Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 (19 December 1990)

HIGH COURT OF AUSTRALIA

SHEPHERD v. THE QUEEN [1990] HCA 56; (1990) 170 CLR 573

F.C. 90/058

Evidence

High Court of Australia

Mason C.J.(1), Dawson(2), Toohey(3), Gaudron(3) and McHugh(4) JJ.

CATCHWORDS

Evidence - Criminal trial - Circumstantial evidence - Assessment by jury - Whether to be satisfied beyond reasonable doubt of each fact from which inference of guilt to be drawn.

HEARING

1990, October 3; December 19. 19:12:1990

APPLICATION for special leave to appeal from the Supreme Court of New South Wales.

DECISION

MASON C.J. I agree with Dawson J. and McHugh J. that Chamberlain v. The Queen (No. 2) [1984] HCA 7; (1984) 153 CLR 521 is not authority for the proposition that, in cases based on circumstantial evidence, juries must be directed that they cannot use a fact as a basis for inferring guilt unless that fact is proved beyond reasonable doubt. I am also in general agreement with the reasons given by Dawson J. for the conclusion that the giving of such a direction is not required either as a matter of law or in order to ensure conformity with the general standard of proof in criminal cases.

2. With the benefit of hindsight, it can now be seen that the joint judgment of Gibbs C.J. and myself in Chamberlain appears to have given rise to some misconception and that, accordingly, it has played a part in the course of reasoning by which courts of criminal appeal have come to the conclusion that the direction now in question should always be given. I refer particularly to the passage (at p 536):

"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".

3. In the first sentence in that passage it would have been more accurate to refer to "an intermediate fact as an indispensable basis for an inference of guilt". And, later on the same page, the reference to the passage quoted from Reg. v. Van Beelen (1973) 4 SASR 353, at p 379, might have been accompanied by a statement that it was to be understood in the same way. Nonetheless, when the discussion of the principles in the joint judgment (at pp 534-539) is read in its entirety and the particular passages (at p 536) to which I have referred are read in the light of the entire discussion, they should be understood in the sense stated by Dawson J.

4. It is necessary also to mention the discussion in the joint judgment of the application of the principles to the facts. We said (at p 559) that, because the jury could not be satisfied beyond reasonable doubt that the blood in the car was foetal blood, they could not safely accept as a primary fact from which an ultimate inference of guilt could be drawn that the blood was foetal blood. This statement, so it is suggested, supports the argument that the majority in Chamberlain intended to assert a principle that no fact could be used for drawing an inference of guilt unless that fact is proved beyond reasonable doubt. The short answer to this argument is that the Crown case based on the existence of foetal blood in the car was viewed as constituting a discrete step in drawing an ultimate inference of guilt and thus as an intermediate fact from which that inference could be drawn.

5. The way in which the joint judgment dealt with the Crown case based on the presence of foetal blood in the car is to be contrasted with the way in which the judgment dealt with the evidence on which it was held that the jury was entitled safely to convict. That other evidence included the blood in the car and on the objects in the car, such as the camera bag and scissors. Of this circumstantial evidence Gibbs C.J. and I said (at p 568):

"None of these facts, regarded in isolation, would

have entitled the jury to infer that Azaria had been

murdered or that Mrs. Chamberlain was responsible for the

murder. When the evidence of all these matters is

considered together, however, its probative force is greatly

increased. When, in addition, one considers the evidence as

to the presence of the blood on Mrs. Chamberlain's tracksuit

and trackshoes, the presence of the tufts, and the conduct

of the accused, including their statements which the jury

were entitled to regard as false, the evidence as a whole

entitled the jury safely to reject the hypothesis that the

baby was removed from the tent by a dingo, and to be

satisfied that the baby's throat had been cut in the car by

Mrs. Chamberlain."

6. True it is that the statement is made (at p 567) that some of these facts were established beyond reasonable doubt, as indeed they were. That is merely to underline the probative strength of the Crown case in so far as it rested on the establishment of those particular facts as a foundation for the drawing of inferences in conjunction with other evidence. And the penultimate paragraph in the judgment concludes with the statement (at p 568):

"There was other evidence which, if accepted, made the

Crown case one of overwhelming strength - in particular, the

evidence that the blood in the car and under the dashboard

was foetal blood, and the evidence of Professor Cameron

that he saw on the jumpsuit the imprint of a hand in blood.

