Simic v The Queen

Evidence was given by Mrs. O'Connell, the proprietor of a shop at Brighton, that on 30th May 1978, in the morning at about half past eleven or twelve o'clock, she sold a boning knife, which appeared to her to be the knife found in the toilet bowl at 51 Durrant Street, to a man whom she later identified as the applicant. She first made her indentification at a line-up at the Russell Street Police Station on 1st June 1978, and in argument before us no criticism was made of the manner in which this identification parade was conducted.

There was evidence that on 31st May 1978 the police officers found in a laundry at the rear of the applicant's house two blue towelling car seat covers which were wet, as though they had recently been washed, and which, when scientifically examined, were found to have blood stains on them. There was some other evidence that before 30th May the applicant's car had had blue towelling car seat covers on the front seats, and there was scientific evidence that fibres found on the covers matched fibres found on the floor of the car and on the applicant's clothes. When questioned the applicant said that the covers were not his property and that they must have belonged to the former occupants of the house, who had left some two years before. The police also found in the applicant's house a pair of dark trousers that appeared to be damp. The applicant said that they were his but denied that they had recently been washed and explained their condition by referring to the cold damp air in the house. There was evidence, which the applicant and his wife denied, that he had been wearing dark trousers on 30th May.

On 31st May the applicant was seen to have a cut on his right index finger; the wound was gaping open and tender and the applicant was unable to flex his finger. The applicant said (and his wife supported his evidence) that he had cut his finger while cutting wood with a knife on 29th May. He was unable to produce the knife that he had used to cut the wood and no one (apart from his wife) who saw him on 30th May noticed the cut on his finger. There was scientific evidence that blood on the handle of the knife, in the toilet where the knife was found and in the adjoining bathroom, and on one of the car seat covers was all of group AB - a comparatively rare blood group to which the applicant belongs.

The argument advanced on behalf of the applicant before us was based on two grounds, namely (a) that the learned trial judge misdirected the jury in response to their inquiry whether there were any fingerprints on the murder weapon; and (b) that the learned trial judge failed adequately to instruct the jury on the use to be made of evidence as to the character of the applicant.

The learned trial judge gave to the jury a full and careful charge in the course of which he told them that the Crown case was that it was established that the fingerprints of the applicant were on the empty bottle of spumante and on one of the glasses and that the applicant now agreed that those were indeed his fingerprints. The learned trial judge however did not expressly refer to the question whether there were any fingerprints found on the knife. About an hour after the jury had retired to consider their verdict, they returned to the courtroom and the following discussion took place:

Mr. Foreman: Your Honour, the jury members would like to know if there were any fingerprints found on the murder weapon?

His Honour: I think there was evidence about that, Mr. Foreman, to the effect that there was difficulty about being able to ascertain that.

Mr. Taylor (Counsel for the Crown): Your Honour, as indicated on the photograph, it is under water.

His Honour: Yes. I think you will recollect it was in the bowl of the toilet and I do not recollect whether there was any specific material on this, but the evidence is the knife was in the toilet bowl of the toilet, and the only evidence is that there was blood stain found on the handle of the knife, that blood being blood group AB. I do not think there was any evidence about fingerprints. I will just check that through in a moment.

His Honour's attention was then invited (mistakenly) by counsel for the Crown to some evidence given by one Sgt. Gaffy as to the blood stains and his Honour read that evidence to the jury. Counsel for the applicant then referred his Honour to the evidence as to the fingerprints, which was given by one Senior Constable Hilber, saying "there does not appear to be any evidence concerning the fingerprints". His Honour then said: "Yes. There was other evidence to the effect that all fingerprints in the house were accounted for on the basis that those fingerprints that were not of the accused were fingerprints of either Mrs. Conabere or Mr. Conabere. Now, you will recollect that other evidence, so that by a process of elimination, one assumes that there were not any fingerprints on the handle of the knife belonging to anybody else." After the jury had retired, counsel for the applicant said that he was concerned because the question asked by the foreman of the jury referred to fingerprints and the instruction that his Honour had given was on the question of blood. His Honour explained that he had read the passage relating to the blood to keep the evidence in context. Counsel for the applicant then said, "I am only just concerned that there was no evidence at all concerning the fingerprints on the knife." His Honour replied, "Yes, I think that was clear." No further direction was given to the jury.

