Nicholas v The Queen

[1989] TASSC 65

Serial No 65/1989
List "A"

CITATION:              Nicholas v R [1989] TASSC 65; A65/1989

PARTIES:  NICHOLAS, Geoffrey Matthew
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 150/1988
DELIVERED ON:  17 November 1989
DELIVERED AT:  Hobart
JUDGMENT OF:  Nettlefold, Cox and Wright JJ

Judgment Number:  A65/1989
Number of paragraphs:  35

Serial No 65/1989
List "A"
File No CCA 150/1988

GEOFFREY MATTHEW NICHOLAS v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

NETTLEFOLD J
COX J
WRIGHT J
17 November 1989

Order of the Court

Appeal dismissed.

Serial No 65/1989
List "A"
File No CCA 150/1988

GEOFFREY MATTHEW NICHOLAS v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

NETTLEFOLD J
17 November 1989

1. I have read the reasons for judgment prepared by Cox J I agree with his reasons and the order he proposes.

   List "A"
   File No CCA 150/1988

GEOFFREY MATTHEW NICHOLAS v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

COX J
17 November 1989

1. The appellant has twice been convicted of charges of conspiring to defraud the lawful heirs to and/or beneficiaries of the estate of the late Leslie John Dakin ("the deceased") by agreeing with his daughter and another person who died prior to any trial to falsely represent that a certain document, which on the Crown case was a forgery, was the validly executed last will and testament of the deceased and of uttering that false will.

1. In February 1988 he was tried at Launceston before Green CJ upon an indictment which contained the following three counts:–

"1  STATEMENT OF CRIME

First Count

CONSPIRACY – Contrary to Section 297(1)(b) of the Criminal Code.

PARTICULARS

GEOFFREY MATTHEW NICHOLAS at or near Launceston in Tasmania on a day or days unknown between on or about the 28th day of April 1984 and on or about the 24th day of July 1984 conspired with Janine Michelle Nicholas and Norman Walter Knott to defraud the lawful heirs and beneficiaries of the Estate of Leslie John Dakin by preparing a document which falsely purported to be the validly executed last Will and Testament of Leslie John Dakin made on the 28th day of April, 1984 and by representing that document to be the validly executed last Will and Testament of Leslie John Dakin.

2  STATEMENT OF CRIME

Second Count

FORGERY – Contrary to Section 278 of the Criminal Code.

PARTICULARS

GEOFFREY MATTHEW NICHOLAS at Launceston in Tasmania on a day or days unknown between on or about the 28th day of April 1984 and on or about the 24th day of July 1984 with intent to defraud forged a certain document to wit the last Will and Testament of Leslie John Dakin by:

(1)Instigating Norman Walter Knott and Janine Michelle Nicholas and a person or persons unknown to forge the said Will;

(2)Abetting Norman Walter Knott and Janine Michelle Nicholas and a person or persons unknown to forge the said Will;

(3)Aiding Norman Walter Knott and Janine Michelle Nicholas and a person or persons unknown to forge the said Will.

(4)By forming the common intention with Norman Walter Knott and Janine Michelle Nicholas to prosecute an unlawful purpose in conjunction with one another to wit to defraud the lawful heirs and beneficiaries of the Estate of Leslie John Dakin and it being a probable consequence of the prosecution of such purpose that a document purporting to be the last Will and Testament of Leslie John Dakin would be forged and represented to be the validly executed last Will and Testament of Leslie John Dakin made on the 28th day of April 1984.

3  STATEMENT OF CRIME

Third Count

UTTERING – Contrary to Section 279 of the Criminal Code.

PARTICULARS

GEOFFREY MATTHEW NICHOLAS at or near Launceston in Tasmania on a day or days unknown between on or about the 28th day of April 1984 and on or about the 21st day of September 1984 uttered a certain forged document to wit the last Will and Testament of Leslie John Dakin knowing it to be forged and with intent to defraud by:

(1)Instigating Norman Walter Knott and Janine Michelle Nicholas to utter the said Will to:

(a)Nicholas Gee and a person or persons unknown in the employ of the law firm Messrs Archer Bushby, Solicitors.

(b)Mr Douglas Kingsford–Smith.

(c)Robert James Walker, and a person or persons unknown employed in the Probate Registry of the Supreme Court of Tasmania;

(2)Abetting Norman Walter Knott and Michelle Nicholas to utter the said Will to:

(a)Nicholas Gee and a person or persons unknown in the employ of the law firm, Messrs Archer Bushby, Solicitors.

(b)Mr Douglas Kingsford–Smith.

