclusion that she may have said something to him which caused him to react in a way that caused her death may then have suggested itself to them.

[66]

[37] Whether the jury's reasoning in fact followed that sequence is speculation. However, if the jury considered the issues mentioned to be important, the potential effect of the evidence of intention to speak of pregnancy was considerable. On the other hand, had there been an absence of evidence from which an inference might be drawn as to what was said during the meeting, and, in particular, an absence of evidence that a subject likely to come as a shock to the appellant had been raised, the prosecution case would have been weaker, since it would have been unable to point to any specific circumstance which might explain why he may have caused her death.

[67]

[38] It may be questionable whether, on the assumption that the denials relied on as consciousness of guilt were accepted as such, they were directly logically probative that the subject of pregnancy was raised. However, the facts of the disappearance and the presence on his sandal of the blood and the absence of specific innocent explanation of its presence were capable of giving some independent support to the inference that the intention to say she was pregnant must have been given effect to since something happened during the meeting which caused her to bleed.

[68]

[39] The evidence sought to be admitted under the principle in Walton has two aspects. One is the assertion that the girl intended to meet the appellant on the evening of her disappearance. Any inference to be drawn from that evidence relates to the issue of whether they met. The other is her assertion that, when they met, she intended to make the false claim of pregnancy, which is concerned with the question whether the appellant, who otherwise appeared to have no reason to do so, killed her.

[69]

[40] The process of drawing inferences operates at different points of the chain of reasoning which is necessary to find a verdict of guilty, but the principle explained in Walton seems equally applicable to both statements of intention. It must follow that, applying Walton, both aspects of her statements should be admissible.

[70]

[41] In Bull, King & Marotta v The Queen (2000) 74 ALJR 836, McHugh, Gummow and Hayne JJ said the following:

[71]

"In Walton v The Queen ... this Court narrowed the scope of the hearsay rule by rejecting an appeal against the admissibility of statements made by the deceased to other persons to the effect that she intended to meet the accused at a particular time and place. Although the judge had directed the jury that the statements of intention by the deceased did not prove that she had met him, the statements were plainly used as circumstantial evidence, together with other evidence which indicated that the accused had planned to meet the deceased to prove that the accused and the deceased had met. The reasoning process was that the deceased intended to meet the accused, that people usually carry out such an intention and that that fact could be used in conjunction with evidence of the accused's intention to meet her to conclude that they had met on the day of the murder. Thus, although the jury could not use the content of the deceased's statements to find that they had met, it could use the statements indirectly to prove the same fact. This seems to come perilously close to permitting the assertions in the statements to be used to prove a fact, contrary to the hearsay rule ... . Common sense pragmatism prevailed, however, and the majority held that the use of the statements was not a breach of that rule."

[72]

A footnote to the second last sentence refers to "the criticism of Professor Colin Tapper in Hillmon Rediscovered & Lord St Leonards Resurrected (1990) 106 LQR 441 and by JD Heydon QC, Editor of Cross on Evidence, 6th Australian Ed (2000) at par 31065". The judgment also records that the correctness of Walton had been assumed in the argument of the appeals. Whether this represents a signal that Walton may be revisited remains to be seen.

[73]

[42] Ruling on the objection the learned trial judge said:

[74]

"The first category of evidence is evidence in the nature of statements made by Rachel to various persons, the effect of which was that she intended to see the accused or somebody who the other evidence might identify as the accused on the Saturday evening. These statements are alleged to have been made on the Wednesday, Thursday and Friday before the day on which she was last seen, and another is alleged to have been made to two Mormon missionaries on the evening concerned. In two of the statements she is said to have made reference to an intention to discuss with the person she was to see, a claim to be pregnant to him, something which it would seem, she proposed to falsely assert in response to his claim that he had made a girl pregnant in Western Australia. In one of the statements she is said to have told a classmate at school that if the accused told her that he was lying about the girl in Western Australia, she would tell him that she was not pregnant and that her claimed pregnancy was a lie.

[75]

In my view, this evidence is admissible in accordance with the principles to be found in the judgment of the High Court of Walton v The Queen (1987) 166 CLR 203.

[76]

The evidence is not admissible as proof of the facts asserted, but is evidence similar to evidence of conduct from which the state of mind of Rachel at the relevant time might be inferred. It is in this sense original evidence.

[77]

Each of the statements provide evidence from which an intention to speak to the accused on the evening that she was last seen can be inferred and is admissible as evidence from which both the state of mind and the doing of the intended act might be inferred. The evaluation of this evidence will of course fall to the jury and it will be a matter for the jury as to whether any such inference ought, in the light of the evidence as a whole to be drawn. In my view, the evidence is indistinguishable in principle from that which the High Court held admissible in Walton's case."

[78]

[43] The ruling is not inconsistent with existing authority and in my opinion it was therefore not erroneous to admit the evidence. No argument that the evidence ought to be excluded on discretionary grounds was addressed at the trial.

[79]

Ground 5: Direction of use to which evidence of the girl's statements could be put.

