Directed verdicts

The Court (Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ)

1. The appellant, May, was convicted before a stipendiary magistrate on two charges arising out of alleged betting in a hotel. An appeal to the Supreme Court of South Australia was dismissed by Abbott J. From this order dismissing the appeal the applicant now seeks special leave to appeal to this Court.

2. At the hearing before the magistrate evidence was called for the prosecution and for the defence. It is unnecessary to refer to this evidence, beyond saying that, if the defendant's evidence had been believed, it would have established that the defendant was not present in the hotel at the times when all but one of the alleged bets were made, and, with regard to that one bet, such serious doubt would have been cast on the evidence for the prosecution that a conviction could hardly have been justified. It is sufficient to say that the magistrate accepted without qualification the evidence of the principal witness for the prosecution, Constable Aldridge, and disbelieved the evidence given by the defendant as to his movements on the day in question. He expressed himself strongly, but his findings are not, in our opinion, open to attack. With regard to one of the witnesses called for the defence, a Miss Edge, he said that he was "unable to say that there is sufficient reason to distrust her evidence", and it was said that acceptance of her evidence ought to have led him to a different view of the evidence of Aldridge and of the defendant. But Miss Edge's evidence was only one link in a chain, and it by no means followed from its acceptance that the defendant's "alibi" was established. It was a matter of proving the happening of events at precise times, and it was clearly open to the magistrate to find, as he did, that the precise times were not established.

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4. The question which is actually raised is whether, when the prosecution has made out what is called a "prima facie case" or a "case to answer", the burden of proof shifts to the shoulders of the accused person or defendant, with the consequence that, if he fails to displace that prima facie case by denial or explanation, he ought to be convicted. It is, of course, clear that there is no such shifting of the burden in such a case. The burden of proving guilt beyond reasonable doubt rests on the prosecution from first to last, and, even though the defendant remains silent after a prima facie case has been launched against him, it may very well be that he ought to be acquitted.

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7. When, at the close of the case for the prosecution, a submission is made that there is "no case to answer", the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law. Unless there is some special statutory provision on the subject, a ruling that there is a "case to answer" has no effect whatever on the onus of proof, which rests on the prosecution from beginning to end. After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does or not, the question to be decided in the end by the tribunal is whether, on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. This is a question of fact. In deciding this question it may in some cases be legitimate, as is pointed out in Wilson v. Buttery (1926) SASR 150 for it to take into account the fact that the defendant has not given evidence as a consideration making the inference of guilt from the evidence for the prosecution less unsafe than it might otherwise possibly appear: cf. Morgan v. Babcock & Wilcox, per Isaacs J. [1929] HCA 25; (1929) 43 CLR 163, at p 178 . But to say this is a very different thing from saying that the onus of proof shifts. A magistrate who has decided that there is a "case to answer" may quite consistently, if no evidence is called for the defendant, refuse to convict on the evidence for the prosecution. The prosecution may have made "a prima facie case", but it does not follow that in the absence of a "satisfactory answer" the defendant should be convicted.

Gleeson CJ

At 75

This matter raises for decision an important question of practice in relation to the administration of criminal justice. The Court was informed that the question is one as to which there has been some difference of opinion amongst trial judges and, in the interests of even-handed administration of justice, it is therefore important that the law should be settled. The Director of Public Prosecutions, pursuant to the Criminal Appeal Act 1912, s 5A(2)(a), has submitted for the determination of this Court the following question of law: “Does a trial judge have the power to direct a verdict of acquittal when the trial judge assesses the evidence is such that a verdict of guilty based upon it would be unsafe and unsatisfactory?”

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In May of this year R was charged in the District Court in its criminal jurisdiction with stealing a motor vehicle the property of a used car dealer. There was ample evidence that the motor vehicle in question had been stolen, and it was ultimately found on premises owned or occupied by R. His answer to the charge was that he had nothing to do with any theft of the vehicle, and that it had been brought to his premises and left there by his adult son. Apart from the circumstance that the vehicle was found at R's premises, the only evidence implicating him in its theft was that a witness claimed to have seen a man alleged to be R in and around the car dealer's yard displaying an interest in the vehicle not long before it was stolen and to have spoken to the man about the car. That identification evidence, however, turned out to be very unsatisfactory. It transpired that an identification was originally made in circumstances where the witness well knew that R was the  person charged with a crime in relation to the motor vehicle, and certain descriptions which the witness gave of the person he saw and spoke to were in a number of respects inconsistent with R's appearance.

At the conclusion of the Crown case the learned District Court judge, in the absence of the jury, addressed the following observation to the Crown Prosecutor: “HIS HONOUR: That identification evidence Mr Crown, it's unsafe to go to a jury?”

