First ground of appeal: reasonable hypothesis inconsistent with guilt
43 The first matter argued is that the trial judge erred in failing to give directions to the jury outlining a reasonable hypothesis, based upon the evidence, and being inconsistent with the guilt of the appellant.
44 On 3 March 2000, during the course of his Honour's summing up but in the absence of the jury, the trial judge raised a possible matter that could be put to the jury as a reasonable possibility inconsistent with the guilt of the accused for their consideration.
45 His Honour said that it had occurred to him that the jury could, and perhaps should, be invited to give consideration to another possible way in which events occurred. His Honour asked the legal representatives whether he should direct the jury of the possibility that on 17 October the appellant found his wife and children dead and knew that they may have been killed:
perhaps by loan shark enforcers, perhaps by Demi Hwang, or some associate of hers; perhaps by a psychotic who gained entry by some subterfuge; that he thought he would be suspected of killing them, and panicked; that he did not take Demi Hwang into his confidence, telephoned her, said something barely coherent about it all being over; came home in the morning of the following day looking haggard, and having worked out a stupid plan to avoid police detection, that was, to tell a story about Susan Park and the children having gone to Queensland, looking unconcerned about their disappearance, leaving Australia as soon as possible, and somehow finding the money for that.
46 The immediate response of defence counsel in dealing with the question of whether such a hypothesis should be put to the jury, was that there was no obligation upon the trial judge to put a scenario which was not either put by the defence or attacked by the Crown, but the defence conceded that the trial judge could properly put a view of the facts which was consistent with a finding of not guilty. As counsel for the defence said:
So you can do it but you need not do it.
47 On the following Monday, 6 March 2000, the Crown Prosecutor put it to the trial judge that he would be falling into error if he were to:
..give to the jury the scenario that your Honour outlined with counsel in their absence.
48 On the other hand, counsel for the defence (after time for consideration) took the view that if there were a view of the facts:
…which has the accused involved only with the disposal of the bodies after the killings, consistent with innocence however, then that is a matter we urge that should be left to the jury.
49 Defence counsel submitted that the jury should be left with the suggestion that an inference reasonably open to them would be that some person or persons, unspecified, may have been responsible for the deaths. That was the defence case, although the appellant did not give evidence at the trial.
50 The result of this discussion between the trial judge and counsel was that the alternative version as constituting a reasonably possible hypothesis for the jury to consider was not put to them.
51 On 6 March 2000, the trial judge determined that he should not suggest to the jury that there may be an alternative way of looking at the facts of this case along the lines that he had foreshadowed earlier. He formed the view that he was not required by Pemble v The Queen (1971) 124 CLR 107 to do so. On the contrary, his Honour formed the view that:
There is a serious risk that in taking the course I proposed for discussion, there could be unfair implications either for the Crown or for the accused, and perhaps both in different ways.
52 Whilst it is understandable that this hypothesis was not put by the defence as a reasonable alternative because the appellant denied all involvement in the disposition of the bodies of the deceased, the question arises as to whether the trial judge should have put the alternative explanation to the jury.
53 Case law indicates that there is an independent obligation upon a trial judge to put to the jury all reasonable hypotheses, available on the evidence, and inconsistent with the guilt of an accused. Barwick CJ said in Pemble v The Queen (1971) 124 CLR 107 at 117-8:
Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interests of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to law and the possible use of the relevant facts upon any matter on which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.
54 In BRS v The Queen (1997) 191 CLR 275 at 330 Kirby J, in referring to the importance of matters raised by the parties, qualified this general concept by saying that:
…in certain fundamental matters the judge carries an unavoidable obligation to provide directions which are necessary to prevent a perceptible risk of a miscarriage of justice.
55 However, there may be some qualification required of these general statements lest it be thought that the authority of Pemble can be adequately stated at this high level of abstraction.
56 First it is important to recognise that the hypothesis must be both reasonable and available on the evidence.
57 The appellant accepts that it is a necessary requirement before a trial judge can put an alternative hypothesis to the jury, not propounded by the defence, that there be some evidentiary basis for it. In scientific methodology, a hypothesis can be constituted by a proposition merely put forward as a basis for argument, without any assumption to its truth. It can be, in effect, a guess. However, in the jurisprudence of the criminal law discussion of a hypothesis is qualified adjectivally by the notion that it must be 'reasonable'. Accordingly, a trial judge needs to ensure that there is some rational basis in the substratum of evidence, however slight, before suggesting a possibility, contrary to the prosecution case, to the jury.
58 The jury were instructed several times that a reasonable hypothesis inconsistent with the guilt of the appellant required them to acquit the appellant.
59 In this case, it is not as though counsel for the defence expressly disavowed the possibility raised by the trial judge. Rather, it was not in his strategic interest to articulate it before the jury. It was the appellant's case at trial that he was not involved in the murder of his wife and children.
60 Further, the defence clearly put to the jury the possibility of the murderer being Demi Hwang and the jury, by necessary inference, rejected that alternative hypothesis. Also, the Crown adduced evidence that the police knew of no reprisals against the appellant aimed at his wife and children, or of that method of reprisal. The jury must have accepted that evidence.
61 It is conceded by the appellant that it would be wrong for a trial judge to put a hypothesis which was fanciful or unrealistic: R v Clarke (1995) 78 A Crim R 226 at 230-231 per Hunt CJ at CL. Where the hypothesis has some rational basis then it should be raised by the court, despite the fact that it has not been propounded by the defence: Barca v The Queen (1975) 133 CLR 82 at 104. As Lord Morris of Borth-y-Gest said in Palmer v The Queen [1971] AC 814 at 823:
It is always the duty of the judge to leave to the jury any issue (whether pressed by the defence or not) which on the evidence in the case is an issue fit to be left to them.