The evidence given by Senior Constable Hilber was, as has been indicated, that he found the fingerprints of the applicant on the spumante bottle and on one of the drinking glasses, and the fingerprints of Mrs. Conabere on the other glass in the lounge room and the fingerprints of Mr. Conabere on the drinking glass in the kitchen sink. He gave in some detail his reasons for concluding that the fingerprints on the bottle and the glass were those of the applicant. In examination in chief he was asked, "I dare say on examining this house you found a number of various prints and in various parts of the house. Have all the other prints in the house been accounted for by being either Mr. or Mrs. Conabere's?". He replied, "On the premises all have been accounted for, yes." In cross-examination the following occurred:

Q. I think you said all the other fingerprints apart from the glasses and the bottle, all the other fingerprints in the house were account (sic) for by the Conabere family? A. The Conaberes, yes.

Q. You found no other prints in the house apart from the Conabere family? A. No.

Senior Constable Hilber did not say whether or not he had examined the knife. However, he made it perfectly clear that the only fingerprints found in the house, except those on the bottle and the glass, were those of Mr. or Mrs. Conabere. The effect of his evidence therefore was that no fingerprints of the applicant were found on the knife.

The first statement made by the learned trial judge in reply to the question put by the foreman of the jury was not accurate. Although there was evidence that it was not possible to determine the group of the blood on the blade of the knife, there was no evidence that it was difficult to ascertain whether the knife bore fingerprints. Counsel for the Crown was further inaccurate in suggesting that the knife was entirely under water; in fact the blade only was immersed. However, these matters were not crucial. The applicant's case is that the concluding remarks of the learned trial judge made in response to the jury's question were seriously misleading. Instead of telling the jury that there was no evidence whether or not any fingerprints were found on the knife, and adding that if any were found they must have been those of Mr. or Mrs. Conabere and not those of the applicant, the learned trial judge said in effect that it could be assumed that there were no fingerprints on the handle of the knife which had been made by anybody except the applicant or Mr. or Mrs. Conabere. It is submitted on behalf of the applicant that this direction may have left the jury with the impression that fingerprints of the accused may have been found on the knife.

The learned judges of the Full Court considered that it was not possible that any member of the jury could have thought that the applicant's fingerprints had been found on the knife, since it was inconceivable that any of them could have supposed it possible that the Crown had withheld evidence so strongly indicative of the applicant's guilt, or that the Crown Prosecutor and the trial judge would have refrained from referring to such evidence if it had been led. They regarded the question as indicating a desire on the part of the jury to know whether any support was provided by fingerprints for the applicant's contention that the murderer's hand was not his, but another's. However, as Mr. Thomson, who appeared for the applicant before us, pointed out, it would have been equally surprising if there had been evidence that the fingerprints of some person other than the applicant or Mr. and Mrs. Conabere had been found on the knife and no mention had been made of that fact in the addresses or in the charge. The explanation which the Full Court has suggested for the asking of the question by the jury may be correct, but whether it is so remains a matter of conjecture.

In these circumstances there was, in our opinion, a misstatement of an important matter of fact. It must be observed, however, that the learned trial judge did not tell the jury that the fingerprints of the applicant were on the knife. Indeed, he did not tell them in terms that the fingerprints of the applicant may possibly have been on the knife, although that is an inference that could have been drawn from his remarks. Moreover, immediately before the learned trial judge made his final remarks, both he and counsel for the applicant had said that there did not appear to be any evidence about fingerprints, by which no doubt was meant fingerprints on the knife.

The provisions of s. 568 (1) of the Crimes Act 1958 Vict. stating the grounds on which the Full Court should allow an appeal against a conviction are in all material respects the same as those of s. 4 (1) of the Criminal Appeal Act, 1907 U.K. (which has been repealed by the Criminal Appeal Act, 1966 U.K.). In the present case the Full Court held, following Reg. v. Leggatt [2] , that "where there is a misstatement as to the effect of evidence, it will not invalidate a conviction unless the Court is satisfied that it is probable that but for the misstatement the jury would not have returned the verdict it did". This test has, it appears, been consistently applied in Victoria since the Full Court in R. v. Brookes and McGrory [3] accepted the judgment of the Court of Criminal Appeal in R. v. Wann [4] as authoritative on the question, although in Reg. v. Teitler [5] Sholl J. expressed a different view. English text writers have stated the principle in the same way: see Archbold 40th ed. (1979), par. 918, and Halsbury's Laws of England, 3rd ed. vol. 10, p. 538, n. (p). The test thus stated is less favourable to an appellant than that which is applied in cases where there has been a wrong decision of a question of law - cases that would include those in which there has been a misdirection as to the law or in which evidence has been improperly admitted or rejected. Some of the statements of the principle to be applied in cases of that kind are collected in Mraz v. The Queen [6] . In such a case the Crown must establish that if there had been no error the jury would (or must) have come to the same conclusion. According to the test approved in R. v. Leggatt [7] , the appellant has the burden of showing that the misstatement probably affected the verdict, whereas in the case of an error of law the appeal will be allowed unless the Crown shows that the error did not affect the verdict.

