Essential facts

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.

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

"Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence".

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

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.

…

4. Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved. The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed.

5. On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence, vol.9 (Chadbourn rev. 1981), par.2497, pp 412-414 - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.

6. As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact - every piece of evidence - relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.

…

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

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

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)

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

Ipp JA

1. On 21 February 2003 the appellant was found guilty on two charges of between 1 November 1998 and 1 September 1999 knowingly taking part in the supply of methylamphetamine and ecstasy between those dates. The appellant appeals against those convictions. He also applies for leave to appeal against sentence.

2. In the light of the conclusion to which I have come in regard to the appeal against conviction, it will not be necessary for me to deal with the application for leave to appeal against sentence.

3. The critical issue at the trial was whether the appellant knew, in August 1999, that a man called Pedavoli was using a flat of which the appellant was a lessee, to keep drugs for supply. The other elements of the offences were, in reality, not in issue. The case was fought, essentially, on the basis of whether the requisite knowledge had been proved beyond reasonable doubt.

4. On 19 April 1999 the appellant leased certain premises in Albert Street in a false name. The Crown case at the trial was that he entered into the lease and did so under a false name, because he knew Pedavoli was going to use the flat to store drugs for supply there.

5. Bearing this in mind, the basic facts on which the Crown relied for an inference of knowledge to be drawn beyond reasonable doubt are the following:

(a) tapes of telephone recordings made between December 1998 to early April 1999 showed that the appellant knew that Pedavoli was a supplier of drugs;

(b) on 19 April the appellant entered into the lease in the false name with the specific purpose of allowing Pedavoli to use the flat to store drugs for supply;

(c) Pedavoli, with the consent of the appellant, lived in, or used, the flat at least for some time in August 1999;

(d) on 27 August 1999 the appellant was in the flat in the early afternoon while Pedavoli was there for a period of some fifteen minutes;

(e) Pedavoli was arrested on the evening of 27 August 1999 and the drugs in question were found in the flat;

(f) after Pedavoli's arrest, the appellant, in telephone calls, made anxious enquiries as to the circumstances of Pedavoli's arrest, the police case against Pedavoli and police searches. The anxiety displayed by the appellant was extraordinary and it was open to infer from these telephone calls that the appellant had knowledge that he might be suspected of having committed some offences and, further, that he may have himself supplied drugs to Pedavoli for general onward supply by Pedavoli.

6. The Crown relied on inference to prove the factual elements relating to the purposes with which the appellant entered into the lease. The appellant did not give evidence.

7. There are a number of primary facts which the Crown contended were capable together of giving rise to the inference that the appellant entered into the lease for purposes of allowing Pedavoli to supply drugs there. However, the essential link in the chain of inferences to be drawn for purposes of proving the guilt of the appellant on the two charges has to be that at the time the lease was entered into, the appellant knew that it was to be used as a supply base by Pedavoli.

8. If one removes this element from the list of facts on which the Crown relies to prove its case, one is left with an empty shell. Without proof that the appellant entered the lease for purposes of allowing Pedavoli to use the flat to store drugs for supply, the remainder of the factual material, in my opinion, is incapable of proving beyond reasonable doubt the appellant knowingly took part in the supply of a commercial quantity of ecstasy in August 1999, that being the relevant time according to the trial judge's directions to the jury.

…

12. As I have explained, in the present case I consider that the facts relating to the purpose for which the appellant entered into the lease is a fact so indispensable to the finding of guilt that it was necessary for the trial judge to direct the jury that that fact be proved beyond reasonable doubt.

Sully J

28. I agree with the orders proposed by the presiding judge and with the entirety of the reasons given by his Honour for those orders.