[80]

[44] The purpose for which evidence of statements of intention can be used has been explored in the preceding section of these reasons. It was submitted that the direction given suggested to the jury that the evidence could be used as evidence from which the appellant's conduct could be inferred and that this was erroneous. The passage upon which reliance was placed is the following:

[81]

"That evidence is placed before you, and the Crown asks you to infer that Rachel Antonio intended on that Saturday evening to go to the pictures and meet the accused, and discuss with him what she said she was going to discuss, according to one of the witnesses.

[82]

Now first of all, let me say this. Apart from those statements, there is no evidence of any arrangement between the accused and Rachel Antonio to meet Saturday night, and you have to look at that evidence in the light of all of the surrounding circumstances as to whether you think that is a reliable indication of what she intended to do.

[83]

You have to, for example, take into account the possibility that this was something for the benefit of her friends, not representing the reality. You have to consider whether that is a possible explanation or not.

[84]

You have to consider whether it accurately represented an intention based upon some arrangement between her and the accused.

[85]

You have to take into account whether it is possible that this was being used as a cover by Rachel for some other plans she may have had, or whether she may have been wishing to convey something about the relationship, even though it was not true, to her friends.

[86]

These are all matters you have to take into account in considering whether you are prepared to infer that she intended to go that Saturday night to the pictures and meet the accused for the purposes of the discussion which she mentioned to her friend.

[87]

That is the purpose and that is the only purpose for which that evidence is placed before you."

[88]

[45] During a brief break for the jury the learned trial judge invited counsel to raise any matters concerning the directions already given on matters of principle. The Crown Prosecutor submitted that the jury should have been told that the evidence could be used in considering the question whether the girl and the appellant did in fact meet. Defence counsel made no submissions to the contrary. Upon resumption of the summing-up the learned trial judge told the jury the following:

[89]

"Ladies and gentlemen, if I might just very briefly go back to one of the matters I mentioned, and that is the evidence that I referred to of the conversations Rachel had with two of her friends, and I told you about the particular purpose for which that evidence has been placed before you to consider; that is, as evidence of what her stated intention was, and, of course, I am sure you understand from that it is placed before you to consider whether she acted in accordance with it or not."

[90]

[46] The essence of the appellant's submission is that the jury were left with the impression from the directions given that they could infer from the girl's statements of intention that the appellant had made an arrangement to meet her that evening. Reliance was placed firstly on the direction that apart from her statements there was no evidence of an arrangement between her and the accused to meet that evening. This, it was submitted, invited the jury to infer that the appellant had agreed to meet her from her statements alone. Secondly, reliance was placed on the direction that the jury had to consider whether her expressed intention accurately represented an intention based on some arrangement between her and the appellant.

[91]

[47] In Macrae (1995) 80 A CrimR 380 the Victorian Court of Criminal Appeal considered the application of Walton in a case where the deceased had told a witness, Barbara Chadwick, on the evening he disappeared that he was going to meet the appellant at a farm and what the purpose of the meeting was. There was evidence that the deceased had gone to the farm and the real issue was whether he had met only a person other than the accused or had met both the accused and that other person. After analysing the majority judgments in Walton the judgment of the court in Macrae (387) says the following:

[92]

"It would appear to follow from the majority's analysis that if the evidence of the deceased's statement had been tendered to prove the applicant's state of mind, it would have been tendered for a hearsay purpose - to prove that the applicant had said to the deceased that which she said he had about his state of mind. It would have been inadmissible if that had been the only use that was relevant to the issues in the case.

[93]

Applying this analysis to the present case, the evidence of the statements made by the deceased to Mrs Chadwick was not hearsay evidence if it was tendered and admitted as evidence of his intentions. It was relevant as evidence tending to prove that he went to the Merbein property. It tended to prove that fact because of the probability that persons carry out their stated intentions. The portion of the statement referring to his intention to meet the applicant rendered it more probable that he in fact went to the property. That portion, however, was also relevant to prove that he in fact met the applicant but it was inadmissible as hearsay, and therefore could not be used for that purpose."

[94]

[48] The judgment then refers to a passage from Professor Tapper's article (supra par 20) concerning the dangers of admitting evidence for the additional purpose of proving that it was the appellant whom the deceased met, as follows:

[95]

"To permit inference as to the acts of another involves not merely reliance upon the sincerity of the declarant, but in addition all of the hearsay dangers in relation to the second party. If the first declares an intention to meet the second, either there is no arrangement between them to do so, in which case there is a danger of insincerity so far as the declarant is concerned and the cogency of the declaration as to what is to be inferred is low; or there is some prior arrangement, but in that case, since it is communicated only through the declarations of the first party, the whole array of hearsay dangers reappears in relation to the second party. The sincerity of the declarant is relied upon just as much, but in addition there are dangers of insincerity and of ambiguity of expression in relation to the statements of the second party, and of defects of memory and of mistaken perception of the first party as to the arrangement with the second."

