Supreme Court of SA|1991-09-26|Before: Mr P

THE QUEEN v. OWEN No. 570 of 1991 Judgment No. 3032 Number of pages - 18 Murder (1991) 56 SASR 397 [1991] SASC 3032 (26 September 1991)

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL OLSSON(1), DUGGAN(2) JJ AND ZELLING(3) AJ

CWDS Criminal law: Murder: failure to give specific direction on application of onus and standard of proof to circumstantial evidence. Peacock v. The King [1911] HCA 66; (1911) 13 CLR 619; Plomp v. The Queen ; ; Grant v. The Queen ; referred to. No direction as to permissible use by jury of lies told by an accused person.

HRNG ADELAIDE, 23 August, 1991 #DATE 26:9:1991 Counsel for the Appellant: Mrs M.E. Shaw with Mr P. Muscat Solicitors for the Appellant: Legal Services Commission Counsel for the Respondent: Mr M. Boylan Solicitors for the Respondent: Mr B.M. Selway Crown Solicitor

JUDGE1 OLSSON J This was an appeal against conviction by a jury of the crime of murder. The appellant complained of a number of alleged specific deficiencies in the summing up, of the admission of certain evidentiary material said either to be inadmissible or which ought to have been excluded as an exercise of discretion and that the verdict was unsafe, unsatisfactory and against the weight of the evidence. Having heard certain submissions from counsel, this Court allowed the appeal, quashed the conviction and ordered that the appellant be remanded for retrial. 2. What follows are my reasons for participating in that decision. They will focus only on some particularly salient issues and do little more than make brief comment as to others which were, in the event, not fully debated. 3. To say the least there were many unusual features of the evidence placed before the jury. The Crown case was essentially based on circumstantial evidence and, unfortunately, the appellant resolved to conduct his case in person. He did not elect to give evidence, but did cross-examine witnesses. This would have been a difficult trial had the appellant been represented by competent counsel. The difficulty was compounded by the absence of such counsel. 4. I first turn to the facts revealed by the evidence. It is beyond question that a man named Pollard was murdered by someone late on 7 November 1989. He was a 47 year old, unmarried man who lived alone in a bed/sitting room with a kitchen annex on the upper floor of a boarding house situated on Semaphore Road, Exeter. Pollard was an alcoholic, but performed casual work at the wool stores in Port Adelaide. At times he engaged in opal mining - but this was little more than a hobby. He was apparently well known to the police and had a sobriquet "Perce the Punter". 5. Although Pollard was an alcoholic, his infirmity took the form of binge drinking. For periods of time he apparently consumed no alcohol at all. However, at the time of his death he was clearly very inebriated. He had a blood alcohol concentration of 0.235 per centum. 6. During the early evening of 7 November 1989, which was Melbourne Cup Day, two of Pollard's neighbours (Parrish and McEvoy), who also lived on the upper floor of the boarding house, independently heard two or three bangs or thumps emanating from his room. These persons placed the noises at some time after 7.00pm, perhaps as late as a few minutes after 7.30pm. The noises were of such a nature as to cause both neighbours immediately to get up and go to the landing at the top of the stairs, where they spoke to one another. There were no further noises. The neighbours thought no more of it and they returned to their rooms. They were well aware of Pollard's drinking habits and the fact that, when he was drunk, he knocked things over. At that time it was observed that the door to Pollard's room was open about 18 inches and the light appeared to be on inside. 7. About five minutes after the neighbours returned to their rooms one of them, Parrish, distinctly heard some person run down the stairs - although, at the time, he did not attach any significance to that incident. 8. At about 10.30pm Parrish opened his door and noticed that Pollard's door was still open and that his light was still on. He knocked on the door and called out "You all right Ray?" Having received no answer he pushed open the door and entered. 9. Parrish at once observed Pollard lying face down on the floor next to the bed, apparently dead. He was dressed, save for shoes. However, he was "covered in blood", his shirt was half way up his back and his trousers were half way up his legs. 10. As appears from photographs taken subsequently there was no obvious sign of a struggle or disturbance in the room. There was, however, considerable blood staining in it. There was blood all over the bed, on a blue vinyl chair, on the carpet and on the side and the power lead of a television receiver. Pollard called for assistance from McEvoy and police and an ambulance were summoned. 11. The evidence was somewhat equivocal about the clothing on Pollard's body. The ambulance officer Dippy said that the body was clothed in a white shirt, black singlet and trousers, but no jacket. The hospital record indicates that the staff cut off a green jacket, a check shirt, a blue singlet, a pair of blue trousers and a pair of blue underpants. Certain of these latter items appeared to have holes in them corresponding wounds on Pollard's body. 12. On subsequent postmortem examination it was found that Pollard had sustained multiple injuries. There were no less than 14 wounds, many of which were fairly superficial, but all of which had been caused by a sharp instrument, such as a thin blade about 14 cms long. There were also a number of bruises. There were cuts or stab wounds to the back, the face, the scalp and the chest. The immediate cause of death was determined to be internal bleeding resulting from two specific stab wounds to the chest. 