Adams J

29. I also agree. I wish to add an observation of my own.

Sully J

1. Between 23 November 2004 and 2 December 2004 Mr. Minniti, the appellant, stood trial in the District Court at Sydney before his Honour Judge Dodd and a jury. The appellant was so tried upon an indictment which charged him with having attempted, on 2 November 2003 at Sydney, to commit an offence against section 233B(1) of the Customs Act 1901 (C’th) in that he had attempted to possess narcotic goods which had been imported into Australia in contravention of the Customs Act. The goods were described in the charge as having consisted of a quantity of 3.4 – methylenedioxymethamphetamine (“MDMA”); the particular quantity having been not less than the commercial quantity as defined by the Customs Act. An offence of the kind thus described attracts upon conviction a penalty of, relevantly, imprisonment for life.

…

The Competing Cases at Trial

4. These are summarised, helpfully and succinctly, and as follows, in the written submissions put in by learned Senior Counsel for the Crown:

              …

8. On the same day that Rutten attended the Delifrance Café, Sunday 2 November 2003, Vermes, the Appellant, another man called Kazich (who was also later arrested) and the VW Transporter vehicle were in the general vicinity of the Delifrance Café.

9.           About mid afternoon on 2 November 2003, Rutten was joined in the Delifrance by Vermes. Rutten recognised Vermes’ voice from the telephone conversation the previous night. After some conversation Rutten and Vermes left the Delifrance Café and headed towards Rutten’s Tarago parked in Goulburn Street. They were joined en route by the Appellant. At the Tarago Rutten took out the bag the police had placed in the vehicle and all three men retraced part of their journey back to the George Street/Goulburn Street intersection. Along the way the Appellant took over wheeling the bag from Rutten. The Appellant left Rutten and Vermes at the George Street/Goulburn Street intersection and took the wheelie bag from that location to Rawson Place, a street further south off George Street in the vicinity of Central Railway. On the way the Appellant met up again with Vermes and also Kazich who was standing in the street and all three kept on walking south. The Appellant left Vermes and Kazich at the intersection of George Street and Rawson Place and headed along Rawson Place towards Pitt Street.

10.         The VW Transporter was parked in Rawson Place. The Appellant took the bag to an alcove near the VW Transporter and then was told to stop by a Federal Agent who was in the area. The Appellant left the bag and ran along Rawson Place away from George Street and was apprehended by a number of Federal Agents who converged on the Rawson Place and Pitt Street intersection. The wheelie bag was recovered and the Appellant was found to have the keys to the VW Transporter in his pocket.

…

26. The submissions of the appellant respecting Grounds 1, 3 and 4 really come down to this proposition: that in each of the paragraphs of the written directions on flight, the trial Judge should have directed upon the basis that the alleged flight of the appellant constituted an intermediate fact which itself constituted an indispensable link in a chain of reasoning towards an inference of guilt – see paragraph 20 of the appellant’s written submissions. It follows, so the appellant’s argument runs, that the directions should have put explicitly to the jury that there could not be a proper finding either of flight in fact; or of flight evidencing consciousness of guilt as charged; unless the finding was one made beyond reasonable doubt.

…

35. Ever since the decision of the High Court of Australia in Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, any case of the present kind has to be dealt with in the shadow of two contrasted forensic metaphors. The first is the “links in a chain” metaphor. The second is the “strands in a cable” metaphor.

36 It appears to be now settled law that a circumstantial Crown case which is properly to be treated as a “links in a chain” type of case will require jury directions about any so-called intermediate facts which are “indispensable links in ........ (the jury’s) .......chain of reasoning towards an inference of guilt”, to borrow from the Court judgment, (Wood CJ at CL, James and Adams JJ) in Merritt [1999] NSWCCA 29 at paragraph 70. Such directions must identify facts having that potential significance; and the jury must be instructed that if the jury sees any such fact as constituting such an indispensable link, then the fact must be proved beyond reasonable doubt before it can be utilised as part of the chain of reasoning to an inference of guilt as charged.

37. It appears to be equally settled law that a circumstantial Crown case which is properly to be treated as a “strands in a cable” type of case will not require any directions other than the conventional directions that are summarised by Hunt CJ at CL in the passage commencing: “In that context, there can be no valid complaint ..........” in his Honour’s reasons in Taylor as previously herein quoted.