[96]

[49] In the present appeal counsel for the Crown conceded that the girl's statements could not be used for the jury to conclude what the appellant did on the relevant evening. He submitted that while the use of the word "arrangement" in the direction was unfortunate the jury would have understood that the learned trial judge was referring to an arrangement made by the girl, rather than a bilateral arrangement. He submitted that, read in context, the direction adequately conveyed that her statements could only be used as evidence of her intentions and could not be used as evidence of his intentions or actions.

[97]

[50] The difficulty with this proposition is that the two references to the existence of arrangements occur in terms which more naturally imply mutual formation of an intention to meet and that otherwise the directions given do not displace this impression by making it clear that the appellant's intentions or actions cannot be inferred from what she said. The direction falls short of what was necessary in the circumstances of the case and the conviction must be set aside for that reason.

[98]

Ground 7: Was the breakdown an "Intermediate Fact"?

[99]

[51] It is convenient to deal next with ground 7. In Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 203 Brennan J referred to a passage from the judgment of Dawson J in Shepherd v The Queen [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:

[100]

"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.

[101]

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."

[102]

[52] In Edwards (210) Deane, Dawson and Gaudron JJ said the following:

[103]

"Although guilt must ultimately be proved beyond all reasonable doubt an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof It may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt."

[104]

[53] In my opinion proof of the breakdown of the vehicle was not an intermediate fact or an indispensable link in a chain of evidence necessary to prove guilt within the meaning of those quotations. The evidence concerning the breakdown was, to adopt Brennan J's analysis, one of the strands of evidence, not a link in a chain of evidence. If there is an intermediate fact it is that the appellant and Rachel Antonio met on the evening in question. In considering whether to find that beyond reasonable doubt, the jury had to consider the strands of evidence relied on by the prosecution. They included any inference drawn from the girl's statement of intention that she would go to a place where she expected she might meet the appellant; the evidence concerning the appellant's unusually long absence from the party; his explanation that the car had broken down and associated evidence said to support his explanation; evidence led to refute that claim; his denial of a close relationship with the girl; his denial that he had met her that evening; and the unexplained evidence of blood, allegedly the girl's, on his sandal. It was not an error for the learned trial judge not to direct the jury that the fact of the breakdown had to be proved beyond reasonable doubt.

[105]

[54] Turning to ground 6 the ground of appeal is that the learned trial judge erred in "finding" that the accused's account that the vehicle had broken down and his statement as to the nature of the relationship with Rachel Antonio were lies capable of amounting to consciousness of guilt.

[106]

[55] The prosecution case focused on a relatively short period, at its greatest, from about 7 pm until about 7.45 pm, when the appellant was absent from the party at his home as the time of the killing. There was evidence that rental of a video by him was processed at 7.39 pm, according to the video store computer. Apart from that time, other times are reliant on witnesses' recollections and therefore approximate only. The relevance of the evidence at one level is to prove that the appellant had time to meet Rachel Antonio, kill her and dispose of her body in such a way that it has never been found.

[107]

[56] It is the next level of use, that a lie as to the vehicle breaking down was told out of the consciousness of guilt, which is complained of in this ground. The care with which an allegation of consciousness of guilt must be approached is well established and the need for care has recently been reinforced in Zoneff v The Queen (2000) 74 ALJR 895. In the present case, the jury was directed in terms which were appropriate that the lie must be deliberate, that it must be told in circumstances and be of such a nature that the only explanation for it was that it sprang from a realisation of guilt and the knowledge that the person concerned could not tell the truth because the truth would convict him of the offence charged, and to consider other possible reasons why the accused might lie. The learned trial judge also traversed in detail the evidence bearing on the question whether the appellant had lied in this respect.

[108]

[57] Before us, Mr Sofronoff analysed aspects of the evidence relevant to the question whether the vehicle had broken down with a view to demonstrating that the jury could not conclude either beyond reasonable doubt or at all that the vehicle had broken down and that the fact that the applicant had lied in that respect could not be proved. Assessment of that evidence was a matter for the jury. I am unpersuaded that the learned trial judge was wrong to leave to the jury the question of a lie told out of consciousness of guilt in this regard.

[109]

[58] In any event since a new trial must be ordered for other reasons and there will be an opportunity at the new trial to clarify and enlarge on or diminish some aspects of this evidence which may have been left ambiguous or unclear at the trial, the question is in a sense academic. It will be necessary for the trial judge at the new trial to decide, on the evidence as it then stands, whether the inference sought to be drawn by the prosecution is open to the jury.

[110]

[59] The lie concerning the nature of the relationship was not referred to in the written submissions and was referred to in the oral submissions principally by making the point that the existence of a close relationship with a girl of 15 may have had adverse legal consequences for the appellant, and disciplinary consequences in connection with his lifesaving activities, which accounted for his denials of a close relationship. I am not persuaded that it was wrong for the learned trial judge to leave that issue for the jury in connection with the consciousness of guilt. He gave appropriate directions of law and reminded the jury of the evidence relevant to the issue. It was for the jury to consider whether the inference that the accused lied through consciousness of guilt should be drawn having regard to all of the evidence in the case.

