Circumstantial case

Griffith CJ (would allow the appeal)

This is an appeal from a decision of the Full Bench of the Supreme Court of Victoria, dismissing an appeal by way of special case on a conviction for murder. The appellant is a medical practitioner, over seventy years of age, who conducted in Melbourne a private hospital which was used only by women. The deceased was a single woman named Mary Davies, about twenty seven years old, who was pregnant. The case made by the Crown was that in pursuance of an arrangement previously made with the appellant, by or with the assistance or connivance of a young man named Poke, who was responsible for her condition, she entered the appellant's hospital on 9th or 10th August for the purpose of having an operation performed with a view to bringing about abortion; that the appellant performed an operation which was followed by a miscarriage; that septicæmia ensued, and death; and that the appellant made away with her body, of which no trace has been discovered. The Crown contend that under these circumstances the jury could infer that the appellant had performed the illegal operation which resulted in her death. Evidence given by Poke, who was assumed to be an accomplice, was relied upon as an admission by the appellant that he had performed such an operation. The case was tried before the learned Chief Justice, who did not give to the jury the usual direction or caution that they should not convict upon the uncorroborated testimony of an accomplice. If the case is established without the evidence of the accomplice, of course such a direction is not necessary. The prisoner made a statement in the dock, as he was allowed to do by the law of Victoria. The jury found him guilty. The learned Chief Justice then stated a case, raising three points. First, was the evidence sufficient to warrant the jury in finding the fact of death. (I have said that the body was not discovered). Secondly, was the evidence sufficient to connect the prisoner with the death; and, thirdly, was the omission to give the jury the usual direction as to accepting the evidence of the accomplice fatal to the conviction. Subsequently, a further case was stated, raising a question of the propriety of a direction which the learned Chief Justice gave to the jury as to the effect to be given to the prisoner's statement in the dock, to which I will afterwards refer. I will deal with these points seriatim.

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That passage is applicable to circumstantial That passage is applicable to circumstantial evidence in general both as to proof of death, and of the fact that the prisoner caused the death. The question may be raised whether what I have read is to be regarded as a rule of law, or as a rule to be applied in the administration of justice, as indicating the duty of the Judge. It may mean that if the Judge considers that the evidence is insufficient he should direct an acquittal. But it is not material to consider that question. With regard to the well-known caution given by Sir Matthew Hale, I think it is now settled law that the fact of death may be proved by circumstantial evidence as well as any other part of the case. But another difficulty arises on that point, in this way: The rules of evidence are the same in criminal as in civil law, and the rules of logic and common sense as to what inference may be drawn from facts are the same whether the case is civil or criminal. In civil cases where the evidence is nicely balanced, the recognized practice is to leave it to the jury to say which hypothesis they accept, where there are two equally, or nearly equally, probable hypotheses. But that is certainly not the practice in criminal cases. It is the practice of Judges, whether they are bound to give such a direction or not, to tell the jury that, if there is any reasonable hypothesis consistent with the innocence of the prisoner, it is their duty to acquit. That I mention now, because it comes in appropriately after reading the passage I have read from Starkie, although it has more application to the second branch of the case than to that regarding proof of death.

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The proper direction to be given, it seems to me, is this: that the jury should take the prisoner's statement as primâ facie a possible version of the facts and consider it with the sworn evidence, giving it such weight as it appears to be entitled to in comparison with the facts clearly established by evidence. Instead of that the jury were advised that if they connected the accused with the concealment of the body they might infer that the appellant killed the deceased woman, and that if they drew that inference they might disregard his statement altogether. That was manifestly a wrong direction, and the conviction cannot stand. Indeed, all the other Judges of the Supreme Court thought such a direction would be wrong. Beckett J. could not believe that such a direction had been given. Hood J. thought that it was immaterial, apparently, as I understand him, on the ground that, even if it had not been given, the jury would have found the prisoner guilty.

Barton J (would allow the appeal)

If, however, a circumstance or a body of circumstances will bear no more than what is called a "light" or "rash" presumption, it does not tend to the proof of the matter in issue, and is entitled to no weight at all. Any such circumstance will not have been admitted in evidence unless, though apparently unimportant by itself, it is one of several facts which when taken in conjunction are material as being capable of a particular adverse inference. Whether the fact, or that body of facts which is called the "case" is capable of bearing a particular inference, is for the Court, and unless it is so capable, the Court's duty is to withhold it from the jury, as a single fact or as a case. But when the case is undoubtedly capable of the inference of guilt, albeit some other inference or theory be possible, it is for the jury, properly directed, and for them alone, to say not merely whether it carries a strong probability of guilt, but whether the inference exists actually and clearly, and so completely overcomes all other inferences or hypotheses, as to leave no reasonable doubt of guilt in their minds. The presumption in favour of innocence would in that event have been overcome by a stronger presumption raised against it by the evidence. To quote Best once more—"No person is to be required to explain or contradict until enough has been proved to warrant a reasonable and just conclusion against him in the absence of explanation or contradiction." If after such explanation or contradiction the case as a whole convinces the jury that the conclusion is not only reasonable but just, it is their duty to act upon that conviction. Much that I have said on this point may appear so elementary as not to be worth stating. But in a case demanding very close application, such as the present, it is so necessary that one should keep these considerations constantly in mind that one is justified in setting them forth.

