Nicholas v The Queen
[1988] TASSC 36
•22 July 1988
Serial No 25/1988
List “A”
CITATION: Nicholas v R [1988] TASSC 36; A25/1988
PARTIES: NICHOLAS, Geoffrey Matthew
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 36/1988
DELIVERED ON: 22 July 1988
DELIVERED AT: Hobart
JUDGMENT OF: Nettlefold, Cosgrove and Underwood JJ
Judgment Number: 25/1988
Number of paragraphs: 114
Serial No 25/1988
List "A"
File No CCA 38/1988
GEOFFREY MATTHEW NICHOLAS v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NETTLEFOLD J
COSGROVE J
UNDERWOOD J
22 July 1988
Orders of the Court
Appeal allowed.
The convictions on counts 1 and 3 in the Indictment set aside and a new trial on these counts ordered.
Serial No 25/1988
List "A"
File No CCA 38/1988
GEOFFREY MATTHEW NICHOLAS v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NETTLEFOLD J
22 July 1988
The following is the essence of the material which emerged while Mr Jones was in the witness box:—
Jones had a conversation with the applicant at a house at Landale Street in Invermay which was later continued at the applicant's home at 26 Humphrey Street, Waverley. Jones thought that the conversation occurred in 1985, but he said he did not really remember when it occurred.
The applicant approached him and made reference to a trial which had received a good deal of publicity, a trial in which Jones was the accused person. It was a trial in which Mr Jones called a Mr Harstens, a handwriting expert who swore that what was purported to be Mr Jones' signature on a police record of interview was a forgery.
Jones said that he thought the applicant told him that he envisaged being charged and wanted information which would enable him to communicate with Mr Harstens.
Jones also said that the applicant showed him a photostat copy of a home made will, the will in question. The applicant also showed him a document which had on it what was said to be a genuine signature of the deceased, the alleged author of the home made will. Jones said he guessed that the applicant was seeking his opinion as to whether the will was forged.
Jones said he told the applicant that in his opinion the signature purporting to be that of the deceased on the will in question appeared to be forged.
It is now necessary to look in more detail at what occurred at this stage of the evidence–in–chief:—
Crown Counsel: "You said the signature on the will appeared to be a forgery. Did he make any response to that. Did he say anything?"
Jones:"Yes."
Crown Counsel: "And what did he say?"
Jones:"Well, um ... he indicated that – indicated to me that he knew it was forged."
Crown Counsel: "I am sorry. How did he give that impression?"
Jones:"Oh, it was just the impression that I formed an opinion on."
Crown Counsel: "What did he do?"
Jones:"Well, if you are saying did he say it was forged – no he didn't. I'm not prepared to say that he gave an open confession to me that he forged the will."
His Honour: "Well, you are just being asked what he said."
Crown Counsel: "What did he say?"
Jones:"Well, he was trying to get information out of me in respect of Mr Harstens. To come over and say that it was the – that it as Mr Dakin's signature."
.....................
Jones:"He asked me was it possible to get Mr Harstens to have a look at the signature.
I said I thought that Mr Harstens had been struck off the register."
......................
Crown Counsel: "Did Mr Nicholas say to you – did he give any indication as to why he wanted to talk to a handwriting expert?"
Jones:"Well he indicated to me that he envisaged being charged with forging the will. I told him in general conversation that Mr Harstens had done a good job on my behalf and recommended Mr Harstens to him. He indicated to me that that was the main reason why he wanted to see me and he had been trying to locate me for some time."
.......................
Jones:"I have given the same address as Mr Nicholas (the applicant). I have been living there close to three months."
Crown Counsel: "Yesterday, when you gave evidence before the Jury you said that when you had told Mr Nicholas that you thought that the signature on the will was a forgery he indicated to you that he knew it was forged?"
Jones:"Yeah, well . . . "
Crown Counsel: "Would you tell the Court what was either said or done to give that indication?"
Jones:"Well the impression that was conveyed to me at the time was that he knew it was forged and it was just a reaction that I got. May well have been on my part that I had pre–empted the situation."
Crown Counsel: "What caused you to say that he indicated to you that he knew the will was forged?"
Jones:"well, he said to me can we – can you get Mr Hartens[i]to come and say it was the old fellow's signature, or I am pretty sure that was what was said. He may have said Mr Dakin but I think I heard the words 'old fellow's signature'. The impression I got that – was that – the impression conveyed to me was that – would he get Mr Harstens to come in and give – probably give a decision in his favour regardless of whether it was a forgery or not."
Crown counsel relied on that material in the following passage from his address to the jury:
"Well now then, Alan Jones gave evidence and he was the person who now lives with Mr Nicholas and he said 'Look I was at a property and I was approached by Mr Nicholas and he said that he wanted to talk to me, he explained briefly what it was about, I went with him in a utility, he offered me a cup of coffee, he showed me the Will, a photocopy of the Will and he showed me, he said it was a bank slip', the accused said, 'no it was cattle – a calf return', and he looked at them and he said 'Well in my opinion it is forged' and he says that then the accused indicated to him that he knew it was forged but that 'he was trying to get information from me about Mr Harstens to come over and say that it was Mr Dakin's signature'. He wanted to get Mr Harstens to come over and say that it was Mr Dakin's signature. Now this next passage was quite interesting because it was never disputed either in cross–examination of Mr Jones or in the evidence given by the accused, I want to suggest to you, therefore, it was said and there is no dispute about it. He then said to me it was wrong that Mr Bantick should be the beneficiary of the estate because he considered him to be a no–hoper and a drug addict. 'It was wrong that Mr Bantick should be the beneficiary of the estate because I consider him to be a no–hoper and a drug addict'. And you remember, that he said 'I've never called Mr Bantick a no–hoper, I've never said to anyone that he was a no–hoper' and that is the person who is living with him. 'Could we get Mr Harstens over to say that it's the old fellow's signature ' Well then he was cross–examined about whether – how he formed the impression he'd said that he knew it was forged, and what have you and, my learned friend will no doubt, emphasise that."
In the summing–up the learned trial judge told the jury that a threshold issue in respect of both counts is whether the will was forged.
His Honour summarised the effect of the "evidence" of Mr Jones. In the course of the summary he told the jury:—
"Mr, Jones also gave this evidence too, he said 'The impression that was conveyed to me at the time was that he', referring to the accused, 'knew that it was forged.' He is referring to the Will. He said 'That was just a reaction that I got. It may well have been on my part that I had pre–empted the situation.' Those are the words that he used himself. He enlarged on why he formed that impression. He was asked 'What caused you to say that he indicated to you that he knew that the Will was forged?' and Mr Jones said 'Well, he said to me "Can you get Mr Harstens to come and say it was the old fellow's signature?". Well I'm pretty sure that was what was said. He may have said "Mr Dakin" but I think I heard the words "old fellow's signature". The impression I got was that the impression conveyed to me was, that would he get Mr Harstens to come in and give – probably give a decision in his favour, regardless of whether it was a forgery or not.'"
His Honour then gave the jury the following direction:—
"I would suggest that you have to consider his evidence of that alleged admission by the accused that he knew the Will was forged, you have to consider that evidence with very great care. In one way it can be said, I think, that it's got almost no probative value because, as he made clear in his cross–examination, he was giving his opinion of an impression that he had formed about what the accused knew. Well, apart from experts in certain fields, witnesses are not permitted to give you opinion evidence. It is for you to draw conclusions and determine what you think people knew at a particular time and so on. That is a jury question, it is not for witnesses to conclude that he gave indications which give rise to an opinion on an impression. It is really very dangerous evidence for you to act upon but it is there and it is a matter for you what weight you give to it. But he certainly expressly said in cross examination that the accused didn't make any direct admission to him."
The inadmissible material goes to a "threshold question" on each count and is gravely prejudicial. It is gravely prejudicial not merely because the jury was given an express and specific direction that they could give what weight they thought fit to inadmissible material, but also because the jury, allowed to roam free of the constrains of the rules of evidence, could have adopted the inference of the applicant's guest, Mr Jones, to ground a conclusion that the applicant's real purpose in seeking out Jones in the first place was to enter into a conspiracy with Harstens to commit the crimes of perverting the course of justice and per jury.
What we have here is no momentary lapse from procedural rectitude. The extracts from the transcript show that the objectionable course was adopted and continued over a long period. The learned trial judge described the evidence against the applicant on each count as "slender". In these circumstances, in my opinion, it would be most unjust to apply the proviso and allow these convictions to stand. The departure from sound practice is fundamental and altogether unacceptable. In the circumstances, I find myself quite unable to say that a reasonable jury properly directed, after a trial conducted in accordance with the rules of evidence and procedure would, without doubt, have convicted (Maric v The Queen (1978) 52 ALJR 631 at 635).
Having decided that, in my opinion, thee case must go to another jury, I do not consider that it would be right to discuss the evidence in detail. I would prefer not to run the risk of embarrassing the trial judge and the jurors at a new trial. I should add, however, that I am satisfied that there is evidence on which a reasonable jury properly directed could bring in a verdict of guilty on each of the two remaining counts.
However, detailed discussion is unavoidable when considering the adequacy of the summing–up.
Additional ground 2 – direction on burden of proof
The essence or the addresses of counsel is to be found in the following propositions.
Crown Counsel
1The deceased man was 70 years of age, single and without children. But he did have more distant relatives one, Mrs Phillips, being described as like a sister and brother to him. In 1984, he died leaving an estate valued at approximately $284,000.
The applicant did not have any reasonable expectation of succeeding to that estate by being given preference over those relatives. In evidence, the applicant exaggerated when speaking of his relationship with the deceased. The exaggeration was conscious exaggeration and an attempt to suggest that he had some claim to preference.
2The conduct of the applicant after the death was conduct which was consistent with his guilt. The conduct referred to was:—
(a)On the day of the death the applicant visited the town and had conversations with a number of people, in particular, Mrs Birrell, asking whether there was a will.