[111]

[60] The lies relied on in this case formed only part of the body of evidence to be considered by the jury in reaching their conclusion on the ultimate question whether the appellant met Rachel Antonio on the night in question and caused her death. It was not necessary for a direction to be given as to the particular standard of proof to be reached on each individual fact which formed part of the general body of evidence.

[112]

[61] Evidence was led by the prosecution for the purpose of proving that DNA extracted from spots on the appellant's left sandal was that of Rachel Antonio. Expert evidence concerning this was given by Ms Hatfield, a forensic biologist from the John Tonge Centre. The principal complaint is that some at least of her evidence was hearsay on the basis that she had not done all of the testing and had given evidence of opinions formed by other scientists as to the genetic profile of DNA in at least one sample which she had not read herself.

[113]

[62] The issue developed in a less than ideal way. The evidence complained of was given on day 13 of the trial and completed in mid afternoon. No objection was taken at the time and on day 14 no objection was taken at the outset. After several other witnesses had been called the prosecution closed its case at 12.13 pm. Counsel for the appellant (who was not counsel on appeal) immediately applied to have the forensic findings relating to the substance found on the sandal excluded. The basis was stated to be that there were serious gaps as to proof of continuity and that the witness' evidence was that she read the analysis but had not carried out the testing. It was asserted that the technicians who had done the testing should have been called to prove the methods of doing so. It was also claimed that there was no proof as to "what was specifically tested, by whom and how". In the subsequent argument, the issue of identity of what was actually tested became rather obscured by discussion of what evidence relating to the process was necessary.

[114]

[63] In his submissions the Crown Prosecutor foreshadowed that if the trial judge were to rule in favour of the appellant, he would make an application to reopen the case because the issue should have been raised before the end of the Crown case. In the event the learned trial judge ruled as follows:

[115]

"HIS HONOUR: Well, I have been asked to make two rulings. The first is as to the admissibility of the evidence of DNA testing, the effect of which is that three small pieces of what is said to be blood found on a sandal of the accused are consistent with, or perhaps it might be said have a high probability of coming from the blood of the missing girl.

[116]

It is contended that in the absence of direct evidence from those who actually carried out each aspect of the testing, this evidence is not admissible. However, I think the evidence that was given is admissible. Its weight will be a matter for the jury. The expert concerned gave evidence of the process that was followed and of having checked the tests after they had been carried out. This is, I think, evidence which is admissible and which the jury is entitled to consider, affording such weight as it considers fit to it, bearing in mind the various matters that were canvassed in the course of cross-examination of her."

[117]

[64] To establish whether there is anything in the submissions of the appellant in this regard it is desirable to set out in some detail the evidence given by Ms Hatfield. She said that she had visually inspected the appellant's sandals and then applied a screening test for blood using tetra-methyl benzidine dissolved in glacial acetic acid. That compound reacts to the haem group in blood.

[118]

[65] She said that she located the small spots which gave a presumptive reaction for blood on the strap of the left sandal. She then cut or shaved fibres from the three spots and put the sample in a test tube which was handed to the technical section at the John Tonge Centre.

[119]

[66] She also took hairs with roots (which are necessary for the extraction of DNA from hair) from two hairbrushes from Rachel Antonio's room and submitted them for DNA analysis. There was evidence that these brushes had been delivered to John Tonge Centre. The purpose of having the hairs from the hair brushes tested was to obtain a DNA profile of the girl, on the assumption that the hairs were hers.

[120]

[67] Blood samples were taken by a doctor in Bowen from Cheryl and Ian Antonio, the parents of the girl. The receptacle containing the sample from Ian Antonio was wrongly labelled "John Antonio" for a reason explained by Detective Sergeant Inmon, but contained blood taken from Ian Antonio. The blood samples were handed directly to Ms Hatfield by Detective Sergeant Inmon, who had been present when the samples were taken.

[121]

[68] Ms Hatfield produced a document (Exhibit 38) which set out genetic profiles of the mother, father and the sister of Rachel Antonio. Also included in the document was the genetic profile of the person whose hair was on the hair brushes (assumed to be Rachel Antonio) and of the blood found on the sandal. The profile of the DNA found in the hairs on the brushes coincided with that on the sandal, save that the DNA from the hair brushes did not give any result at the D 18S51 site.

[122]

[69] Each of the alleles of the DNA was consistent with the person whose hair was on the brushes being a daughter of Cheryl and Ian Antonio because each of the alleles found corresponded with one possessed at the same site by one or other of the parents.

[123]

[70] The loci which gave the result in the sample from the sandal were all identical with those on the sample from the hair brushes. The chance of finding someone at random in the population who had a DNA profile the same as a child of Cheryl and Ian Antonio was calculated at one in 900,000. The chance of a random match with the DNA profile of a person whose blood was on the sandal was one in 87 billion.

[124]

[71] During Ms Hatfield's cross-examination the question of the extent to which she herself had carried out the testing process was raised. Upon checking the records her evidence was to the effect that four technical officers had been involved in the testing process at different stages. They were involved in the extraction of the DNA from the original sample, the amplification of it and subjecting it to the gene scan analysis. She gave evidence as follows:

[125]

"The final results were then read by two other scientists for one sample and for one of the samples by myself and another scientist."