O’Connor J (would allow the appeal)

The duty of a jury in regard to circumstantial evidence is often in practice stated briefly, and, I think, accurately, in these words:—"The circumstances must be such that the jury may reasonably draw from them an inference of the prisoner's guilt, and can reasonably draw no other inference." It is, I think, necessary for the purposes of this case to add that an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence. There are some observations in Starkie on Evidence, 3rd ed., on this aspect that are worthy of attention. At page 577 the learned author says…

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In drawing an inference of guilt, or in declining to draw it, the jury must act upon the facts established in evidence, and if the only inference that can reasonably be drawn from those facts is that of the prisoner's guilt, it is their duty to draw it. They cannot evade the discharge of that duty because of the existence of some fanciful supposition or possibility not reasonably to be inferred from the facts proved. I agree with my brother the Chief Justice that it is for the Judge to determine, in regard to circumstantial evidence, as in regard to any other kind of evidence, what amounts to that degree of proof which will in law justify the jury in drawing an inference of guilt, and, if he is of opinion that the facts are insufficient in law to justify a jury in drawing that inference, he is bound to withdraw the case from them. Otherwise the jury might go through the form of bringing in a verdict of guilty which the Court on appeal would immediately set aside as being founded on facts insufficient in law. If it were not for Poke's evidence I think the learned Judge at the trial would have been bound on that ground to have withdrawn the case from the jury. But with Poke's evidence, if the jury chose to believe it, there was in my opinion abundant evidence to justify the verdict. It is not necessary for me, after the full manner in which the evidence has been dealt with by my colleagues, to refer to it in any detail. I shall therefore restrict my observations to those important portions which in my opinion justified the learned trial Judge in leaving the case to the jury.

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… Such were the material facts from which the jury were asked to draw the conclusion that the prisoner was guilty of the offence with which he was charged. It was their duty, applying to the evidence the principles to which I have referred, to draw the conclusion to which all the circumstances taken together reasonably led them, to the exclusion of any other reasonable conclusion. As to some issues of fact the reasonable conclusions were not difficult. One inference inevitably followed from the evidence as a whole, namely that the girl died at the prisoner's hospital from the effect of a miscarriage. The miscarriage might have occurred without any fault on his part. On the other hand it might have been brought about by his criminal act. The crucial matter therefore to be determined was whether the inference that the miscarriage had been brought about by the prisoner's criminal act was the only inference that could reasonably be drawn from all the circumstances taken together…

Dixon CJ (would dismiss the application for special leave)

1. This is an application for special leave to appeal from a Appeal, of an appeal from a conviction of wilful murder: Reg. v. Plomp (1962) Qd R 16.

2. The applicant was the husband of the deceased and the case made against him was that while surfing with her at Southport he caused her to drown. They were surfing together at dusk on 24th February 1961. What happened was not seen by any independent witness; he gave the alarm about 7.15 p.m. and sought help. According to the evidence there was no danger in the surf. She was a good swimmer and familiar with surfing. Her dead body was later found on the beach some distance south of the place where she was lost.

3. The case for the Crown was that he had in some way brought about her drowning. His case may really be epitomized by quoting a statement he made on the night of 24th February 1961. It is as follows: "It was then about dusk, and after wading around in the breakers, in water about above our waists, for about ten minutes, I suddenly felt an undertow, and at that time my wife was about six feet away, and we were both swept off our feet, and I saw my wife sucked under a wave, and I could see she was in difficulties, and I attempted to go to her assistance, and I noticed that there was a very strong undertow, and I was only able to hook my hand in the shoulder strap of her bathing costume, and I was then dumped again, and I lost sight of my wife."

