Is there a reasonable doubt?
124The issue, ultimately, is a simple one. Given the totality of evidence, was it open to the jury to reject the alibi beyond reasonable doubt and find beyond reasonable doubt that the appellant committed the offence. In determining that issue, the photographic evidence assumes some significance. As earlier stated, the DNA evidence is relatively neutral. The failure of the accused, Mr Singh, to detail to police that he had been at the premises earlier on the same day, is not, in my view, able to be used to draw some inference consistent with a guilty mind.
125The evidence of the confession of Mr De Blaere is, on the other hand, when read and put in context, not necessarily helpful to Mr Singh. Obviously, that another person has confessed would always be of some help to a person accused of an offence. But the context of the confession and the known circumstances of the offence do not give rise to any reasonable view that the confession of Mr De Blaere was genuine or provided an alternative perpetrator to the offence. Indeed, on one view, the false confession by Mr De Blaere is, because of its probable motive, unhelpful to Mr Singh. Nevertheless, it does not take the matter any further in either direction, other than it seems to confirm the dispute and animosity between Mr Singh and Mr Vignes and others.
126Likewise, while there are inconsistencies in the version of events by the witnesses to the stabbing, and inconsistencies between their versions in evidence and their versions to the police or at committal, a reading of the transcript is not persuasive that those inconsistencies affected their credibility or reliability. One is left with the position that there are witnesses that are consistent with guilt and witnesses that are inconsistent with guilt and the existence of the photographs.
127Mr Singh, raises State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 160 ALR 588; (1999) 73 ALJR 306, in which the High Court of Australia dealt with the role of appellate courts in relation to findings of fact based on credibility of witnesses. Of course, Earthline , supra, did not concern a jury verdict, in relation to which there is still some slightly greater deference and Earthline was a civil proceeding. In Earthline , supra, Justice Kirby said:
"There is a growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom. Scepticism about the supposed judicial capacity in deciding credibility from the appearance and demeanour of a witness is not new. In Societe D'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The 'Palitana') , Atkin LJ remarked that 'an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.' To some extent, the faith in the judicial power to discern credibility from appearances was probably, at first, a consideration which the judiciary assumed that it inherited from juries. It was natural enough that trial judges, accustomed to presiding over jury trials, would claim, and appellate judges would accord, the same 'infallible' capacity to tell truth from falsehood as had historically been attributed to the jury. Nowadays, most judges are aware of the scientific studies which cast doubt on the correctness of this assumption. Lord Devlin in The Judge quoted with approval a remark of MacKenna J: 'I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability ... to discern from a witness's demeanour, or the tone of his voice, whether he is telling the truth.' It was a becoming but entirely accurate modesty.
Apart from all else, demeanour is, in part, driven by culture. Studies suggest that evaluation of the evidence of women may sometimes be affected by stereotypes held by the decision-maker. This is doubtless also true in the case of evidence given by members of minority groups, whether racial, sexual or otherwise. Distaste or prejudice can cloud evaluation. Further, in a society such as Australia's, the capacity of the judiciary to respond to every cultural variety of communication is limited. Fifty years ago, the Supreme Court of Canada wisely declined to offer guidelines about the kinds of demeanour that would afford reliable indicators of the trustworthiness of witnesses. The studies of experimental psychologists since that time have confirmed the danger of placing undue reliance upon appearances in evaluating credibility. Such studies were not available to the appellate courts when the rules of deference to the assessments of trial judges on questions of credibility were first written. They are available to us today. Although they have not yet resulted in a re-expression of the appellate approach (and by no means expel impressions about witnesses from the process of decision-making) the studies have two consequences. Trial judges should strive, so far as they can, to decide cases without undue reliance on such fallible considerations as their assessment of witness credibility. And appellate courts should refrain from needlessly expanding the categories of trial conclusions about the facts which are effectively unreviewable because of presumed or inferred credibility considerations."
128His Honour Justice Kirby was a little more strident in his approach to issues of credibility than was the plurality judgment (Gaudron, Gummow and Hayne JJ) which, in part, says:
"[63] It is true that the trial judge, in determining whether to accept the evidence of Mrs Page, was heavily swayed by his impression of her whilst giving oral evidence. However, this circumstance does not preclude a court of appeal from concluding that, in light of other evidence, a primary judge had too fragile a base to support a finding that a witness was unreliable. The documentary evidence in this case, comprising unchallenged affidavit material of Mrs Meek and Ms Packham, the wage records and related documents of Earthline and Nuline, the list of plant (at least in relation to machine No 59) and the analysis of Coopers & Lybrand (in respect of the duplicity claims), provides significant support to the allegations made by Mrs Page.