13. According to the pathologist Pollard "bled to death slowly". He considered that Pollard would have become unconscious after about twenty minutes or half an hour, due to shock. Dr. James was of opinion that, for a substantial number of minutes after being stabbed, the deceased would have remained able to walk around and communicate with other people, subject to any effect which his degree of intoxication may have had on him. No-one ever heard Pollard call out on the evening in question, nor did he seek any assistance. On the other hand, Dr. James expressed the view that, due to his state of intoxication, he may not have realised the extent and seriousness of his injuries. Had Pollard promptly been hospitalised he would not have died. 14. The pathologist estimated time of death at 8.30pm, with a margin of up to three hours either way. 15. As the learned trial judge pointed out in his summing up, one curious feature emerging from the evidence of the pathologist was that there was no evidence of any marks or lacerations on Pollard's body to indicate that he had defended himself from attack. There were no "defensive wounds" on the hands. 16. No murder weapon was ever found by the police, nor was the Crown able to establish any clear motive for his stabbing. At best, there was some evidence given by a neighbour, one Clarkson, whose room was next to that occupied by Pollard, to the effect that, during the early evening of the day preceding Pollard's death (at a time after 6.00pm, but not later than 9.00pm), he heard the voices of the deceased and another man in the former's room. At one point he was conscious of a slapping noise as if someone was being punched. He then heard Pollard say "Don't try to fuck me up the arse, I am not queer like you." Shortly afterwards Clarkson left the premises to go to a shop. He noted that Pollard's door was half open and the light was on in his room. However, he did not see anyone. The propriety of the admission of that evidence was challenged on this appeal on the basis that other independent evidence led by the Crown conclusively established that the other person in Pollard's room could not have been the appellant. 17. I now turn to the appellant and the evidence of his association with Pollard. It was clear that, at the time of Pollard's death, the appellant was also an alcoholic. 18. Like Pollard, he too was known to the police. He had a prior record of imprisonment and had only been released from gaol on 30 October 1989. At one stage he lived at an address at 20 Beadnell Terrace, Gawler, but it seemed that he had no fixed place of abode at the time of Pollard's death. He told the police that, on the night of the Melbourne Cup, he slept on a pile of blankets in a wash house at the Barclay Boarding House at Dale Street, Port Adelaide. 19. Apart from that information, relatively little was revealed to the jury about his personal background. The evidence did not deal in depth with any relationship which he may have had with Pollard prior to 7 November 1989. On the other hand, it became clear that he was certainly known to Pollard, at least to some extent. 20. In his record of interview the appellant volunteered that, on the previous night, he had slept at "Perce the Punter's place". He said that "... he's an old piss pot round the Port like me. I'd met him in Archway (a rehabilitation centre) a long time ago". He claimed that he knew Pollard "not that well". 21. According to what the appellant told the police he was going to "camp out" that night, when he encountered Pollard in front of the Archway premises in Dale Street, Port Adelaide. He said that the latter had invited him "back to his place to crash there for the night". Independent evidence established that this chance encounter occurred at about 9.00pm and the two men left for Pollard's room at about 9.15pm, that is to say, after the time of the incident deposed to by Clarkson. 22. The appellant asserted that, early the next morning (i.e. on the day on which Pollard was killed) someone came to the room to wake Pollard up to go to work and actually stumbled across the appellant lying on a mattress on the floor. It was the appellant's story that, following that incident, he "got up, had a shave, splashed my face and nicked off". Having done so he did not return to Pollard's premises that day. He told the police that, on 7 November 1989, he was wearing black Levi cords, white Dunlop sneakers, a check shirt and a black, white and green knitted jumper (clothing which he had worn when recently discharged from gaol) - although the lastmentioned information was, for obvious reasons, excised from the material placed before the jury. 23. The appellant specifically denied to police that he had seen or been with the Crown witness Billy Tame - to whom I shall refer in due course - during 7 November 1989. 24. In essence, the appellant related to the police that, on Melbourne Cup day, he spent most of his time at one or more hotels. 25. On leaving Pollard's premises he went to the Royal Arms, which opened early. He there had several ports. He seems to have progressed from there to the Port Admiral (also referred to in evidence as the Royal Admiral). This statement was verified by two Crown witnesses. The witness Taurua deposed that she had been in the front bar of the Port Admiral from about 10.00am to 7.30pm. She met the appellant at about 10.30am, but could not recall whether he was still at the hotel when she left. The witness Oliver recalled seeing him at the Port Admiral when she arrived there at about 7.30pm, but she was not asked about the latest time at which she recalled him being present. She thought that the appellant was wearing a white shirt with a black windcheater jacket not zipped up. 26. According to what the appellant told the police he could, during the day, also have been at other hotels - he simply could not recall, because he had been on a drinking spree "going from pub to pub" for several days. That assertion is lent evidence by the witness Wood who spoke of his being admitted to the Nile Street Detoxification Unit for several consecutive nights. There was ample evidence on which the jury could have inferred that, by night fall, he was intoxicated. He had been drinking steadily all day, had consumed a mixture of drinks and had exhibited overt signs of intoxication to the witness Mimidas to whom I am about to refer. 