4. In the conditions described by the evidence it was not likely that a fairly good swimmer not unfamiliar with the surf would have been lost unless his or her efforts at recovery were in some way obstructed; but if the facts had rested there it would be indeed difficult to find that the drowning of the swimmer was caused in any way by the person with whom she was swimming. But the facts do not rest there. It was proved that Plomp had formed a liaison with another woman whom he had promised to marry, that he had represented himself as a widower and that he was continuing the liaison. In the circumstances, proved by apparently credible evidence, it was open to conclude that Plomp had the strongest reasons to be rid of his wife. It is unnecessary to traverse all the circumstances in detail. They were placed before the jury and doubtless considered by them. It is enough to say that on the whole case I think it was reasonably open for the jury to be satisfied beyond reasonable doubt that the deceased had been drowned as a result in some way of the conscious agency of the applicant Plomp. I therefore think the verdict of wilful murder is sustainable on the evidence.

5. It is objected that Plomp's motives cannot be taken into account until it is shown by evidence that in some physical way his actions were responsible for his wife's death. There is nothing, it is said, to show that anything he physically did impeded her emerging from the surf or recovering her equilibrium. Until that is shown, evidence of motive cannot be used, so it is said, to prove guilt. There is, in my opinion, no legal doctrine to that effect. All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done. In this case the word "motive" was used during the argument and no doubt at the trial to cover much material. But it is not clear to me whether some of that material did not go somewhat further than what is ordinarily comprised under that word. In the course of the summing up the learned judge who presided at the trial said to the jury: "You must remember that before you can use evidence of motive, there must be a sufficiency in the evidence to establish to you that this death was not an accidental death, to establish to you that he did something in order to get his wife into the water, and having got her there, he wilfully murdered her." This appears to me to go too far in the accused's favour. I think that if the whole of the evidence is read and what the accused said and did both before and after his wife's drowning is considered with all the circumstances of her drowning a reasonably strong circumstantial case is made against him, but I cannot think that this is so if you omitted from it all the detailed circumstances of his dealings with the other woman. It is said that the ordinary rule relating to circumstantial evidence has been ignored or departed from in convicting the accused, namely the rule that you cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. In a case of a very different character a good deal of attention was paid to this rule: Martin v. Osborne [1936] HCA 23; (1936) 55 CLR 367 (at p243).

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7. In the present case it appears to me that if the jury weighed all the circumstances they might reasonably conclude that it would put an incredible strain on human experience if Plomp's evident desire to get rid of his wife at that particular juncture, presaged as it was by his talk and actions, were fulfilled by her completely fortuitous death although a good swimmer and in circumstances which ought not to have involved any danger to her. (at p243)

Kitto J (would dismiss the application for special leave)

I am of the same opinion and have nothing to add.

Taylor J (would dismiss the application for special leave)

Notwithstanding the careful argument presented on behalf of the applicant I am firmly of the opinion that the application should be refused. I have nothing to add to the observations of the Chief Justice.

Menzies J (would dismiss the application for special leave)

2. The argument that the approach of a court of criminal appeal in a case where there has been a conviction upon circumstantial evidence should be different from that of such a court when the evidence is direct was indeed supported by a number of citations that do credit to the industry of counsel for the applicant. The authorities relied upon were principally Canadian cases, viz. Fraser v. The King (1936) 66 Can Cr Cas 240 ; R. v. Comba (1938) 70 Can Cr Cas 205 ; R. v. Dawley (1943) 79 Can Cr Cas 140 and R. v. McGrath (1945) 85 Can Cr Cas 364. In these cases statements are to be found to the effect that, when the evidence of guilt is circumstantial, a court of criminal appeal must set aside a conviction where it seems to the court that the evidence does not negative as a reasonable hypothesis every hypothesis but that of guilt. Nevertheless, I am in no doubt that when what was substantially the same argument as we have heard was addressed to the Court of Criminal Appeal in New South Wales in the cases of R. v. Rothery (1925) 25 SR (NSW) 451; 42 WN 141 and R. v. Cable (1947) 47 SR (NSW) 183; 64 WN 44 the correct answer was given to it and I am satisfied to repeat some words used by Jordan C.J. delivering the judgment of the Court in the later case, with the observation that it is with competing explanations rather than inferences that the Court is concerned in this sort of case. The Chief Justice's words are:-

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… But when the case is undoubtedly capable of the inference of guilt, albeit some other inference or theory be possible, it is for the jury, properly directed, and for them alone, to say not merely whether it carries a strong probability of guilt, but whether the inference exists actually and clearly, and so completely overcomes all other inferences or hypotheses, as to leave no reasonable doubt of guilt in their minds" (1911) 13 CLR, at pp 651, 652 . O'Connor J. said:- " . . . can it be said reasonably that the jury were not entitled to draw the inference of guilt against a doctor, charged as the prisoner has been, who will not explain the death of a patient in his hospital, whom he alone was attending, his secret disposal of her body, his burning of her clothes, and his attempt to remove all evidence of her ever having been in his hospital and under his care? They were not bound to draw that inference; another jury might arrive at the opposite conclusion. But I have no hesitation in affirming as a matter of law that the verdict which the jury did find was open to them on the evidence" (1911) 13 CLR, at pp 670, 671

Windeyer (would dismiss the application for special leave)

I also think this application should be refused, for the reasons that the Chief Justice and my brother Menzies have expressed.

