McLEOD v Regina - [2008] NSWCCA 127

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
McLEOD v Regina [2008] NSWCCA 127

FILE NUMBER(S):
2007/3052

HEARING DATE(S):
26 May 2008

JUDGMENT DATE:
4 June 2008

PARTIES:
Audrey Amazon Anne McLEOD (Appellant)
Regina (Respondent)

JUDGMENT OF:
Beazley JA Barr J Hoeben J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 06/51/0085

LOWER COURT JUDICIAL OFFICER:
Nield DCJ

LOWER COURT DATE OF DECISION:
31 May 2007

COUNSEL:
C Loukas (Appellant)
G Rowling (Respondent)

SOLICITORS:
Aboriginal Legal Services (Appellant)
Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW – appeal against conviction of maliciously damaging property by fire – circumstantial evidence - directions to jury – erroneous exclusion of reasonable hypothesis of accident – erroneous direction that a conclusion inconsistent with guilt must be equally reasonable as that consistent with guilt - retrial ordered

LEGISLATION CITED:
Crimes Act 1900, s 195(1)(b)
Criminal Appeal Act 1912, s 6

CATEGORY:
Principal judgment

CASES CITED:
Kaliyanda v R [2007] NSWCCA 300
Knight v R [1992] HCA 56; (1992) 175 CLR 495
Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367
MFA v R [2002] HCA 53; 213 CLR 606
M v R [1994] HCA 63; (1994) 181 CLR 487
Plomp v R [1963] HCA 44; (1963) 110 CLR 234
R v McIntyre [2000] NSWCCA 6; (2000) 111 A Crim R 211

TEXTS CITED:

DECISION:
1. Appeal allowed;
2. Conviction quashed;
3. Order that there be a new trial.

JUDGMENT:

- 15 -

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/3052
BEAZLEY JA
BARR J
HOEBEN J
4 June 2008

Audrey Amazon Anne McLEOD v Regina

Judgment

BEAZLEY JA: On 20 April 2007, the appellant was found guilty by a jury of the indictable offence of having maliciously destroyed a dwelling house by means of fire contrary to s 195(1)(b) of the Crimes Act 1900. The maximum penalty for that offence is 10 years imprisonment. The trial judge, his Honour Nield DCJ, imposed a suspended sentence of two years.
The appellant appeals against her conviction.
The Crown case was that in the early hours of 31 January 2004, outside the Post Office at Armidale Mall, Armidale, the appellant accused Sally-Ann Cutmore of “having an affair” with her husband. The appellant assaulted Ms Cutmore and threatened to kill her. Ms Cutmore escaped and hid from the appellant, who continued to search for her. Ms Cutmore complained of the incident to the police at the Armidale police station at about 2.10 am on 31 January 2004.
Ms Cutmore had, for some years prior to 2004, lived at 12 West Avenue, Armidale. She knew both the appellant and her partner but had not had a relationship with the appellant’s partner. The premises adjoining 12 West Avenue, being 10 West Avenue, were owned by John Moore, who conducted a second-hand bargain centre in Armidale. Mr Moore had, for approximately seven years, used the premises to store furniture and other stock for his business. There was a verandah…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McLEOD v Regina

Details

AGLC: McLEOD v Regina [2008] NSWCCA 127
Case: [2008] NSWCCA 127
Decision Date: 4 June 2008

CaseChat Overview and Summary

In the case of McLeod v Regina, the appellant, McLeod, appealed against his conviction for maliciously damaging property by fire. The appeal centred on the trial judge's directions to the jury regarding the use of circumstantial evidence and the evaluation of competing conclusions. McLeod's conviction was based on circumstantial evidence, which required the jury to draw conclusions from the facts presented that excluded any other reasonable hypothesis. The primary legal issues were whether the trial judge's directions to the jury were erroneous and whether the verdict was unreasonable or unsupported by the evidence.

The court examined whether the trial judge's direction that a conclusion inconsistent with guilt must be equally reasonable as that consistent with guilt was erroneous. The trial judge had instructed the jury that in a circumstantial evidence case, the conclusion of guilt must be the only reasonable and rational conclusion, which was contrary to established High Court precedents. The High Court had previously held in cases such as Martin v Osborne and Knight v R that the correct test is whether a reasonable jury ought to have found an inference or hypothesis consistent with innocence was open on the evidence. The Crown did not contest that the direction was erroneous but argued it was part of an explanation rather than a formal direction. However, the court found that the direction was indeed erroneous and contrary to the principles established in the High Court cases.