[126]

[72] As far as the evidence in the record is concerned there appears to be neither clarification of the identity of the two samples referred to, nor of which one she read herself.

[127]

[73] In both the cross-examination and re-examination the role of technicians and the techniques involved in the testing process were explored in considerable detail. Ms Hatfield had worked in the technical section and was aware of the procedures which should be followed. With respect to the extraction process she described how water was placed in the tube containing the sample to separate cellular material from the substrate upon which it had been found. The cells would then be broken open so that the nucleus, which contains the DNA, was freed. Then the nucleus would be broken open to release the DNA into the solution. The DNA would be separated from the other material by centrifuging.

[128]

[74] With respect to amplification, she described how the double helix of the DNA is separated over a period of about three and a half hours or perhaps more by heating to about 95 degrees, then cooling to about 55 degrees. Fluorescent labelled chemical primers specific to the loci being tested bind to the DNA strands and by repetitive heating and cooling the strands of DNA originally in the sample are reproduced exponentially.

[129]

[75] Next the amplified sample is run through a gel which results in loci being separated according to size with the smaller moving through the gel more quickly than the larger. Progress through the gel is recorded by a scanner which operates by recording the passage of the fluorescence over it. The result is printed on a graph with peaks which relate to loci which have been amplified. The graph is interpreted by two scientists working independently and "blind" and the two allele genotypes for each site are determined.

[130]

[76] Reading the graph depends on the expertise of the scientists making the reading. Where a scientific or technical instrument has not achieved the status of one of which the court takes judicial notice of its accuracy, nature, function, use and trustworthiness, evidence will be required as to its operation to provide a basis for the conclusion that it produces a reliable result. The evidence of Ms Hatfield as to the operation of the scanner in relation to the material in the gel bears on the issue of how the result is produced.

[131]

[77] Where a graph has been produced by that machine and there is evidence supporting the accuracy of the graph produced there is no reason why interpretation of the graph produced may not be made by any person with requisite expertise. Had the evidence been clear that Ms Hatfield had read each of the results of relevant tests in my view her evidence would not be hearsay. However, there is the fundamental difficulty that the evidence does not establish what she actually read herself. If she merely incorporated opinions of others without independently forming an opinion of the result produced by the scanner the evidence would be hearsay. The analysis above shows that the evidence is at best equivocal on the issue.

[132]

[78] This was a case where, by the end of Ms Hatfield's evidence, there was reason to suspect that strict proof of issues relating to the testing was required by the defence. It was not a case where there was a formal admission that the samples tested were the relevant ones. Nor could it be inferred that continuity and identity of the samples had not been placed in issue by the defence having regard to the conduct of the case. Once that situation arose it was incumbent upon the Crown to trace the passage of the particular samples through each stage of the testing. The problem should not arise in the way it did in this case if it is established in the pre-trial period whether or not continuity is in issue.

[133]

[79] In the present case there is evidence that each of the samples reached the John Tonge Centre. However, beyond that point there is no direct admissible evidence that what was in the gel which the scanner read and translated into a graph was any of those samples. The results tabulated in Exhibit 38 fall within the scope of the objection made and therefore cannot provide evidence to fill the gap by asserting the identity of the various samples tested.

[134]

[80] In practical terms, once continuity is put in issue, it is necessary to call witnesses who can testify that the samples which arrived at John Tonge Centre were those which were subjected to the testing process which led to the graphs being produced as a result of the use of the scanner. Where, however, there is an express admission or a tacit admission discernible from the conduct of the case that strict proof of this nature is not required, such admission or concession dispenses with the need to lead such evidence.

[135]

[81] Circumstances capable of creating a risk of a result of DNA analysis which is untrustworthy are now well understood. Those matters are often the subject of cross-examination when a forensic scientist gives evidence and are fully exposed by that method for the jury to consider when deciding whether to accept the evidence concerning identification of DNA as accurate. Although the way in which the John Tonge Centre operates is well known it has not been the practice for everyone involved in the process to be called to give evidence of precisely what each person's role was and what that person actually did. No doubt counsel take a pragmatic view that the likelihood of exposing a specific flaw in the process by that means is minimal and that the jury can be made aware of areas of risk by cross-examination of the forensic scientist about them in a general but detailed way.

[136]

[82] It is necessary that there be proof by some means that the specimens in respect of which results were obtained were those gathered from relevant persons and from the crime scene. However, given that, it is difficult to see how a defence case is diminished by simply exposing risk areas by cross-examination of the forensic scientist but not calling everyone involved in the process. Unless there is some reason to suspect that a specific identifiable flaw in the testing process can be proved by that means, mere repetition by several witnesses of areas in which it is accepted that something may go wrong in theory serves no real purpose.