38. What continues as a difficult concept, and a concept unexplored in any decision to which this Court was referred in the present case, is the concept, or principle, by which a trial Judge can determine with a proper professional confidence whether he has on his hands a case calling for “links in a chain” directions; or, rather, a case calling for “strands in a cable” directions.

…

44. The six matters which Judge Dodd summarised for the jury in the passage quoted at paragraph 22 hereof outlined a concatenation of propositions which the Crown was putting forward in combination as a circumstantial Crown case which, if accepted, was inconsistent with any other reasonable hypothesis than that of the appellant’s guilt as charged. No one of the six nominated propositions was put forward by the Crown as “independent proof of guilt”. No two of the propositions were put forward as having the necessary combined cogency provided that some further proposition connecting them was first accepted as having been established in fact. The Crown went to the jury upon the bases that the jury could and should find each of the six propositions to have been established; and that the combined effect of all six propositions was, thereupon, sufficient to establish beyond reasonable doubt the appellant’s guilt as charged.

45. It seems to me that a sensible, practical analysis of the authorities does not require that a Crown case framed in that fashion needs to be complicated in its presentation by the trial Judge to the jury by an arcane philosophical digression that issues in directions which are likely to confuse rather than to assist the jury. In my opinion the Court should follow the approach of Hunt CJ at CL in Taylor. That entails, in my opinion, that Grounds 1, 3 and 4 should be rejected.

Hoeben J

77. I agree with the conclusions of Sully J and the orders he proposes.

Latham J

78. I agree with the reasons and orders proposed by Sully J.

Spigleman CJ

1. I have read the judgment of Simpson J in draft. I agree with her Honour’s reasons and the orders she proposes.

…

8. In a case like Merritt, where there were only two intermediate facts, it was, to use the language of Dawson J, neither “unnecessary” nor “confusing” to give such a direction. In a case such as the present where there are numerous separate facts, of varying degrees of probative force, it could very well be confusing to do so. The prospect of confusion is a matter which has been emphasised in later cases. (See eg Minniti v The Queen [2006] NSWCCA 30; (2006) 159 A Crim R 394 at [45]; Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151 at [665].)

9. That part of the reasoning in Merritt which states that a direction of a particular kind is “usually” required may need to be reassessed in the light of subsequent authorities. I refer particularly to the passage at [70] where the joint judgment states, when a trial judge is deciding whether to give directions with respect to matters that are or might be intermediate facts:

“The trial judge should ... ask whether the jury might reasonably regard certain facts as intermediate facts even if, as it happened, his Honour did not regard any of the facts in that light.

...

In our opinion, where one or more facts might reasonably be regarded as intermediate facts, it would usually be essential for the trial judge to identify those facts and instruct the jury that if the jury considered that such facts were indispensable links in their chain of reasoning towards an inference of guilt, they would need to be satisfied of them beyond reasonable doubt before convicting.”

10. There is an element of redundancy in this analysis. If it be the case that a jury believes that particular facts are “indispensable links in their chain of reasoning towards an inference of guilt” then it is unlikely that a jury could come to a conclusion that the offence was established beyond reasonable doubt unless that fact were so established. Indeed, that is so unlikely as to need no specific direction. The very hypothesis, that is, that the jury itself regarded a particular fact as an “indispensable link” would prevent the jury convicting in view of the clear direction always given about the obligation of the Crown to prove guilt beyond reasonable doubt. There may be circumstances in which a jury needs to be informed of a matter that should be obvious, however, in my opinion the proposition in Merritt at [70] that it is “usually essential” to give the direction therein referred to is not consistent with subsequent authority.

…

17. With respect to each of these matters, as in Velevski, it would be wrong to suggest that “the jury will consider the evidence in separate and isolated compartments” (see [11] above). That is not how the evidence was adduced or how it was relied upon. Nor is it in any way appropriate to regard each of these matters as essential steps which must be separately determined as distinct intermediate facts. They, and the other facts cannot “be considered piecemeal”, to use the terminology from Hillier.