27. Leaving aside the witness Tame, there were only two other witnesses who claimed to have seen the appellant on the night of 7 November 1989. 28. One was a taxi driver Mimidas. He said that, at about 8.30pm, he picked up two male passengers at the Lord Exmouth Hotel at Exeter (sometimes known as the "Monkey House"). He dropped them off near the Port Admiral Hotel at the Black Diamond Corner in Port Adelaide at 8.38pm. 29. Mimidas deposed that the name of the fare had been given as Mr. Smith. He said that one passenger, who he purported to identify at a police line-up as the appellant, sat in the front and was wearing a shirt, jeans and R.M. Williams type leather boots. He said that the front seat passenger appeared "unshaven", but did not have a moustache, and had hair between an orange and a brown colour. (The appellant in fact had a moustache and did not have any apparent orange toning in his hair.) The passenger in the back was an elderly person, who wore spectacles, was clean shaven and wore a tan jacket and trousers. The latter appeared sober, but the former did not and seemed unstable. The fare was paid by the person who Mimidas identified as the appellant. He said that the person who paid the fare had between $50-100 in his possession. 30. The Crown witness Wood, a counsellor at the Port Adelaide Sobering Up Centre in Nile Street, Port Adelaide testified before the jury that the appellant presented at the Nile Street premises at 9.15pm on 7 November 1989, but was refused admittance because he had already been admitted on a number of previous nights. Unfortunately, this witness was not requested to describe how the appellant was dressed on that occasion. 31. I digress to mention that the question of the dress of the accused was not unimportant because he said he was still wearing the clothing which he was wearing on 30 October 1989, including white tennis shoes (i.e. the white Dunlop sneakers already referred to). These clothes included the jumper also earlier referred to, which the witness Grzegdla said she washed for him on 9 or 10 November 1989, because it was filthy. She did not, however, note the presence of any blood stains when she did so. 32. The Crown witness Nesbitt told the jury that he knew the witness Tame and had met him in the front bar of the Alberton Hotel at about 1.45pm on 7 November 1989. He said that, during the afternoon, he and Tame went by taxi to the Flinders Hotel on Grand Junction Road, where they met Nesbitt's wife. They arrived at about 4.50pm. 33. After a time Nesbitt dropped off to sleep. When he awoke at about 6.30pm Tame had gone. When he last saw him he was wearing a "light tan jacket and similar pants". 34. This brings me to the evidence of the witness Tame who was, in a very real sense, the cornerstone of the Crown case. 35. Tame claimed to have known the appellant for about five years. He confirmed the accuracy of the evidence given by Nesbitt. He said that he left the Flinders Hotel at about 6.00pm and travelled by bus to the Black Diamond Corner, where he went into the front bar of the Port Admiral Hotel. The journey occupied about 6-7 minutes. He arrived at about 6.15pm. 36. Tame asserted that, after 10-15 minutes, the appellant walked into the bar. He had not been there on his arrival. They then had about two drinks together. 37. At a time said by him to have been between 6.45pm and 7.00pm, Tame left the Port Admiral with the intention of walking to the Monkey House at Exeter. His aim was to endeavour to make contact with a woman known as Annette. He said that the appellant accompanied him. 38. Tame testified to the fact that, having crossed the river and prior to arriving at the Monkey House, the appellant and he passed the Exeter Hotel. Shortly thereafter, they paused at a vacant allotment near a service station. According to him the appellant said "Hang about a minute, won't be a minute, going in here". The latter thereupon entered premises (which Tame was totally unable to describe) next to the service station. 39. Tame claimed that the appellant re-appeared about 5-7 minutes later. It was then dusk, but not pitch black. He alleged that the appellant thereupon said to him, "There was a bit of drama, may have gone too far". Tame said that he did not pursue the topic, but that the two of them continued on a short distance to the Monkey House, turning off Semaphore Road to the left at the next street after the point at which they had stopped. 40. It was Tame's evidence that, on arrival, they went into the bar and ordered two beers - but that the appellant went to the toilet, saying that he was going to wash his hands. Tame insisted that he saw something on the appellant's hand that could have been blood. 41. On the evidence of this witness the two men only remained for about 10 minutes, after which they left in a taxi which the barman booked, at the request of the appellant, in the name of Smith. He averred that they drove back to the Port Admiral and went inside. The appellant sat in the front of the taxi and he sat in the rear seat. 42. It was Tame's memory that the two of them arrived back at the Port Admiral at between 7.30pm to 8.00pm. The appellant left after having one drink. 43. As the learned trial judge pointed out to the jury, Tame's evidence fell far short of accounting for what happened for the whole period of one and a half hours or more which elapsed from when the two men allegedly left the Port Admiral to go to the Monkey House and when the taxi eventually re-delivered them to the Port Admiral at 8.38pm. As he put it, on Tame's story, there was a lot of unexplained time. 44. Police later determined that the distance from the Port Admiral to the scene of the murder was slightly in excess of 2 kilometres and that it would have taken not less than something over 23 minutes to walk the distance. As the learned trial judge put it to the jury, such a time estimate may have been unduly optimistic in the case of two inebriated men. 45. At a later stage the police seized various items of clothing from the appellant. The left cuff of a shirt seized tested positive for traces of human blood. A jumper was also examined and tested positive for human blood of unknown type. Traces of human blood were found on the appellant's trousers and the left shoe of a pair of sand shoes. Groupings were obtained from the traces on the trousers, sand shoes and the left cuff of the shirt. 