McTiernan J (would refuse special leave)

4. The deceased, Raffaele Petula, was the husband of Grazzia Petula, a sister of the applicant. The deceased and his wife lived at 171 Great Western Highway in the town of St. Marys, New South Wales, and the applicant lived with his wife at 121 Wrench Street, Cambridge Park, New South Wales. All were born in the Italian province of Calabria. The applicant was nearly thirty-seven years of age at the time of the murder of Raffaele Petula. He emigrated from Italy to Australia about twenty-two years ago and has been a naturalized Australian for approximately fourteen years. On Friday evening, 28th September 1973 the deceased's body was found in a rubbish dump in a lonely area of bush at Llandilo, New South Wales, partially concealed by a mudguard and felt. The deceased had been shot twice in the head with a .22 rifle, his skull was fractured and in the opinion of the doctor who performed the post mortem, this could have been caused by heavy clubbing over and around the head with a blunt object or instrument.

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9. The applicant's connexion with the killing was proved by the finding of ammunition of the type which was used to kill the deceased, under the applicant's house. Also, the applicant denied having a rifle but on being told during an interview with the police that his house would be searched for the rifle, he returned home and at 2 a.m. emerged carrying a large parcel. He placed it inside the car and drove off towards the Nepean River. He was some distance later intercepted by the police who on searching his car found the rifle under the back seat wrapped in material with a sock over the end of the barrel resembling the sock in which the ammunition was found. The applicant informed the police at a later interview that he had found the rifle buried under his house…

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20. I do not think that the summing-up of the trial judge contains any erroneous direction on a point of law or even of fact. It does not contain any statement which would cause injustice to the accused having regard to the preponderating weight of the Crown's case and what the accused put forward as his defence. There are no circumstances warranting the exercise of the discretion vested in this Court by s. 35(1)(b) of the Judiciary Act

Gibbs, Stephen and Mason JJ (would grant special leave and allow the appeal)

10. When the learned trial judge came to sum up, he commenced by giving to the jury a clear and accurate direction as to their duties. He told them, amongst other things, that if there was any reasonable explanation of the circumstances consistent with the innocence of the applicant, then they must adopt that explanation and find the applicant not guilty. Later, after discussing in some detail the evidence led for the Crown, he turned to the defence, and in particular to the submission that the evidence was equally consistent with the conclusion that Carmello Barca had committed the murder . He said:

"I repeat to you what I said to you yesterday: there is no evidence before you in this case that his father committed the murder. Still less is there any evidence that he was ever taken to his father's house. It is put to you as an argument by counsel that the real truth of the matter is that his father did it and the accused was minding the weapon for his father, hiding it. He was the one who had custody of the gun, and it is just as consistent."

After saying that it would be immaterial if someone else had planned the crime, he continued:

"You will remember what I told you yesterday, that there is no evidence before you that this man was ever taken by him on that day to his father's house; still less is there any evidence that his father, or anybody else, fired these shots; and these are arguments that were put by counsel, theories, and if they have no sub-stratum of evidentiary fact, then, gentlemen, you pay no attention to them. Nothing that counsel says in a case is evidence. It can never take the place of evidence. Your oath is to 'well and truly try and true deliverance make according to the evidence'; and that is all you are concerned with, and it is for you to decide the guilt or innocence of this man on the evidence given in this court and you are not to take into account any theories or arguments of counsel unless they have an evidentiary basis; unless they are based on evidence that you accept, or a reasonable inference from that evidence."

He then concluded his summing up by giving a summary of the case for the prosecution, and by reminding the jury that if they were not satisfied beyond reasonable doubt that the applicant had murdered the deceased it was their duty to acquit. (at p104)

11. When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are "such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused": Peacock v. The King [1911] HCA 66; (1911) 13 CLR 619, at p 634 . To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be "the only rational inference that the circumstances would enable them to draw": Plomp v. The Queen [1963] HCA 44; (1963) 110 CLR 234, at p 252 ; see also Thomas v. The Queen [1960] HCA 2; (1960) 102 CLR 584, at pp 605-606 . However, "an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence." (Peacock v. The King (1911) 13 CLR, at p 661 ). These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v. Director of Public Prosecutions (1973) 1 WLR 276; (1973) 1 All ER 503 that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense.