Since we regarded that evidence as unsafe to form the

basis of a conclusion, we have not taken it into account

in deciding whether the convictions were unsafe or

unsatisfactory."

7. In the result I would grant special leave to appeal and dismiss the appeal.

DAWSON J. The applicant, who was convicted of conspiring to import heroin into Australia, made application for special leave to appeal upon a number of grounds. Only one of those grounds now remains, leave having been refused upon the others. The remaining ground as I understand it is, in effect, that the trial judge erred in failing to direct the jury that, in so far as the prosecution case rested upon circumstantial evidence, they might only infer the applicant's guilt where each fact upon which the inference was based was proved beyond reasonable doubt. A direction in those terms has, apparently, come to be known as a "Chamberlain direction" and was said to be required by the decision of this Court in Chamberlain v. The Queen (No.2) [1984] HCA 7; (1984) 153 CLR 521.

2. The learned trial judge gave the customary direction that, where the jury relied upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances: see Hodge's Case (1838) 2 Lewin 227 (168 ER 1136); Peacock v. The King [1911] HCA 66; (1911) 13 CLR 619; Plomp v. The Queen [1963] HCA 44; (1963) 110 CLR 234. Whilst a direction of that kind is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt. In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction. In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful. Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given. As Barwick C.J., speaking for the Court, observed in Grant v. The Queen (1975) 11 ALR 503, at p 504:

"Where the circumstances of the case seem to require

that some such direction be given, the summing up regarded

as a whole may prove to be, and generally may be likely to

be, inadequate. On the other hand, having regard to the

circumstances of the case and the nature of the summing

up, the failure to give the special direction may not in a

particular case result in an inadequacy of the summing up as

a whole. It may none the less be concluded from the terms

of the summing up that the jury were fully instructed."

Similarly, in McGreevy v. Director of Public Prosecutions (1973) 1 WLR 276; (1973) 1 All ER 503, the House of Lords refused to lay down a rule that any special direction should be given in relation to the use of circumstantial evidence.

3. I mention those cases, not to criticize the direction given by the trial judge, but to remark that in none of them was it suggested that, where the prosecution relies upon circumstantial evidence, an inference of guilt can properly be drawn only from facts which have been proved beyond reasonable doubt. Nor was it suggested that the jury should be given a direction to that effect. For my part, I do not think that either of those propositions is correct, but it is submitted on behalf of the applicant that both were laid down by a majority in Chamberlain. I believe that a close examination of the judgments in Chamberlain does not bear out the submission, but before turning to that case it is desirable that I indicate my own view.

4. 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.

5. 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.

6. 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.

7. In Chamberlain Gibbs C.J. and Mason J., at p 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 C.J. 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 p 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 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."

Up to that point, Gibbs C.J. 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".

8. 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 p 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 Reg. v. Van Beelen ((1973) 4

SASR 353, at p 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.

9. Gibbs C.J. and Mason J. go on to cite a portion of the judgment in the Court of Criminal Appeal of South Australia in Reg. v. Van Beelen, at p 374, which makes apparent the distinction between items of evidence and an intermediate factual conclusion. It is as follows:

"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 strait-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."

Of this passage Gibbs C.J. and Mason J. say, at pp 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 Reg. 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.

10. The application by Gibbs C.J. and Mason J. of the principles which they enunciate may be seen at p 559 of their judgment. The accused was charged with the murder of her infant daughter. The question arose whether inferences - ultimately an inference of guilt - might be drawn from the presence of foetal blood in the family car. Their Honours say:

"We do not doubt that if the question was whether there

was evidence to support a finding that the blood in the car

was foetal blood, the question should be answered in the

affirmative. But when the question is asked whether such a

finding could safely be made it seems to us that the answer

must be in the negative. The conflicting evidence should

have raised a doubt in a reasonable mind, and there is no

other evidence that can resolve the doubt before a decision

on the verdict is ultimately reached. We conclude therefore

that, in the present case, we must proceed on the basis

that the jury were entitled to accept as a fact, from which

inferences might be drawn, that those parts of the car, and

those articles in it, that responded affirmatively to the

tests had blood upon them, but that they could not safely

accept as a primary fact that the blood was foetal blood."

There were various items of evidence upon which the Crown relied to establish the intermediate fact - their Honours refer to it as a primary fact - that the blood, if any, in the car was foetal blood. Their Honours do not suggest that each of those items was required to be proved beyond reasonable doubt. But the intermediate fact, if it was to be the basis of an inference or inferences leading to a verdict of guilty, was required to be proved beyond reasonable doubt. I do not understand their Honours to have said any more than that.