46. Scientific tests revealed that none of the blood stains could have originated from the appellant, except that on the left sand shoe. Those on the shirt, and some of those from the trousers, could have come from Pollard, but others on the trousers could not have come from him. The blood on the left sand shoe could not have come from Pollard. 47. As the learned trial judge pointed out to the jury it had to be borne in mind that, on the expert evidence, the grouping of the blood stains compatible with Pollard's blood grouping also occurred in about 50% of the population. 48. The foregoing summation constituted the core of the Crown case, but it called some additional evidence in an endeavour to establish a possible motive. It is significant that much of this was led and a record of interview with the appellant, which, in large measure, focused upon similar aspects, was put in towards the conclusion of the Crown case after Tame had given evidence. The jury was left with the final "atmosphere" generated by it. 49. A pawnbroker named Newell, who carried on business at 100 St. Vincent Street, Port Adelaide gave evidence that his secondhand dealer's book contained an entry dated 7 November 1989 recording the purchase, at 11.30am, from an Edward Douglas Owen, said to reside at 20 Beadnell Terrace, Gawler East of a Black and Decker drill and a box of tools. Identity was noted as being a driver's licence No. 966235. Newell also produced a record made at 11.40am on 1 November 1989 of the pawning by the same person of a National Quintrex portable colour television receiver. Yet a further pawn transaction with the same person was recorded as of 3.00pm on 6 November 1989. This related to a cream Thorn portable colour television receiver. 50. Newell was unable to identify the appellant as the person involved in the transactions. However, it was clear that the licence number above referred to related to a licence issued to the appellant. The appellant told the police that, occasionally, he had slept in an old Toyota vehicle (to which reference will shortly be made) and had - for a time - lost his licence. He had subsequently found it on the floor of that vehicle on the morning of Melbourne Cup Day in the carpark opposite the British Hotel. 51. A handwriting expert called by the Crown was of opinion that the entry of 7 November 1989 in the secondhand dealer's book was probably signed by the appellant. However, he reached no opinion as to the authenticity of the signatures on the pawn contracts because of what he described as "a large variation within those signatures". 52. The appellant steadfastly denied to the police that he ever entered into any of the transactions recorded in Mr. Newell's books. 53. Evidence was called by the Crown to the affect that, between 6.30pm to 7.00pm on 7 November 1989, some person left a White Toyota Corona motor vehicle parked adjacent to the premises of Coastal Trailer Hire, which forms portion of the service station adjacent to the premises in which Pollard lived. Subsequent examination revealed that this had been "hot-wired". The left front tyre was almost flat. It was ascertained that the vehicle belonged to a John Robert Andrews, who was not called as a witness. The jury was told that he had died prior to trial. 54. The appellant conceded to police officers that he knew Andrews and had, on one occasion, been given the key to the car. He had driven it to the Coles carpark, where he had lent it to a person called Monty, ostensibly for two hours. However, Monty had not returned it for "a couple of days". The appellant said that he had slept in the vehicle "a couple of times", but had not driven it on the day of Pollard's death. 55. During the record of interview Detective Ingham put to the appellant that Andrews had alleged that, on one occasion, the appellant had driven the latter to a secondhand dealer's premises, where the appellant had sold a stolen television set. The appellant denied such an occurrence. 56. Evidence of this portion of the record of interview was allowed to go before the jury. 57. In his opening the Crown Prosecutor postulated to the jury a thesis that the appellant went to Pollard's room on 7 November 1989 to take the television set and (presumably) sell it. He speculated that he may well have taken Andrews' car to transport it away, but had been foiled in his attempt because Pollard's television receiver was bolted to the table. 58. I pause at this point merely to suggest that such a theory scarcely held any water on the Crown's own evidence. According to Tame the appellant was with him elsewhere at the time when the Toyota was left at the service station site and, even if Tame's evidence is taken at face value, it runs quite counter to the probability of there being any premeditated plan of the nature suggested. Exit the Crown theory as to the postulated possible motive] As the learned trial judge expressed it to the jury, the Toyota car evidence was no more than a red herring. 