Inferences

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.