18. The statement in Merritt at [71] set out at [5] above, that a direction “would usually be essential” does not accord with the principle affirmed most recently in Keenan set out at [14] above that a direction of this character is “often” required. Nor does it reflect the basic proposition, also most recently affirmed in Keenan, set out at [15] above, that directions of this character do no more than ‘amplify’ the basic direction of proof beyond reasonable doubt. The circumstances of the case must determine the need for any further amplification, such as additional directions of the kind mentioned in Merritt.

19. For the reasons I have set out at [10], the emphasis always given to the Crown’s obligation to prove guilt beyond reasonable doubt will often be adequate, in a particular case, with respect to a matter which the jury may reasonably regard as an indispensable intermediate fact.

20. The way this case was run, and the way it was summed up by his Honour to the jury, was that all of the facts, including aspects of the phone calls and the postal box and the despatch of the money, each of which had elements linking it to the appellant, were separate matters the combined effect of which was such as could satisfy the jury beyond reasonable doubt of the appellant’s guilt. This was the approach most recently affirmed in Hillier and Keenan as set out at [12] and [13] above.

21. For these reasons, in addition to those set out by Simpson J, a direction of the character discussed in Merritt was not required in this case.

James J

22. I have had the advantage of reading in draft the judgments of Simpson J and of the Chief Justice.

23. I agree that, for the reasons given by Simpson J, the appeal against conviction should be dismissed and that, although leave to appeal against sentence should be granted, the appeal against sentence should be dismissed.

24. I also agree with the judgment of the Chief Justice in which the Chief Justice gives further reasons for rejecting the second ground of appeal against conviction, including rejecting the attempting reliance by counsel for the appellant on the decision of this Court in R v Merritt [1999] NSWCCA 29.

25. I was a member of the bench of this Court which decided the appeal in Merritt and joined in the judgment of the Court.

26. As is pointed out by the Chief Justice in his judgment, Merritt was an unusual case in that the circumstances from which the Crown contended that an inference of guilt could be drawn were very few in number. In such a case it is more likely that one or more of the limited number of circumstances relied on by the Crown should be identified as an indispensable intermediate circumstance, as discussed by Dawson J in the well known passage in Shepherd v The Queen [1990] HCA 56; (1991) 170 CLR 573 at 593. In the present case there were a large number of circumstances from the combination of which the Crown contended that the guilt of the appellant could be inferred and none of the three matters which were identified by counsel for the appellant on the appeal was an indispensable intermediate circumstance.

Simpson J

28. On 21 September 2007, following a jury trial, the appellant was convicted of three counts of importing a commercial quantity of a border controlled drug (Criminal Code Act 1995 (Cth), s 307.1), and one count of attempting to do so (s 307.1 and s 11.1(1)).

…

32. Put briefly, the Crown alleged that the appellant arranged for the despatch from China to him (under assumed names) of four packages containing the drug in vials. Each of the packages arrived in Australia, on the dates alleged on the indictment, and was intercepted by Australian Customs Services (“Customs”) officers. The third package, which arrived on 2 March 2006, was damaged and the vial was empty. (This gave rise to the charge of attempt.) In all, 30.5 kilograms of the drug was contained in the intercepted packages. So much was undisputed. The sole issue at the time was whether the Crown had proved, to the requisite standard, that it was the appellant who was responsible for the importations.

33. The Crown case was circumstantial.

…

49. One further observation may be made. There was virtually no dispute about the facts sought to be proved by the Crown. There was no direct evidence linking the appellant to either of the mailboxes, to the money transfer form, or to the telephone calls. The Crown case depended entirely upon the inferences that could be drawn from largely undisputed facts.

50. In the absence of any denial by the appellant, the defence case depended firstly, on challenging the adequacy of the facts and circumstances to prove beyond reasonable doubt that he was responsible for the importations, and, more particularly, to raise as a reasonable possibility that Mr Dreske was the person responsible – and the only person responsible, or, at least, the person responsible to the exclusion of the appellant.

…

65. At the conclusion of the evidence and immediately before counsel’s addresses, senior counsel for the appellant sought a direction that, in order to convict, the jury had to be satisfied beyond reasonable doubt that certain “crucial or indispensable intermediate facts” had been proved.