59. All of the foregoing material must be viewed against the background that, in his opening, the Crown Prosecutor had made reference to several potentially highly prejudicial matters as to which Tame failed to come up to proof. For example, Mr. Boylan opened on these bases:- "... Before they left the Port Admiral Hotel, or while they were walking between the hotels, the accused asked Billy Tame 'Can you hot wire a car?' That may be an important piece of evidence and I will return to it and hot wiring the car means, of course, in general terms, starting a car without using the ignition key. Tame answered that he could hot wire a car once, but that was 25 or 30 years ago. ... ... The accused was asked, and he answered a number of questions, about an old Toyota motor car which belonged to an acquaintance of the accused named John Andrews, often called London Johnny. Mr Andrews has died since November 1989. Now, I mention this evidence because you may think it important as it may go to a possible motive for the killing of Pollard. This, of course, as in all matters of fact, is solely a matter for you. But as it took up some of the conversation and as you will hear some evidence about the car, I think you should have some idea of how it might fit into the picture. I mention that the Crown does not have to prove a motive to prove its case. Do you remember that I told you earlier that just before walking between the two hotels - the Port Admiral and the Monkey House - or on the walk, Tame said that the accused said to him, 'Can you hot wire a car?' Well, ladies and gentlemen, on the night that Pollard was killed, John Andrews's Toyota car was parked in a service station next door to Pollard's house. You'll see photographs and you'll hear from police that it appeared to have been hot-wired - that is, got into a condition in which it could be started without use of the ignition key. ... ... In his interview with the police, the accused denied that he had ever been into the shop called Peter's Disposals. If you find that the accused did sell or pawn televisions to get money, you might think that he went to the deceased's house on 7 November 1989 to take the deceased's television. There was a television in the room, and you will remember that the accused had been in the room the previous night. Of course, if he intended to take the television, he would need some means of transporting it from Pollard's house. You might think that the car had been left in the service station for that reason. As I said, the deceased's television was in his room when the body was found and there was blood on it. You'll see photographs of that and, indeed, the television itself will be produced. It is interesting to note that the television was bolted to the table on which it sat. ..." 60. I have dwelt upon an analysis of the Crown case at some length because a clear understanding of it and how it was presented to the jury is vital to a proper appreciation of the issues arising on this appeal. That case was, as I have already pointed out, entirely circumstantial. At the end of the day, there remained a number of important unresolved questions, quite apart from any consideration of Tame's credibility. 61. The grounds of appeal filed in this matter raise a number of separate and discrete issues. 62. The primary assertions made are that the learned trial judge failed adequately to direct the jury as to the burden of proof in relation to circumstantial evidence and that, having regard to the state of the evidence, the verdict was unsafe, unsatisfactory and against the weight of the evidence. It was further argued that a failure to direct as to the effect of possible lies told by the appellant, in the event that the jury accepted Tame's evidence that the appellant was in his company on 7 November 1989, was, of itself, a fatal flaw in the summing up. 63. Other specific pleas complained of the asserted inappropriate admission of certain evidence (including, but not limited to, that related to a suggestion that the appellant was somehow illicitly pawning or selling television receivers) or, alternatively, a failure to direct as to the proper use to be made of that evidence; an alleged failure adequately to advise the appellant in person of the circumstances in which he was entitled to cross-examine Crown witnesses as to prior convictions; asserted failure to direct as to the relevance of intoxication, the danger of acting on Tame's evidence and the use that could be made of the evidence of blood found on the accused's clothing; and a failure to leave the alternative verdict of manslaughter to the jury. 64. In the event, it becomes unnecessary to plumb all of these questions to the depths. Having regard to the primary conclusion to which I have come I propose to limit my consideration to several only of the principal questions. 65. I first come to the aspect of circumstantial evidence. As to this the law concerning the obligations of the trial judge is well settled. 66. It has long been held that the primary duty of a trial judge in a case such as this is, of course, specifically to direct the jury to the effect that, not only should it be a rational inference from the evidence that the accused is guilty of the crime charged, but that the jury must be satisfied that the facts proven beyond reasonable doubt were such as to be inconsistent with any other rational conclusion. (See, for example, the authorities adverted to by White J in The Queen v. Trimboli (1979) 21 SASR 577 at 588-9. They must be told that it is their duty to acquit if there is any reasonable hypothesis consistent with the innocence of the accused. (Peacock v. The King [1911] HCA 66; (1911) 13 CLR 619) 67. Beyond that the other detailed directions required to be given in a case such as that now before us are as discussed by the High Court in Chamberlain v. The Queen (No. 2) [1984] HCA 7; (1984) 153 CLR 521, and further explained in Shepherd v. The Queen [1990] HCA 56; (1990) 65 ALJR 132. 68. In the latter case, the judges of the High Court were at pains to make the point that it appeared that dicta in Chamberlain had been misconstrued into a perceived absolute requirement that juries must be told that they cannot use a fact as a basis for inferring guilt unless that fact is proved beyond reasonable doubt. 69. Mason CJ expressed the view that, with the benefit of hindsight, some statements in Chamberlain were, perhaps, unfortunate. He felt that the true principle to be conveyed to the jury is that it cannot view an intermediate fact as an indispensable basis for an inference of guilt unless, at the end of the day, they are satisfied of the existence of that fact beyond reasonable doubt. 70. Dawson J discussed the core concept in these terms:- "Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved. The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be