(c)Robert James Walker and a person or persons unknown employed in the Probate Registry of the Supreme Court of Tasmania;

(3)Aiding Norman Walter Knott and Janine Michelle Nicholas to utter the said Will to:

(a)Nicholas Gee and a person or persons unknown in the employ of the law firm Archer Bushby, Solicitors.

(b)Mr Douglas Kingsford–Smith.

(c)Robert James Walker and a person or persons unknown employed in the Probate Registry of the Supreme Court of Tasmania.

(4)By forming the common intention with Norman Walter Knott and Janine Michelle Nicholas to prosecute an unlawful purpose in conjunction with one another to wit to defraud the lawful heirs and beneficiaries of the Estate of Leslie John Dakin and it being a probable consequence of the prosecution of such a purpose that a forged document purporting to be the last Will and Testament of Leslie John Dakin would be represented to be the validly executed last Will and Testament of Leslie John Dakin made on the 28th day of April 1984."

1. At the conclusion of the Crown case the learned Chief Justice upheld the submission that the accused had no case to answer on count 2 thereof and the appellant was acquitted on that count by direction. He successfully appealed against his conviction on the other two counts in the indictment for reasons which appear in an unreported judgment, Serial No 25/1988, and the Court of Criminal Appeal on the 22 July 1988 ordered that the convictions on counts 1 and 3 on the indictment be set aside and a new trial held on those counts.

1. Prior to the commencement of the second trial a Crown Law officer entered a nolle prosequi on the remaining counts of the initial indictment and in due course a further indictment was filed. It was upon this indictment that he was arraigned at a sittings of the Supreme Court in Hobart on the 21 November 1988. This indictment contained eight counts. The first count repeated the count of conspiracy in the original indictment with some slight amendment of particulars and the remaining counts alleged seven instances of uttering the allegedly forged will. In substance these counts repeated the subject matter of count 3 in the original indictment which was, as can be seen, a single count of uttering particularising the acts now contained in the indictment under consideration. During the hearing of the first appeal Cosgrove J had suggested that count 3 in the original indictment might be duplex and it seems that the Crown sought to avoid any complication that might present by repleading the particulars as individual charges.

1. At the commencement of the second trial and before plea counsel for the appellant moved pursuant to the Criminal Code s352(1) to quash the indictment on the ground that it was calculated to prejudice or embarrass the appellant in his defence and further that it was formally defective. The learned trial judge ruled that the defence would be so prejudiced or embarrassed if the Crown were permitted to proceed on all newly pleaded counts and directed that the indictment be amended by deleting counts 5–8 inclusive therefrom. He overruled the submission that the indictment was defective which was based on the proposition that as the Court of Criminal Appeal had ordered a retrial on counts 1 and 3 of the first indictment the appellant could no longer be tried, for that indictment had been the subject of a nolle prosequi by the Crown. I shall deal first with that argument which is the subject of ground 2 of the notice of appeal. That ground reads:–

"THAT the Learned Trial Judge erred in law by not complying with the Order of the Court of Criminal Appeal that the Appellant be retried on counts one and three of the Indictment filed at the first trial."

1. By s402(3) of the Criminal Code it is provided:–

"Subject to the special provisions of this chapter, the Court shall, it if allows an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered."

1. By s403 the Court of Criminal Appeal is given a number of powers, including one of substituting a verdict for some other crime of which the jury could have found the appellant guilty on that indictment and passing sentence accordingly or where the court is satisfied that the appellant was insane at the time of the crime of exercising the powers of a judge which would be appropriate had the appellant been acquitted on the ground of insanity.

1. Section 404 provides:–

"404–(1)    On any appeal the Court may, either of its own motion or on the application of the appellant, order a venire de novo or new trial at such time and place as it thinks fit, if the Court considers that a miscarriage of justice has occurred, and that, having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a venire de novo or new trial than by any other order which the Court is empowered to make.

(2)   Where a venire de novo or new trial is directed, the Court may make such order as to it seems fit for the safe custody of the appellant or for admitting him to bail."

