Friday, March 23, 2007


An area of the law of evidence that has long been a subject of discussion and confusion is the drawing of inferences. In R v Hillier [2007] HCA 13 (22 March 2007) the High Court of Australia corrected an error of reasoning by an appellate court on this topic.

The accused had been convicted of murdering his estranged wife, his motive being alleged to be to obtain custody of their children. There was only circumstantial evidence of his guilt. The Court of Appeal (ACT) had quashed the conviction, holding ([2005] ACTCA 48 at [105]):

"other aspects of the evidence, such as that relating to the unusual features of the injuries she suffered and the apparent use of the handcuffs … [made] it difficult to reconstruct what actually occurred on the night in question and the evidence suggesting that another person may have been present at the time of her death".

The Court of Appeal found that this made it impossible to conclude, beyond reasonable doubt, that the accused was guilty.

As the High Court pointed out, it is wrong to isolate pieces of evidence and use them to support an inference inconsistent with guilt. Gummow, Hayne and Crennan JJ, jointly, with Gleeson CJ concurring, and Callinan J agreeing in allowing the Crown’s appeal (but who would have ordered a retrial, rather than, as the others did, remit the case to the Court of Appeal for reconsideration), held at para 46:

“The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances [footnote: See, for example, Martin v Osborne (1936) 55 CLR 367 at 375; Plomp v The Queen (1963) 110 CLR 234 at 243 per Dixon CJ.]. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence [footnote: Shepherd v The Queen (1990) 170 CLR 573 at 579 per Dawson J].”

So, because there were circumstances consistent with innocence, the question was whether, in the context of all the evidence in the case there was a reasonable doubt.

This is a slightly different matter from another circumstantial evidence problem that causes much debate: to what standard must circumstantially-proved facts be established before they can be used to support an inference of guilt? In some cases, where the reasoning progresses along a logical path, each step depending on the one before, the answer is clearly that each link in the chain of reasoning must be proved beyond reasonable doubt. But even here, this is not to say that, where more than one item of evidence is needed to constitute proof of the fact relied on for each step, each must be proved beyond reasonable doubt. That is because, where something is proved by circumstantial evidence, the circumstances must be seen in combination, not in isolation. In isolation, they might be doubtful, but the question is whether, in combination, they must be true and, in the case of reasoning in logical steps, each necessary step in the reasoning is established.

It is only the elements of an offence that need to be proved beyond reasonable doubt; other facts need not be.

It is unlikely that there is a difference between the laws of Australia and New Zealand in this regard, although the matter has not always been clear. The High Court of Australia, in the present case at para 48, quoted with approval an earlier decision (the famous “the dingo’s got my baby!” case R v Chamberlain (No 2) (1984) 153 CLR 521 at 535) in which R v Thomas [1972] NZLR 34 at 37-38, 40 was cited. Thomas was a notorious case in New Zealand, the convicted accused ultimately being pardoned. Thomas has also been cited with approval in Canada: R v Morin (1988) 44 CCC (3d) 193.

However, the standard of proof of facts which form the basis for inferences of elements of the offence, may not be universally agreed. The position in Australia was recently summarised by Kirby J, in a case not cited in Hillier: De Gruchy v R (2002) 211 CLR 85 (HCA), at para 47:

“In Australia, but not in England [footnote: Hodge's Case (1838) 2 Lewin 227 [168 ER 1136] per Alderson B; McGreevy v Director of Public Prosecutions [1973] 1 WLR 276; [1973] 1 All ER 503. Samuels, "Circumstantial Evidence", (1986) 150 Justice of the Peace 89] and some other countries, [footnote: As to New Zealand, see R v Hedge [1956] NZLR 511; R v Hart [1986] 2 NZLR 408 at 413; cf Police v Pereira [1977] 1 NZLR 547. As to the position in Canada see R v Cooper [1978] 1 SCR 860 and in the United States see Holland v United States 348 US 121 (1954)] a rather strict approach is taken to the instruction that must be given about circumstantial evidence. The jury must be warned that the primary facts, from which an inference of guilt is to be drawn, must themselves be proved beyond reasonable doubt. The inference of guilt must be the only inference that is reasonably open on all the primary facts which the jury find to be established to the requisite standard of proof. [footnote: Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 599 per Brennan J; cf R v Van Beelen (1973) 4 SASR 353 at 379-380. See also Peacock v The King (1911) 13 CLR 619 at 634; Glass, "The Insufficiency of Evidence to Raise a Case to Answer", (1981) 55 Australian Law Journal 842 at 852-853.”]"