that of the guilt of the accused. However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when

the crime was committed. On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence, vol 9 (Chadbourn rev 1981), par 2497, pp 412-414 - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence. As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact - every piece of evidence - relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately. In Chamberlain Gibbs CJ and Mason J, at 535, accept that evidence may have a cumulative effect and point out that it is the duty of the jury to consider all the facts together at the conclusion of the case. They say: 'At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness "separately in, so to speak, a hermetically sealed compartment"; they should consider the accumulation of the evidence.' Gibbs CJ and Mason J apply the same principle to circumstantial evidence, saying that 'in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it'. They continue, at 536: 'It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference.' Up to that point, Gibbs CJ and Mason J offer no support for the proposition that a jury may only draw inferences against an accused from facts which have been proved beyond reasonable doubt. But their Honours add (and this would appear to be the main passage relied upon by the applicant in this case):

'Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence.' Now that passage considered in isolation may support the applicant's submission, but it cannot do so in the light of the passage which precedes it. It is, I think, quite plain that, in saying that a 'fact as a basis for an inference of guilt' must be proved beyond reasonable doubt, their Honours are referring to an intermediate fact which is a necessary basis for the ultimate inference. They must be doing so, for it is otherwise not possible to say, as they do previously, that the jury can draw an inference of guilt from a combination of facts, none of which viewed alone would support the inference. And of course it is quite correct to say that an intermediate fact which is an indispensable step upon the way to an inference of guilt, whether it be a fact derived from a single piece of evidence or a conclusion of fact drawn from a body of evidence, must be proved beyond reasonable doubt if the ultimate inference is to be the only reasonable hypothesis. To take the same example I gave previously, the presence of the accused when the crime was committed is in many cases an intermediate fact which is essential before an ultimate inference of guilt can be drawn. Often it may be unnecessary to identify it as an intermediate fact, but if it is necessary to do so then it is clearly correct to say that it must be proved beyond reasonable doubt before an inference of guilt can be drawn consistently with the criminal standard of proof. Viewed in that light, the remainder of their Honours' comments made on 536 does not support the applicant's submission. They add: 'It seems to us an inescapable consequence that in a criminal case the circumstances from which the inference should be drawn must be established beyond reasonable doubt. We agree with the statement in R v Van Beelen ((1973) 4 SASR 353 at 379), that it is "an obvious proposition in logic, that you cannot be satisfied beyond reasonable doubt of the truth of an inference drawn from facts about the existence of which you are in doubt".' The inference referred to is clearly the ultimate inference of guilt and 'the circumstances from which the inference should be drawn' cannot, having regard to the first passage which I have set out, refer to each individual fact going to support the inference and must be a reference to any intermediate conclusion of fact required to be established before the ultimate inference can be drawn." 71. In Shepherd Dawson J then went on to cite with approval the following extract from the joint judgment of this Court in The Queen v. Van Beelen (1973) 4 SASR 353 at 374:- "But the requirement of proof beyond reasonable doubt relates to the final stage in the process; the jury is not, in our view, required to split up the various stages in the process of reasoning leading to the conclusion of guilt beyond reasonable doubt and to apply some particular standard of proof to each of those steps ... and to instruct them to do so would, in our view, be confusing and possibly misleading and would tend to the imposition of an artificial and scholastic straight-jacket on their deliberations. That, of course, does not mean that they ought to be encouraged or permitted to draw inferences of guilt from doubtful facts. As a matter of common sense it is impossible to infer guilt beyond reasonable doubt from facts which are in doubt. There is a clear distinction between drawing an inference of guilt from a combination of several proved facts, none of which by itself would support the inference, and drawing an inference of guilt from several facts whose existence is in doubt. In the first place the combination does what each fact taken in isolation could not do; in the second case the combination counts for nothing." 72. Having done so he went on to comment:- "Of this passage Gibbs CJ and Mason J say, at 537-538: 'It is clear that the first part of this statement was not intended to contradict the second. It refers only to the manner in which the jury should be directed. It is quite correct to say that the jury are not required to split up the various stages in the process of their reasoning; they are not required to make findings on questions of primary fact, and jurors who agree in reaching the same ultimate conclusion may nevertheless disagree as to what evidence is to be accepted, or as to what inferences are to be drawn from evidence which they do accept. However that does not mean that the jury may draw an inference of guilt from a fact which is not proved beyond reasonable doubt.' Again, in saying that a jury may not draw 'an inference of guilt from a fact which is not proved beyond reasonable doubt', their Honours must, in the light of the passage which they cite from R v Van Beelen, be referring to a conclusion of fact upon which the ultimate inference is based and in doing so are not referring to the basic facts - the individual items of evidence - which are employed in reaching that conclusion." 73. It need only be emphasised in particular that, as was stressed by Walsh J in The Queen v. Medina (1990) 46 A Crim R 132 at 147, there is a particular need for the jury to be made to understand the point that, in approaching their task on the above basis, it should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It ought to decide whether it accepts the evidence of the particular fact, not by considering the evidence relating to it in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which, viewed alone, would support that inference. 74. The above concepts present little difficulty to the legally trained mind, but the practical problem is to impart them, as appropriate to the individual case, to a lay jury in terms which are readily digestible and understandable. How that is to be achieved and the detail into which a trial judge will need to descend will necessarily vary from situation to situation. As was said by King CJ in The Queen v. Matthews (1984) 36 SASR 503 at 507:- "... Counsel relied upon Chamberlain v. The Queen. I do not find in that case any authority for the proposition that a judge is under a duty, in every trial in which the case for the prosecution depends upon circumstantial evidence, to direct the jury that their reasoning must be based only upon facts which they are satisfied are proved beyond reasonable doubt. Chamberlain v. The Queen establishes that the jury can draw inferences only from facts which are proved beyond reasonable doubt and may not rely in its reasoning upon facts about which it is doubtful. It does not follow, however, that it is obligatory upon the trial judge in every case depending upon circumstantial evidence to give such a direction. The appropriate directions must depend upon the circumstances of the case. There are cases in which an express direction of that kind might have the undesirable effect of focusing the jury's attention upon whether the primary facts have been proved rather than upon the