1. Prima facie therefore where an appeal against conviction succeeds the court is required not only to quash the conviction but to direct a judgment and verdict of acquittal to be entered, thereby terminating all proceedings against the appellant on the indictment and arming him with a clear plea of autrefois acquit to any further proceedings in respect of the same subject matter. Of course to the extent that any further indictment may allege new issues, not the subject of the first indictment and in respect of which issues the appellant has not hitherto been in jeopardy, that is a perfectly acceptable course (see eg, Gerakiteys v The Queen (1983–84) 153 CLR 317) and not one in respect of which the above plea could be maintained. However, if the court sees fit to exercise certain other powers it has, including that of ordering a venire de novo or a new trial, its order will quash the original conviction and will refrain from directing a judgment and verdict of acquittal which would obviously be inconsistent with such an order. Consequential orders under s404(2) will provide a mechanism for further proceedings upon the only process then before the court, that is the subsisting indictment. Because that is the only document identifying the issues before the court, it is by reference to that document that the court would indicate the issues in respect of which the judgment and verdict of the court should stand, be set aside or remitted to another panel of jurors for retrial. In the present case the verdict of not guilty on count 2 (forgery) was not challenged and had to stand. The court could have dismissed the appeal in respect of one of the remaining counts or upheld it in respect of both, quashing them and directing a verdict of acquittal on one and ordering a retrial on the other or, as was the case here, directing that both remaining counts should be retried. The order conveniently indicated, by reference to the existing indictment, the issues which rather than being concluded by virtue of verdict and judgment and giving rise accordingly to a plea of autrefois acquit should be re–submitted to a court of trial. It in no way in my view prevented the Crown from exercising its non–examinable prerogative power (R. v Radford [1951] Tas SR 1; Barton v The Queen (1980) 147 CLR 75) to enter a nolle prosequi on that indictment and to present the accused on a further indictment drafting the issues in a different form and including, where appropriate, any new issues. To the extent that such a redraft might prejudice or embarrass the defence on a second trial the appellant's right of objection was preserved. In the present case it was availed of and proved to be successful, at least in part, as I have recounted.

1. Historically, one of the principal methods of appealing from a conviction at common law was by writ of error to a court of error (in the first instance to the Court of Queen's Bench) which could only take account of errors occurring at the trial which appeared on the face of the record. As this document was drawn up by court officials often recording formal minutiae rather than matters of substance, such as the reception of evidence or the judge's directions, the scope for demonstrating error was exceedingly limited and available, unless with the concurrence of the Crown, only in respect of misdemeanours and not of felonies. Nevertheless, where error was demonstrated the convictions would be reversed. Professor Friedland in an article "New Trial After an Appeal from Conviction" in 84 LQR 48 and 185 at 187 asserts that there is no doubt that an accused could be re–indicted after a conviction had been reversed on a writ of error, citing Blackstone:–

"When judgment, pronounced upon conviction, is falsified or reversed, all former proceedings are absolutely set aside, and the party stands as if he had never been at all accused. … But he still remains liable to another prosecution for the same offence: for, the first being erroneous, he never was in jeopardy thereby."

(Comm 1769, IV, at p386), also Chitty and Russell. In addition a court of error and, after 1848 when that court was given power to examine errors not confined to those appearing on the record alone, the Court of Crown Cases Reserved had power to issue the writ of venire facias de novo juratores to require a retrial. The Court of Queen's Bench also had power to order a new trial after conviction for a misdemeanour if the proceedings had been removed into it by certiorari.

1. In the United Kingdom the Criminal Appeal Act 1907 established the Court of Criminal Appeal and abolished by s20 "writs of error, and the powers and practice now existing in the High Court in respect of motions for new trials or the granting thereof in criminal cases". By s4(2) it was provided that:–

"Subject to the special provisions of this Act, the Court of Criminal Appeal shall, if they allow an appeal against conviction, quash the conviction and direct the judgment and verdict of acquittal to be entered."

The special provisions referred to are similar to those in the Tasmanian Criminal Code to which I have referred, save that there is no express reference to a power to order a venire de novo or new trial. In Australasia the position is similar to that in Tasmania, save that while there is a power to order a new trial there is no mention of a venire de novo (eg, New South Wales Criminal Appeal Act 1912 s8, Victoria CrimesAct 1958 s568(2), Queensland Criminal Code ss668E and 669 and New Zealand Crimes Act 1961 s385). It has however been held by the Court of Criminal Appeal in Queensland that the power to order a new trial is wide enough to cover a case in which the trial has been not merely a mistrial but so fundamentally defective as to result in a nullity in which case a court of error would have directed not a new trial but a venire de novo – R v Smith [1954] QLR No 49.