1. [1971] V.R. 705, at p. 708. 2. [1940] V.L.R. 330. 3. (1912) 7 Cr. App. R. 135, at p. 138. 4. [1959] V.R. 321, at pp. 335-337. 5. (1955) 93 C.L.R. 493, at pp. 514-515. 6. [1971] V.R. 705.

Two reasons may be suggested for applying a stricter test in the case of a misstatement of the facts than in the case of a misdirection as to the law. Section 568 (1), like its counterparts, requires the Full Court to allow the appeal if it thinks (inter alia) "that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice", and to dismiss the appeal in any other case, and provides that "the Full Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred". Where the judge has misstated the facts to the jury, the court can only allow the appeal if it considers that there was a miscarriage of justice, and it may therefore be argued that unless it is shown to be probable that the misstatement affected the verdict the condition precedent to the exercise of the court's power to allow the appeal has not been made out. Where, on the other hand, there has been an error of law, the question of miscarriage of justice arises only under the proviso. Secondly, where the judge has made a misstatement of fact, the jury, who have had the same opportunity as the judge to hear the evidence, will not necessarily be misled. Where there is a misdirection or other error of law, the jury, which must take its instruction on matters of law from the judge, must necessarily be misled to some extent unless the error is corrected - that is, of course, if the error is a material one.

In R. v. Wann [8] , Lord Alverstone C.J. stated the principle which was there accepted by the Court of Criminal Appeal as follows: "A mere misstatement is clearly not a misdirection when the case has been fully heard by the jury, and as to omission, we must be satisfied that it is such that it is reasonable and probable that the jury were misled, in which case there might be "a miscarriage of justice". But the objection of omission seldom succeeds. As I said in delivering the judgment of this Court: "One has to be very careful in dealing with a case of alleged misdirection to appreciate the lines on which a case is conducted, as omission to direct the jury on a point which was not taken at the trial may not matter if no injustice is done" (Meyer [9] ). The effect of the cases on this subject is stated in Ross on The Court of Criminal Appeal, at p. 113, as follows: "To have any effect in itself the misstatement of the evidence, or the misdirection as to the effect of the evidence must be such as to make it reasonably possible that the jury would not have returned their verdict of guilty if there had been no misstatements". With the alteration of the one word "possible" to "probable", we think that this statement is correct." However, when Lord Alverstone C.J., went on to apply the principle thus stated to the facts of the case he used the following words [10] : "In the summing up in this case there was no misstatement, but the jury were not fully directed as to the importance of the question whether the girl's visit to the surgery took place on the 8th or on the 22nd of September, and we have to consider whether we are reasonably satisfied that if there had been a fuller direction on this question, the jury would have returned a verdict of guilty." In conclusion his Lordship said [11] : "The verdict might not have been the same if those consequences had been sufficiently brought to their attention. It is more important that an innocent person should not be convicted than that a guilty person should go free." The Court then proceeded to quash the conviction. The language used in the concluding passages in the judgment suggests that the test which it applied in doing so - as distinct from the test to which it had earlier given formal approval - placed the onus on the Crown, or at least regarded a possibility that the verdict might not have been the same had it not been for the misstatement as enough to show that there had been a miscarriage of justice.

1. (1912) 7 Cr. App. R., at pp. 138-139. 2. (1908) 1 Cr. App. R. 10, at p. 11. 3. (1912) 7 Cr. App. R., at p. 139. 4. (1912) 7 Cr. App. R., at p. 140.

In R. v. Ellsom [12] , a case in which the judge had misstated the effect of the evidence, the Court of Criminal Appeal said: "The question here, therefore, is whether if properly directed the jury would have returned the same verdict. We feel it impossible to say with any certainty that they would." This is one of the cases cited by Archbold and Halsbury in the passages already referred to, but plainly it does not support the proposition which the learned authors state. An examination of the authorities to which those authors refer reveals that most of them do not advert to the distinction drawn in R. v. Wann [13] between a possibility and a probability that the jury would not have returned the same verdict if there had been no misstatement. Indeed, some of them support the view that a possibility that the jury were misled is enough to establish that a miscarriage of justice occurred: see R. v. Coleman [14] ; R. v. Savidge [15] ; R. v. Bliss Hill [16] .