11. In Chamberlain Brennan J., at p 599, also expresses the view that in a case turning upon circumstantial evidence:

"the primary facts from which the inference of guilt is to

be drawn must be proved beyond reasonable doubt. No greater

cogency can be attributed to an inference based upon

particular facts than the cogency that can be attributed

to each of those facts. ... An inference of guilt may

properly be drawn although any particular primary fact, or

any concatenation of primary facts falling short of the

whole, would be insufficient to exclude other inferences.

It follows that the insufficiency of a piece of evidence

to support an inference of guilt does not by itself warrant

the setting aside of a verdict of guilty if that piece of

evidence, however important, is but a part of the whole body

of evidence available to support the inference."

In that passage the reference to "the primary facts from which the inference of guilt is to be drawn" is clearly a reference to such intermediate conclusions of fact as are necessary for the drawing of the inference of guilt and is not a reference to each basic fact - each individual item of evidence - upon which those conclusions may be based. That is why his Honour points out that an inference of guilt may be drawn even though a particular "primary" fact falling short of the whole would be insufficient to exclude other inferences. I do not take this latter reference to a "primary" fact to mean anything more than a piece of evidence. That, I think, is shown by the use of that term in the sentence that follows. The term "primary facts" is apt to confuse if it is used to refer to the basic facts - the individual items of evidence - as well as to the factual conclusions from which inferences may be drawn. More often than not it is in the latter sense that the term is used when it is said that an appellate court may draw its own inferences from the primary facts as found by the trial judge.

12. Deane J. expresses his view in Chamberlain, at pp 626-627:

"There is certainly no requirement of the law that the

members of a jury must examine separately each item of

evidence adduced by the prosecution and reject it unless

they are satisfied beyond reasonable doubt that it

is correct. Nor is it the law that a jury is in all

circumstances precluded from drawing an inference from a

primary fact unless that fact is proved beyond reasonable

doubt. If a primary fact constitutes an essential element

of the crime charged, a juror must be persuaded that that

fact has been proved beyond reasonable doubt before he or

she can properly join in a verdict of guilty. Whether or

not a juror must be satisfied that a particular fact has

been proved beyond reasonable doubt will, however, otherwise

depend not only on the nature of the fact but on the process

by which an individual juryman sees fit to reach his

conclusion on the ultimate question of guilt or innocence.

If, for example, the case against an accused is contingent

upon each of four matters being proved against him, it is

obvious that each of those matters must be proved beyond

reasonable doubt. Indeed, it would be appropriate for the

presiding judge to emphasize to the jury in such a case that

even a minimal doubt about the existence of each of those

matters would be greatly magnified in the combination of

all. On the other hand, if the guilt of an accused would be

established by, or a particular inference against an accused

could be drawn from, the existence of any one of two hundred

different matters, each of which had been proved on the

balance of probabilities, it would be absurd to require

that a jury should disregard each of them unless satisfied,

either in isolation or in the context of all of the facts,

that any particular one of those matters had been proved

beyond reasonable doubt."

13. Murphy J., the remaining member of the Court in Chamberlain, expresses no view upon the standard of proof to be applied in a case based upon circumstantial evidence, other than to point out, at p 570, that "that evidence must be so cogent and compelling that it convinces the jury that no rational hypothesis other than the accused's guilt can account for the facts" and that "every crucial element must be proved beyond reasonable doubt".

14. The judgments in Chamberlain do not support the proposition that, in a case resting upon circumstantial evidence, the jury may only properly draw an inference of guilt upon facts - individual items of evidence - proved beyond reasonable doubt. Still less does the case establish that a direction in those terms should be given to a jury. Of course, it is recognized in Chamberlain that, if it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt. But to say as much is to do little more than state a truism. It does not mean that each item of evidence taken into account in reaching that conclusion must, considered separately, be established beyond reasonable doubt.

15. Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful.