[137]

[83] It will generally be inevitable that a forensic scientist will be called to interpret the findings of the analysis and the statistics which give the findings their cogency. Whether it is necessary to call other persons involved in the process either to prove continuity of the sample or for cross-examination in the hope that some actual flaw in the process may be fortuitously discovered is, no doubt, a matter of judgment for counsel in a particular case. In other areas of the law where analyses are performed, identity of the sample tested and, by inference, the integrity of the testing process can be proved by certificate (e.g. Drugs Misuse Act, 1986 s56; Traffic Act, 1949 s16A(16B)). The same kind of resource implications that underlie such provisions may be assumed to exist in the case of DNA samples. It may be that if unnecessary strains are placed on resources by routinely calling persons who are unlikely to give contentious evidence it will be necessary in the future for the legislature to consider such a provision with regard to DNA evidence. There should, of course, be no impediment to calling witnesses in cases where a real purpose will be served by requiring them to give evidence.

[138]

[84] The deficiencies in the DNA evidence in this case are concerned with proof, not cogency. The deficiencies can be avoided in a subsequent trial. It is not a fundamental flaw in the Crown case.

[139]

[85] Assuming adequate proof of the matters in Exhibit 38, the evidence of a spot or spots of blood on the accused's sandal is a part of the circumstantial case which the Crown seeks to make out. The jury would need to be satisfied that the hair samples from which the DNA described as Rachel Antonio's were derived were hers. It would need to consider possible explanations advanced for the presence of her blood on the sandal other than that it got there on the evening she disappeared along with the other circumstances relied on, as part of the process of deciding whether the Crown had proved its case beyond reasonable doubt.

[140]

[86] Since the conviction has been set aside it is unnecessary to further consider this ground.

[141]

Ground 2: Should a ruling that there was no case to answer have been made?

[142]

[87] The prosecution case was a circumstantial one, based on the strands of evidence referred to earlier in these reasons. In argument before us, arguments were advanced with a view to demonstrating that particular strands were equivocal at best. This is not the proper approach in a case based on circumstantial evidence. Even though an innocent explanation may be suggested for individual facts, the true question is whether all hypotheses consistent with innocence are excluded beyond reasonable doubt when the facts proved are considered as a whole. Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 limits the capacity of a trial judge to take a case away from the jury to cases where there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty. The case must be left to the jury even if the evidence capable of supporting the verdict is "tenuous, inherently weak or vague".

[143]

[88] In my opinion there was sufficient evidence to allow the case to go to the jury as the evidence stood at the end of the Crown case. The learned trial judge was not in error in refusing the application to take the case away from the jury.

[144]

Application for leave to appeal against sentence.

[145]

[89] As the appeal against conviction has been allowed it is unnecessary to consider this.

[146]

[90] The orders that I would make are as follows:

[147]

[91] On the evening of 25 April 1998 Rachel Antonio was dropped off by her mother at the picture theatre in Bowen. Her mother believed that Rachel was going to see a film. Rachel has never been seen since.

[148]

[92] The appellant, at the relevant time, was a 26 year old man who had had a romantic and emotional entanglement with Rachel. The Crown case against him was entirely circumstantial.

[149]

[93] As put by the appellant's counsel "The appellant had told Rachel that he was leaving her because he had "got another girl pregnant in Western Australia". As an act of revenge, on 25 April, 1998, Rachel planned to meet the appellant to tell him, falsely, that she was pregnant and to extort $350 from him. The appellant met Rachel according to an arrangement which he had made with her and killed her."

[150]

[94] All of the facts referred to in that submission were proved by the Crown only by hearsay evidence from statements which Rachel was said to have made to acquaintances. In addition, the arrangement to meet the appellant, and the fact that they did meet, were based exclusively upon an inference drawn from facts proved by hearsay. (Emphasis added).

[151]

[95] The Crown also sought to bolster its case that the appellant had met Rachel by what it submitted were lies told by the appellant and which it contended were "evidence of his guilt". Those lies concerned an allegation that he falsely accounted for his absence from home between 7 p.m. and about 7.45 p.m. on 25 April by saying that his car had twice broken down on the way to and from the video shop, a trip that ought to have taken less than 15 minutes for the round trip.

[152]

[96] It was submitted that proof of that lie was fundamental to the Crown case because it bore upon the time, and the only time, during which the killing was alleged to have taken place. It gave rise to the inference that the appellant had killed Rachel. It was submitted that if the jury were not satisfied that the appellant was lying then on the case as presented, they could not be satisfied that he had killed Rachel. The trial judge did not direct the jury that before he could draw such an inference it had to be satisfied beyond a reasonable doubt that the account was a lie.

[153]

[97] Fundamentally proof that the appellant killed Rachel depended upon four things:

[154]

(a) The hearsay evidence from which an inference was to be drawn that she intended to meet the appellant "and that she did";

[155]

(b) The false account about the appellant's movements on the evening Rachel disappeared;

[156]

(d) The false account about the appellant's relationship with her.

[157]

I shall deal with each of these (a), (b) and (d) separately. I agree with the reasons of Mackenzie J in relation to the DNA evidence.