1. (1911) 7 Cr. App. R. 4, at p. 12. 2. (1912) 7 Cr. App. R. 135. 3. (1908) 1 Cr. App. R. 50, at p. 51. 4. (1911) 7 Cr. App. R. 34, at p. 35. 5. (1918) 13 Cr. App. R. 125, at p. 130.

In the Australian States, other than in Victoria, there does not appear to have been any general acceptance of the principle that an appellant must show that it was probable that the misstatement affected the verdict. In Queensland the accepted view seems to be that for a misstatement to amount to a miscarriage of justice it must be reasonably possible that without the misstatement the jury would not have returned a verdict of guilty: see R. v. Clarke [17] ; R. v. Allen [18] ; Reg. v. Tooma [19] . It must however be said that in one of these cases, R. v. Clarke, there appears to have been a misunderstanding of what was said in R. v. Wann [20] .

1. [1934] St. R. Qd. 23 at p. 31. 2. [1937] St. R. Qd. 32 at p. 45. 3. [1971] Qd. R. 212, at pp. 233, 237. 4. (1912) 7 Cr. App. R. 135.

The question of the proper principles to apply in a criminal appeal where there has been a misstatement by the trial judge of matters of fact does not seem to have been the subject of much discussion in this Court, perhaps because in cases where the only irregularity is a misstatement of the facts, and no legal question is involved, special leave to appeal is not often granted. However in Taylor v. The King [21] the trial judge in his charge to the jury had read a passage from a deposition taken before a magistrate in such a way as to suggest that it was evidence in the case. The Court, allowing the appeal, simply said [22] : "We cannot say that in these circumstances the trial was free from material fault, nor can we say that the interests of justice would be conserved if we disallowed the objection." In Hargan v. The King [23] Barton J. regarded it as sufficient reason to quash a conviction that a trial judge had misled a jury as to the effect of certain evidence. He said [24] : "If, on the other hand, a piece of evidence is recounted by the Judge in his summing up to the jury in such a way as to convey to the jury, although unintentionally, that which is not in evidence in the due course of the case, then, again, it seems to me that a verdict of guilty arrived at after such a course of proceeding cannot be dissociated from it, and we cannot say to what extent it might have influenced the minds of the jury; and in such a case I think that is such a thing as the law means by a miscarriage of justice." These statements are opposed to the view that an appeal on this ground can only succeed if the appellant shows that it is probable that the jury would not have convicted if a proper direction had been given.

1. (1918) 25 C.L.R. 573. 2. (1918) 25 C.L.R., at p. 575. 3. (1919) 27 C.L.R. 13. 4. (1918) 25 C.L.R., at p. 21.

The principle to be applied was, in our respectful opinion, well stated by the Court of Criminal Appeal in the early case of R. v. Cohen and Bateman [25] :

A mistake of the judge as to fact, or an omission to refer to some point in favour of the prisoner, is not, however, a wrong decision of a point of law, but merely comes within the very wide words "any other ground", so that the appeal should be allowed according as there is or is not a "miscarriage of justice." There is such a miscarriage of justice not only where the court comes to the conclusion that the verdict of guilty was wrong, but also when it is of opinion that the mistake of fact or omission on the part of the judge may reasonably be considered to have brought about that verdict, and when, on the whole facts and with a correct direction, the jury might fairly and reasonably have found the appellant not guilty. Then there has been not only a miscarriage of justice but a substantial one, because the appellant has lost the chance which was fairly open to him of being acquitted . If, however, the court in such a case comes to the conclusion that, on the whole of the facts and with a correct direction, the only reasonable and proper verdict would be one of guilty, there is no miscarriage of justice, or at all events no substantial miscarriage of justice within the meaning of the proviso. In R. v. Haddy [26] , it was said that this statement of the law had stood for thirty-five years and had never been the subject of adverse comment, though judges in giving the decisions of the Court of Criminal Appeal had used varying language and many different expressions. 1. (1909) 2 Cr. App. R. 197, at p. 207. 2. [1944] 1 K.B. 442, at p. 446.