At 76

[after a discussion about the adequacy of the identification evidence]

The jury were then brought back into court and his Honour informed them of the course which he intended to adopt, saying with reference to the identification evidence:

“I have concluded as a matter of law that such evidence is so poor it should not then be considered by you. Therefore as a matter of law I have put on the record that I am withdrawing that particular charge and that particular consideration of yours with respect to the first count.”

His Honour then directed an acquittal, and the jury complied with the direction.

At 77

It is clear that a trial judge has the power and the duty to direct an acquittal if at the end of the Crown case there is simply no evidence from which it could be concluded that the accused has committed the crime with which he is charged. However, an area of difficulty which arises, even on the narrower view, was examined and dealt with in R v Galbraith (at 1042; 1062) in the following terms…

At 84 and 85

There are attractions in the notion that a trial judge should have such a power. However, if it were so, it is not easy to see why it should, in logic, be confined to directing an acquittal in a case where the verdict would be regarded as unsafe. Why would it not also extend, for example, to a power of the kind which was denied in Whitehorn, that is to say, a power in the judge to call a witness or to require the Crown to do so? As Dawson J observed (at 675) there are aspects of the trial procedure by which our criminal justice is administered which operate to circumscribe the extent to which a trial judge may intervene in the interests of preventing injustice. To the aspects mentioned by Dawson J I would add the role of the jury as the tribunal of fact. It is that consideration, rather than any point of legal technicality, which underlies the decisions in cases such as R v Galbraith, R v Prasad, Attorney General's Reference (No 1 of 1983) and Mezzo. The legal principles which underpin the narrower view in turn flow from, or are particular manifestations of, that basic aspect of criminal justice. It is one thing to recognise in Courts of Criminal Appeal a power to review a jury's determination of fact. It is another thing altogether to permit a trial judge to pre-empt such a determination. I would answer the question asked: “No”

Maxwell J

At 85

I agree with the answer of the Chief Justice to the question of law submitted by the Director of Public Prosecutions.

Wood J

At 85

I agree with the reasons of the Chief Justice and would similarly answer the question asked: “No”.

The Court (Deane, Dawson, Toohey, Gaudron and McHugh JJ)

1. The applicant, Richard John Doney, seeks special leave to appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales dismissing an appeal against his conviction for being knowingly concerned in the importation of cannabis resin. See s.233B(1)(d) of the Customs Act 1901 (Cth). The cannabis resin was secreted in the core section of certain bolts of voile cloth packed in boxes which, in turn, were packed in a container consigned by sea from Karachi to Sydney. The named consignee, a fabric importer, had not ordered the cloth. Its name had been used without its authority.

2. The prosecution case depended on the evidence of an accomplice, Gerard Clayton Freeman. He gave evidence that he had been approached by the applicant to arrange customs clearance of a container of cloth, and that later, but shortly before the consignment arrived in Sydney, the applicant made the shipping papers available to him and informed him that there would be some cannabis resin in the container.

3. Freeman was by no means a perfect witness. Not only was he an accomplice who attracted the usual warning that it would be dangerous to convict on his uncorroborated evidence, but his evidence was, on his own admission, false in a number of respects. He also admitted to having given a false account when first interviewed by investigating police, to having departed in some respects from evidence previously given and to having given evidence designed to conceal past dishonest dealings which had resulted in convictions for offences of dishonesty. It is clear that the trial judge formed an unfavourable view of his truthfulness as a witness.

4. The application for special leave to appeal raises two issues. The first is whether there was any evidence capable of corroborating the account given by Freeman. The second is whether the trial judge erred in holding that he had no power to direct the jury to enter a verdict of not guilty on the ground that, although there was evidence sufficient to sustain a conviction, a verdict of guilty would be unsafe and unsatisfactory. The Court of Criminal Appeal held that the applicant's conviction was not unsafe or unsatisfactory. That aspect of its decision is not challenged other than on the basis that there was nothing to corroborate the account given by Freeman. Rather, it is put that, even if there was corroborative evidence, the applicant was denied the right to have the trial judge who heard and observed the witness, Freeman, determine whether, in his view, a guilty verdict would be unsafe or unsatisfactory.