16. This was not a case of that kind. The prosecution alleged that the applicant had taken over the leadership of a drug ring concerned with the importation of heroin into Australia. He was said to have taken over the leadership from a man named Clark. It was possible to classify the evidence against the applicant into three broad categories. First, there was evidence given by two undercover policemen, who were present in a cell with Clark and the applicant whilst the latter were in custody. Their evidence was that Clark told the applicant that he would have to take over the reins of the organization and that the applicant agreed to do so. Secondly, there was evidence from a number of persons involved in the activities of the organization, who had been granted immunity from prosecution, that large quantities of heroin were imported into Australia and distributed here in a manner which implicated the applicant. Thirdly, there was evidence of financial transactions said to indicate that the applicant shared the profits of the organization with Clark. Whilst it was possible to categorize the evidence in this manner and, no doubt, convenient for certain purposes to do so, it was not necessary for the jury to reach any conclusion upon the evidence in one category before considering the evidence in another. Indeed, the only proper course for the jury to adopt was to consider all the evidence together. Nor was it necessary for the jury to reach any particular intermediate conclusion of fact in making an inference of guilt on the part of the applicant, other than the obvious one, tantamount to an inference of guilt, that the applicant was engaged in a combination of the kind alleged against him. Of course, the jury could not properly have made that inference unless they were satisfied that, upon the whole of the evidence in all three categories, there was no reasonable explanation consistent with the applicant's innocence. It was appropriate that the jury should have been given a direction in those terms and they were given one. The case did not admit of any further direction upon the standard of proof required, save, of course, for the ordinary direction that the prosecution was required to prove its case beyond reasonable doubt.

17. I would grant special leave to appeal and dismiss the appeal.

TOOHEY J. I agree with the judgment of Dawson J.

GAUDRON J. I agree with Dawson J.

McHUGH J. James William Shepherd ("the applicant") seeks special leave to appeal against an order of the Court of Criminal Appeal of New South Wales which dismissed an appeal against his conviction for conspiring to import heroin into Australia. The Court of Criminal Appeal (Street C.J. and Campbell J., Lee J. dissenting) held that the trial judge had erred in failing to direct the jury that they could not infer guilt from circumstantial facts without being satisfied beyond reasonable doubt as to the truth of any fact relied upon to support that inference (the "Chamberlain direction"). Subsequently, a differently constituted Court of Criminal Appeal (Roden, Finlay and Newman JJ.) held that, so far as the appeal was based on this ground, the appeal should be dismissed because "no substantial miscarriage of justice has actually occurred": Criminal Appeal Act 1912 (N.S.W.) ("the Act"), s.6(1). Finally, the Court of Criminal Appeal, again differently constituted (Clarke J.A., Finlay and Studdert JJ.) dismissed the appeal after considering a number of additional grounds of appeal which were argued before them.

2. The applicant contended that special leave should be granted on three grounds. First, the Court of Criminal Appeal had erred in applying the proviso to s.6(1) of the Act. Secondly, the offence alleged in the indictment was unknown to the law. Thirdly, the Court of Criminal Appeal had erred in holding that the trial judge was not in error in refusing to discharge the jury. In addition to denying the correctness of these three contentions, the Crown, by notice of contention, asserted that, contrary to the conclusion of Street C.J. and Campbell J., the trial judge had not erred in failing to give the Chamberlain direction. Consequently, the Crown contended that the application should be refused even if the applicant was correct in asserting that the Court of Criminal Appeal erred in applying the proviso to s.6(1). At the conclusion of the argument, the Court refused to grant special leave to appeal in respect of the second and third contentions of the applicant and reserved its decision in respect of the first contention. However, it is not necessary for me to deal with the applicant's first contention, since I am of the opinion that the Crown's notice of contention should be upheld.

The nature of the Crown case

3. The Crown contended that, at some time in 1976, a man named Clark had initiated a conspiracy by setting up an organisation which acquired heroin in Bangkok, carried it to Singapore and then imported it into Australia through the agency of couriers. The Crown contended that, after Clark was arrested on 9 June 1978, the applicant on Clark's instructions took over the running of the organisation. The evidence upon which the Crown relied fell into three categories. The first category consisted of evidence that, after Clark and the appellant were arrested on 9 June 1978, two undercover police officers overheard Clark tell Shepherd to "take over the reins" of the organisation during the period that Clark was in gaol. The second category consisted of evidence given by accomplices who had been granted immunity from prosecution. The third category consisted of evidence concerning financial transactions which the Crown relied on to prove that the applicant and Clark shared the income of the organisation.