…

69. After hearing argument the judge declined to give a direction in the terms sought.

…

72. In my opinion, this was not a case in which the jury ought to have been left to determine for itself which fact or facts was or were indispensable to their reasoning. To the extent that the ground of appeal raises Merritt (which it does only obliquely) I would reject it.

73. The ground of appeal, as framed, is focused upon a direction in accordance with Shepherd, and the facts said to be “indispensable” are clearly identified.

74. Whether a fact on which the Crown relies as part of a circumstantial case is or is not “indispensable” may be tested by asking whether, in the absence of evidence of that fact, there would nonetheless be a case to go to the jury. If the answer is in the affirmative, even if the Crown case is weakened, even considerably, the fact is not “indispensable”. Where the answer is in the negative, the fact is “indispensable” and the jury should be directed accordingly.

The Court (Beazley JA, Grove and Howie JJ)

1. On 6 June 2006, a jury convicted the appellant of the kidnapping and murder of Kerry Whelan. Mrs Whelan was seen at 9:38 am on 6 May 1997 walking up the ramp of the carpark at the Parkroyal Hotel in Parramatta. Apart from some possible sightings of her on that day and another possible sighting on 9 May 1997, she has not been seen since and her body has never been discovered. On 9 August 2006, Barr J sentenced the appellant to life imprisonment on the charge of murder and a term of 16 years imprisonment with a non-parole period of 12 years for the offence contrary to the Crimes Act 1900, s 90A.

…

5. The appeal with which this Court is concerned is the rehearing ordered by the High Court. On the present appeal against conviction, the appellant relied on the following five grounds (the reference to the appeal ground number is a reference to the appeal ground in the original notice of appeal filed on 6 September 2006):

(1)         That the trial judge erred in failing to give the jury a direction in accordance with Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 that they had to be satisfied beyond reasonable doubt before being able to convict the appellant of either:

(a)         three specified indispensable intermediate facts, or, alternatively;

(b)         that they had to be satisfied beyond reasonable doubt of at least one of those three indispensable intermediate facts (ground 1).

6. The appellant also appealed against the sentence of life imprisonment in respect of the conviction for murder (grounds 11 and 12).

The Crown case

7. The Crown case at trial was a circumstantial case, as there was no direct evidence linking the appellant to the disappearance of Mrs Whelan. Her body was never recovered. There were three major planks in the Crown case: (a) evidence suggesting that Mrs Whelan was last seen as a passenger in a vehicle similar to that of the appellant’s leaving the vicinity of the Parkroyal Hotel at Parramatta on the morning of 6 May 1997 and she was never seen again; (b) notes found in the appellant’s handwriting at his premises on 21 May 1997 which the Crown alleged were an outline of things that had to be done in connection with obtaining ransom from the disappearance of Mrs Whelan; and (c) a call made by the kidnapper on 23 May 1997 from Goulburn at a time when the appellant was in the city and from a telephone box that was admittedly used by him on the day of the call. This evidence was placed against a background of the appellant’s financial difficulties and his unexpectedly making contact with the Whelans shortly before Mrs Whelan’s disappearance.

…

Grounds 1 and 2: the requirement for a Shepherd direction

81 Grounds 1 and 2 are set out above at [5] and may be considered together, as they raise the same essential question, namely, whether a Shepherd direction should have been given in this case.

82. The appellant contended that the Crown case depended upon the following indispensable intermediate facts being established:

(1)         that Mrs Whelan in fact left from the front of the Parkroyal Hotel by way of the Pajero 4WD seen in camera 7 at 9.38.45/46 am on 6 May 1997 (the Pajero evidence);

(2)         that the terms of the two dot point notes found at the appellant’s home on 21 May had the meaning ascribed to them by the Crown’s theory, that is, that they were an outline of the things to be done in connection with obtaining the ransom (the dot point evidence); and

(3)         that the appellant was in fact in the phone booth outside the Empire Hotel in Goulburn at the time the subject call was made to Crown Equipment at 9.21 am on 23 May 1997 (the telephone call evidence).