This is not to say that these primary facts must individually prove guilt beyond reasonable doubt.

Interestingly, in Chamberlain (No 2), and in Thomas, the courts were ultimately shown to have been wrong to uphold convictions, because of errors in the evidence upon which inferences of guilt were based. In Chamberlain (No 2) the red splashes in the car were not, it was later discovered, blood; in Thomas the police were later found to have planted evidence in order to connect the accused with the murder. Perhaps, in now being more rigorous in its requirements concerning the factual basis for inferences, Australia has learnt a lesson that New Zealand still has not.

Thursday, March 22, 2007

The third way

For an interesting study in how the most senior judges can differ over problems in criminal law, one need go no further than yesterday’s decision by the High Court of Australia in R v Taufahema [2007] HCA 11 (21 March 2007).

Here, a policeman had been shot dead by a man who got out of a car, of which the respondent, in this Crown appeal, was the driver. There were four occupants in this car, all on parole, all carrying guns, and with them in the car were 2 pairs of gloves and a hockey mask. The car had been, briefly – for up to 20 seconds – chased by the officer in a patrol car, until it came to a halt in an accidental collision. That was when the murderer, Mr P, got out with his gun and killed the victim.

The prosecution’s case had been advanced in two ways at trial. Initially, it was alleged that the men in the car had agreed among themselves to use guns to prevent their being apprehended. By the end of the evidence in the trial, the prosecutor, after a lengthy discussion with the judge, decided to put the case to the jury on the basis that the common agreement between the men was simply to assist each other to avoid apprehension. The advantage this gave the prosecution was that it was unnecessary for the jury to decide that the use of a gun was part of this common agreement. The respondent, Mr T, was convicted of murder as a secondary party, and that must have been because the jury was satisfied that he had foreseen the possibility that, in avoiding arrest, one of the others would use a gun.

Mr T appealed against his conviction to the CCA NSW, on the basis that before he could be liable in this way, a common intent to commit a crime would have to be proved, and here, escaping apprehension was not a crime. Since there was no “foundational” crime, the CCA quashed his conviction and entered an acquittal. The Crown applied, in this present case, to the High Court of Australia for leave to appeal this decision, and for an order for a new trial.

The High Court held, by a majority of 4 to 3, that there should be a new trial. The dissenters were, jointly, Gleeson CJ and Callinan J, and in a separate judgment, Kirby J. The majority (Gummow, Hayne, Heydon and Crennan JJ) delivered a joint judgment.

The Crown’s application was to advance the case on the basis that the men in the car had planned to commit robbery, and this killing was a foreseeable consequence of the pursuit of that common purpose. This way of inviting a conviction had not been offered before in the proceedings.

The main issues were:

  •  Should the public interest in the prosecution and conviction of offenders govern the decision?

  •  Should the prosecution be bound by its tactical decisions at trial?

  •  Would ordering a new trial amount to giving the prosecution an opportunity to make a new case, contrary to principles of avoiding double jeopardy?

  •  Should the prosecution be allowed to raise the new point on appeal, when it hadn’t raised it either at trial or on the appeal in the court below?

  •  Was there sufficient evidence of the newly proposed common purpose to warrant a new trial?

  •  How difficult should it be for an appellate court’s order for an acquittal to be overturned?

  •  How much involvement should judges have in the way the prosecution chose to bring its case, especially if the prosecution could be said to have squandered its chances at trial?

  •  Does the jurisdiction of the High Court of Australia include acting as an appellate court or as a court of error? Is the HCA limited to reviewing the exercise of a discretion by the CCA?

  •  Was there a miscarriage of justice for which a more adequate remedy was available than an order for a new trial, or did the fact that this was the murder of a policeman require a decision by a jury rather than an acquittal arising from a deficiency in the law?

The case illustrates how important matters of policy can arise from relatively straightforward facts. So many policy issues arose here that any decision could have been justified, which explains the 4 - 3 division between the High Court justices.