The Chamberlain direction

4. The Court of Criminal Appeal held that the directions of the trial judge in relation to circumstantial evidence were inadequate. Street C.J., with whose judgment Campbell J. agreed, said:

"There were three heads of evidence or three categories of

evidence, each of which required evaluation and all of

which were in contest. The jury ought to have been told

that they should approach their final determination of guilt

by considering each of these three categories of evidence

in relation to the others, and if they found it necessary

to rely on all three, then they must be satisfied beyond

reasonable doubt of the facts proved by all three. If they

found it necessary to rely on only two, then they should

have been directed appropriately."

Earlier, the learned Chief Justice had said:

"The evidence of the police officers was a separate and

self-contained body of evidence. It was strongly in

contest. Depending upon whether or not the jury was

satisfied of that evidence the jury might or might not have

been assisted both in evaluating the other two bodies of

evidence and in drawing the ultimate inference of guilt.

The second group of witnesses, that is to say, the

accomplices who had been granted immunity, gave evidence

that has varied to some extent amongst themselves. This was

a separate and independent category, again hotly in issue in

quite a number of respects, upon which the jury was required

to reach a conclusion both on that category of evidence

alone and in its relativity to the other two categories of

evidence.

The third category related to the financial

transactions and once again these represented an independent

field of contest at the trial, particularly in relation to

the purpose to be attributed to various other transactions.

In the view that I hold, the case was one which did

require a Chamberlain direction. In the case of Chamberlain

v. The Queen (No.2) [1984] HCA 7; 153 CLR 521, the joint judgment of

Gibbs C.J. and Mason J. at pp 538 to 539, made it plain that

a jury in a circumstantial case can only draw inferences

from facts which are proved beyond reasonable doubt."

5. I do not understand Street C.J. to be saying that the trial judge erred because he did not direct the jury that every fact relied on must be proved beyond reasonable doubt before it could be used against the applicant. To the contrary, I read his judgment as saying that it is only those facts (i.e. those circumstances) which are relied on as the basis for inferring guilt which must be proved beyond reasonable doubt. Except in simple cases, the evidence in a circumstantial case will rarely establish facts from which the jury can directly draw an inference of guilt. More often than not, the evidence will establish facts which lead to the proof - by inference - of "further facts" which are the basis of the inference of guilt. Quite often, however, the inference of guilt will depend upon a combination of "further facts" and some primary facts. Sometimes it aids exposition to call the "further facts" intermediate facts and the other facts - whether used to infer intermediate facts or as a basis for inferring guilt directly - primary facts. But the terminology is of no importance. The relevant difference is not between primary facts and intermediate facts but between the facts from which the inference of guilt is drawn and the facts which prove the facts which are the basis of that inference.

6. What I understand Street C.J. to be saying in his judgment is that Chamberlain requires the jury to be directed that no fact - primary or intermediate - can be used as a basis for drawing an inference of guilt unless that fact is proved beyond reasonable doubt. His Honour was not saying that the Crown had to prove beyond reasonable doubt each fact relied on to prove an intermediate fact. Thus, in the present case, the Crown sought to prove numerous financial transactions for the purpose of inferring that the applicant and Clark shared the proceeds of the sale of heroin imported into Australia. I do not understand Street C.J. to be saying that the jury had to be directed that in that context the Crown had to prove beyond reasonable doubt that those financial transactions took place if they were to be taken into consideration. I do understand his Honour to be saying, however, that the jury could not use the fact that Clark and the applicant shared the proceeds of the sale of heroin imported into Australia for the purpose of inferring that the applicant had conspired to import heroin unless the jury was convinced beyond reasonable doubt of that fact. In this case, the financial transactions, if proved, were primary facts which proved the intermediate fact or circumstance that the applicant and Clark shared the proceeds of the sale of imported heroin. That intermediate fact or circumstance could then be used to support the inference of guilt of conspiracy. But unless any particular financial transaction was itself to be used as a fact from which the inference of guilt was to be directly drawn, I do not think that Street C.J. was intending to assert that the jury should have been directed that they could not make use of the facts concerning the financial transactions unless they were satisfied beyond reasonable doubt that those transactions had taken place.

Was a Chamberlain direction necessary?

7. In my opinion, the majority judgments in Chamberlain v. The Queen (No.2) [1984] HCA 7; (1984) 153 CLR 521 intended to assert that in a criminal case any fact - primary or intermediate - relied upon as the basis for drawing the inference of guilt must be proven beyond reasonable doubt. Thus, Gibbs C.J. and Mason J. said (at p 536):

"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 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.