83. The appellant submitted that in accordance with the principles stated in Shepherd the jury had to be satisfied of each of those matters beyond reasonable doubt, the trial judge was required to direct to that effect. His Honour failed to do so. Alternatively, the appellant contended that his Honour erred in failing to direct the jury that if the jury was to convict him upon any one of the three independent bodies of evidence, at least one indispensable intermediate fact had to be found beyond reasonable doubt.

…

Was a Shepherd direction required in this case?

104. The Crown contended that the appellant’s motive for kidnapping and murdering Mrs Whelan was his desperate financial situation. It contended that his financial circumstances were such that they necessitated a desperate move and that desperate move was kidnapping Mrs Whelan for a ransom. It relied upon a large body of circumstantial evidence to prove that the appellant had kidnapped and murdered her. However, the Pajero evidence, the dot point evidence and the telephone call evidence were the three prominent factual circumstances upon which the Crown relied.

105. The appellant contended that these three areas of evidence were indispensable intermediate facts which required the judge give a direction that the jury had to be satisfied of each beyond a reasonable doubt before they could convict the appellant. ground 1(a). The appellant argued in the alternative that the jury had to be satisfied beyond a reasonable doubt of at least one of the three before being able to convict: ground 1(b).

106. As the appellant’s case was developed in oral argument on the appeal, the emphasis was in respect of the Pajero evidence. That evidence, on the appellant’s argument was the only evidence capable of demonstrating a physical connection between the appellant and Mrs Whelan. The appellant submitted that this was a critical indispensable intermediate fact in the jury’s chain of reasoning in determining whether the appellant was guilty of kidnapping and murdering Mrs Whelan. The jury had to be satisfied beyond a reasonable doubt that Mrs Whelan left the front of the Parkroyal Hotel in the Pajero at 9:38 am on 6 May and the jury should have been so directed by the trial judge.

107. The Crown submitted that its case as presented at trial was that this was a “strands in a cable” case, not a “links in the chain” case and the trial judge had correctly so directed the jury. The Crown submitted that this case did not require a Shepherd direction. Rather, as was the case in Shepherd, itself grouping the evidence into separate categories was done as a matter of convenience. The convenience in doing so did not convert the case into one where a direction was required in respect of indispensable intermediate facts. Dawson J had referred to this in Shepherd when he said, at [16] 586:…

…

Did the trial judge err in not giving a Shepherd direction?

126. As previously mentioned, the trial judge had ruled at the first trial that this was not an appropriate case for a Shepherd direction. In dealing with that question at the first trial, his Honour had said, during argument:

“You can test that, can’t you, in this way. Take away all the evidence of any Pajero in Parramatta. Let’s suppose the cameras were off that day. Let’s suppose nobody knows anything about Mrs Whelan, except that she has a 9.30 appointment in her diary. She went to Parramatta about 9.30. She wasn’t heard from again.

There is evidence that [the appellant] contrived a telephone conversation with Mr Whelan in which he ascertained he was going to be absent on Wednesday. On a Wednesday he went to Kurrajong. There he made some arrangement by inference, causing Mrs Whelan to make that remarkable statement that she did to [Ms Peters]; that on 23 May [the appellant] went to a telephone booth in Goulburn and telephoned Crown Equipment uttering words that must have been – could only have been known by the kidnapper, why isn’t that case – why can’t be [sic] convicted on that case?”

127. One could add to the matters to which the trial judge adverted in this exchange the dot point evidence found at the appellant’s property and which were in the appellant’s handwriting. Notwithstanding that the appellant contended that there were other rational interpretations of those notes inconsistent with guilt, it is difficult to conceive what those meanings might be. Perhaps the most that can be said is that there was no express reference in the notes to Mrs Whelan.