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11. The question whether a trial judge may direct a jury to return a verdict of not guilty if, in his or her opinion, a guilty verdict would be unsafe or unsatisfactory was adverted to but left unanswered in Whitehorn v. The Queen [1983] HCA 42; (1983) 152 CLR 657, at p 689. There is no doubt that it is a trial judge's duty to direct such a verdict if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict. See, for example, Plomp, at p 246; Reg. v. Prasad (1979) 23 SASR 161, at p 162; Reg. v. R. (1989) 18 NSWLR 74, at p 77. And it may sometimes happen (although it should be but rarely) that evidence is withdrawn because it becomes apparent that, although technically admissible, it has no or insignificant probative value in comparison with its prejudicial effect, with the consequence that, if the remaining evidence will not support a guilty verdict, a verdict of not guilty must be directed. See, as to the discretion to reject technically admissible evidence, R. v. Christie (1914) AC 545, at p 560; Harris v. Director of Public Prosecutions (1952) AC 694, at p 707; Driscoll v. The Queen [1977] HCA 43; (1977) 137 CLR 517, at p 541; Harriman v. The Queen [1989] HCA 50; (1989) 167 CLR 590, at p 619; and, as to the withdrawal of evidence and the subsequent direction of a verdict of not guilty, Reg. v. R., at p 76. However, the question raised when, for whatever reason, the evidence will not sustain a verdict of guilty is distinct from that raised in the present case where the evidence of Freeman, if believed, is itself sufficient to sustain the applicant's conviction.

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16. Evidence that attracts a warning is evidence that has been adjudged, either generally or in the particular case, as having probative value such that, subject to warning, it can be taken into account by the jury in its deliberations. Assuming an appropriate warning, the weight to be given to that evidence is as much a matter to be determined by inference based on the jury's collective experience of ordinary affairs as is the question whether evidence is truthful. And, of course, the same is necessarily true of evidence that does not require a warning.

17. It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

Lee CJ

The Director of Public Prosecutions acting pursuant to s5A(2) of the Criminal Appeal Act 1912, has submitted to this Court a question of law to be determined. S5A(2) (g) of the Act requires that the matter be heard in camera.

The respondent had been indicted before a jury on a charge of conspiracy to cheat and defraud the Government Insurance Office that charge being a common law misdemeanour. The indictment was in the following terms: "That the respondent between 10 January 1988 and 20 January 1988 at Sydney in the State of NSW did conspire with an unknown person or persons to cheat and defraud the Government Insurance Office of NSW of the sum of $19,000." The respondent pleaded not guilty and the trial proceeded before Judge Court and a jury of 12. At the conclusion of the Crown evidence, his Honour directed the jury to acquit the defendant. The question which is raised for decision is in the following terms: Is a Trial Judge entitled to direct a jury to enter a verdict of acquittal at the end of a Crown case based on circumstantial evidence on the basic that the Crown could not negative all other reasonable inferences which were inconsistent with the guilt of the accused? The evidence which the Crown presented to the jury was one which could be regarded, if the evidence was accepted as establishing the following facts…

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In my view, a reading of his Honour's remarks before he directed the verdict does not leave entirely certain the basis upon which his Honour decided to direct a verdict. If that basis was, as counsel for the respondent has put it here and if there was no evidence of guilty mind in the unknown conspiracy, the question which is raised in the proceedings would not require an answer for in that event the direction to the jury to acquit would be a proper direction, the onus being on the Crown to prove that fact.

In my view, the answer to that submission is that there was such evidence. A jury giving full weight to the admission by the respondent that he was not insured and that he had a friend in the Government Insurance Office who could backdate the policy when taken with the appearance for the first time of the insurance on the computer the day after the accident and the other features that I have mentioned, plainly justifies an inference that Annette, or whoever it was, was working in concert with the respondent to achieve the result that he be treated as insured when in fact he was not; and being so treated would inevitably lead to a payout to him of money from the Insurance Company. Whether that inference would be drawn by a jury having all the other facts that were outlined in the respondent's submission and whether it would be drawn beyond reasonable doubt is another matter.

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In order to consider that question, it is necessary to have regard to the case which the Crown has claimed was open on the evidence as set out in items 1 to 9 earlier. The question of the power of a single judge to direct a jury to acquit has been dealt with in the decision of R v R (1989) 18 NSWLR 74, and although that case was primarily concerned primarily with the question of the power of a single judge to direct a verdict on the ground that any verdict of guilty on the evidence given would be unsafe and unsatisfactorily, it raised the question as to whether the power to direct such a verdict lay with the Court of Criminal Appeal only or was also a power open to a judge presiding over the trial and in the course of dealing with that question, the Court was required to look at the authorities which defined the power of a single judge to direct a verdict.

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It is thus apparent that the decision in R v R expressly answers - in the negative - the question raised in the present case by placing reliance upon and following the Victorian decision (Attorney General's reference (No. 11) of 1983).

In a later case in the High Court, Doney v The Queen (1990) 65 ALJR 45, the High Court in my view approved of the reasoning in R v R and Attorney General's Reference (No. 1) of 1983. On the view then that a Judge in a case of circumstantial evidence cannot direct a verdict of acquittal if there is evidence in support of the Crown case upon which the accused can be convicted, even though a reasonable hypothesis consistent with innocence can be formulated, the present case requires that the question asked must be answered in the negative.