The fate of a criminal appeal should not depend on the application of rigid formulas. It is true that an appellant who claims that the trial judge misstated the facts to the jury must, if his appeal is to succeed, show that there was a miscarriage of justice. But since an accused person has a fundamental right to a fair trial, conducted in accordance with law, the fact that the case has not been properly presented to the jury will in some circumstances be enough to show that a miscarriage has occurred. However, the distinction between misdirection of law and misdirection of fact is fundamental and must always be borne in mind when evaluating the significance of a misdirection of the latter kind. In the case of the former, the jury is assumed to have observed and applied the directions that were given to them, and any mistake by the trial judge in his charge to the jury on matters of law is itself a ground for allowing an appeal, if, subject to the proviso, the Court of Criminal Appeal thinks fit to do so. In the case of the facts, the trial judge must tell the jury that the facts are for them, that their verdict must be grounded on the evidence that they have heard, and that although he will review that evidence and make some comments of his own relative thereto they are not bound to accept anything that he may say. The scope for a misstatement of the evidence will often be very wide, and the effect of such misstatement may vary a great deal. It is right and proper therefore that an onus rests upon an appellant to bring himself within s. 568 by showing that the misdirection which occurred in the instant case amounted to a miscarriage of justice. Nevertheless, it is putting that onus too high to require it to be shown that it was reasonably probable, rather than possible, that the misdirection affected the verdict. Of course minor inaccuracies and omissions will not be likely to make it possible that the verdict was affected. Bare and remote possibilities may be disregarded, but if it is considered reasonably possible that the misstatement may have affected the verdict and if the jury might reasonably have acquitted the appellant if the misstatement had not been made, there will have been a miscarriage of justice, and a substantial one. In considering a question of this kind, the appellate court must have regard to the gravity of the misstatement as well as to the strength of the case against the appellant.

Although the Full Court in the present case applied a principle which we are unable to approve, their conclusion that there was no miscarriage of justice was in our opinion correct. The evidence against the applicant, although circumstantial, was exceptionally strong. The identification of the applicant by Mrs. O'Connell was prompt and positive. Of course, her evidence had to be approached with great care, even with suspicion, not only because experience shows that honest and apparently reliable witnesses are liable to be mistaken in their identification of strangers, but also because if she was correct in saying that the knife was bought between half past eleven and twelve, and the evidence that the applicant departed from his work at about twelve was also correct, he could not have been the buyer. However, there was a body of other evidence, some of it incontrovertible, which tended to incriminate the applicant - particularly the evidence which appeared to leave no doubt that blood-stained covers had been taken from the seats of his car and washed in his laundry, and that his explanation of the presence of the seat covers there was barely credible. He falsely denied that he had been at the home of the murdered woman, and when he admitted that he had gone there his explanation for having done so was unconvincing. The cut on his finger was not satisfactorily explained. All these circumstances removed any doubt as to the correctness of Mrs. O'Connell's identification, and the only reasonable and proper verdict was one of guilty. Moreover the misstatement by the learned judge was equivocal rather than categorical, and it had been preceded by remarks that revealed the true position. Whatever the jury's reason for asking the question, it is extremely unlikely that the answer to it could have led them to think that the applicant's fingerprints were on the knife. It cannot reasonably be considered that the misstatement influenced the verdict.

The second ground on which the application is brought is that the learned trial judge failed adequately to instruct the jury on the use to be made of evidence as to the character of the applicant. There was evidence that the applicant had not been previously convicted, that he was happily married, that he loved his children and had never been violent to them or to his wife and that he had been a satisfactory employee. The only reference to this evidence in the charge was a brief mention by the learned trial judge that the applicant had no prior convictions.

In Attwood v. The Queen [27] , this Court said that an accused person may adduce evidence of his good character on a criminal trial "as a fact or matter making it unlikely that he committed the crime charged". The Court said, "evidence of good character is regarded as really bearing on the probability or improbability of guilt. As Cockburn C.J. said: "The fact that a man has an unblemished reputation leads to the presumption that he is incapable of committing the crime for which he is being tried" ". (The passage quoted by the Court is from the judgment in Reg. v. Rowton [28] .) This did not purport to be a full statement of the law on the subject, and it is not necessary to discuss the matter further in the present case. However, it is obvious that whether evidence of good character will be of any avail to an accused person depends on the strength of the evidence supporting the charge.

1. (1960) 102 C.L.R. 353, at p. 359. 2. (1865) Le. & Ca. 520, at p. 530 [169 E.R. 1497, at p. 1502].

There is no rule of law that in every case in which evidence of good character is given the judge must give a direction as to the manner in which it can be used. We agree with what was said on this point in Reg. v. Schmahl [29] . No doubt, speaking generally, it is right to add, as was said in that case, that if such a direction is asked for it would be wise to give it.

In the present case no direction as to the evidence of the applicant's good character was asked for. There is no reason to believe that the jury would not have understood that a man of good character would be unlikely to commit a crime of savage violence such as that with which the applicant was charged. In other words, there is no reason to conclude that the jury would have failed to give the evidence as to good character such weight as it deserved. No miscarriage of justice was in our opinion occasioned by the omission to give a direction on this question.

The question of principle earlier discussed would appear to warrant the grant of special leave to appeal. Accordingly we would grant special leave, but would dismiss the appeal.