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 ... 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 Reg. v. Van Beelen ((1973) 4 SASR 353, at

p 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'." (my emphasis)

Brennan J. said (at p 599):

"Circumstantial evidence can, and often does, clearly prove

the commission of a criminal offence, but two conditions

must be met. First, the primary facts from which the

inference of guilt is to be drawn must be proved beyond

reasonable doubt. No greater cogency can be attributed to

an inference based upon particular facts than the cogency

that can be attributed to each of those facts. Secondly,

the inference of guilt must be the only inference which is

reasonably open on all the primary facts which the jury

finds. The drawing of the inference is not a matter of

evidence: it is solely a function of the jury's critical

judgment of men and affairs, their experience and their

reason. An inference of guilt can safely be drawn if it is

based upon primary facts which are found beyond reasonable

doubt and if it is the only inference which is reasonably

open upon the whole body of primary facts." (my emphasis)

8. In my opinion, the judgment of Gibbs C.J. and Mason J. asserts that, although the tribunal of fact in a criminal trial must consider each fact by reference to the whole of the evidence and not by reference only to the evidence which directly relates to that fact, an inference of guilt can only be drawn when each fact relied on to found that inference is itself proved beyond reasonable doubt. Significantly, Gibbs C.J. and Mason J. held (at p 559) that, because the jury could not be satisfied beyond reasonable doubt that the blood found in the Chamberlains' car was foetal blood, "they could not safely accept as a primary fact that the blood was foetal blood". This finding of their Honours demonstrates that they intended to assert a principle that no "fact" could be used as a basis for drawing an inference of guilt unless that "fact" was proved beyond reasonable doubt. Moreover, since their Honours held that the conviction could be sustained without relying on a finding of foetal blood in the car, it is clear that they did not see the principle as applying only to facts which were indispensable to making a finding of guilt. The judgment of Brennan J. is just as emphatic in asserting that the facts which are the basis of the inference of guilt must be proved beyond reasonable doubt. While it is possible to read his Honour's judgment as holding that the Crown must prove beyond reasonable doubt every fact relied on, I think that by "primary facts" he meant no more than those facts which are directly relevant to determining whether an inference of guilt should be drawn. It is not surprising, therefore, that Street C.J. and Campbell J. concluded that Chamberlain requires that "a jury in a circumstantial case can only draw inferences from facts which are proved beyond reasonable doubt".

9. The Full Courts of the Supreme Courts of South Australia and Victoria have also understood Chamberlain's Case as establishing that a circumstantial fact cannot be relied upon to found an inference of guilt unless it is proved beyond reasonable doubt. Thus, in Reg. v. Matthews (1984) 36 SASR 503, at p 507, King C.J. said:

"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."

In Reg. v. Sorby [1986] VicRp 77; (1986) VR 753, at p 789, the Full Court of the Supreme Court of Victoria said:

"The proposition that where the evidence is

circumstantial each fact from which an inference of guilt

is to be drawn must itself be proved beyond reasonable doubt

is again no more than an aspect of the axiom that the Crown

must prove its case beyond reasonable doubt. If in a

particular case the jury cannot be expected to understand

and apply the axiom without an expanded definition of the

rule, so far as it applies to circumstantial evidence, then

an appropriately expanded explanation of the rule should be

given. Otherwise it is unnecessary."

10. But is it correct to say that, in every case of circumstantial evidence, the Crown case must fail unless every fact relied on to found the inference of guilt is proved beyond reasonable doubt? There are many cases where the probability of the correctness of an inference of guilt drawn from the circumstances of the case is greater than the probability of the truth of any of the individual circumstances. As Lord Simon of Glaisdale pointed out in Reg. v. Kilbourne (1973) AC 729, at p 758:

"Circumstantial evidence ... works by cumulatively, in

geometrical progression, eliminating other possibilities."