The court concluded that the trial judge's erroneous direction regarding the evaluation of competing conclusions in a circumstantial evidence case was a significant misdirection that affected the fairness of the trial. As a result, the court allowed the appeal, set aside the verdict of guilt, and ordered a retrial. This decision underscored the importance of correctly instructing juries in criminal trials, particularly in cases relying on circumstantial evidence. The court's determination highlighted the necessity for trial judges to adhere to established legal principles when directing juries to avoid miscarriages of justice.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Having given the direction subject of ground 1 of the appeal, the trial judge returned to the meaning of circumstantial evidence and gave the jury a number of examples. No issue is taken as to the use of the examples. His Honour then said that in respect of each of the examples he had given, the jury might think that the evidence was quite strong, but that, nonetheless, “… in a circumstantial evidence case, for the jury to draw the conclusion that A had shot B with the firearm [that being the example], it must be the only reasonable and rational conclusion to draw from the proved facts.” (Emphasis added) His Honour returned to the example he had been explaining and then continued his directions in respect of the jury’s task when dealing with a circumstantial case. He said:“So that is why, members of the jury, in a circumstantial evidence case, the conclusion that the jury is asked to draw must be the only reasonable and rational conclusion to draw from the proved facts. If there is another reasonable and rational conclusion to be drawn from the proved facts inconsistent with guilt, then a conclusion of guilt cannot be drawn, simply because there are competing reasonable and rational conclusions. So, members of the jury, in a circumstantial evidence case, for a jury to find an accused person guilty on the basis of circumstantial evidence, the conclusion of guilt must be the only, and I emphasise the word only, reasonable and rational conclusion to be drawn from the proved facts. If there is another reasonable and rational conclusion that can be drawn from the proved facts inconsistent with guilt, then a conclusion of guilt cannot be drawn because, obviously, if there are two equally reasonable and rational conclusions to be drawn, one of guilt and one inconsistent with guilt, then it cannot be that the only reasonable and rational conclusion to be drawn is one of guilt.” (Emphasis added) This direction was contrary to clear High Court authority. In Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 Dixon CJ stated at 375:“If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation.”See also Plomp v R [1963] HCA 44; (1963) 110 CLR 234 per Dixon CJ at 243. In Knight v R [1992] HCA 56; (1992) 175 CLR 495, Mason CJ, Dawson and Toohey JJ in their joint judgment held that a direction given in almost identical terms in the trial of Knight was erroneous. The direction in that case was that Knight:“… could only succeed in his argument if the two inferences said to be open - one consistent with innocence and the other consistent with guilt - were equally open.” Their Honours stated, however, that the correct test was that:“… if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance.” (Emphasis added)

Evidence

Evidence Before The Court

Ground 2 should also be upheld.Ground 3: the verdict of guilt should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence The appellant submitted that a properly directed jury, having regard to the circumstantial nature of the evidence, could not reasonably return a verdict of guilty. It was submitted that the evidence did not exclude a reasonably possible hypothesis consistent with innocence: see Knight v R. In M v R [1994] HCA 63; (1994) 181 CLR 487, the High Court said at [6]:“Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as ‘unjust or unsafe’. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s.6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be ‘unreasonable’ or incapable of being ‘supported having regard to the evidence’. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside. In speaking of the Criminal Appeal Act in Hargan v. The King, Isaacs J said: ‘If (the appellant) can show a miscarriage of justice, that is sufficient. That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance.’” (Citations omitted) This lays down the approach to be taken to s 6 of the Criminal Appeal Act 1912 which provides:“6 Determination of appeals in ordinary cases(1)The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.(2)Subject to the special provisions of this Act, the court shall, if it allows an appeal under section 5 (1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.