[158]

[98] At an early stage in the trial the learned trial judge was asked to rule upon the admissibility of this evidence. His Honour ruled as follows:

[159]

[160]

In my view, this evidence is admissible in accordance with the principles to be found in the judgment of the High Court of Walton v. The Queen (1987) 166 CLR 203.

[161]

[162]

[163]

[99] The particular evidence which had been objected to and was the subject of his Honour's ruling came inter alia from the witness Taylor. He said:

[164]

"After that she said, `Do you believe in revenge,' and I said, `I don't know. Why?' And this is when she said to me that she had a 24 year old boyfriend she'd been going out with for 11 months. She wanted to get her revenge on him. Apparently he wanted to break it off with her ... She said she was going to tell him that she was pregnant. She had a friend that was going to help her fake a pregnancy test. Going to tell him that she's pregnant and she's going to be due on 12th of October ... She was meeting her boyfriend that weekend to sort out the whole situation with him, with the breaking up and the pregnancy and so forth and she wanted to get money out of him for an abortion, or this was what she was going to tell him, $350 I think the amount was. There's more related to that, she wanted to use the money to get out of town and so forth. Getting back to what she was doing on the weekend, there was other people she was going to meet on the weekend, there was two strangers she's met sometime in the course of the previous week. She had mentioned meeting people at the beaches, Queen's Beach I think was mentioned, and she was going out somewhere Saturday night and I cannot definitely recall who with or where ...".

[165]

The other evidence came from the witnesses Bond and Wallis in particular.

[166]

[100] In his summing up the learned trial judge repeated the essential elements of Taylor's evidence. When directing the jury as to the use to be made of this evidence his Honour said:

[167]

[168]

"Now first of all, let me say this. Apart from those statements, there is no evidence of any arrangement between the accused and Rachel Antonio to meet Saturday night, and you have to look at that evidence in the light of all of the surrounding circumstances as to whether you think that is a reliable indication of what she intended to do.

[169]

You have to consider whether it accurately represented an intention based upon some arrangement between her and the accused." (Emphasis added).

[170]

[101] The permissible use to be made of such evidence was discussed in Walton v The Queen [1989] HCA 9; (1988-1989) 166 CLR 283 and particularly per Mason CJ at 289 where his Honour said:

[171]

"But the better view is that evidence of such statements is not merely hearsay. Even when the testimony profit is not that of the maker of the statement, but that of a person who heard the author making the statement, it is original evidence. It is because the making of the statement has independent evidentiary value in proving the author's intentions, those intentions being a fact in issue or a fact relevant to a fact in issue, that the witness's testimony does not infringe the hearsay rule. It is original evidence rather than an exception to the hearsay rule."

[172]

"The applicant submits that the evidence is a classic example of hearsay - the statement is relied on as evidence of the truth of what is asserted, namely, that there was an arrangement for a meeting between the applicant and the deceased on the day or evening in question at the Town Centre and that there was such a meeting. The Crown disputes that it relies upon the evidence in this way. Rather, it says that the evidence goes to establish what the deceased's intention was at the time and that from this intention once established, the jury could properly infer that the deceased went to the Town Centre and met the applicant. Viewed in this way, the evidence is circumstantial as well as testimonial and, being circumstantial it stands outside the hearsay rule."

[173]

[103] It is clear from Walton's case that the evidence was admissible as constituting conduct on the part of the deceased (in that case) from which her state of mind at the relevant time could be inferred. However, the evidence is not admissible to prove anything that the appellant did without independent evidence to that effect. Walton at 291.3-292 per Mason CJ, 300.7, and 305.1 per Wilson, Dawson and Toohey JJ. Also it must be borne in mind that in Walton there was independent admissible evidence that the accused intended to and did meet the deceased. In this case there is no similar evidence.

[174]

[104] Respectfully, in my view, the passages emphasised by me in the learned trial judge's directions to the jury allowed of a view that they could be used as evidence that the appellant intended to and did meet Rachel on the evening of 25 April 1998. Further, in my view, the evidence of Taylor was, to the extent it went beyond Rachel telling him of an arrangement to meet the accused, highly prejudicial and may well have sowed the seed in the jury's mind of a motive to kill Rachel. Even if the evidence of her intention to meet the accused was admissible the evidence of Taylor which went beyond that was not. The direction given was not adequate with respect to the limit of the use to be made of this evidence. The verdict on this ground alone is unsafe. I accept the appellant's submission that it cannot be said that despite the admission of the evidence and the failure to direct the conviction was inevitable.

[175]

False account of the Appellant's movements on the evening

[176]

[105] The Crown case was that the appellant killed Rachel shortly after 7 p.m. and before about 7.45 p.m. During that time he was absent from a social function at his home. It is relevant to point out that this was the only time alleged by the Crown as the time when Rachel was killed. It is common ground that he said he going to rent a video, that he left the house, and that he did (at 7.39 p.m.) rent a video during his absence. He was also going to pick up some ice but apparently did not.

[177]

[106] The appellant told the police that his motor vehicle had broken down on the way to the video shop and on the way back. In order to prove that the appellant killed Rachel during this time, the Crown sought to prove that the car had not broken down, and that the appellant had lied. From that fact the Crown invited the jury to draw the inference that the appellant killed Rachel during his absence.