(b)He claimed that a man he could not name had spoken to him on the telephone, the telephone being in the name of the wife of the applicant. Apparently this man knew that the applicant could be found by the use of that telephone but the applicant could not identify the man. This unknown man agreed to sell to the applicant a desk which had been taken from the home of the deceased after the death. The unknown man sold the desk with the contents of it to the applicant For $250.
The contents of that desk had been thoroughly searched before it was taken from the home of the deceased and a will could not be found. However, after receiving the desk from the unknown man, the applicant searched the contents with a Mr Heazlewood. The latter found the will. Mr Heazlewood was not called as a witness.
The people who were present at the search of the desk before it was taken from the deceased's home were cross–examined and it was not put to them that they failed to look for the will in a pad which was inside a stud bock. That omission during cross–examination suggested that the story of finding the will was a recent invention.
(c)The applicant had a conversation with Mr Bantick the person entitled to take as on an intestacy. He told Bantick that he knew where the will was. He could get it for Bantick. Everything could belong to Bantick but Bantick must give the applicant $30,000.
(d)To explain that demand for $30,000 the applicant told a number of lies about an alleged deer farming project he had with the deceased.
(e)The applicant claimed that he was present when the will was signed by the deceased. If that were true, one would expect the applicant to say that he knew there was a will as he was present when it was signed. But he did not say that to anyone. He went to the offices of a firm of solicitors looking for a will.
(f)The applicant did not behave like a man who knew there was a will in existence by the terms of which he was sole beneficiary. Nor did he behave like a man who, as he claimed, had given significant assistance to the deceased in his lifetime by helping him run his farm.
3The applicant's evidence about the circumstances in which the deceased signed the will was inherently improbable and, in any event, plainly false. The evidence was that the late Mr Knott, who drew up the will, spoke to the applicant on the telephone and said he had some business to do with Mr Dakin and was going to see him. The applicant said he would accompany Mr Knott as he wished to take the opportunity to shoot some wallabies. The applicant's daughter also went along because she wanted to see whether the deceased had the papers for a horse she had obtained. They travelled some considerable distance to Mr Dakin's house on a Saturday night, Mr Dakin having died on the following Tuesday. The evidence was that the will was made at approximately 9.30 – 10.00 pm. Mr Knott had drawn it up, the late Mr Dakin signed it and Mr Knott and the applicant 's daughter had been the witnesses.
In fact, the document produced as being the will signed by the deceased on that occasion does not carry the signature of the late Mr Dakin. What purports to be his signature is a forgery. The evidence of two expert witnesses called by the Crown was to that effect and no expert was called to express a contrary opinion. The evidence of the two expert witnesses was satisfactory and convincing.
4There was clear evidence that steps had been taken to prove the forged will and clear evidence that the applicant had done acts intentionally co–operating with those efforts.
5The applicant did not deny saying to the police "I want to talk to my daughter before you people do because she might tell you more than she should".
6Counsel relied on the "evidence" of Jones which has been discussed previously.
Defence Counsel
1The applicant may have given his wife's the telephone number to Mr Gillies who might have passed it on to the person who brought the desk to the applicant.
2The alleged forgery on the will was of the signature of a man who was 70 years of age and terminally ill. That being so the experts had a difficult tusk asserting the negative proposition that the disputed signature was not written by the author of the standard samples of the handwriting of the deceased. The evidence of each of the two experts was unsatisfactory (a detailed argument on the point was developed).
3The Crown had failed to prove that the signature was a forgery and, of course, had also failed to prove that the applicant was a party to a forgery. The learned trial judge had directed the jury to bring in a verdict of Not Guilty on the count of forgery.
4The Crown case is vague. As to when the alleged conspiracy was formed, the Crown case was "pick a date between 28th April 1984 and 24th July 1984". The conspiracy is alleged to have been formed in Launceston and not in the area where the deceased lived, St. Mary's, an area some distance from Launceston. The Crown case is uncertain as to who were the parties to the alleged conspiracy.
5The Crown proofs are insufficient to ground a conviction on either of the remaining counts. There is no direct evidence and no confessional evidence.
Suspicion must not be confused with proof. "Zero added to zero still leaves you with zero".
6The Jones' evidence was weak.
7It was not likely that the people alleged to be responsible would bring a forged will into being and leave it at the house of the deceased with the risk that it would be found.
8There was evidence that the deceased had gone to the office of his solicitors and collected a prior will. The inference is that he did that because he wanted to change the disposition of his estate. The jury did not have the advantage of knowing what the dispositions in the prior will were.
9Counsel felt bound to ask the jury not to overlook that the applicant was not an intelligent man.
10If the applicant had lied, as the Crown alleged, the Crown could have proved that the assertions referred to were lies. But they had not done so.
11There was evidence which supported the applicant's assertions about the deer farm project.
12The applicant may have been reluctant to assert that there was a will until he found the missing document.
13The jurors should keep in mind that the applicant's version of the $30,000 conversation with Mr Bantick was different to that of Bantick. The applicant's version was outlined.
The Summing–Up
1The jury was instructed that the Crown carried the burden of proof from first to last. The applicant did not have the burden of proving anything.
2The jurors were to evaluate the witnesses and decide which witnesses were acceptable and what evidence was acceptable. Then, on the basis of that acceptable evidence, the jurors were to consider what findings they thought they could properly make.
3The jurors were to apply the law given to them by the judge.
4Then, each juror must ask himself or herself "Am I persuaded beyond all reasonable doubt that the accused is guilty of the count that I am presently considering?".
5The jurors were to give separate consideration to the case on each count. Before they could convict on either count, they had to be satisfied beyond reasonable doubt that all the elements of that crime had been proved. His Honour explained clearly and in detail the elements of each charge.
6His Honour instructed the jurors that they had to be satisfied "in quite a specific way" that all the ingredients of each crime had been proved. It was not enough to have "a general sort of feeling that he was involved.
7There was no direct evidence on either charge and no evidence of any admission. Therefore, thee Crown had to rely on circumstantial evidence. That was a method of proving a case which had to be approached with very great care. It is a method of proving a case which required the jurors to emphasise in their minds the direction concerning the burden of proof. The jury could only convict on circumstantial evidence if—
(a)they accepted the circumstantial evidence which the Crown put before them;
(b)if they were satisfied that the only – "I stress the word only" rational inference or conclusion which they could draw from the circumstances and facts which they were satisfied had been established by the evidence was that the accused was guilty. If guilt was only one conclusion among several which could be drawn from the circumstances the jury could not convict him. If there was reasonably open some other conclusion which was inconsistent with guilt or consistent with innocence then they would have to return a verdict of not guilty. It was only where they felt that the circumstantial evidence irresistibly pointed to guilt that they could use circumstantial evidence to convict.
8It was not necessary that the accused be proved to be a party to the agreement right from its inception. It would be sufficient if they were satisfied that he entered into that agreement with the others at any time during the period referred to in the indictment, 28 April 1984 to 24 July 1984.
9His Honour then discussed the evidence in detail. He warned the jury again that merely rejecting the accused's evidence does not establish the Crown case.
10His Honour warned the jury that the evidence against the a accused was "slender". And he gave a further warning about circumstantial evidence.
There appears to have been some direct evidence. It was to the following effect:—
(a)active steps were taken to prove the disputed will;
(b)the applicant assisted a solicitor in the preparation of the necessary affidavit of assets and liabilities and was present sometimes when there were discussions with the solicitor relating to the proof of thee disputed will.
The evidence of the experts to the effect that the disputed signature was not that of the deceased was, of course, circumstantial evidence (Wills on Circumstantial Evidence, 5th edn, p 184).
His Honour has given what has become known as the Hodge direction – Reg v Hodge, 168 ER 1136 at 1137. And, of course, his Honour should have given that direction as the case against the applicant on each count rested substantially on circumstantial evidence (Barca v The Queen (1975) 133 CLR 82 at 104).
The specific question which arises following the decision in Chamberlain v The Queen (1984) 153 CLR 521, is whether the learned trial judge should have directed the jury that it could not draw an inference as to a fact upon which guilt is dependent unless at the end of the day it is satisfied beyond reasonable doubt as to the existence of the circumstance giving rise to that inference. There is no doubt that Chamberlain's case is authority for the proposition that a jury cannot view a fact as a basis for an inference of guilt unless they are satisfied beyond reasonable doubt of the existence of that fact. That proposition implies a two phase process of evaluation in relation to circumstantial evidence bearing upon an element of guilt: the tribunal of fact must be satisfied—
(a)as to the existence of the circumstance to the criminal standard, at the end of the day and after considering all the relevant evidence; and
(b)it must be satisfied, again to the criminal standard, that the inference invited is to be drawn.
The direction is not required to be given in England, it being thought that the general direction on the burden and standard of proof is sufficient. (See Teper v The Queen (1952) AC 480 at 491; McGreevy v Director of Public Prosecutions (1973) 1 All ER 503).
In Chamberlain's case the learned judges were not considering a ground of appeal alleging misdirection or non–direction. They were considering whether a verdict was unsafe or too dangerous to be allowed to stand. Therefore, One cannot find in the case a binding ruling that in all cases of the kind exemplified by Barca's case the jury must be directed in accordance with the above proposition concerning the standard of proof to be applied at each stage of the two stage process. (See Sorby (1986) 21 A Crim R 64 at 99).
The authorities strongly suggest that there is no mandatory rule that "the Chamberlain direction" must be given in every case in the relevant category. (See Cross: Evidence, 3rd Aust ed, para5.9. p 250; Sorby (supra); The Queen v Matthews (1984) 36 SASR 503 at 507). The general rule that the adequacy of summing–up must be considered on a case by case basis (Grant v R (1975) 11 ALR 503) applies in this category of case also.
On the other hand, there are cases where the summing–up has been held defective because of the failure to give a "Chamberlain direction" (Perera (1985) 16 A Crim R 292 at 297; Carroll (1985) 19 A Crim R 410 at 411, 428; Romeo and Others (1987) 25 A Crim R 80 at 82, 88–9).