Murphy J (would grant special leave and allow the appeal)

7. The reference to the hypothesis was an invocation by the applicant of the approach referred to in Peacock v. The King and Plomp v. The Queen [1963] HCA 44; (1963) 110 CLR 234 that, to convict, the jury must be satisfied that the facts were inconsistent with any rational conclusion other than that the prisoner was guilty. To express this in another way, the circumstances must be "inconsistent with any reasonable hypothesis other than the guilt of the accused" (see Peacock v. The King (1911) 13 CLR, at p 634 ).

Gibbs CJ and Mason J (would grant special leave but dismiss the appeal)

1. The applicants, Alice Lynne Chamberlain and Michael Supreme Court of the Northern Territory, Mrs. Chamberlain was charged that on 17 August 1980 at Ayers Rock in the Northern Territory she did murder Azaria Chantel Loren Chamberlain. By the second count of the indictment, Mr. Chamberlain was charged as an accessory after the fact, the particulars being that between 17 August 1980 and 16 December 1981 at Ayers Rock, Alice Springs and other places in the Northern Territory he did receive or assist another person, namely Alice Lynne Chamberlain, who to his knowledge was guilty of an offence against the law of the Territory, namely the offence of murdering Azaria Chantel Loren Chamberlain at Ayers Rock on 17 August 1980, in order to enable the said Alice Lynne Chamberlain to escape punishment. Each pleaded not guilty but the jury found both to be guilty as charged. They appealed against their convictions to the Full Court of the Federal Court. That Court (Bowen C.J., Forster and Jenkinson JJ.) dismissed the appeals. They now apply for special leave to appeal against that decision.

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13. The final question of law that arises is whether, in a case where the evidence is circumstantial, each fact on which an inference is sought to be based must itself be proved beyond a reasonable doubt. In considering this matter it is necessary to keep distinct a number of questions which tend to be confused. In the first place, the question arises whether the proper method of approach to the facts is for the jury to consider each item of evidence separately, and to eliminate it from consideration unless satisfied about it beyond reasonable doubt. Support for the view that that is the correct approach is to be found in an article on "Circumstantial Evidence" by Mr. T. C. Brennan K.C. which appears in the Australian Law Journal, vol. 4 (1930), p. 106, where the learned author, in the course of discussing a criminal trial held two or three years before in Victoria, said, at p. 108:

"Mr. Acting Justice Dixon (as he then was), told the jury that the proper method of approach to the different facts was to take each one separately, and to ask 'are we satisfied beyond reasonable doubt about (1)? If yes', continued his Honour, 'put it on one side for further consideration with the other facts; if no, put it out of your mind altogether. Then go on to consider (2) in the same way.'"

What Dixon A.J. (as he then was) said, if the report is correct, may have been appropriate in the circumstances of the particular case, but it is clearly not right as a general rule. The duty of the jury is to consider all the facts together, at the conclusion of the case. (at p535)

14. We have no doubt that the position is correctly stated in the following passage in Reg. v. Beble (1979) Qd R 278, at p 289 , that "It is not the law that a jury should examine separately each item of evidence adduced by the prosecution, apply the onus of proof beyond reasonable doubt as to that evidence and reject if they are not so satisfied". 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: cf. Weeder v. The Queen (1980) 71 Cr App R 228, at p 231.

15. Similarly, 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. It is well established that the jury must consider "the weight which is to be given to the united force of all the circumstances put together": per Lord Cairns, in Belhaven and Stenton Peerage (1875) 1 App Cas 278, at p 279 , cited in Reg. v. Van Beelen (1973) 4 SASR 353, at p 373 ; and see Thomas v. The Queen (1972) NZLR 34, at pp 37-38, 40 and cases there cited. In Plomp v. The Queen [1963] HCA 44; (1963) 110 CLR 234 it was argued that the motives of the accused could not be considered until it was shown by evidence that in some physical way his actions were responsible for his wife's death. The Court rejected this argument. Dixon C.J. said (1963) 110 CLR, at p 242 :

"All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done." (at p536)

16. 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. 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 (see Luxton v. Vines [1952] HCA 19; (1952) 85 CLR 352, at p 358 ; and Barca v. The Queen [1975] HCA 42; (1975) 133 CLR 82, at p 104 ). The statement by Lord Wright in Caswell v. Powell Duffryn Associated Collieries, Ld. (1940) AC 152, at p 169 , that "There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish" is obviously as true of criminal as of civil cases. The process of reasoning in a case of circumstantial evidence gives rise to two chances of error: "first from the chances of error in each fact or consideration forming the steps and second from the chance of error in reasoning to the conclusion": Morrison v. Jenkins [1949] HCA 69; (1949) 80 CLR 626, at p 644 . 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, 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".