11. If an inference of guilt is open on the evidence, the question for the jury is whether the inference has been proved beyond reasonable doubt - not whether any particular fact has been proved beyond reasonable doubt. Suppose on a charge of murder, the jury thought that the Crown had proved beyond reasonable doubt that the murder weapon belonged to the accused and that he had a motive for killing the deceased, but the jury did not think that these two facts proved his guilt beyond reasonable doubt. Suppose further, however, that the jury also thought that it had been proved on the balance of probabilities that the accused had been seen near the scene of the crime shortly prior to the murder and that he had been inexplicably absent from his employment for a period sufficient to enable him to kill the deceased. The inference that the accused, actuated by his motive, had used his weapon to kill the deceased would be greatly strengthened - probably beyond reasonable doubt - by the further probabilities that he had the opportunity to commit the murder, that he had been inexplicably absent from his employment and that he was in the vicinity of the murder scene at the time of death. Ordinarily, in a circumstantial evidence case, guilt is inferred from a number of circumstances - often numerous - which taken as a whole eliminate the hypothesis of innocence. The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance.

12. In a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt. This is likely to be the case where the incriminating facts relied on to establish the inference are few in number. But the more facts that are relied on to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond reasonable doubt to establish guilt beyond reasonable doubt. Consequently, even when guilt beyond reasonable doubt cannot be inferred unless certain facts are proved, it may still be open to infer guilt beyond reasonable doubt even though each fact is not proved to that standard. Thus, in the example that I have given, the facts proved on the balance of probabilities were essential to the determination of guilt beyond reasonable doubt. But the determination could still be made even though all those facts were not proved beyond reasonable doubt.

13. It will be apparent that I have difficulty in accepting the validity of the proposition that a fact cannot be relied on to found an inference of guilt in a circumstantial evidence case unless it is proved beyond reasonable doubt.

14. Although I think that the majority in Chamberlain intended to assert that an inference of guilt can never be drawn unless each circumstance relied on to found that inference is proved beyond reasonable doubt, it does not follow that Chamberlain is an authority for the proposition that a jury must be directed to that effect. In Quinn v. Leathem [1901] UKHL 2; (1901) AC 495, the Earl of Halsbury L.C. pointed out (at p 506) that:

"a case is only an authority for what it actually decides.

I entirely deny that it can be quoted for a proposition that

may seem to follow logically from it. Such a mode of

reasoning assumes that the law is necessarily a logical

code, whereas every lawyer must acknowledge that the law is

not always logical at all."

Chamberlain was concerned with whether the verdict of the jury was unsafe or unsatisfactory. It was not concerned with the directions which a jury should receive on the standard of proof to be applied to the circumstances of the case.

15. Jurors are under a duty not to find an accused person guilty of an offence unless they are satisfied beyond reasonable doubt of that person's guilt. But they are not under a duty to find any particular fact beyond reasonable doubt. Indeed, absent any statutory direction to the contrary, they are under no duty to find any particular fact: see Otis Elevators Pty Ltd v. Zitis (1986) 5 NSWLR 171, at pp 197-201. To direct the jury that, as a matter of law, they cannot find an accused person guilty of an offence unless they find a particular fact beyond reasonable doubt would be to trespass upon their right to determine whether, upon evidence properly admitted, the guilt of the accused had been proved beyond reasonable doubt. If, absent a Chamberlain direction, the jury would be persuaded beyond reasonable doubt of the guilt of the accused, how can they be directed to disregard a fact, proved on the balance of probabilities, which they would use to reach that degree of persuasion? No doubt a trial judge has the right to suggest to the jury that they might think that, on the evidence, they could not be satisfied that the accused was guilty beyond reasonable doubt unless they found that a particular fact was proved beyond reasonable doubt. But the existence of that right in the trial judge provides no support for the proposition that the jury must be directed that they cannot rely on a circumstance to found an inference of guilt unless that circumstance is proved beyond reasonable doubt.

16. In my opinion, Chamberlain is an authority only for the proposition that, in considering whether a verdict is unsafe or unsatisfactory, a court of criminal appeal must approach the case upon the basis that the jury had to be satisfied beyond reasonable doubt that each circumstance relied on to found the verdict was proved beyond reasonable doubt. While the decision stands, it has to be followed in cases concerned with whether a verdict, based on circumstantial evidence, is unsafe or unsatisfactory. But the case is not authority for the proposition that trial judges must give juries a direction that they cannot use a fact as a basis for inferring guilt unless that fact is proved beyond reasonable doubt and its authority should not be extended to cover that proposition.

17. In my opinion, the Court of Criminal Appeal erred in holding that the jury should have been directed in the way which Street C.J. and Campbell J. held that they should have been directed. Accordingly, no question of applying the proviso arises.

18. Special leave to appeal should be granted, but the appeal should be dismissed.

ORDER

Application for special leave to appeal granted.

Appeal dismissed.