1. The absence in England of a power to order a new trial where the conviction was quashed was long a subject of controversy. Eventually in 1968 a limited power to order new trials was introduced (Criminal Appeal Act 1968, ss7 and 8). Nevertheless, even from its creation the Court of Criminal Appeal, in cases where the mistrial amounted to a nullity, declined to quash the conviction and to enter a verdict of acquittal. Instead it asserted and exercised a power to order a venire de novo in those cases. (See R v Baker 7 Cr App R 218; R v Ingleson 11 Cr App R 21; R v Golathan 11 Cr App R 79; R v Wakefield [1918] 1 KB 216). This power was upheld by the House of Lords in Crane v DPP [1921] AC 299.

1. This brief survey of the powers and practice of courts of criminal appeal indicates to me that though ordinarily the court will either affirm or substitute the verdict on the record, thereby concluding all issues raised on the indictment upon which the accused took his trial, where the court orders a further trial by virtue of a power to order either a new trial or a venire de novo the verdict on the record of the court of trial will be set aside and the issues raised by the indictment will remain justiciable. It is a mere matter of mechanics whether the new trial proceeds on the same indictment or upon some fresh indictment substituted by an authorised officer of the Crown. In this regard the situation is essentially the same as that contemplated by the Jury Act 1899, s49, where the first trial results in a disagreement or is otherwise aborted. It remains a proper matter for the discretion of a Crown Law officer whether to proceed to a further trial at all, notwithstanding the apparently mandatory order for a new trial, and equally a matter of discretion whether or not to proceed with the count charged or some other one upon which the appellant could have been convicted on the first indictment. One can easily imagine cases where, despite an order for a new trial on an indictment alleging murder, the Crown may think it proper to proceed only with an allegation of manslaughter. The parameters of the new trial are not set by the form of the order for a new trial. They are set by the indictment in fact presented, but the presentation of that indictment is facilitated by the order of the Court of Criminal Appeal that the existing verdict be quashed without the substitution of the verdict of acquittal otherwise required by s402(3), an order which in a case such as this is only permissible if the court considers it appropriate to order a new trial or venire de novo. In my view the court at first instance had jurisdiction to try the appellant on the indictment presented, notwithstanding that the indictment referred to in the order for a new trial made by the Court of Criminal Appeal was withdrawn by a Crown Law officer.

1. Ground 3 is as follows:–

"THAT the Indictment, as amended and filed at this trial, was calculated to prejudice and embarrass the Appellant in his defence and was formally defective."

1. As I have said the substituted indictment in effect repeated the allegations previously contained in count 1 with some deletions and those particularised under count 3 of the first indictment. The learned trial judge ordered that counts 5–8 of the new indictment be deleted. The trial then proceeded on 23 November 1988 and the appellant was ultimately convicted on the following four counts:–

"STATEMENT OF CRIME

First Count

CONSPIRACY – Contrary to Section 297(1)(b) of the Criminal Code.

PARTICULARS

GEOFFREY MATTHEW NICHOLAS at or near Launceston in Tasmania on a day or days unknown between on or about the 2nd day of May, 1984 and on or about the 21st day of September, 1984 conspired with Janine Michelle Nicholas and Norman Walter Knott to defraud the lawful heirs to and/or beneficiaries of the Estate of Leslie John Dakin by agreeing to falsely represent that a forged document which they knew to be forged and which purported to be the validly executed last Will and Testament of Leslie John Dakin made on the 28th day of April 1984 was in fact the validly executed last Will and Testament of Leslie John Dakin.

STATEMENT OF CRIME

Second Count

UTTERING – Contrary to Section 279 of the Criminal Code.

PARTICULARS

GEOFFREY MATTHEW NICHOLAS at or near Launceston in Tasmania on a day or days unknown between on or about the 2nd day of May, 1984 and on or about the 21st day of September, 1984 uttered a certain forged document to wit a document purporting to be the last Will and Testament of Leslie John Dakin knowing it to be forged and with intent to defraud by delivering the said document to William Griffiths, Barrister and Solicitor.

STATEMENT OF CRIME

Third Count

UTTERING – Contrary to Section 279 of the Criminal Code.

PARTICULARS

GEOFFREY MATTHEW NICHOLAS at or near Launceston in Tasmania on a day or days unknown between on or about the 2nd day of May, 1984 and on or about the 21st day of September, 1984 uttered a certain forged document to wit a document purporting to be the last Will and Testament of Leslie John Dakin knowing it to be forged and with intent to defraud by uttering the said document to Nicholas George Alexander Gee, Solicitor.

STATEMENT OF CRIME

Fourth Count

UTTERING – Contrary to Section 279 of the Criminal Code.