16. 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. 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 (see Luxton v. Vines [1952] HCA 19; (1952) 85 CLR 352, at p 358 ; and Barca v. The Queen [1975] HCA 42; (1975) 133 CLR 82, at p 104 ). The statement by Lord Wright in Caswell v. Powell Duffryn Associated Collieries, Ld. (1940) AC 152, at p 169 , that "There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish" is obviously as true of criminal as of civil cases. The process of reasoning in a case of circumstantial evidence gives rise to two chances of error: "first from the chances of error in each fact or consideration forming the steps and second from the chance of error in reasoning to the conclusion": Morrison v. Jenkins [1949] HCA 69; (1949) 80 CLR 626, at p 644 . 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, 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". (at p536)

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77. 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. Further, the jury were entitled to conclude that Mrs. Chamberlain could not possibly have disposed of the body without the knowledge and assistance of her husband, and that the evidence as a whole pointed to his complicity in the crime as an accessory after the fact.

78. For these reasons the jury were entitled safely to convict. It is true that many incidents of the crime remain unexplained. However, the Crown does not bear the onus of solving all the mysteries that may have attended a crime, or of establishing in every detail how it was committed, provided that it is proved satisfactorily that the crime was committed, and that the accused committed it.

79. 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. It is true that that evidence may have made a great impression on the jury. However, it was relevant evidence which the Crown was entitled to lead and the trial was not vitiated by the admission of the evidence. The result which we have reached is that a reasonable jury, giving effect only to the evidence which in our view could safely be acted upon, ought not to have entertained a reasonable doubt as to the guilt of the accused. The convictions were not unsafe or unsatisfactory.

Murphy J (would allow the appeal)

6. Proof of Crucial Elements. I agree that requirement of proof beyond reasonable doubt means that any fact should not be accepted for the purpose of inferring guilt unless, in the light of all the evidence, existence of that fact is established beyond reasonable doubt. Every crucial element must be proved beyond reasonable doubt.

7. Circumstantial Evidence. The case against Mrs. Chamberlain was based on circumstantial evidence. For a conviction to stand, where the evidence of guilt is circumstantial, 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 (Reg. v. Onufrejczyk (1955) 1 QB 388, at p 394 ; Peacock v. The King [1911] HCA 66; (1912) 13 CLR 619 ). Because of the absence of a body, and of any motive, and of any identified weapon, and of any confession, and because of the good characters of the accused, rigorous proof of guilt was required.

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16. Hypothesis of Innocence. The hypothesis advanced by the defence was that the baby was taken by a dog or dingo and it was conceded by the Crown during this appeal that a dingo could have carried the baby away. This was supported by evidence that dingoes were frequently in the camp area and had attacked children and objects including a pillow and a sleeping bag. A dingo had been seen in the area of the camp earlier in the evening, growling was heard by a number of witnesses just prior to Mrs. Chamberlain raising the alarm and dog or dingo tracks were observed near the camp site later in the evening and the following day were seen at the front of the tent and "right on the edge" of the tent corner where Azaria's bassinet had been. Several witnesses, including Mr. Roff the Senior Ranger, reported seeing tracks in the nearby area on the night of the disappearance, which indicated that something, resembling the pattern of a crepe bandage according to Mr. Roff and the imprint of a knitted jumper of woven fabric according to another witness, had been carried by a dog. Nothing else was reported to have disappeared from the camp on that night. These drag marks were backtracked to a point directly opposite the Chamberlains' tent and about 25 yards from it. In view of all the other evidence concerning dog or dingo activity, the fact that the dog or dingo must have started its journey somewhere and the fact that what was being carried must have come from nearby, it is strikingly consistent with the hypothesis of innocence that the dog tracks and drag marks commenced at the Chamberlains' tent but were no longer visible because they had been obscured by the many searchers who were combing the area in an attempt to find Azaria.

Brennan J (would refuse special leave)

Grounds for Rejecting the Dingo Hypothesis. (at p581)

11. On the trial of Mr. and Mrs. Chamberlain, the defence bore no onus of proof. They did not have to prove the truth of the dingo hypothesis in order to prove their innocence. On the other hand, if the prosecution proved to the jury's satisfaction that the dingo hypothesis was false, the only hypothesis which the defence advanced or which the defence was prepared to countenance was thereby excluded, and Mrs. Chamberlain's assertion that a dingo had taken the baby acquired a sinister significance.

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27. However, the prosecution sought to prove the case entirely by circumstantial evidence. Such a case is destroyed by the existence of any fact which is inconsistent with the inference of guilt that the prosecution asks the jury to draw from the circumstantial evidence. And so the defence pointed to evidence which, it was submitted, was inconsistent with Mrs. Chamberlain's guilt.