[64] As Kirby J and Callinan J point out in their reasons for judgment, these were matters to which weight was not given either by the trial judge or the Court of Appeal. The substance of the matter is that there has not yet been a determination of the SRA's case upon a consideration of the real strength of the body of evidence it presented. There must be a new trial at which this consideration will be undertaken."
129Earthline , supra, concerned findings of credibility that did not take account of independent, uncontroversial and uncontroverted material inconsistent with those findings. This is a wholly different situation. The physical evidence relating to Mr Singh's alibi was itself the subject of significant controversy.
130While each alibi witness testified to the date of the birthday party, no witness could attest to the accuracy of the date imprinted by the camera on the photographs. The photographs evidence different times displayed by the clock on the wall that featured in some of the photographs compared, with the time on the uncle's wristwatch. All of the photographs were taken during the party, which lasted from approximately 7.30pm to 11.00pm. There was some controversy as to whether the negatives of the photographs were ever supplied to the police.
131The burden of proof remained with the Crown at all times. It was the Crown's burden to prove, beyond reasonable doubt, that Mr Singh stabbed Mr Vignes, and, included in that process, the Crown was required to disprove, beyond a reasonable doubt, Mr Singh's alibi. Ultimately, this issue depended essentially on the credibility of the witnesses.
132A great many criminal cases depend upon which of two versions is accepted, often in circumstances where it is the word of the alleged victim against the word of the alleged perpetrator. That one witness's evidence is accepted and another witness's evidence rejected, of itself, and without independent evidence or some other factor affecting that assessment, cannot be a basis upon which a jury verdict is necessarily rendered unreasonable. The same is true of a body of evidence, from more than one witness.
133A fact finder might disbelieve evidence supporting an alibi and still hold that the alibi was not disproved, to the requisite standard. Secondly, a fact finder could find the alibi disproved, beyond reasonable doubt, and yet find that the Crown has not proved, to the requisite standard that the accused was at the crime scene, or, further, committed the offence. But the same evidence can serve both purposes.
134There was a basis on which the jury could reject, to the requisite standard, the alibi provided. Similarly, there was a basis for accepting, to the requisite standard, that Mr Singh was at the crime scene and committed the offence.
135The Crown proved a dispute between Mr Singh and Mr Vignes. Even Mr De Blaere attests to that. Mr Vignes had, with another, "trashed" Mr Singh's mother's unit and Mr Singh could not explain to his mother how it was they were living there. This dispute exploded with the obvious racial slur by Mr Vignes of Mr Singh. On being accused by Mr Singh of being filthy (or having "dirty blood"), Mr Vignes replies: "what are you talking about. Your family washes their clothes in the river". It was this comment that excited the initial assault and the stabbing.
136The jury had a stark choice. There was no possibility that the witnesses to the stabbing were mistaken. Mr Singh did not suggest they were mistaken; he alleged they were lying. On the other hand, the alibi witnesses were certain of the occurrence of the party, but their evidence of the time may, at least to some degree, have been reconstructed from the photos, or otherwise mistaken. Further, the proposition, as described by a witness, that they could recall precisely when some 18 months before they looked at their watch, and the time that it disclosed, is one that the jury was entitled to reject.
137The reading of a transcript is not usually as effective as hearing and seeing witnesses. The reading of the transcript of the cross-examination of the accused, who gave evidence, shows it to have cast serious doubts on the accused's evidence and/or credibility. Most importantly, the cross-examination of the accused, and to a lesser extent other witnesses, on the time displayed on the wrist watch of the accused's uncle, as shown in Exhibit 1.3A, significantly undermined the account of the accused's alibi.
138On the other hand, the evidence of Grace Kelly was impressive. She was an independent witness whom the jury could believe. The other witnesses to the stabbing, while not necessarily as independent, were also credible. Acceptance of their evidence, to the requisite standard, is necessarily consistent with rejection of the alibi beyond reasonable doubt.
139For my own part, having read the evidence, I do not have a doubt of a kind that would warrant the setting aside of the verdict. Theoretically, it is always reasonably possible that a person is lying, or, alternatively, telling the truth, but, in this case, the determination of truthfulness and reliability derives from just the kind of advantage that a jury has in seeing and hearing the evidence and to which the High Court referred in M v R , supra, at 494, recited above.