issue whether the charge has been proved. It might be led to fragment its consideration of the case in a way which would be detrimental to the successful performance of its task. There are other cases, however, in which the case for the prosecution depends upon inferences to be drawn from a number of critical facts which, in order that a correct conclusion may be reached, require to be deliberated upon separately. In such a case, it would be the duty of the judge to direct the jury's attention to those critical facts and to direct the jury that it can only draw a conclusion of guilt if satisfied about each of those critical facts beyond reasonable doubt. Whether a direction as to the proof of individual primary facts or intermediate inferred facts is required must depend upon the particular case and the trial judge is required to frame his direction in a way which will provide the best assistance to the jury in arriving at its decision in the particular case. If, of course, the trial judge directs the jury in terms of proof of primary facts, he must explain that the standard of proof is proof

beyond reasonable doubt." 75. In the present case, the total fabric of the Crown case rested upon a complex of critical circumstantial factual evidence, some strands of which were clearly of doubtful value and others of which needed to be analysed with great care, e.g. the results of the blood analysis of the appellant's clothing and the inferences which could safely be drawn from it. 76. It follows that a full and careful direction on the proper approach to circumstantial evidence was vital, particularly as the jury did not have the advantage of any final address by counsel. 77. In the course of his summing up the learned trial judge, whilst he did identify a number of aspects of the circumstantial material and, in effect, comment upon their strengths and weaknesses, simply did not deal with the conceptual approach to circumstantial evidence at all. He merely contented himself with a general direction as to the Crown onus of proof. 78. To my mind such an omission constituted a fundamental error which necessarily vitiated the verdict of the jury - the more so as the appellant was unrepresented. For that reason alone, the conviction of the appellant could not be allowed to stand. 79. But that problem did not stand alone. Nothing was said in the summing up concerning the eventuality that the jury accepted Tame's evidence that the appellant was with him on 7 November 1989 and concluded that the appellant had deliberately lied to the police in denying that fact. Similar issues also arose concerning the view which the jury took concerning the pawn and sale transactions and the circumstances related to the Toyota vehicle and loss of the driver's licence. 80. This type of situation has been the subject of recent consideration on a number of occasions in cases such as The Queen v. Pahuja (No. 2) [1989] SASC 1434; (1989) 50 SASR 551, The Queen v. Harris (1991) 159 LSJS 262, The Queen v. Jamieson (1991) 160 LSJS 24 and other authorities. This Court has stressed the need in circumstances such as the present case of explaining clearly to the jury the manner in which lies ought to be viewed and the permissible and impermissible use of lies in the reasoning process. 81. That was not done in the instant case and Mr. Boylan fairly conceded that the Crown was unable to support the omission to do so. 82. In the course of her submissions Mrs. Shaw, of counsel for the appellant, dilated upon a series of other issues, one of which was the omission of the learned trial judge to direct as to how the jury ought to view the probable intoxication of the appellant in the event that they were satisfied that the appellant had been Pollard's assailant. It was her contention that such a direction ought to have been given having regard to the clear evidence of the probable ingestion of the appellant of a good deal of alcohol on the day in question, coupled with a direction as to the possible alternative verdict of manslaughter. 83. I consider that, when one regards the cumulative impact of all of the indicia of intoxication adverted to by Mrs. Shaw in the course of her submissions there is considerable force in that contention, although it is unnecessary here to discuss the point in detail. 84. Although the grounds of appeal touched on quite a number of other issues I only find it necessary briefly to touch on one of them. 85. As has already emerged, the witness Tame fell far short of proof, having regard to the Crown opening. That fact became apparent relatively early in the trial. Notwithstanding that, the appellant was not informed of his right to apply for a mistrial on the basis of the prejudice potentially resulting to him. Even worse two other most unfortunate and highly prejudicial consequences resulted. 86. A great deal of evidence which tended to reflect adversely on the honesty of the appellant and was quite irrelevant to the real issues was allowed to go before the jury. What was worse, the appellant, who, as a lay person, was not to know the implications of what transpired, was falsely led into the trap of cross-examining with regard to the vexed issue of motive in a manner which let in highly prejudicial and otherwise inadmissible hearsay material. Moreover, real issues as to whether, in the circumstances as they developed, large segments ought to have been excised from the record of interview before it was deposed to in the dying stages of the trial were not addressed. 87. Additionally, a very important issue arose as to whether, in light of the other Crown evidence, the prejudicial testimony of Clarkson concerning the events of the night preceding 7 November 1989 was either relevant or admissible. 88. The responsibilities of the trial judge in these regards, apropos an unrepresented accused, are discussed in authorities such as The Queen v. MacPherson [1981] HCA 46; (1981) 147 CLR 512 and The Queen v. Gidley (1984) 3 NSWLR 168. It appears to me questionable as to whether such responsibilities were fully discharged. 89. In so commenting I must express considerable sympathy for the learned trial judge. Having regard to the manner in which the trial unfolded he was confronted with a most difficult and unenviable task. It is easy, in the dispassionate environment of an appeal court, to be critical. 90. However, at the end of the day, what is important is that justice and a fair trial be accorded to an accused. For the reasons advanced that was not the practical result of the case at bar.