The problem with the case at the trial was that the prosecution became conscious of the weakness of the available inference of agreement to use a gun to prevent apprehension, which was the original basis on which it put its case. Instead of accepting almost inevitable defeat, the prosecution changed its stance. It would have been possible to allege, at the outset, liability in the third way - that identified on appeal, involving an allegation of an agreement to commit robbery. Had that been done, the defence would have been fully informed of its jeopardy before the trial.

Sometimes, however, mistakes just can't be allowed to happen.

Tuesday, March 13, 2007

Lurking doubts

Recently the Privy Council has reminded us of the appropriate way to approach the question whether there has been a substantial miscarriage of justice in a case, requiring the quashing of a conviction: Dookran v The State (Trinidad and Tobago) [2007] UKPC 15 (7 March 2007).

The facts of the case, which are a tale of sex, love, jealousy, and death, do not need to be traversed here. At issue, in respect of the appeal by one of the two appellants, the daughter, was whether the Court of Appeal had applied the proviso correctly. That Court, having decided that her statement should not have been used in evidence, nevertheless concluded:

“In all the circumstances we hold that the case against this appellant was strong even in the absence of the statement and there was no miscarriage of justice.”

The Privy Council pointed out that this was the wrong test, para 14:

“On the contrary, the Court of Appeal were entitled to apply the proviso and uphold [her] conviction only if they could be satisfied that, without that evidence, a reasonable jury would inevitably have convicted her. The Court of Appeal did not apply that test and so their conclusion that there was no miscarriage of justice and that her appeal should be dismissed was fundamentally flawed.”

Given that the Court below had applied the wrong test, what should the Privy Council do? Obviously, it had to apply the correct test: would a reasonable jury inevitably have convicted? The other evidence against her was from an eyewitness (her sister) to the killing, who had been treated as a suspect when interviewed by the police. At trial, the prosecution case was that her evidence was supported by the appellant’s own statement. Having held that that statement should not have been used in evidence, the eyewitness evidence was unsupported. The Privy Council concluded, para 17:

“It is impossible to affirm that, without that corroboration from the admission statement, any reasonable jury would inevitably have rejected the criticism of [the eyewitness’s] evidence and relied on her evidence alone to convict [this appellant]. In these circumstances there is no room for applying the proviso.”

The other appellant was the mother of the first appellant (and, indeed, of the victim and the eyewitness). The Board summarised the basis of the argument for her as follows, para 28:

“Although reference to lurking doubt has been criticised from time to time as an unwarranted gloss on the language of the statute regulating appeal proceedings in England and Wales, it is really just one way in which an appeal court addresses the fundamental question: Is the conviction safe? In the vast majority of cases the answer to that question will be found simply by considering whether the rules of procedure and the rules of law, including the rules on the admissibility of evidence, have been applied properly. Very exceptionally, however, even where the rules have been properly applied, on the basis of the "general feel of the case as the Court experiences it", there may remain a lurking doubt in the minds of the appellate judges which makes them wonder whether justice has been done: R v Cooper [1969] 1 QB 267, 271, per Widgery LJ.”

In considering whether there was this sort of lurking doubt, the Board mentioned the following points. The mother’s statement was taken in circumstances not unrelated to those in which inadmissible statements had been taken (para 31). The trial judge seemed to have been concerned that too much weight might be given to her statement (para 32). There were factors which could have made here more vulnerable than an average person when interviewed in the police station (para 33). A material witness to the events in the police station was not available to give evidence at the trial (para 34). The factors affecting the credibility of the eyewitness also applied to this appellant (para 35). These matters led the Board to conclude:

“…their Lordships cannot avoid a residual feeling of unease about whether justice has been done in [the mother’s] case and so about the safety of her conviction. …”.

This case is a straightforward illustration of how appellate courts should approach the application of the proviso when complaints are made alleging the wrongful admission of evidence. It is noteworthy that the appellate court should not go about constructing a case against the appellant in place of the flawed case at trial. It should not try to explain away inconvenient circumstances in order to uphold a conviction. It should not, even, apply a high burden on the appellant of showing a reasonable doubt, in the sense of a doubt based on reason, or logic.