128. The point is, however, as his Honour’s comments to which we have just referred make apparent, this was not a case that was dependent upon the Pajero evidence (or the other two bodies of evidence) being proved beyond a reasonable doubt. There was a large body of evidence upon which the jury could be satisfied beyond a reasonable doubt that the appellant abducted and later murdered Mrs Whelan. Those various matters have been canvassed and do not benefit from repetition. The trial judge’s illustration is sufficient to demonstrate the point.

129. There was considerable forensic importance to the appellant in having a Shepherd direction given, at least in respect of the Pajero evidence. If that was an indispensable intermediate fact of which the jury had to be satisfied in order to be satisfied of the appellant’s guilt, then the evidence of the later sightings of Mrs Whelan took on a particular significance. If the jury believed that any one of those sightings was credible, in the sense of being a sighting of Mrs Whelan, then the jury would have been required to have a reasonable doubt as to the Pajero evidence, and thus of the guilt of the appellant.

130. However, an acceptance that those later sightings, particularly those on 6 May, were sightings of Mrs Whelan, was consistent with a case that she was abducted, not at about 9:38 am, but at some later point of time, most likely before 4 pm. An acceptance that Mrs Whelan was sighted at Brisbane airport some days later would be consistent with a case that she was murdered sometime later than 6 May. The effect of a Shepherd direction in respect of the Pajero evidence would have deprived the jury of a consideration of these possibilities, which were clearly open on the evidence and were part of the Crown case.

131. The appellant did not, at trial, contend that a Shepherd direction should be given in the alternative, that is, that if the jury proposed to act upon the Pajero evidence, they had to be satisfied of that matter beyond a reasonable doubt, but that even if they were not so satisfied, they could rely upon a combination of facts to infer guilt. Rather, the appellant specifically sought a direction in terms that the jury:

“... would ultimately have to be able to infer the guilt of [the appellant] upon at least one or upon a number in combination of those three major aspects of the Crown case before being able to convict [the appellant]” (being the final part of the direction sought in MFI 106)

132. As already stated in these reasons, the jury did not have to be so satisfied in relation to the Pajero evidence. The trial judge’s direction to the jury made it plain to them how they could and should approach this evidence. There was a combination of circumstances that had to be considered. His Honour explained to the jury (see [111] above) that although they may be satisfied beyond a reasonable doubt that Mrs Whelan drove away with the appellant in the Pajero at about 9:38 am and was detained by him shortly thereafter, in that she became an unwilling passenger, they did not have to be satisfied that was how the appellant went about the detention. If they did not accept that she was detained at about 9:38 am, they had to be satisfied beyond a reasonable doubt that she was detained by the appellant against her will at some later time, and probably before 4 pm that day.

133. His Honour’s direction was correct. The Crown case was not confined to the Pajero evidence in the sense that it was an indispensable intermediate fact. Although the primary thrust of the Crown case was that the Pajero evidence was the most likely means and time at which Mrs Whelan was abducted, it relied upon all of the circumstances of the case, including circumstances that had no direct link with the Pajero evidence or the other two main bodies of evidence. That other evidence included the appellant’s telephone call to Mr Whelan on 7 April; the appellant’s visit to the Whelans’ property on 16 April; the fact that the appellant had a financial motive for the kidnapping; the evidence concerning the Canon typewriter; and the finding of the street directory in another of the appellant’s cars. This evidence varied in strength (especially that relating to the street directory, which might have been thought to be a weak piece of evidence).

134. Even if one or more of the three independent bodies of evidence was not sufficient, the inference of guilt could be drawn from a combination of the range of circumstantial facts of which the Crown adduced evidence. The broader case was not abandoned by the Crown, nor did it undergo any mutation in the Crown’s address to the jury, considered in its entirety, in which the Crown reminded the jury of the larger body of evidence. The Crown case at all times remained one where individual facts gained cogency from other facts in the case. In particular, as the trial judge directed the jury, the appellant could have been detained much later than shortly after 9:38 am, which was a requisite finding on the Pajero evidence. The inference that she had been kidnapped arose from the combination of circumstances: that she did not meet her husband as previously arranged; the receipt of the ransom note; and the fact that it was out of character for her to disappear of her own accord.