JUDGE2 DUGGAN J A summary of the facts and issues raised at the hearing of this appeal is set out in the judgment of Olsson J. 2. Insofar as they went no criticism could be made of the learned trial judge's directions as to the onus and standard of proof. They were clear and unambiguous and his Honour dealt with them at the commencement of the summing-up and returned to them in his concluding remarks. However he did not specifically direct the jury that before they convicted the accused it was necessary for them to reach the conclusion that not only was guilt a rational inference, but that it was the only rational inference that could be drawn from the circumstances. (See Peacock v. The King [1911] HCA 66; (1911) 13 CLR 619; Plomp v. The Queen [1963] HCA 44; (1963) 110 CLR 234.) 3. The evidence against the appellant was entirely circumstantial. Although there is no rule of law or practice which requires the giving of the expanded direction in every case which is dependent upon circumstantial evidence (Grant v. The Queen [1905] ArgusLawRp 161; (1976) 11 ALR 503 at p 505), the absence of the direction in such a case will usually require a careful examination of the summing-up as a whole in order to determine whether it was adequate. 4. In my view it was of crucial importance in the present case for the jury to consider whether the various items of evidence advanced by the Crown to establish guilt might be open to explanations consistent with innocence. The blood on the appellant's person and clothing, the presence of the appellant in the vicinity of the murder scene at the time deposed to by Tame and the alleged comment by the appellant to Tame that "there was a bit of drama, may have gone too far" as well as the evidence relating to motive were all items of evidence which had to be assessed in this manner. However, although the attention of the jury was directed to these topics in the course of the summing-up (and in some instances in a way quite favourable to the appellant), the jurors were not specifically directed to consider the possibility of innocent explanation. Criticisms which might be made of the primary evidence were identified, but little was said about the process of drawing inferences from the evidence. By way of example the learned trial judge told the jury that the evidence of Tame was "the crux of the matter" and assistance was given to the jurors in the matter of the assessment of Tame's credibility. But nothing was said as to the next step of weighing up the significance of that evidence if it were accepted. 5. It should be remembered that Tame was not an eye witness to the alleged murder. His evidence placed the accused in the vicinity of the deceased's flat at a relevant time and included an alleged statement by the appellant from which the jury might have drawn the inference that the appellant was implicated in the death of the deceased. Consideration as to the possibility of any other explanation consistent with innocence was crucial to the jury's evaluation of this evidence. In these circumstances, therefore, it is my view that a specific direction on the application of the onus and standard of proof to circumstantial evidence should have been given. 6. There is a further matter which arises from Tame's version and the appellant's response to it. When spoken to by the police the appellant denied that he was with Tame on the evening of the murder or at any other time during the day. Tame's version was supported in one respect by the taxi driver Mimidas who identified the appellant as being one of the two men he picked up at the Lord Exmouth Hotel. In order to convict, the jury must have accepted Tame's version and this would lead inevitably to the conclusion that the appellant lied to the police. No direction was given to the jury as to the restricted circumstances in which lies told by an accused person may be used as positive evidence of guilt. In the course of the argument on the appeal Mr Boylan conceded that such a direction should have been given. 7. In my view the inadequacies of the summing-up to which I have referred require this court to set aside the conviction and order a new trial.

JUDGE3 ZELLING AJ I have read in draft the reasons of Olsson J and Duggan J. 2. I concurred with them in the order made, and there is little that I wish to add. 3. It was unfortunate that much of the Crown evidence tended to create a false issue. The learned trial Judge ruled on that issue, rather than on the matters which were agitated before us, and not before him. 4. In the result there must be a new trial.

THE QUEEN v. OWEN No. 570 of 1991 Judgment No. 3032 Number of pages - 18 Murder (1991) 56 SASR 397 [1991] SASC 3032 (26 September 1991)

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THE QUEEN v. OWEN No. 570 of 1991 Judgment No. 3032 Number of pages - 18 Murder (1991) 56 SASR 397 [1991] SASC 3032 (26 September 1991)

Cases Cited (13)