Decision

Reasons for decision

It follows, therefore, that ground 1 should be upheld. Ground 2: that his Honour erred in directing the jury that a conclusion inconsistent with guilt must be equally reasonable as that consistent with guilt Having given the direction subject of ground 1 of the appeal, the trial judge returned to the meaning of circumstantial evidence and gave the jury a number of examples. No issue is taken as to the use of the examples. His Honour then said that in respect of each of the examples he had given, the jury might think that the evidence was quite strong, but that, nonetheless, “… in a circumstantial evidence case, for the jury to draw the conclusion that A had shot B with the firearm [that being the example], it must be the only reasonable and rational conclusion to draw from the proved facts.” (Emphasis added) His Honour returned to the example he had been explaining and then continued his directions in respect of the jury’s task when dealing with a circumstantial case. He said:“So that is why, members of the jury, in a circumstantial evidence case, the conclusion that the jury is asked to draw must be the only reasonable and rational conclusion to draw from the proved facts. If there is another reasonable and rational conclusion to be drawn from the proved facts inconsistent with guilt, then a conclusion of guilt cannot be drawn, simply because there are competing reasonable and rational conclusions. So, members of the jury, in a circumstantial evidence case, for a jury to find an accused person guilty on the basis of circumstantial evidence, the conclusion of guilt must be the only, and I emphasise the word only, reasonable and rational conclusion to be drawn from the proved facts. If there is another reasonable and rational conclusion that can be drawn from the proved facts inconsistent with guilt, then a conclusion of guilt cannot be drawn because, obviously, if there are two equally reasonable and rational conclusions to be drawn, one of guilt and one inconsistent with guilt, then it cannot be that the only reasonable and rational conclusion to be drawn is one of guilt.” (Emphasis added) This direction was contrary to clear High Court authority. In Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 Dixon CJ stated at 375:“If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation.”See also Plomp v R [1963] HCA 44; (1963) 110 CLR 234 per Dixon CJ at 243. In Knight v R [1992] HCA 56; (1992) 175 CLR 495, Mason CJ, Dawson and Toohey JJ in their joint judgment held that a direction given in almost identical terms in the trial of Knight was erroneous. The direction in that case was that Knight:“… could only succeed in his argument if the two inferences said to be open - one consistent with innocence and the other consistent with guilt - were equally open.”

Ratio Decidendi

Legal Principle Established

His Honour returned to the example he had been explaining and then continued his directions in respect of the jury’s task when dealing with a circumstantial case. He said:“So that is why, members of the jury, in a circumstantial evidence case, the conclusion that the jury is asked to draw must be the only reasonable and rational conclusion to draw from the proved facts. If there is another reasonable and rational conclusion to be drawn from the proved facts inconsistent with guilt, then a conclusion of guilt cannot be drawn, simply because there are competing reasonable and rational conclusions. So, members of the jury, in a circumstantial evidence case, for a jury to find an accused person guilty on the basis of circumstantial evidence, the conclusion of guilt must be the only, and I emphasise the word only, reasonable and rational conclusion to be drawn from the proved facts. If there is another reasonable and rational conclusion that can be drawn from the proved facts inconsistent with guilt, then a conclusion of guilt cannot be drawn because, obviously, if there are two equally reasonable and rational conclusions to be drawn, one of guilt and one inconsistent with guilt, then it cannot be that the only reasonable and rational conclusion to be drawn is one of guilt.” (Emphasis added) This direction was contrary to clear High Court authority. In Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 Dixon CJ stated at 375:“If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation.”See also Plomp v R [1963] HCA 44; (1963) 110 CLR 234 per Dixon CJ at 243. In Knight v R [1992] HCA 56; (1992) 175 CLR 495, Mason CJ, Dawson and Toohey JJ in their joint judgment held that a direction given in almost identical terms in the trial of Knight was erroneous. The direction in that case was that Knight:“… could only succeed in his argument if the two inferences said to be open - one consistent with innocence and the other consistent with guilt - were equally open.” Their Honours stated, however, that the correct test was that:“… if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance.” (Emphasis added) The Crown, whilst not conceding that the direction given by his Honour in this case was wrong, accepted that if the reference to there being two equally reasonable and rational conclusions to be drawn was part of the direction, then such a direction was wrong. The Crown submitted, however, that properly understood, that statement was part of an explanation. It was submitted that his Honour was not, at that point, giving a direction, as was apparent from the adequate and correct directions otherwise given in the passage that I have quoted.