What "the Chamberlain direction" asserts is what is seen as a logical imperative as important and as binding as the Hodge principle. That being so, one assumes that in the majority of cases it should be given. It is clear that to instruct the jury to the contrary of that logical imperative is a misdirection (R v Murphy (1985) 4 NSWLR 42 at 58).
In this case the jury was directed to and did acquit on the charge of forgery. Therefore, the jury could not, consistent with that verdict, proceed to consider either of the remaining counts on the basis that the applicant forged the signature of the deceased on the disputed document or was a guilty party to that criminal act. Therefore, if the applicant, at the relevant time, knew the signature was a forgery he obtained that knowledge in a way which did not involve guilt on count 2. On the evidence before the jury, the way he could have obtained that knowledge, consistent with the verdict on count 2, is left very much at large. That circumstance must be considered with the fact that Crown counsel strongly relied on an assertion that the applicant lied, in court and out of court, on quite a number of matters. The jurors may have given weight to that assertion without any guidance on the difficult question of when lies can be fairly regarded as corroboration. In one of the above cases on this type of problem that is regarded as an important omission from the summing–up – Romeo and Others (supra) at p82: see also Mickelberg (1984) WAR 191 at 198; v JS and KML v Strickland, B12/1987, pp 10–11). Circumstances capable of an innocent explanation could have taken on a guilty hue because of the absence of guidance in that matter. It must be kept in mind that the applicant's daughter awaits trial on these charges. That being so, there may be a strong motive to lie which is consistent with the innocence of the applicant.
The verdict on count 2 negatives the proposition that the applicant was a guilty party to the preparation of the alleged false document at the time it was prepared. That he became a party to the unlawful agreement at a subsequent time was a proposition which was left balancing precariously close to the edge of the cliff of conjecture. As previously mentioned, the direct evidence of his involvement in any subsequent use of the alleged false document is limited.
A number of the "primary facts" in the Crown case were readily susceptible to more than one explanation. That being so, the case was like the Romeo case and required, to adopt the words of Burt CJ in that case, "a clear direction to them upon the manner in which the fact to be proved could be proved by way of inference from primary fact and upon the two stage onus of proof which lies upon the Crown in a case in which proof of guilt is sought to be made out in that way: Chamberlain (No. 2) (1984) 153 CLR 521 at 536". A case like the present where "the primary facts" are few and, in the case of some of them, of arguable import, would appear to be one where it if necessary to concentrate the jury's attention on the need for proof beyond reasonable doubt at each of the two contemplated stages. A stream does not rise above its source. I remind myself of the learned judge's comment to the effect that the evidence was "slender". Such a case requires a very full summing–up to exclude the risk that suspicion and conjecture have prevailed (cf Sorby (supra) at p102).
For these reasons, I am or the opinion that the appeal should be allowed. The convictions on counts 1 and 3 should be set aside and a new trial of those counts ordered.
List "A"
File No CCA 38/1988
GEOFFREY MATTHEW NICHOLAS v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COSGROVE J
22 July 1988
Mr Nicholas was indicted on one count of conspiracy, one count of forgery and one count of uttering. Each count related to a document which, on its face, purports to be the will of one Leslie John Dakin. An application for probate of the document as Mr Dakin's last will and testament was made to the Supreme Court of Tasmania by the executor named therein, one Leslie Walter Knott. The document named Mr Nicholas as the sole beneficiary of Mr Dakin's estate, which is estimated to have a value of about $280,000.
The trial of the charges made in the indictment began before Green CJ and a jury in February of this year at Launceston. At the conclusion of the Crown case, a submission of "no case to answer" was made by counsel for the accused. The learned Chief Justice upheld the submission in relation to the count of forgery and directed the jury to acquit the accused to that extent. They did so. There has been no appeal against the acquittal. This court is therefore not concerned with the allegation of forgery. The count as to conspiracy to defraud by forging and uttering and the count of uttering remained.
Mr Nicholas gave evidence in respect of those two counts, but did not "adduce" evidence. The jury returned a verdict of "guilty" in respect of both counts, and Mr Nicholas was sentenced to 15 months' imprisonment.
Mr Nicholas applied for leave to appeal on a number of grounds which can be summarised as follows:–
1 The ruling that Mr Nicholas had a case to answer in respect of conspiracy and uttering was wrong. Although this appears in the application for leave as a question of fact, it might be better sited in a notice of appeal as a question of law.
2 The verdicts of guilty of conspiracy and uttering were unreasonable and perverse, by which is meant that the evidence was insufficient to satisfy a reasonable jury, properly directed, of the guilt of the accused. This contention was raised in a number of ways, set out as separate grounds but summed up in ground 8, which reads:–
"8 That having regard to all the evidence in the case, and notwithstanding the clear and proper summing up by the Learned Chief Justice, the convictions of the Applicant for Conspiracy and Uttering cannot be sustained in law and a miscarriage of justice has occurred."
3 That the learned Chief Justice erred in not giving the jury a direction requested by counsel for the applicant some 3 hours or so after the jury retired.
On the fourth day of the hearing of the application for leave to appeal, at a time when the learned DPP had traversed many of the submissions made by counsel for the applicant, junior counsel for the applicant applied for leave to amend ground 8 and to lodge out of time a Notice of Appeal. Leave was granted in both instances.
The application for leave to amend ground 8 merely asked for deletion of the words "and notwithstanding the clear and proper summing up by the Learned Chief Justice". The notice of appeal alleged error of law in that:
"1That the Learned Chief Justice erred in law by failing to direct the Jury to ignore that part of the evidence of Allan William Jones which was inadmissible and prejudicial.
2That the Learned Chief Justice erred in law when he failed to direct the Jury that before they could draw any inference of guilt against the applicant from the primary facts they must first be satisfied that the Crown had proved each of those facts beyond reasonable doubt."
From now on, I shall generally refer to Mr Nicholas as "the appellant".
I turn first to the submission that the Chief Justice erred in finding that the appellant had a case to answer. The essential elements of the Crown case were:–
1 Evidence from two handwriting experts that the signature on the document propounded for probate was not that of Mr Dakin. A number of samples of Mr Dakin's handwriting and true signature were available to the jury.
2 Evidence from police officers that the appellant told them that the document had been made at the home of Mr Dakin at about 9.45pm on 28 April 1984 (Mr Dakin died on 2 May in that year); that he was present as were the attesting signatories, Mr Knott and the appellant's daughter Janine; and that he actually saw Mr Dakin, Mr Knott and Janine sign the document.
3 The document itself, which named Knott as executor and the appellant as sole beneficiary.
4 The evidence of Mr Gee, a partner in a firm of solicitors in Launceston, who acted for Mr Knott in propounding the will for probate and who in the name of the appellant, (but not necessarily with his express authority) lodged a caveat in the Supreme Court arresting action to administer the estate by or on behalf of others. The general effect of Mr Gee's evidence was that although he supposed that his true client was Mr Knott, he received instructions from both Knott and Nicholas, regarded himself as acting for both, and would look to Nicholas for his costs. He said that the appellant assisted him in preparing the affidavit of assets and liabilities. Both Knott and Janine Nicholas swore and lodged affidavits of due execution. It was the appellant's case that both he and Knott told Mr Gee that they had seen Mr Dakin sign the testamentary document.
(Appellant's counsel put to Mr Gee in a series of leading questions that the appellant told him that he was present when Mr Dakin signed the document. The questions were ineptly framed but the purport of the series was that the appellant, Knott and Janine Nicholas all claimed to Mr Gee that all three were present when the document was signed by Dakin. Mr Gee agreed with the submission put to him. The evidence of the police officers, to which I have referred, was not challenged. In the conduct of the trial the appellant sought not to contest the use of the document, but to assert its authenticity).
5 The evidence of Stephen John Bantick, a nephew by adoption of Mr Dakin, and apparently his next of kin. He gave evidence that on Monday 6 May 1984, he and a Mrs Phillips thoroughly searched Mr Dakin's house at Rosegarland for a will. A Mrs Lohrey acted as an observer of the search. Among the articles searched was a large writing desk. No will was found. After the search, the house was locked up. The next day the witness and Mr and Mrs Phillips travelled to Launceston to see the Public Trustee's representative. Late that night, the witness went to the house and found that it had been entered and the writing desk and other items of property had been removed. The witness had been appointed caretaker of the property by the Public Trustee. He stayed in the house that night and from then to the date of trial. He said that some time later, he received a telephone call from the appellant who wanted to see him about a will which he (the appellant) could find. They arranged to meet that evening at the residence of a Mr MacDonald. The appellant told Bantick that "he reckoned there was a will and he knew of a will that was in the writing desk. He reckoned that the writing desk was out at Riverside and he reckoned that he could get the will back out of it and bring it back to St Marys". The witness used the word "reckoned" colloquially as equivalent to "claimed". He said that the appellant wanted $30,000 from him.
Some three or four weeks later, Bantick met the appellant at the St. Marys Hotel. The appellant asked to speak to him privately. He then claimed that he had a will naming him as sole beneficiary and that all that Bantick as next of kin could do was to challenge the will. In October 1984 or thereabouts the appellant came to Rosegarland to see Bantick and "mentioned that to settle this business was that he would take the investments from Launceston from the estate and I have the two farms and the money in St. Marys Bank". Bantick said he would see his solicitors.
Officers of the court were called to prove execution of affidavits and steps taken to propound the testamentary documents including caveats and warnings. Their evidence was not contested. There were other witnesses, but these are the crucial ones.
It should be mentioned that Knott and/or Janine Nicholas were originally charged jointly with the appellant. Knott died prior to trial, and the Chief Justice made an order for the appellant's trial to be separate from that of his daughter.