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40. The prosecution case rested on circumstantial evidence. 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. This was explained by Dixon J. in a well-known passage in his judgment in Martin v. Osborne [1936] HCA 23; (1936) 55 CLR 367, at p 375 ; see also Luxton v. Vines [1952] HCA 19; (1952) 85 CLR 352, at p 358 . 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.

Deane J (would allow the appeal)

28. There was some discussion in the course of argument as to whether a jury is precluded from taking account of, or drawing an inference from, a fact unless that fact is established beyond reasonable doubt. In the view I take, it is impossible to give a general theoretical answer to that question. 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.

Mason CJ (would grant special leave and dismiss the appeal)

1. 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.

Dawson J (would grant special leave and dismiss the appeal)

1. 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.

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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.

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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:

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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:

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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):

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Toohey J (would grant special leave and dismiss the appeal)

I agree with the judgment of Dawson J.

Gaudron J (would grant special leave and dismiss the appeal)

I agree with Dawson J.

McHugh J (would grant special leave and dismiss the appeal)

1. 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.

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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.

The Court (French CJ, Kiefel, Bell, Keane and Gordon JJ)

1. On 15 July 2014, following a trial in the Supreme Court of Queensland before Byrne SJA and a jury, the respondent was found guilty of the murder of his wife, Allison Baden-Clay.

2. The respondent appealed against his conviction to the Court of Appeal of the Supreme Court of Queensland on the ground that the jury's verdict was unreasonable. The Court of Appeal (Holmes CJ, Fraser and Gotterson JJA) allowed the appeal on that ground, set aside the respondent's conviction on the charge of murder, and substituted a verdict of manslaughter.

3. The Court of Appeal held that, although it was open to the jury to find that the respondent had killed his wife, the evidence did not allow the jury to be satisfied beyond reasonable doubt that the respondent intended either to kill her, or to cause her grievous bodily harm. In particular, the Court of Appeal accepted the respondent's submission, made for the first time on appeal, that the prosecution had not excluded the hypothesis that the respondent had struck his wife in the course of a struggle and that she had died as the result of a fall, or in some other manner, that did not involve an intent on his part either to kill her or to cause her grievous bodily harm.

4. On the appeal to this Court, the Crown contended that it was open to the jury, having regard to all the evidence, to be satisfied beyond reasonable doubt that the respondent killed his wife with intent to kill her or to cause her grievous bodily harm. That contention should be accepted.

5. The respondent gave evidence at his trial. He denied that he had fought with his wife, killed her and disposed of her body. The respondent's evidence did not support the hypothesis held by the Court of Appeal to be consistent with the respondent's innocence on the charge of murder. The hypothesis on which the Court of Appeal acted was not available on the evidence; and so the Court of Appeal was wrong to conclude that it was unreasonable for the jury to find on the whole of the evidence that the deceased's death at the respondent's hands was intentional.

6. The appeal should be allowed and the verdict of guilty of murder restored.

The Evidence at Trial

7. The respondent gave evidence that he, his wife and their three daughters were at home on the night of 19 April 2012. He said that he went to bed at about 10 pm, leaving his wife, who was watching television, in the living room. He awoke just after 6 am on 20 April 2012. His wife was not at home, but she often went for an early morning walk. That morning, he was responsible for getting the children ready for school and taking them there. He was "under the pump a little bit" and was "rushing that morning". He said he cut himself shaving.

8. The respondent phoned and sent text messages to his wife, but there was no response. He also called his parents to tell them that he did not know where his wife was. He went driving around the suburb looking for her. At 7.15 am he called 000 to report her missing.

9. The police arrived at the respondent's home at 8 am. The respondent was asked whether he and his wife were estranged; he denied it. He was asked whether there was an "indication that the marriage is going to break up" and he answered "Um I hope not." He went on to say that he "had an affair ... that ended last year."

10. The deceased's body was found on 30 April 2012 under a bridge on a bank of Kholo Creek, some 13 kilometres from her home.

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32. The respondent's evidence was that he had nothing to do with his wife's death. In particular, he denied that he fought with her on the evening of 19 April or the morning of 20 April. He denied that he left his children alone in the house to go to the Kholo Creek bridge. He denied that he took any steps to dispose of his wife's body.

33. There was some discussion at trial as to the basis on which a verdict of manslaughter should be left to the jury as an alternative to murder. In answer to the trial judge's question: "What is the reasonable hypothesis consistent with an absence of an intention to kill?", counsel for the respondent replied: "That, on the prosecution case, death was occasioned unintentionally." His Honour responded: "But there are no fractures of the head." Counsel agreed with that observation, and in response to the trial judge's further remark: "So there's no suggestion that she's fallen and hit her head on bricks or cement", counsel answered: "No." Later, prior to the trial judge's summing up, his Honour canvassed with counsel for the respondent the possibility of a direction that the defence contended in the alternative that the conduct in question did not tend to prove an intentional killing. Counsel for the respondent said the problem with that was "it's not our contention".