PARTICULARS

GEOFFREY MATTHEW NICHOLAS at or near Launceston in Tasmania on a day or days unknown between on or about the 2nd day of May, 1984 and on or about the 21st day of September, 1984 uttered a certain forged document to wit a document purporting to be the last Will and Testament of Leslie John Dakin knowing it to be forged and with intent to defraud by aiding Norman Walter Knott to utter the said document to Nicholas George Alexander Gee, Solicitor."

1. In my view there was nothing in the indictment, as thus amended, which could fairly be said to be calculated to prejudice or embarrass the appellant in his defence. Count 1 had been amended so as to avoid any allegation or suggestion that the appellant had been party to the forgery of the will as he had been acquitted of such a charge on his first trial. What remained fairly represented the substance of the Crown case of conspiracy against him. The remaining three counts isolated individual acts of uttering which had hitherto been included in the third count of the old indictment. Pleading them separately avoided any problem of duplicity and was calculated to aid the true resolution of the issues between the parties rather than to complicate them. The charges were not prolix in themselves, nor was the number of them so great as to expose the defence to any prejudice or oppression.

1. It was further argued that the charge of conspiracy should not have been included in the indictment when what was said to be the substantive crime of uttering was charged. There is undoubtedly a rule of practice which discourages the inclusion of the charge of conspiracy to commit a particular crime if the substantive crime itself is charged (R. v Hoar (1981) 148 CLR 32 and Verrier v DPP [1967] 2 AC 195). But the conspiracy alleged here was an agreement to defraud a particular class of people, namely the heirs of the deceased and that substantive fraud was not achieved on the Crown case. The crimes of uttering were ancillary to the conspiracy and committed in furtherance of it, but they were not the substantive offence to which the rule is directed. The learned trial judge so held and in my respectful view rightly so. There is no substance in ground 3.

1. Ground 4 was not argued by counsel for the appellant. It complained that the trial judge erred in rejecting submissions of no case to answer. It is clearly insupportable.

1. Ground 5 complains of unfair comments by the Director of Public Prosecutions who conducted the trial for the Crown. It was submitted that they were intemperate and, to quote from the notice of appeal, "Breached the principles laid down in McCullough v The Queen". That case which was reported in [1982] Tas R 43 makes observations about the standard of propriety expected of a Crown prosecutor. But as the court remarked (at p59):–

"The conclusion that in making the remarks which he did counsel exceeded the bounds of propriety would not in itself be sufficient to justify our allowing this appeal."

1. It was because the court reached the crucial conclusion in that case that there was a real risk that the jury were improperly influenced by these remarks to the extent that they may have been actuated in convicting, partly at least by indignation, disgust and fear aroused by the intemperate language employed by counsel for the Crown, that it declared a miscarriage of justice to have occurred. Without detailing the comments complained of I think it is sufficient to say that though on occasions robust they were not in my view intemperate and were certainly not such as to arouse the jury to reach factual conclusions on a purely emotional basis. The Crown mounted a strong attack on the handwriting expert called by the defence to contradict the evidence of two other experts called for the prosecution who expressed the opinion that the will was a forgery. The attack was launched in cross–examination and repeated in address, but in my view did not amount to an impermissible "course of conduct calculated to persuade a jury to a point of view by the introduction of factors of prejudice or emotion" – Regina v Roulston [1976] 2 NZLR 644 at p654. In the same case the New Zealand Court of Appeal recognised that "the feel and atmosphere of one trial might make it reasonable and even necessary for tactics to be employed that would seem out of place and disproportionate to the circumstances of another" (ibid). During the course of the trial counsel for the defence made complaint of these matters and cited McCullough's case. The learned trial judge who was in a far better position than an appeal court to assess the "feel and atmosphere" of the trial unhesitatingly rejected the submission, without calling upon the Crown, and said that he did not think the language used by the learned Director of Public Prosecutions came anywhere near the kind of language which was disapproved of in McCullough's case. Even without recourse to the peculiar atmosphere of the trial, but looking at counsel's comments at face value, I cannot but agree with his Honour's remark.

1. Ground 6 complains of a failure by the learned trial judge to put the defence fairly in that he failed to refer to a number of aspects of evidence which counsel for the defence characterised as vital to it. In my respectful view the substance of the defence was adequately put to the jury by his Honour and he was under no obligation to repeat or emphasise particular pieces of evidence upon which the defence laid stress (Frost v The Queen [1969] Tas SR 172).

1. Grounds 8 and 9 are as follows:–

"8THAT the Learned Trial Judge failed clearly to direct the jury in his summing up as to the principles applicable to cases based entirely upon circumstantial evidence and at the conclusion of the summing up the Learned Trial Judge ought to have again directed the jury on the onus of proof and the principles applicable to a case based entirely on circumstantial evidence.