On the submission of "no case" the learned Chief Justice was required to consider whether there was, "with respect to every element of the offence, some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred" (Zanetti v Hill (1962) 108 CLR 433 at p 442 per Kitto J)
The appellant was charged with uttering as an aider, abettor, or instigator. The elements to be proved to establish commission of that offence in this case are:
AThe document was forged in that the signature was falsely made in order that the document might be used as genuine.
BThat knowing it to be forged Knott and Janine Nicholas used it with intent to defraud, ie uttered it.
CThat the accused knew that the document was forged and that Knott or Janine Nicholas or both of them were uttering it or intending to utter it, and aided and abetted them in doing so.
or
With that knowledge, he instigated them to utter it.
There was evidence that Knott and Janine Nicholas signed the document as witnesses to the signature of Mr Dakin; that they swore affidavits of due execution; and that Knott as the named executor, propounded it as the last will and testament of Mr Dakin.
There was evidence that the signature was false and that the appellant was the sole beneficiary named in the document.
It would therefore have been open to a jury to conclude:
1 That the signature was false.
2 That the signature being false, the attesting witnesses knew it to be false.
3 That whoever wrote the false signature intended the document to be used as a genuine will.
4 That Knott, knowing the document to be false, used it by propounding it, thereby intending to benefit the appellant to the detriment of the heirs at law.
5 That the affidavits of due execution were false, and themselves amounted to use of the document.
6 That the appellant lied when he claimed to have seen Mr Dakin sign the document.
7 Inferentially that the appellant knew that the signature was false and the document forged.
8 That the appellant with intent to defraud abetted or aided or instigated the use of the false document by Knott and/or Janine. There was little direct evidence of the specific acts of aiding, abetting, or instigating, but the inference of abetting was rendered inescapable by the insistence of the appellant at all times on the authenticity of the "will".
The inference that the accused knew the documents to be false may appear to rest heavily on his claim to have witnessed the signing of the document. But there are other factors. It is true that if the jury concluded that the document was false, it would follow that the appellant lied when he said that he saw Dakin sign it. But a lie told to support another lie about a claimed provenance of a document (or a picture or any thing) does not necessarily indicate knowledge of the true provenance. If the lie stood alone, it would be a somewhat shaky foundation for a conclusion that the accused knew that the document was forged. The lie, however, has value as one of a number of facts about which a jury could reason in this fashion:– the accused was named in the document as the sole beneficiary of a substantial estate; the document was witnessed by his friend and his daughter; they knew it to be false and were asserting its authenticity; he told a lie supporting their lies, which, if believed, would fully establish authenticity; that he told that lie in those circumstances ignorant of the falsity of the document involves the proposition that the will was criminally and altruistically (surely a rare combination!) propounded for his benefit alone by persons who either assured him that the document was authentic or failed to reveal its falsity to him. (The latter proposition would involve a failure by him to enquire, which is fantastically unlikely). That scenario would be contrary to human experience and it would be open to a jury to reject it and therefore to conclude that the appellant was well aware of the criminality of the other's acts. And of course, there is the evidence of the suggestions made to Bantick which might well be taken as an indication that the appellant had no confidence in his entitlement to the estate (cf. in a different context R v Watt (1905) XX Cox CC 852 at p853). In my opinion, there was before the jury, evidence of the requisite kind and there was a case to answer in relation to uttering.
Once there was evidence of the appropriate kind to support a conviction for uttering, the inference of an agreement between the parties was easy to draw. That Knott and Janine Nicholas would embark upon, and carry to such a stage, the propounding of a false will without some form of agreement between them and the appellant at some time antecedent to an act of uttering is so inherently unlikely as not to be supposed. The inference of a conspiracy to forge is not so easy to draw but that is a matter going only to particulars, and a conclusion adverse to the appellant was not essential to a verdict of guilty. In my opinion, the ruling of the learned Chief Justice was correct on both counts.
I turn to the second of the submissions summarised above. The evidence given by the appellant did little to promote his case. Indeed, it made a significant contribution to the Crown case. He swore that he saw the document drawn up and signed and gave a detailed account of the activities of himself, Knott and Janine on 28 April 1984. He swore that Knott told him that he could not be a signatory to the "will" because he was a beneficiary. He identified the document and the pad it was in. He said that after the document was completed, Mr Dakin took it out of the room. He said that at the time he was "embarrassed that Les (Dakin) was leaving me his property". On the face of it this was an unexplained enlargement of his position from beneficiary to sole beneficiary. He said that when he heard of Mr Dakin's death, he travelled from Rossarden to Rosegarland where he saw Mr and Mrs Phillips (relatives of the deceased). He enquired whether he could assist in the funeral arrangements and was told that Mr and Mrs Phillips would take care of everything. He returned to Rossarden. He did not mention the "will" but he was concerned about it as he believed that it was still on the property. He therefore decided to move in and live on the property. Two days later he returned to Rosegarland but was unable to gain access to the property. He asked Mrs Burrell (a Crown witness) if she had a key to the gate, as he intended to move in as caretaker "until the subject of the will was cleared up". (It is not clear to me whether he claimed to have said the words in quotation marks or was merely indicating his purpose to the jury). Mrs Burrell told him that Mr and Mrs Phillips were caretaking and he would have to see them. He then went back to Launceston. He said that on his arrival at that city he telephoned the Phillips and they (sic) said "that they weren't going to let anyone at all on the property until the matter of the will was resolved". He did not tell them of the existence of a will naming him as sole beneficiary. At that time he "believed the will would have been in the writing desk that was in the lounge room" (where he claimed to have seen it signed). This was an unexplained accretion to his belief or knowledge.
He agreed that he met with Bantick at Mr MacDonald's home. His account of the conversation there was as follows:–
He asked Bantick if he had found Mr Dakin's will. Bantick said that he had not. Then followed this conversation (not, of course, to be taken as verbatim).
"Appellant:Well your uncle left everything to me Stephen but I haven't been able to find that will either and I believe it is in a writing desk at Rosegarland.
Bantick:No reply
Appellant:Will you meet me at Rosegarland to look for it.
Bantick:The writing desk and some other property have been taken from Rosegarland."
Then followed a discussion about the burglary and the reporting of it. Then:
"Appellant:Well look Stephen your uncle and I had started a deer farming project and I estimate that in its first year of operation if it doesn't go ahead I will lose $30,000 and would you consider giving some thought to giving me some re–imbursement for what I would lose and for what I've already put into the project.
Bantick:I'll think about it."
The appellant said that he went to the police about the missing property and then consulted a Mr Ron Gillies. He then went to various solicitors and told them of a missing will naming him as beneficiary (it is not clear whether he claimed to be sole beneficiary) and requested that administration of the estate be delayed.
Sometime later he received a phone call from an unidentified person who asked whether he was interested in getting a writing desk stolen from Rosegarland. He said that he was, provided that it still contained all the papers that were in it at Rosegarland. He agreed to pay $250 for it on that condition. A day or so later there was a knock at the door of his house. He answered it and saw a man fairly well built, in his late 20's, with "scars and tattoos and marks on his arms". The man said, "I've got the desk on the back of the ute". He inspected the utility and there was the desk tied all the way round with binding twine because "the two doors were bulging open with the weight of the papers". He and the unidentified stranger unloaded the desk on to the lawn. He paid over $250 and the stranger left. The appellant and a friend (not called) placed the desk in a store–room. There they searched the desk and found the "will". As soon as he could he took the will to Mr Griffiths, a senior partner of Mr Gee, and asked him to contact Knott, who was then out of the State, on his return to Tasmania. He later took a photocopy to show to the deceased's relatives.
There is no need to detail the inconsistencies and improbabilities in this evidence, nor to canvass the cross–examination of the appellant. It is sufficient to say that a jury could have regarded much of it as a sea of lies, in which only a few rocks of truth were visible.
The question of the genuineness of the testator's signature was a jury question. The evidence concerning it is not tainted by any patent defect, which would have to be ignored in order to reach a conclusion that it was false (cf Morris v R (1987) 74 ALR 161). The assessment of the credibility of the appellant was also a jury question (Morris (supra)). If the jury concluded against the appellant on both issues, the lies told by him could confirm his guilt.
Counsel for the appellant asks this Court to say that this is a case in which the evidence was such that a "jury, acting reasonably, must have entertained a sufficient doubt to have entitled the accused to an acquittal". (See Whitehorn v The Queen (1983) 152 CLR 657 at p688 per Dawson J; Chamberlain's case No 2 (1984) 153 CLR 521; Morris v R. (supra)). In my opinion, it is plainly not such a case. There was ample material, not affected by any inherent unreliability, which could satisfy a jury beyond reasonable doubt that the appellant with intent to defraud, encouraged and assisted in the propounding of a will which he must have known to be forged. If he did, then the inference of prior agreement is not only open, it is in practical terms irresistible.
The third submission concerns a rather confused request made to the Chief Justice for a re–direction as to the nature of the charges and the existence of direct evidence. In my opinion, the Chief Justice was correct when he said:
"In my view it wouldn't be right to give a further direction based on a conclusion that one might draw as to what's going through the jury's mind based on that question".
I do not accept this submission.
I turn now to ground 2 of the Notice of Appeal. More than 50 years ago in Martin v Osborne (1936) 55 CLR 367 at p375, Dixon J (as he then was) said:
"... 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. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued."
In Chamberlain v The Queen[No. 2] (1983–1984) 153 CLR 521 at p538, Gibbs CJ and Mason J (now CJ) said:
"It must be understood that the Court was intending to say that inferences cannot be drawn from facts that remain doubtful at the end of the jury's consideration, and did not mean that facts which, viewed in isolation, seem doubtful must be disregarded. However, in our opinion, it must follow from the reasoning in Reg v Van Beelen (1973) 4 SASR, at p 375 that the jury can draw inferences only from facts which are proved beyond reasonable doubt."