34. On this footing and without objection from the respondent, the hypothesis which the Court of Appeal held to be available to the respondent was not put before the jury. The alternative verdict of manslaughter was left to the jury because the Crown bore the onus of proving that the respondent acted with intent to kill or to cause grievous bodily harm.

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47. For an inference to be reasonable, it "must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence" (emphasis added). Further, "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" (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.

48. Further, a criminal trial is accusatorial but also adversarial. Subject to well-defined exceptions, "parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue."

Approach of the Court of Appeal

49. The onus of proof of murder, including proof of the respondent's intention to kill or cause grievous bodily harm, was always upon the prosecution. It is common ground that the jury rejected (and were entitled to reject) beyond reasonable doubt the respondent's hypotheses that his wife had taken her own life or had died of alcohol or drug toxicity. The Court of Appeal's reasoning proceeded on the assumption that there could be no reasonable doubt that the respondent killed his wife.

50. Given the unchallenged conclusion that the respondent was the agent of his wife's death, the compelling inference is that he was the last person to see his wife alive and was the only person who knew the circumstances of her death. That inference did not, of course, diminish the overall burden on the prosecution of proving beyond reasonable doubt all elements of the offence of murder with which the respondent was charged. In the case of circumstantial evidence, the prosecution's burden requires it to exclude all reasonable hypotheses consistent with innocence. However, where an accused person with knowledge of the facts is silent, then as was said in Weissensteiner v The Queen:

"in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused."

55. The Court of Appeal's conclusion to the contrary was not based on evidence. It was mere speculation or conjecture rather than acknowledgment of a hypothesis available on the evidence. In this case, there was no evidence led at trial that suggested that the respondent killed his wife in a physical confrontation without intending to kill her. There were "no positive proved facts from which the inference" drawn by the Court of Appeal could be made. There was no evidence at trial of any injury to the wife's body that might have killed her. Due to the decomposition of the body, the precise cause of her death remains unknown. There was a probable bruise on the internal lining of the left front of the chest wall, but it was unclear whether it occurred pre- or post-mortem. If it was a bruise, the evidence was that it was the result of a "mild force injury" because there were no underlying rib fractures. There was a chipped tooth but no signs of trauma to the teeth or the hard tissues of the jaw. Not only were there no fractures to the head, which might have suggested the wife had fallen and hit her head on a hard surface (as in the example given by the Court of Appeal), there were no other fractures on the body.

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57. The Court of Appeal appears to have reasoned that the respondent's evidence could be disbelieved by the jury, as it plainly was, so that there was no evidence at all in relation to the hypothesis. If it were truly the case that there was no evidence from the respondent as to the circumstances of his wife's death, the application of the principles explained in Weissensteiner would have required consideration; and they were not adverted to by the Court of Appeal. But the respondent chose to give evidence. To say that the respondent's evidence was disbelieved does not mean that his evidence could reasonably be disregarded altogether as having no bearing on the availability of hypotheses consistent with the respondent's innocence of murder. His evidence was important, even if it was disbelieved, because it was open to the jury to consider that the hypothesis identified by the Court of Appeal was not a reasonable inference from the evidence when the only witness who could have given evidence to support the hypothesis gave evidence which necessarily excluded it as a possibility.

58. The Court of Appeal should not have treated the case as one in which it was open to it to identify a hypothesis as to the circumstances of the death of the deceased on the basis that the respondent's evidence could be disregarded as if it had not been given at all.

59. There remains another difficulty with the Court of Appeal's approach. The Court of Appeal's hypothesis was never put to the jury by the respondent's counsel, either directly or indirectly. The hypothesis was contrary to, and excluded by, the case that the respondent put to the jury. That statement requires explanation.

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63. But it is quite another matter, as occurred on appeal to the Court of Appeal and again to this Court, to contend for a hypothesis which was not put to the jury for tactical reasons, which is directly contrary to evidence of the respondent at trial, which is directly contrary to the way in which the respondent's counsel conducted the defence and which, in response to direct questions from the trial judge, was expressly rejected by the respondent's counsel. The issues and available lines of argument to be pursued were narrowed by the way the case was conducted at trial. That is commonplace. But it cannot be ignored. The hypothesis identified by the Court of Appeal was not open. Once that hypothesis is rejected, no other hypothesis consistent with guilt of manslaughter, but innocence of murder, has ever been identified at trial, before the Court of Appeal or in this Court.