9ALTERNATIVELY THAT the Learned Trial Judge gave a direction as to circumstantial evidence, which although was correct in law may have confused the jury."

Counsel's outline submission in respect of both grounds was as follows:–

"With respect it is submitted that the learned trial judge's directions to the jury on the principles applicable to cases based on circumstantial evidence were not clear and were in fact very confusing and that whilst the written memorandum succinctly stated the position his Honour's oral comments in his summing up were with respect difficult to follow and may well have left the jury or any one of them in considerable doubt. It is respectfully submitted that the summing up on this fundamental issue was defective."

1. The written memorandum referred to, so far as is relevant, contained the following statements:–

"E       Circumstantial Evidence

1         The commission of a crime may be proved beyond reasonable doubt by circumstantial evidence, but only subject to two conditions; namely –

(a)all the facts and circumstances from which the inference of guilt is to be drawn must be proved to the satisfaction of the jury beyond reasonable doubt;

and

(b)the jury must be satisfied beyond reasonable doubt that the inference of guilt is the only reasonable inference which is open on the whole of the evidence which the jury accepts. If there is open, on the whole of the evidence which the jury accepts, any reasonable hypothesis consistent with innocence, the accused is entitled to be acquitted.

2         An inference of guilt may be drawn from a combination of facts and circumstances, none of which alone would support that inference (subject to the two conditions set out in point E1)."

1. In oral argument counsel for the appellant submitted that, as the written memorandum relating to circumstantial evidence which his Honour distributed to the jury during the course of his summing up was merely an aide memoire and his Honour's verbal directions were so confusing that they negatived the succinct way they had been put in the written memorandum, the jury were in consequence left with an inadequate exposition of the law relating to circumstantial evidence. His Honour rightly told the jury that the directions he was required to give them were those contained in his oral summing up and that the written document was placed in their possession to assist them to remember the main and fundamental points. He in fact more than once repeated the written submissions almost verbatim but gave some additional explanations which have not been assailed.

1. Counsel cited only one concrete example of a passage which because of its allegedly confused nature was said to have negatived the effect of the directions to which no exception was taken. The passage in question is that underlined in the following excerpt which I reproduce so that it can be seen in its proper context:–

"Now, I want to look a bit more closely with you at each of those two all important conditions in relation to circumstantial evidence and try to illustrate them in a way which is relevant to the present case. The first condition, to repeat it, is that all the facts and circumstances from which the inference of guilt is to be drawn, if it's to be drawn at all, must be proved to the satisfaction of the jury beyond reasonable doubt. So for example – well, partly by example, in the present case one of the foundation facts upon which a verdict of guilty would have to be based, is that the claimed will is in fact a forged document and unless you're satisfied of that fact beyond reasonable doubt, there's no possibility of a verdict of guilty on any of the four counts. However, in the case of that particular fact, it's an actual element of the crime in each case, in each of the four counts. So it, in any event, would have to be proved beyond reasonable doubt because each element of the crime must be proved to that degree. However, there are other possible facts and circumstances which the jury might regard as being essential to be established, before it could be satisfied that a verdict of guilty would be proper, which would not be actual elements of the crime. One such fact which the Crown alleges, and the accused denies, which would almost certainly, I would think, be considered by all members of the jury to be essential to a finding of guilt, would be the proposition that the accused lied when he claimed at the previous trial, and reaffirms at this trial, that he was present when the deceased signed the alleged will and that he saw him sign it. I would have thought that you would all, I imagine, regard that as being – or the establishment of that proposition, as being essential to a finding of guilt. You may or may not. It's a matter for you, but it's a matter which you might well regard as being essential to the finding of guilt.

Now, you notice I use there the word 'proposition' and not 'fact'. The proposition, that is, that the accused lied, if he did, when he claimed to have seen the deceased sign the claimed will, it is probably more properly described as a circumstance than a fact. The rule is that all the facts and circumstances relied upon as the foundation of guilt, must each be proved beyond reasonable doubt. Now, a fact is an actuality, something which happens, something which is true. A circumstance may be described in a number of different ways, but a reasonable description is, a circumstance is a fact viewed in its context or a number of connected facts, two or more; or sometimes a fact or facts together with an inference to be drawn from those facts, and in general terms a circumstance may be described as a context or a situation or an episode.