In Sorby (1986) 21 A Crim R 64 at pp1012 the Victorian Court of Criminal Appeal said:
"The following propositions seem to be warranted by the authorities:
(1) It remains true that to succeed in a criminal trial the Crown need establish by evidence beyond reasonable doubt no more than the elements of the crime charged. So put, however, the proposition is apt to be misleading if it is understood to mean that facts proved otherwise than beyond reasonable doubt can ever establish the elements of a crime.
(2) The Crown will seek to establish each element of the crime either by direct and positive proof or by evidence from which guilt beyond reasonable doubt can be inferred, or by a combination of both.
(3) When proof of any element essential to guilt is left to be inferred, the primary facts from which the Crown would have the jury draw the inference must be established by evidence beyond reasonable doubt.
(4) This means that the circumstances relied on for the inference must exclude any hypothesis consistent with innocence. It does not mean, however, that the jury must disregard every piece of evidence which does not by itself establish a fact beyond reasonable doubt. They must consider what weight is to be given to the united force of all the circumstances together: one piece of evidence might resolve a doubt as to another.
(5) A direction to the jury to give appropriate effect to these rules of law will necessarily vary according to the nature of the evidence that the Crown offers as proof. The direction will be constructed around the central principle that the Crown must establish guilt beyond reasonable doubt, and will be more or less elaborate according to the need to put the jury on guard against reaching any conclusion unfavourable to the accused which might not be inconsistent with innocence. The direction must therefore be designed to ensure that the jury do not infer guilt from facts about which they are left in doubt."
In my respectful opinion, there is no reason to doubt these propositions nor is there any inconsistency inherent in them.
Applying them to this ground of appeal, it is necessary to ask what facts essential to conviction were left to be proved by inference from facts which might be taken to be already established? I pose the question in this way because, although in a case like Chamberlain (supra), it may be possible to confine foundational facts (ie those from which an inference of guilt may be drawn) to facts proved by direct evidence, it is not always so. Sometimes the process may be doubly or trebly inferential, eg from ABC I infer D; from ABCD I infer E. When 12 persons sit down to consider evidence, jury person Y may say "I am satisfied beyond reasonable doubt of A and B, but not of C, but I am nevertheless prepared to infer D"; but jury person X may say, "I am satisfied beyond reasonable doubt of A and C, but not of B, but nevertheless I am prepared to infer D". The ultimate E may be arrived at ABD, ACD, or in some other way. Whether the inference of E can properly be made from ABD and/or ACD is, in most cases a matter for the jury, often depending on the individual or collective experience of the jury person. There are no doubt some cases involving questions of specialised knowledge such as forensic science, accounting, architecture, engineering and the like where the jury will need guidance as to the minimum satisfactory foundation for an inference, but in most cases they do not. Often the mental element in a crime is a matter of inference, eg burglary, where evidence is given that the accused was seen to enter a building and come out with the loot, and an inference that he had the intention to steal at the time when he entered the building must be drawn. In the absence of a special defence of innocent entry, no direction as to inference is required. The jury need only to be told that they must be satisfied beyond reasonable doubt that the accused entered the building with intent to steal.
In the ordinary trial, where the case is wholly or partly circumstantial, and a jury is told that they must not convict unless they are satisfied beyond reasonable doubt as to each of the constituents of the crime and satisfied beyond reasonable doubt that there is no rational hypothesis consistent with innocence and with the evidence, they will surely understand that, if there is an area of evidence which is crucial to the inference of guilt and as to which they entertain a reasonable doubt, they should not convict. No further direction is required. Of course in a special case of the type to which I have referred, a further direction, may well be necessary, but that type of case is exceptional.
In this case the jury were given both of the usual directions. They were told orally and in writing that in order to convict they must be satisfied beyond reasonable doubt that (A) the document was forged; (B) that it was used by Knott or Janine with intent to defraud; (C) that the accused knew all the essential facts which made the acts of Knott and Janine a crime, ie the falsity of the signature, the use of the document and the intent to defraud; and (D) that the appellant intentionally and wilfully abetted the commission of the crime. A and B were the subject of direct evidence. A conclusion as to C required some inferences to be drawn. My analysis of the Crown case shows, in my opinion, that there were sufficient facts either not disputed or already mentioned in this paragraph to support that inference. Given AB and C, D was a matter of obvious undisputed inference. In those circumstances, a dissertation on logical inference of the kind proposed by counsel for the appellant would not be helpful and might be confusing and dangerous. In my opinion this ground of appeal fails.
Ground 1 of the Notice of Appeal refers to the evidence of a Crown witness, Alan William Jones. He said that he spoke to the appellant in August 1985. The appellant asked him about a trial in which he had called a handwriting expert. He told Jones that the police were contemplating charging him with "frauding a will" and asked for information about the expert. He showed Jones a photocopy of the "will" and a bank form on which Mr Dakin's signature appeared. Jones said that he told the appellant that the signature on the "will" appeared to be false but that he was no expert. He then said that the appellant "indicated to me that he knew it was forged". His examination then went on:
"Yes. By whom – what did he say? ..... Well not verbally – um – he gave the impression that he knew it was forged.
I am sorry. How did he give that impression? ..... Oh it was just the impression that I formed an opinion on.
What did he do? ..... Well if you are saying, did he say it was forged – no. He didn't, I'm not prepared to say that he gave an open confession to me that he forged the Will.
HIS HONOUR: Well you are just being asked what he said?
MR BUGG: (RESUMES) What did he say to you? ..... Well he – he was trying to get information out of me in respect of Mr Harstens. To come over and say that it was the – that it was Mr Dakin's signature.
Let's go back to what you said a moment ago. You said that you indicated to Mr Nicholas that in your opinion the signature on the Will was a forgery? And you then said he indicated to me that he knew it was a forgery? What did he say about your comment on that – the comparison of those two Wills? The two signatures? ..... Well he didn't – I'm not sure. I can't be hundred percent, I'm not prepared to say that he gave me an open confession because I'm not sure.
I see. Can you recall him saying anything? ..... Not in – I don't know. I can't remember."
A little later, his examination was as follows:
"Did Mr Nicholas indicate whether he knew any family member of Mr Dakin's? ..... He did.
"What did he say? ..... Ah, he said that he thought that it was wrong that Mr Bantick should be the beneficiary of the estate because he considered him a no–hoper and a drug dependant."
Later on:
"... I think from memory Geoff stated that Norm Knott dictated the Will, um, wrote it down and it was um, spoken out by the late Mr Dakin."
Later still:
"Could we get Mr Harstens over to say it's the old fella's signature".
An application was made to his Honour to declare Jones a hostile witness. It was refused.
The DPP resumed examination–in–chief:
"Yesterday when you gave evidence before the Jury you said that when you had told Mr Nicholas that you thought the signature on the Will was a forgery he indicated to you that he knew it was forged? ..... yeah well –
Would you tell the court what was either said or done to give you that indication? ..... Well the impression that was conveyed to me at the time was that he knew it was forged and it was just a reaction that I got. May well have been on my part that I had pre–empted the situation.
Well can you just say what –
MR HODGMAN: Can't hear the witness, could you ask him to speak up.
MR BUGG: Yes, you're dropping your voice again Mr Jones. ..... Well if what you're suggesting Mr Bugg there was, he didn't verbally –
HIS HONOUR: Don't worry about what Mr Bugg suggests, he is just asking –
MR BUGG: No – I want you to tell this court –
MR BUGG: What caused you to say that he indicated to you that he knew that the Will was forged? ..... Well he said to me, can we – can you get Mr Harstens to come and say it was the old fellow's signature or I'm pretty sure that was what was said. He may have said 'Mr Dakin', but I think I heard the words 'old fellow's signature'. The impression I got that – was that – the impression conveyed to me was that – would he get Mr Harstens to come in and give – probably give a decision in his favour regardless of whether it was a forgery or not.
Yes, anything else that was said? ..... Well I made it abundantly clear to Geoff that I hadn't met Mr Harstens until such time as he'd came over to Tasmania to give evidence for me and I suggested to him that he make contact with him and he lives in Victoria. But um – .
Well was there any other – sorry, was there any other discussion about the Will that you can recall that you can tell the court now? ..... No, I think there was a conversation centred around my own father's estate and um just a general conversation, I had a cup of coffee and then left."
No application was made then or at any time for a direction to the jury to disregard this evidence. He was cross–examined by senior counsel for the appellant who sought to fix his evidence as this passage shows:
"You might have over reacted in forming the opinion as a non expert that the Will was a forgery, correct? .... yes.
And you might also have over reacted in forming the opinion based on an impression, correct? .... I don't quite follow that, based on an impression.
Based on an impression? it was just the impression that I formed an opinion on, you told His Honour and the ladies and gentlemen of the jury yesterday? .... Yeah, well my main basis for saying that was –
No, no, no, with great respect to you, I am asking you, do you depart from what you said yesterday and what you've just repeated a moment ago, that it was an impression upon which you formed an opinion? .... yes.
HIS HONOUR: I'll record that Mr Jones nodded.
MR HODGMAN: Nodded? .... yes."
The cross–examination then moved off on to other matters in an effort to obtain material discrediting the handwriting experts and concluded:
"Well whatever opinion you formed on an impression I put to you do you concede the possibility that you could have made a genuine and honest mistake? .... I would certainly concede that now yes.
You would. So is it fair comment to say that your evidence is based on an opinion which you formed on an impression and in respect to which you could have made an honest and reasonable mistake? .... Certainly".