Carruthers J

I agree.

Finlay J

I also agree.

Hoeban CJ at CL

1. I agree with Latham J

Latham J

2. The Crown appeals pursuant to s 107(2) of the Crimes (Appeal and Review) Act 2001 (NSW) against a verdict by direction on the second of two counts of sexual assault, following an application by the Respondent’s counsel at the conclusion of the complainant’s evidence in chief before Craigie SC DCJ.

3. The directed verdict was in respect of a count of attempted sexual intercourse without consent pursuant to ss 61I and 61P of the Crimes Act 1900 (NSW). It was necessary for the Crown to prove beyond reasonable doubt that the accused intended to have sexual intercourse with the complainant without her consent, knowing that she was not consenting or being reckless as to that fact, and that the accused, with that intention, did some act toward committing that offence which went beyond mere preparation and could not reasonably be regarded as having any other purpose than the commission of that offence: R v Mai (1992) 26 NSWLR 371 at 382; Inegbedion v R [2013] NSWCCA 291. The expression of a desire to commit an offence does not, without more, constitute an attempt.

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7. The evidence summarised above fell significantly short of the statement provided by the complainant to police, upon which the trial advocate’s opening was based. The trial advocate made no application to seek to refresh the complainant’s memory from the statement and did not suggest that the Crown case included other evidence which might have addressed that shortcoming.

The Trial Judge’s Ruling

8. Following the application by the Respondent’s counsel, his Honour confirmed with counsel that the application was being made on the basis that “the Crown case, having in this respect reached its high water mark [at the] close of the examination in chief, that the jury, as it can be directed at any stage, should now, as an appropriate stage, be directed.” His Honour then sought the trial advocate’s response.

9. The following exchange encapsulates the Crown’s position and his Honour’s ruling:-

TRIAL ADVOCATE: ... the evidence is the complainant is in the bedroom, she turns around, the accused has his pants down and he’s got an erection. He says “I want to fuck you.” ... And then he grabs her and pushes her onto the bed. That’s the evidence of that. That the Crown relies on for that your Honour.

HIS HONOUR: ... it would be a difficult proposition to suggest that that bears much resemblance either to the opening or to what would be reasonably available to support guilt beyond reasonable doubt even if it were accepted of count 2 on the indictment.

...

TRIAL ADVOCATE: ... But the Crown maintains that that’s the evidence that’s available to the jury. It’s a matter for them whether the elements of the charge are made out.

HIS HONOUR: Where is the evidence capable of supporting any inference of an attempt for penetrative sex?

...

TRIAL ADVOCATE: It was the actions of the accused, ... In his words and then forcing the complainant onto the bed, his hands still under her. That’s the state of the evidence. The Crown would go to the jury, well, an intention to have sexual intercourse and an attempt based on that.

HIS HONOUR: ... it is highly prejudicial, highly suspicious, as to what it was he was about to attempt. I would however uphold that any attempt that he had on his mind certainly had not been initiated to a point where one could say where, if he had continued doing what he was doing, that it would have eventuated in an act of penetrative sex. One could well speculate that’s what he had in mind, but it would be speculation only.

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19. I do not accept that the Court in RMC intended to convey that a no case submission can never be made until the close of the Crown case. The summary of the principles set out at [16] above is not inconsistent with the proposition that an appropriate time to consider a no case submission is when the evidence in support of the charge has been fully presented, which, in a sexual assault trial wholly dependent on the evidence of the complainant, is at the close of the complainant’s evidence in chief. It is not incumbent on defence counsel to commence cross examination or await the end of the Crown case, with the attendant risk that the gap will be filled.

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25. Before leaving this ground it is necessary to address a submission made on the hearing of the appeal that there was evidence yet to come in the Crown case that was capable of supplementing the complainant’s evidence, namely evidence of complaint. I have already observed that the contents of the triple 0 call and the complainant’s complaint to police and to her sister were part of the complainant’s evidence in chief. The Crown effectively contended on the hearing of the appeal that the evidence of the complainant’s sister and her partner, which presumably would have been in the same terms as that given by the complainant herself, was capable of rising higher than the source. His Honour’s decision to halt the trial at the end of the complainant’s evidence in chief was therefore erroneous, in that the Crown case was not taken at its highest.

26. This submission must be rejected. Had the evidence of the complainant’s sister and her partner been called, it could not have improved upon the complainant’s evidence of what occurred in her bedroom. The traditional direction to a jury on the subject of complaint evidence, where it is admitted as an exception to the hearsay rule towards proof of the alleged offence, acknowledges that the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasion(s).

N Adams J

40. I have had the advantage of reading the judgment of Latham J in draft. I agree that the appeal should be dismissed for the reasons provided by her Honour.