So the proposition that the accused lied in that situation about what he claimed to have seen, if he did, is, probably, a circumstance. It's not a circumstance which is an element of any of the charges, but as I have said, it's probably a proposition that all, or most, of the jury would regard as being one of the essential foundations to any finding of guilt. Now, the rule requires then, that all those members of the jury who regard the establishment of that proposition, ie that he lied, as being essential to a finding of guilt, must be satisfied beyond reasonable doubt that the accused did in fact lie about that matter."

1. His Honour was concerned to assist the jury in applying the principles which he had already correctly and succinctly set out orally and in writing to facts and circumstances which they might regard as being essential to a finding of guilt. He passed from a brief reference to the fact which, being an element in each count, had to be established in any event before guilt could be found, namely the fact that the document was forged, to the "proposition" that the appellant had lied about his presence when the deceased signed the alleged will. He used the word "proposition" as a neutral word before categorising the concept to which the principles had to be applied as a circumstance rather than a fact. The dissertation on the characteristics of facts as opposed to circumstances was a digression from the important point that he was making, namely that the proposition that the accused had told this lie was, whether characterised as a fact or as a circumstance, something about which the jury would have to be satisfied beyond reasonable doubt if they regarded it as an essential link in the circumstantial chain of guilt. In my respectful view, while it might be said that this dissertation may have presented to the jury semantic concepts with which they were unfamiliar and that some of them may not have grasped the characteristics the learned trial judge was outlining to them, it was nonetheless a digression and would have been perceived as such by the jury. If the jury did fail to fully understand it nevertheless there is no basis for supposing that it confused them in respect of the principles he was expounding or to the way those principles should be applied to facts or circumstances such as the disputed issue of whether or not the appellant had lied from a consciousness of guilt. There is no substance in either ground in my view.

1. An allied ground of appeal is ground 10:–

"10THAT the Learned Trial Judge erred by not directing the jury that they could only convict if they were satisfied beyond reasonable doubt that the expert opinion of Mr Geoffrey Roberts BSc was wrong."

Mr Roberts was called by the defence and demonstrated to the court sufficient qualifications to be permitted to express expert opinions on the comparison of disputed handwritten documents. The Crown had called two witnesses who likewise were qualified to express such opinions and each of them had sworn to holding, to the exclusion of there being any other possibility, the opinion from a comparison of known handwriting of the deceased that he was not the author of the signature purporting to be his on the alleged will. Mr Roberts on the other hand gave evidence that it was his opinion that it was more probable than not that the signature on the will was written by the same person who wrote the known samples. It is this evidence to which ground 10 relates. Mr Roberts gave other evidence, including opinion evidence, on other aspects of handwriting and disputed documents, but it is only his opinion about the authorship of the testator's signature on the will which is susceptible to the argument that if it were not excluded by the jury as not worthy of credence this would inevitably have led to a doubt in a reasonable mind about the essential Crown contention that the signature was a forgery.

1. Gibbs CJ and Mason J in their joint judgment in Chamberlain v The Queen (No 2) (1984) 153 CLR 521 said (at p558):–

"It is of course the function of the jury to consider which of two bodies of conflicting evidence, technical or otherwise, they will accept."

Their Honours went on to express their agreement with what Jenkinson J said in the Federal Court in the same case ((1983) 72 FLR 1, at pp. 81–82), namely that where the witnesses are acknowledged masters in their own field and are giving opinions on matters of science within that field, at a level of difficulty and sophistication above that of which a judge or juror might by reasoning from general scientific knowledge subject those opinions to wholly effective critical evaluation, in the circumstances of that case, "no juror could reasonably have failed to acknowledge that, reason as he might, he was not in a position to assure himself of the correctness of a conclusion against the opinions of the two professors [called by the defence] to the degree which would eliminate reasonable doubt as to that conclusion". The issue there debated by the experts was a very technical and scientific one relevant to the question whether blood found in a car was foetal or otherwise. It could not be argued in this case that the same difficulties were faced by the jury. They were clearly told that if they entertained any reasonable doubt about the contention that the will was a forgery they must acquit. In considering that issue they had to evaluate a body of evidence tending to prove the affirmative which included the evidence of the two Crown experts and a good deal of circumstantial material implicating the appellant in a scheme to acquire a benefit in the deceased's estate by nefarious means in contrast to a body of evidence tending to the negative, including that of Mr Roberts, the unsworn statement of the accused and the transcript of his sworn evidence on the first trial which the Crown tendered as an exhibit and the truth of the substance of which he adopted in his unsworn statement. It was not in my view necessary, nor even desirable, that the jury should be told that unless they were satisfied beyond reasonable doubt that Mr Roberts' evidence was wrong they must acquit. No doubt it followed from a positive finding that the will was forged that the jury rejected Mr Roberts' opinion that on the probabilities it was genuinely signed by the deceased. But to have given an instruction in the form contended for by counsel tends to unnecessarily isolate one piece of evidence and to invite a judgment based only on an assessment of it, whereas the proper process is to consider it in the light of all the evidence.