The learned DPP referred to this evidence in his address in these terms:
"... Well now then, Alan Jones gave evidence and he was the person who now lives with Mr Nicholas and he said 'Look I was at a property and I was approached by Mr Nicholas and he said that he wanted to talk to me, he explained briefly what it was about, I went with him in a utility, he offered me a cup of coffee, he showed me the Will, a photocopy of the Will and he showed me, he said it was a bank slip,' the accused said, 'no it was a cattle – a calf return', and he looked at them and he said, 'Well in my opinion it is forged' and he says that then the accused indicated to him that he knew it was forged but that 'he was trying to get information from me about Mr Harstens to come over and say that it was Mr Dakin's signature'. He wanted to get Mr Harstens to come over and say that it was Mr Dakin's signature. Now this next passage was quite interesting because it was never disputed either in cross–examination of Mr Jones or in the evidence given by the accused, I want to suggest to you, therefore, it was said and there is no dispute about it. He then said to me it was wrong that Mr Bantick should be the beneficiary of the estate because he considered him to be a no–hoper and a drug addict. 'It was wrong that Mr Bantick should be the beneficiary of the estate because I consider him to be a no–hoper and a drug addict'. And you remember, that he said 'I've never called Mr Bantick a no–hoper, I've never said to anyone that he was a no–hoper' and that's the person who is living with him. 'Could we get Mr Harstens over to say that it's the old fellow's signature?' Well then he was cross–examined about whether – how he formed the impression, he'd said that he knew it was forged, and what have you and, my learned friend will, no doubt, emphasise that."
Counsel for the appellant in his address, said:
"My learned friend repeated and this is point three, that Mr Nicholas knew the Will was a forgery, where is the evidence of that, there is none. Oh wait a minute! Wait a minute! What's the Crown getting at there? I'll tell you what they're getting at. The jewel in their case, Mr Alan William Jones, that's what they're getting at. Mr Jones, you remember, said that he formed an opinion on an impression of what he thought the accused thought about the Will but admitted that he might have made a reasonable and honest mistake.
... might have over reacted and that on reflection he wouldn't say it again. Now, that would have to be the weakest evidence that could ever conceivably be put to a Jury. That Mr Jones formed an opinion based on an impression of what he thought, the accused thought about a will in respect of which he could've made a reasonable and honest mistake. And on reflection he's over reacted and he wouldn't say it again. That you see is the strength of the Crown case. No other evidence."
The learned Chief Justice said:
"Mr Jones gave evidence, he said that in August, 1985 he was at Landale Street and he gave evidence about the accused approaching him. He said that he thought that the subject of handwriting was first raised in Landale Street. He said the main conversation between them was at Waverley but there was some conversation about handwriting at Landale Street and he said that the accused first approached him there and said, 'Are you Alan Jones?' 'I said "Yes, I am".' And he is uncertain but he thinks that the accused then said to him 'Are you the one that the cops forged your signature?' or words to that effect and asked him something about 'Are you the one who got the expert from the FBI?' And Mr Jones said that he confirmed that he was that person and that the accused then said he wanted to have a talk to him and Mr Jones agreed and they then travelled to Waverley Street where they had a more substantial conversation – not Waverley Street, to Humphrey Street in Waverley, and they went to the house and got a cup of coffee. Mr Jones said that the accused said that the police were contemplating charging him with forging a will and that he, the accused, wanted details about Mr Harstens. He said that the accused went into a room which I think he said he now believes is the bedroom and brought back a photostat of what appeared to be a home made will and two ANZ Bank withdrawal deposit forms. He said that he, Mr Jones, looked at the signatures and said he thought that the signatures on the Will were forged. He is not presented to you, of course, as an expert by the Crown but it is part of the conversation and that is why it comes before you. And he was asked what was the accused's response to that comment by Mr Jones about the forgery and he said that the accused suggested at the time 'Would it be possible to get Mr Harsten in to say that it was the old fellow's signature, Mr Dakin's signature?' He confirmed, of course – Mr Jones confirmed that Mr Harstens was the handwriting expert who had given evidence on his behalf. Mr Jones also gave this evidence too, he said, 'The impression that was conveyed to me at the time was that he', referring to the accused, 'knew that it was forged.' He is referring to the Will. He said 'That was just a reaction that I got. It may well have been on my part that I had pre–empted the situation.' Those are the words that he used himself. He enlarged on why he formed that impression. He was asked 'What caused you to say that he indicated to you that he knew that the Will was forged?' and Mr Jones said 'Well, he said to me "Can you get Mr Harstens to come and say it was the old fellow's signature?" Well I'm pretty sure that was what was said. He may have said, "Mr Dakin" but I think I heard the words "old fellow's signature". The impression I got was that the impression conveyed to me was that would he get Mr Harstens to come in and give – probably give a decision in his favour, regardless of whether it was a forgery or not.' So that's Mr Jones' evidence as to what he says the accused said to him. He is clearly not at all sure of what words, if any words, indeed were used by the accused. I would suggest that you have to consider his evidence of that alleged admission by the accused that he knew the Will was forged, you have to consider that evidence with very great care. In one way it can be said, I think, that it's got almost no probative value because, as he made clear in his cross examination, he was giving his opinion of an impression that he had formed about what the accused knew. Well, apart from experts in certain fields, witnesses are not permitted to give you opinion evidence. It is for you to draw conclusions and determine what you think people knew at a particular time and so on. That is a jury question, it is not for witnesses to conclude that he gave indications which give rise to an opinion on an impression. It is really very dangerous evidence for you to act upon but it is there and it is a matter for you what weight you give to it. But he certainly expressly said in cross examination that the accused didn't make any direct admission to him."
It is plain in my view that Jones' evidence, (a) that the signature was false, and (b) that the appellant gave him the impression that he knew it was false was inadmissible. But it is also clear that the evidence of his opinion that the signature was false was let in as a statement by him to the appellant which drew forth an admission, ie as a necessary preliminary to the evidence of the admission. Had it been followed by evidence of an admission, it would have created no real problem. However, in the result, it did not lead to evidence of an admission, but a further inadmissible expression of opinion as to the knowledge of the appellant.
Evidentiary difficulties of this nature are not uncommon in trials. When they arise, they create problems which can be solved only by the common sense and discretion of the trial judge, in which he is assisted by the attitude of counsel. If he tells the jury to disregard it and repeats that direction (as he must) in his summing up, he may give the jury an unrealistic sense of its importance and they may, wittingly or unwittingly, act otherwise than in accordance with his direction. The alternative is to put the evidence in its place as a matter of no importance. In this case, there was no application from counsel for the appellant for a direction to be given, and counsel was at pains to fix the evidence at its lowest value. The learned Chief Justice let it go, probably reserving the matter in his mind. The DPP in his address, virtually conceded that it was of no value to him, and counsel for the appellant seized on it as an example of the bareness of the prosecution's cupboard. In those circumstances, the Chief Justice continued on his course of depreciating the evidence, rather than directing the jury to disregard it. I do not think that to choose that course was a positive error. Unfortunately, his Honour used words which, whilst depreciating the evidence in one way, gave it a status to which it was not entitled. He said, "it is there and it is a matter for you what weight you give to it". That was an erroneous statement and one which could have encouraged the jury to embark upon an impermissible approach to their task. The gravity of this error has to be weighed in the context of the trial and it must be noted that no objection was taken to it at the time. It is also noteworthy that towards the end of the trial, counsel for the appellant told the learned Chief Justice that he had no criticism whatever of the summing up; and, until it was deleted by amendment, the application for leave to appeal spoke of "the clear and proper summing up by the learned Chief Justice". It is more than a little disingenuous to complain half way through an appeal hearing of an error which must (or should) have been obvious during the trial, but was apparently not a matter of any concern.
Nevertheless, it is necessary to consider whether, by the reception of inadmissible evidence, the appellant "thereby lost a chance which was fairly open to him of being acquitted". (Mraz v The Queen (1955) 93 CLR 493 at 514 per Fullagar J). The following considerations suggest that he did not:
1The evidence was very weak.
2The disparagement of it by both counsel and the Chief Justice must have been apparent to the jury.
3The crucial contest was that as to the genuineness of the signature. On that issue Jones' evidence should have no weight at all with the average juryman. The jury should be guided by the experts and their own observations, not by an off–the–cuff and hastily retracted opinion of a layman.
4Once the issue of the authenticity of the signature was resolved against the appellant on the evidence of the experts, the inference that the accused was aware of its falsity flowed overwhelmingly from the attendant circumstances and the appellant's own evidence, eg his presence at the signing, and the disappearance and arrival of the writing desk. It needed no support from Jones. This is apparent from the conduct of the case, which centred on the issue of authenticity almost to the disregard of other issues.
However, these considerations leave open the possibility that the jury accepted the invitation of the learned Chief Justice to give Jones' evidence such weight as they saw fit and used in relation to the issue of falsity of the signature not Jones' opinion that the signature was false, but his opinion that Nicholas knew that it was false. If they did so use it, then it was damning indeed and could have been sufficient to bring the required measure of certainty to the minds of jurors who were not totally convinced by the evidence of the experts. Whilst that possibility exists, I am not able to assert positively that "no substantial miscarriage of justice has actually occurred" (subs(2) of s402 of the Criminal Code).
I would allow the appeal on ground 1 of the Notice of Appeal.
List "A"
File No CCA 38/1988
GEOFFREY MATTHEW NICHOLAS v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
22 July 1988
Geoffrey Nicholas pleaded not guilty to one count of conspiracy, one count of forgery and one count of uttering.
At the conclusion of the Crown case the learned trial judge ruled that there was no case to answer on the count of forgery and he was acquitted of that charge. Nicholas gave evidence on oath but did not otherwise adduce evidence. He was convicted of conspiracy and uttering and sentenced to 15 months imprisonment. This Court has before it:–
1An appeal against the convictions.
2An application for leave to appeal against the convictions.
3An application by the Crown for leave to appeal against sentence upon the single ground that it is manifestly inadequate.
For convenience, I shall hereafter refer to Nicholas as the appellant.
Although the appellant's documents together set out 10 grounds they can be summarised as follows:–
As a matter of law:–
1The learned trial judge erred in ruling that the appellant had a case to answer on the counts of conspiracy and uttering.
2The learned trial judge erred in failing to direct the jury to ignore certain evidence of the Crown witness Allan William Jones.
3The learned trial judge erred in failing to direct the jury that, before they could draw an inference of guilt from the primary facts, they must first be satisfied beyond reasonable doubt of the existence of those facts.