[178]

[107] The question is whether the necessary inference was a material fact of which the jury would need to be satisfied beyond a reasonable doubt. If so, and consequently, the jury would need to be satisfied to the same standard of proof of the facts from which the inference was to be drawn.

[179]

[108] In Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 such matters were discussed. At 202 Brennan J (as he then was) said:

[180]

"The drawing of an inference is part of the process of finding material facts: if it be right to say that no inference of guilt can be drawn unless the jury is satisfied that reasonable hypotheses consistent with innocence are excluded, the jury must be satisfied beyond reasonable doubt as to the facts from which the inference is drawn and on which the validity of the inference necessarily depends. It is logically impossible to be satisfied beyond reasonable doubt that an inferred fact exists without being satisfied beyond reasonable doubt of the existence of those facts from which the inference is drawn. ... There can be no superstructure erected without the foundations needed to support it. That is what the majority in Chamberlain [No.2] (184) [1984] HCA 7; 153 CLR 521 said, but the proposition embraced by the majority was a proposition of logic rather than of law. To apply the proposition, precision in identification of the inference to be drawn and of the facts from which it can be drawn is essential, especially in a case where an inference of guilt is said to arise from a number of facts which are not themselves established beyond reasonable doubt."

[181]

"Adopting his Honour's nomenclature, 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 [1990] HCA 56; (1990) 170 CLR 573 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 light of his or her experience of life but the standard of proof beyond reasonable doubt doubles the findings 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 facts to be inferred. The standard of proof applies to links; it says nothing about the strands."

[182]

[110] Further in Edwards Dean Dawson and Gaudron JJ at 210 said:

[183]

"If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty."

[184]

Proof that the appellant lied was, in my view, an indispensable link in the chain.

[185]

[111] The learned trial judge did not instruct the jury that the facts from which the inference was to be drawn, namely the lies about the breakdown, had to be proved beyond a reasonable doubt. It was submitted that the failure so to instruct the jury was an error which affected a fundamental part of the case and rendered the verdict unsafe. I respectfully agree. In any event the evidence about the lie was weak. It is not necessary to discuss it here but the comment should be made that the evidence of the two mechanics, such as it was, was vague in the extreme as to what marks should or could have been made by a person who fiddled about with the engine as the accused said to the police he did. The approach taken by the Crown was to seek to prove that there was no evidence of "work" being done on the car recently such as with a spanner or a wrench. I do not gather at any time that in his statement to the police the accused ever said that he worked on the car in that sense. The appeal should be allowed on this ground.

[186]

The false account of the appellant's relationship with Rachel

[187]

[112] The Crown relied upon evidence from a number of people of their observations of the appellant and Rachel and conversations with the appellant before her death to set up that there had been a romantic and emotional entanglement between them about which he had lied or failed to tell the whole truth. It was said that these lies were made in the "consciousness of guilt". That is the consciousness of his guilt with respect to the death of Rachel.

[188]

[113] The High Court has recently explained the decision in Edwards v The Queen supra in Zoneff v The Queen [2000] 74 ALJR 895. At paragraph 15 to 17 the majority, Gleeson CJ, Gaudron, Gummow and Callinan JJ said:

[189]

"The meaning of the phrase "consciousness of guilt", the risk that its use by the trial judge may itself suggest guilt, which circumstances call for the giving of an Edwards-type direction, and the difficulty in distinguishing between lies going to credibility and those indicating guilt have been matters of some controversy. ...

[190]

There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, "the accused knew that the truth ... would implicate him in [the commission of] the offence" and if, in fact, the lie in question is capable of bearing that character. (The words in italics are ours and, for the sake of clarity, should be included in the statement of principle.)

[191]

Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies at issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged."

[192]

[114] The addition of the words in italics is important. That is especially so in this case where (assuming the falsity of the denial), the appellant's false denial to police that he had had a romantic or emotional entanglement with Rachel was perfectly equivocal. It is as consistent with his wishing to hide an unethical (and perhaps criminal) relationship with a minor as it is with his wishing to hide that relationship to hide a killing. As was submitted the former is such a plausible explanation, given the severely critical attitude that had been expressed to him about a relationship with a young girl by his father and one of the appellant's fellow surf club members. In my view the false denial set up by the Crown lacks any probative force whatsoever. In my respectful view the evidence should not have been admitted.

[193]

[115] In the upshot, (and considering only the admissible evidence), this was a weak circumstantial Crown case. The jury was not satisfied that the appellant killed Rachel either intending to kill her or to do her grievous bodily harm. The verdict of manslaughter appears to smack of compromise. However, having in mind cases such as Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 it is ultimately a jury question whether or not the appellant killed Rachel in circumstances amounting to manslaughter. The appeal against conviction should be allowed; the conviction be set aside and a retrial on a charge of manslaughter be ordered. It is therefore not necessary to consider the appeal against sentence.

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Judgment (193 paragraphs)

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Cases Cited (8)