1. The final grounds of appeal were grounds 1 and 11 and they were argued together. They are:–

"1THAT the convictions of the Appellant, by majority verdicts, after a retirement of nearly seven hours, are unsafe, unsatisfactory, unreasonable and unjust and should be quashed."

"11THAT the convictions of the Appellant are unreasonable, unsatisfactory, unsafe, can not be sustained and a miscarriage of justice has occurred."

1. As to ground 1 I can see no reason why the verdicts in this case are rendered unsafe or unsatisfactory by virtue of the fact that they were majority verdicts. Over 50 years ago Parliament saw fit to authorise the acceptance of such verdicts as those of the entire jury, notwithstanding a lack of unanimity. Likewise a retirement of nearly seven hours of itself cannot render them any more or less unsatisfactory or unsafe. This was a long trial extending over several weeks (it commenced before the jury on the 23 November 1988 and they retired to consider their verdict mid morning on the 16 December 1988). It is obvious that there were many pieces of evidence to be considered and there is no reason to suppose that the jury did not conscientiously apply their minds to the issues and reach verdicts without undue pressure in terms of time. The circumstances of this case bear no similarity to those in R v Sutton and Moore [1978] Crim LR 442 referred to in Broughton v The Queen, an unreported judgment of the Court of Criminal Appeal, 6183, where a similar submission was made and rejected.

1. As to the remaining unparticularised contention in grounds 1 and 11 that the verdicts were unsafe, unsatisfactory, unreasonable and unjust, cannot be sustained and amount to a miscarriage of justice, counsel for the appellant put to us the same considerations he urged upon the jury when arguing for an acquittal. The fact remains however that it was open to the jury to accept the evidence of the Crown experts and to reject that of Mr Roberts and, in my view, the circumstantial case was amply sufficient to warrant a verdict of guilty. The substance of the case as it was presented in the first trial is set out in the reasons for judgment of the members of the Court of Criminal Appeal after the appeal in respect of it, Serial No 25/1988. Although there were minor differences in the evidence on the second trial, the appellant did not give evidence on oath but adopted what he had said on oath in the previous trial and, unlike the first trial where no other defence evidence was adduced, Mr Roberts gave expert evidence in opposition to that given by the Crown experts the second trial took much the same course and it is unnecessary in my view to give a further outline of it.

1. In Whitehorn v The Queen (1983) 152 CLR 657 Dawson J said at p686:–

"To describe a verdict which ought to be set aside because it is unreasonable or cannot be supported having regard to the evidence as being an unsafe, unjust or dangerous verdict is, no doubt, to emphasize that the power of a court of criminal appeal to substitute another view of what the evidence will support for that of the jury is not to be exercised lightly. As was said by the Court in Raspor v The Queen (1958) 99 CLR, at p352, 'Verdicts of course ought not to be, and are not in practice, set aside except upon very substantial grounds.' But they are descriptions which, useful as they are, tend to restate the question rather than answer it. For the question must in the end be, to use the words of Menzies J, whether the appellate court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. If the appellate court is unable to reach that conclusion, then it would be unsafe or dangerous or unjust to allow the verdict to stand."

Gibbs CJ and Brennan J expressed their agreement with this statement (at p660) and Brennan J in Chamberlain v The Queen (No 2) (supra) at p608 repeated that passage of Dawson J's judgment and added:–

"The question for the Court of Criminal Appeal is whether it was open to the jury to be satisfied of the appellant's guilt, not whether the court is satisfied. The distinction between the two propositions must be constantly borne in mind lest the function of the court under the common form statute, wide though it be, is unduly extended and that court usurps the functions of the jury."

1. In my view there is nothing which appears either from the evidence itself or from the conduct of the trial which should lead this Court to regard the drawing of the inference upon which the verdicts depend as unsafe, nor is any defect or weakness in the evidence sufficient to render the verdict unreasonable apparent. I would dismiss the appeal.

   List "A"

   File No CCA 150/1988

GEOFFREY MATTHEW NICHOLAS v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WRIGHT J
17 November 1989

1. I have had the advantage of reading the Reasons for Judgment prepared by my brother Cox J I agree with his reasons and his conclusions. The appeal should be dismissed.