4The learned trial judge erred in failing to give the jury a requested further direction after they had been in deliberation for some time.
As a matter of fact:–
1The verdicts of guilty were unreasonable or could not be supported having regard to the evidence and a miscarriage of justice has occurred.
The facts are set out in the judgment of Cosgrove J and I will not refer to them except insofar as is necessary for a proper understanding of these reasons.
The essential elements of the crime of conspiracy as pleaded in count 1 of the indictment, evidence of which was required before the jury could convict, were that:–
1the appellant
2between the 28 April 1984 and the 24 July 1984
3conspired (shared a common purpose) with Janine Nicholas and/or Norman Walter Knott [hereafter referred to as "Janine" and "Knott" respectively]
4to defraud the heirs and beneficiaries of Leslie J Dakin (the deceased) by:
(a)preparing a forged will and/or
(b)representing a forged will to be the true will of the deceased
5the appellant and Janine and/or Knott agreed to and intended to carry out that purpose.
Count 3 of the indictment charged the appellant with one count of uttering but three separate crimes of uttering were pleaded in the particulars to count 3 namely, an uttering to:
(a)Nicholas Gee and a person or persons unknown in the employ of Archer, Bushby
(b)Mr Douglas Kingsford–Smith
(c)Mr Robert James Walker or a person or persons unknown employed in the Probate Registry of the Supreme Court.
The learned trial judge directed the jury that, in order to convict on count 3, they need only be satisfied to the requisite degree of the occurrence of one of the three particularised acts of uttering. No complaint was raised at the trial that the form of pleading contravened the provisions of the Code, s311(4) and the point was not raised on appeal. The particulars alleged that the appellant committed the crime of uttering by instigating, abetting or aiding Janine Nicholas and/or Knott to utter a forged will to the three persons referred to or that such uttering by Janine and/or Knott was a probable outcome of a common intention formed by the appellant with Janine and/or Knott to prosecute the unlawful purpose of defrauding the lawful heirs and beneficiaries of the deceased. Thus, the essential elements of the Crown case on count 3, evidence of which was required before the jury could convict, were that:–
1Janine and/or Knott used, by presenting or delivering to:
(a)Nicholas Gee and/or a person or persons unknown in the employ of Archer Bushby;
(b)Mr Douglas Kingsford–Smith; or
(c)Mr Robert James Walker or other person or persons unknown in the employ of the Probate Registry of the Supreme Court, a forged document,
2knowing that it was forged
3with the intention of defrauding the lawful heirs and beneficiaries of the deceased and
4the appellant instigated or aided or abetted Janine and/or Knott to commit one of those crimes of uttering or that, the commission of one of those crimes was a probable consequence of the prosecution of the particularised unlawful purpose.
At the close of the Crown case almost all the admissible evidence was circumstantial.
No Case to Answer
The linchpin of the Crown case was the evidence of Messrs Dale and Timewell both of whom gave expert opinion evidence that the signature "LJ Dakin" was not that of the deceased. Neither expressed any opinion concerning the authorship of the forged signature or the body of the document. Mr Gee, a solicitor, gave evidence that Knott instructed him to take such steps as were necessary to obtain a grant of probate of the will. Mr Kingsford–Smith, a Commissioner of the Supreme Court of Tasmania, gave evidence that persons introduced to him as Janine Nicholas and Norman Walter Knott swore that the contents of certain affidavits were true. These documents, necessary in order to obtain a grant of probate, were admissible evidence, even though the truth of their contents was inadmissible hearsay evidence against the appellant, because their attestation tended to prove the commission of the crime of uttering. Mr Walker of the Probate Registry of the Supreme Court gave evidence that the will, the affidavits and other material were received by the court as part of an application for a grant of probate.
The attestation clause of the will under which appeared the purported signatures of LJ Dakin, Janine M. Nicholas and Norman W Knott provided:–
"Signed by Leslie John Dakin for his last Will and Testament in the presence of us both and at the same time who at his request in his presence and in the presence of each other" (sic).
A reasonable jury, properly instructed, could have accepted this evidence and from it inferred that Janine and/or Knott committed the crime of uttering as pleaded in the indictment. Mr Gee also gave evidence that the appellant gave him instructions both in company with Knott and alone, to assist in the preparation of documentation necessary for an application for a grant of probate. The following exchange concluded the cross–examination of Mr Gee:–
"Mr Hodgman QC: Either Mr Knott or Mr Nicholas, either separately or together and in the presence of each other, told you they had both been present when the will had been signed by Mr Dakin. Mr Knott signed as a witness, Mr Nicholas was present? ... And Janine Nicholas.
And Janine Nicholas? ... Yes, that's the substance of what I was led to believe by them."
A jury could have accepted Mr Gee's evidence and been satisfied beyond reasonable doubt that the appellant took steps which in fact aided and abetted the uttering of the will by Janine and/or Knott.
With respect to the issue of the appellant's state of mind on the question of aiding and abetting the undisputed evidence of police officers was that the appellant told them that he was present when the will was drawn up at the deceased's home on the 28 April 1984 and that he saw the accused, his daughter, and Knott all affix their signatures to the document. Indeed, the thrust of the cross–examination of the Crown witnesses clearly indicated the appellant's contention was that the will was genuine and that the out of court statement to the police was true. Acceptance by the jury of the expert opinion evidence that the signature was a forgery, of necessity, involved the conclusion that the appellant's statement to the police was a lie. A lie, established by independent evidence about a material issue, the motive for which is fear of the truth is capable of indicating a consciousness of guilt. See R v Chapman [1973] 2 WLR. 876; Popovic v Derks [1961] VR 413 and the cases cited in "Can Lies Corroborate?" (1973) 89 LQR 552, an article in which the learned author wrote at p552, "the statement must be material, attributable to a real sense of guilt and independently proved to be a lie."
In R v Perera [1982] VR 901 Young CJ said at p905 after reviewing the authorities:–
"[It is] unwise, if not impossible, to attempt to formulate general propositions or rules which will govern the occasions on which lies told by an accused person, whether in court or out, will give rise to an inference that he is thereby displaying a consciousness of guilt. Everything must depend upon the circumstances of the particular case."
In addition to the direct evidence of the appellant's involvement in the propounding of the will there was a considerable body of circumstantial evidence from which a reasonable jury, properly instructed, could have inferred that the involvement was attended by the requisite guilty mind. I refer, but not exhaustively, to such matters as the conversations between the appellant and Mr Bantick and Mrs Birrell, the implausible account concerning the disappearance and later re–appearance of a desk in which the will was allegedly discovered. Acceptance of the evidence that the will was a forgery would lead to the establishment of the proposition that the appellant, not related to the deceased, stood to receive $280,000.00 as the sole beneficiary of the deceased's estate under a will which, on the face of it, claimed that the forged signature was witnessed by the appellant's daughter and friend. In this context the appellant's out of court lie was clearly evidence from which the jury could infer consciousness of guilt at the time he assisted the propounding of the will. At the close of the Crown case there was evidence upon which the jury could have convicted the accused of uttering.
On the same evidence a reasonable jury could have found the accused guilty of conspiracy, at least insofar as the count pleaded an agreement to defraud by representing the document to be a valid will. A suggestion that, with knowledge of the forgery Janine and/or Knott propounded "the will" and the appellant, with like knowledge, assisted and encouraged them to do so without there being any prior agreement to so act is fanciful.
In my opinion, there was no error in law in the ruling that there was a case to answer on counts 1 and 3 of the indictment.
Inadmissible Evidence
Subject to subs(2), s402(1) of the Code directs this court to allow an appeal if (inter alia) "the judgment or order of the court of trial should be set aside on the ground of the wrong decision of any question of law". It is beyond doubt that the evidence of the witness Jones that he had an impression, and that he formed an opinion, that the appellant knew the will was a forgery is inadmissible. The trial judge neither made nor was asked to make a decision with respect to that inadmissible evidence. Senior counsel for the appellant sought elaboration of the inadmissible evidence in cross–examination, both counsel referred to it in their addresses, and the learned trial judge made special reference to it in his summing up by deprecating its probative value. At the conclusion of the summing up and before the verdict, senior counsel for the appellant referred to his Honour's directions as clear and proper; a stance maintained during argument on the appeal until an application was made to file a notice of appeal out of time upon the ground that the admission of the evidence was a wrong decision of law. Be that as it may, there rests a duty on a trial judge in a criminal proceeding to ensure that the accused receives a fair trial according to law. Mancini v DPP [1942] AC 1; Pemble v The Queen (1971) 124 CLR 107.
Section 2(1)(b) of the Criminal Appeal Act 1968 (UK) provides that the Court of Appeal shall allow the appeal if "they think that the judgment of the court of trial should be set aside on the ground of a wrong decision of any question of law." The DPP v Shannon [1974] 3 WLR 155 and Moghal v The Queen (1977) 65 Cr App R 56 are both cases in which it was held that there must be a judicial decision before the court has jurisdiction to intervene pursuant to s2(1)(b) of the United Kingdom Act. In the former case the conviction appealed against was entered following a plea of guilty to one count of conspiracy. At a subsequent trial the appellant's co–conspirator was acquitted. The appellant appealed against his conviction upon the ground that the subsequent acquittal of the alleged co–conspirator meant, of necessity, he was not guilty of conspiracy. Three of their Lordships were of the view that no decision of a question of law had been made and accordingly, the Act gave no jurisdiction to set aside the conviction. In the latter case, although the judge indicated that he may exclude certain evidence if it was sought to be led, an appeal based on the wrongful exclusion of evidence did not succeed on the basis that there had been no wrong decision of any question of law. However, it has always been held that the acceptance of a plea of guilty to an offence not known to law or which was inconsistent with the facts put before the court is a wrong decision of a question of law. See R v Forde [1923] 2 KB 400; R v Rollafson [1969] 1 WLR 815; R v Whitehouse [1977] 2 WLR 925. It would appear that these cases are based on the proposition that, as it is always the duty of a trial judge to ensure that the proceedings are conducted in accordance with law, a failure to intervene which results in an error in law will be treated as a wrong decision on a question of law. Similarly, a failure of a trial judge to intervene to prevent the introduction of inadmissible evidence or, in an appropriate case, instruct the jury to ignore that evidence if it is admitted by inadvertence constitutes a wrong decision on a question of law. In Simic v The Queen (1980) 144 CLR 319 the court considered the provisions of s568(1) of the Crimes Act 1958 (Vic.), the terms of which are almost identical to the Code, s402(1). In the joint judgment their Honours referred to the test to be applied in cases where the trial judge mis–states the evidence to the jury and went on to say at p327:–
"The test thus stated is less favourable to an appellant than that which is applied in cases where there has been a wrong decision of a question of law – cases that would include those in which there has been a misdirection as to the law or in which evidence has been improperly admitted or rejected."
In Peacock v The King (1911) 13 CLR 619 Griffith CJ referred to the duty imposed by law upon a trial judge when inadmissible evidence is inadvertently admitted. In that case the learned trial judge recalled the jury after they had been in deliberation for some time and formally directed them to ignore the inadmissible evidence. The learned Chief Justice said (p643) that as a matter of law, depending upon the circumstances of the case, a judicial direction couched in adequate terms to the jury to disregard the evidence would be sufficient. At p659 Barton J said:–
"It is impossible to make the administration of justice proof against occasional accidents such as the original reception of the evidence, and when they occur the only course possible is to strike out the matter complained of and to warn the jury strongly to leave it entirely out of consideration. This is the practice adopted, so far as my knowledge and experience extend, on the criminal as well as the civil side, and is the only possible means of rectifying the mishap. To hold that on all such occasions the whole proceedings are rendered abortive would be to place a fatal obstacle in the path of the administration of justice".
However, in the present case the learned trial judge did not direct the jury to disregard the inadmissible evidence given by the witness Jones. In the summing up he said that "it is not for witnesses to conclude that he (the appellant) gave indications which gave rise to an opinion on an impression". Instead of then going on to accordingly direct the jury to disregard that evidence of opinion and impression his Honour said:–
"In one way it can be said, I think, that it's got almost no probative value because, as he made clear in his cross–examination, he was giving his opinion of an impression that he had formed about what the accused knew ... it is really very dangerous evidence for you to act upon but it is there and it is a matter for you what weight you give to it. But he certainly expressly said in cross–examination that the accused didn't make any direct admission to him" [my emphasis].
By directing the jury as above and by failing to direct them to ignore the inadmissible evidence the learned trial judge made a wrong decision on a question of law.
In obedience to the mandatory words of s402(1) (see Pattinson and Laws v The Queen (1973) 58 Cr App R 417) this appeal must be allowed unless the court is affirmatively satisfied that no substantial miscarriage of justice has actually occurred by reason of the error. In view of the conclusion I have reached on the next ground of appeal it is unnecessary for me to consider the application of the proviso.
Directions Concerning the Circumstantial Evidence
The question raised by this ground is whether, in the circumstances of this case, the learned trial judge should have given the jury a direction that they must not draw an inference of guilt from a fact or facts unless they are satisfied of the existence of that fact or facts beyond reasonable doubt. Did the omission of such a direction result in a miscarriage of justice? Practically all the evidence against the appellant was circumstantial. The jury were told in accordance with R v Hodge (1838) 2 Lew CC 227; 168 ER 1136:–
"Now you can only convict the accused upon the basis of circumstantial evidence if, first of all, you accept the circumstantial evidence which the Crown puts before you, and secondly, if you are satisfied that the only – and I stress the word 'only' – rational inference or conclusion which you can draw from the circumstances and facts which you are satisfied have been established by the evidence, is that the accused is guilty."
His Honour did not give a further direction that such "rational inference or conclusion" could only be drawn from "circumstances and facts" the existence of which have been established beyond reasonable doubt. It was argued that Chamberlain v The Queen[No 2] (1984) 153 CLR 521 is authority for the proposition that, where a case rests wholly or almost wholly upon circumstantial evidence, such a direction must be given, otherwise the direction concerning the burden of proof will be inadequate. The issue in Chamberlain [No 2] (supra) was whether the verdict should be set aside upon the ground that it was unsafe or dangerous to allow it to stand and the trial judge's directions were not the subject matter of a ground of appeal (Gibbs CJ, Mason J at p539).
There is no rule of law that any particular direction concerning the burden of proof has to be given in cases which rely wholly or substantially upon circumstantial evidence. The adequacy of each summing up has to be considered in relation to the evidence given at the trial to see whether the statutory obligation to instruct the jury on the relevant law has been complied with. See the Code, s371(j); Grant v The Queen (1976) 11 ALR 503.
With respect, I agree with the careful analysis made of Chamberlain [No. 2] (supra) made by the Court of Criminal Appeal (Vic.) in Sorby v the Queen (1986) 21 A Crim R 64 where their Honours said in the joint judgment at p101:–
"The proposition that where the evidence is circumstantial each fact from which an inference of guilt is to be drawn must itself be proved beyond reasonable doubt is again no more than an aspect of the axiom that the Crown must prove its case beyond reasonable doubt. If in a particular case the jury cannot be expected to understand and apply the axiom without an expanded definition of the rule, so far as it applies to circumstantial evidence, then an appropriately expanded explanation of the rule should be given. Otherwise it is unnecessary."
There followed five propositions which are set out in the reasons for judgment of Cosgrove J and it is unnecessary to repeat them here. I agree that these propositions are warranted by the authorities. As the court stated in R v Van Beelan (1973) 4 SASR 353 at p379 it is "an obvious proposition in logic, that you cannot be satisfied beyond reasonable doubt of the truth of an inference drawn from facts about the existence of which you are in doubt".
In the present case, all the evidence (leaving aside the inadmissible evidence of the witness Jones) which tended to prove that the will was a forgery was circumstantial. Expert opinion is circumstantial evidence. See Wigmore on Evidence (3rd edn) paras383 and 213 and Wills on Circumstantial Evidence (5th edn) 184 et seq Although the learned trial judge did not give the jury a "Hodge" direction or a "Chamberlain" direction about the expert opinion evidence he did tell the jury that they had to evaluate the expert opinion evidence themselves by examining the bases for, and the chain of reasoning of, the opinions. This direction was expressed so that the jury would clearly understand how to apply the burden of proof to the question of whether the will was a forgery. No issue appeared to arise during the trial with respect to the authorship of the "known samples" of handwriting which formed the factual basis on which the expert opinion partly rested although the jury were told that they had to be satisfied that the deceased did in fact write the known samples. Once the jury was satisfied that the will was a forgery there was direct evidence that Janine and Knott uttered the will and that the appellant assisted the propounding of the will. As to whether the appellant did so with the requisite guilty mind so as to make him an aider or abetter depended (again excluding the inadmissible evidence of Jones) upon circumstantial evidence. This evidence included:–
1The appellant's conversations with Stephen Bantick.
2The appellant's conversations with Mrs Birrell.
3The bizarre circumstances surrounding the disappearance of the desk and its subsequent reappearance containing the will which had not been found when the desk was first searched.
4The conduct and statements of the appellant in the weeks following the death of the deceased.
5The appellant's lie that he was present when the will was signed.
6The improbability of the appellant's account given from the witness box and, in the circumstances, of him being made the sole beneficiary of the estate of the deceased.
7The statement by the appellant to the police about him speaking to his daughter before they did.
The jury's assessment of all the evidence was complicated by the directed acquittal on the count of forgery. Any fact or circumstance found and any inference drawn therefrom must not be inconsistent with the established proposition that the appellant was not a party to the forgery. In my opinion, this factor alone called for an expanded explanation of the burden of proof. There existed the possibility that individual jurors may take differing views about the weight of the evidence which tended to establish the existence of any particular circumstantial fact. It was possible that individual jurors may take different views about which circumstantial facts were capable, in accordance with the directions given them, of supporting a guilty inference. In a case such as this, there was a need to tell the jury:–
"That if to view any of those [circumstantial] facts in combination with other facts as a basis for an inference of guilt they could not do so unless they were satisfied of the existence of the fact beyond reasonable doubt". Carroll v The Queen (1985) 19 A Crim R 410 at p428.
Without a direction of this sort there was a risk that the jurors, collectively or individually, might fall into the error of drawing a guilty inference from a number of circumstances the existence of all, or a sufficient number of which were suspected but not established beyond reasonable doubt. In my respectful opinion this is a case where the direction on the burden of proof should have included a direction that a guilty inference could only be drawn from primary circumstances which were not inconsistent with the acquittal on the count of forgery and the existence of which are established beyond reasonable doubt.
That this was a case which involved a risk of inferences being drawn from suspicions is indicated by the following passage at the conclusion of the summing up:–
"I remind you of the direction I gave to you at the beginning of this summing up that evidence of suspicion, giving rise to some suspicion in your minds about the accused's involvement in this whatever happened, evidence of some general involvement by the accused, is not enough to justify you in convicting the accused. You have to be satisfied that all the ingredients have been made out and a feeling of vague involvement in some way is not enough in order to convict the accused. You have to be positively satisfied that the ingredients have been proved."
This case is unlike those in which proof to the requisite degree of a primary fact serves the dual purpose of establishing the existence of one element in the crime and the basis from which an inference can be drawn to prove the existence of another element.
For these reasons I conclude that the omission to direct the jury that, before they used any facts or circumstances as basis for drawing an inference of guilt, they must be satisfied beyond reasonable doubt of the existence of those facts or circumstances resulted in a miscarriage of justice.
It is unnecessary for me to consider the other grounds or the Crown application for leave to appeal against sentence. I would allow the appeal, set aside the convictions and direct a retrial.
1 Sic
2
17
0