R v MCDONALD

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MCDONALD
[2011] SASCFC 57
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Gray)
23 June 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - REVIEW OF EVIDENCE
Appellant charged with eight counts of endangering life contrary to s 29(1) of the Criminal Law Consolidation Act 1935 (SA) – trial judge found there was no case to answer in relation to one count – jury found appellant not guilty on five counts of endangering life – appeal against conviction on two remaining counts – specimens were taken from complainants and laboratory tests were performed giving rise to “cluster evidence” – evidence given by an expert for the defence that further scientific tests could have been performed relating to the transmission of HIV – whether further scientific tests which may have excluded transmission of HIV from the appellant to the complainants should have been arranged by the prosecution – whether the failure of the prosecution to order further scientific tests renders the convictions unsafe and unsatisfactory – whether the trial judge should have warned the jury that it would be dangerous to convict the appellant on the basis of the scientific analysis and whether the failure of the prosecution to undertake further scientific analysis had denied the appellant a chance of acquittal – whether the trial judge ought to have told the jury that the prosecution must exclude any reasonable hypothesis consistent with innocence.
Held: Appeal dismissed – the investigators were under no duty to undertake the further testing suggested by the defence and the failure to do so did not render the verdicts unsafe and unsatisfactory – no adequate reason advanced as to why no arrangements made by the defence to carry out the additional scientific test suggested by the defence expert – not a case in which the shortcomings in the investigation indicate that the evidence given was unreliable – the trial judge gave adequate and forceful directions in relation to the limitations inherent in the scientific evidence – it was unnecessary to give the special direction which is given in a circumstantial evidence case.
Criminal Law Consolidation Act 1935 (SA) s 29(1), referred to.
Boyce v Nunn (1997) 138 FLR 475, distinguished.
Penney v R (1998) 155 ALR 605; R v Rajakaruna (No 2) (2006) 15 VR 592, discussed.
Festa v The Queen (2001) 208 CLR 593; Jones v R (1997) 149 ALR 598; R v Penney [1997] SASC 6071; Longman v The Queen (1989) 168 CLR 79; Peacock v The King (1911) 13 CLR 619; Plomp v The Queen (1963) 110 CLR 234; Thomas v The Queen (1960) 102 CLR 584; Barca v The Queen (1975) 133 CLR 82; Grant v The Queen (1975) 11 ALR 503; Shepherd v The Queen (1990) 170 CLR 573; R v Van Beelen (1973) 4 SASR 353; R v Poulter (1978) 19 SASR 370; Knight v The Queen (1992) 175 CLR 495; R v Chapman (No 2) (2002) 83 SASR 286; R v Bikic [2002] NSWCCA 227, considered.

R v MCDONALD
[2011] SASCFC 57
Court of Criminal Appeal: Doyle CJ, Duggan and Gray JJ

DOYLE CJ: I agree that the appeal should be dismissed, for the reasons given by Duggan J. There is nothing that I wish to add.
DUGGAN J: The appellant was charged with eight counts of endangering life contrary to s 29(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). The trial Judge found that there was no case to answer on one count and the jury found the appellant not guilty on five counts. He was convicted on the remaining two counts involving the complainants GP and DB. He has appealed against conviction on those counts.
According to the prosecution case, the appellant endangered the lives of the complainants by having unprotected anal sexual intercourse with them while he was HIV-positive. Although not an element of the charges, the prosecution also alleged that each of the complainants contracted the HIV virus.
The trial Judge directed the jury that the offence of endangering life would be established if the prosecution proved beyond reasonable doubt that the appellant engaged in an act of unprotected anal intercourse; that the act was likely to endanger the life of another person; that the appellant knew the act was likely to endanger the life of that other person; that the appellant intended to endanger the life of the other person or was recklessly indifferent to that eventuality; and that the appellant acted unlawfully.
Each of the complainants gave evidence. The prosecution contended that this evidence was sufficient, in each case, to support the charge.
In addition, the prosecution led scientific evidence in support of the versions given by the complainants. The grounds of appeal relate to the scientific evidence, the nature of which is explained below.
The following is a brief summary of the evidence of GP and DB.
GP said he came into contact with the appellant through an internet site “Gaydar”. He said he thought that this was in about August 2005. An arrangement was made for him to go to a house at Norwood. It was an agreed fact that the appellant lived in a unit at 10 Brown Street, Norwood between 11 June 2005 and 10 June 2006.
GP said he went to the unit and met the appellant. He said that after some discussion, during which they smoked marijuana and drank scotch, he performed oral sex on the appellant. He said that eventually he blacked out because of the effects of the marijuana. GP said that the next thing he remembered was that he was lying down and the appellant was penetrating GP’s anus with his penis. GP said he was unable to say whether or not the appellant was wearing a condom.
GP gave evidence that he went to Sydney early in 2006 in order to attend the gay Mardi Gras. He said he was involved in a sexual encounter with another man at the time of the Mardi Gras and that, during this encounter, the other male’s condom fell off during sex. GP underwent blood tests and was informed on 21 March 2006 that he was HIV-positive. He said that he had a previous negative test on 24 June 2005 and had not had unprotected sex with anyone from then until the positive test in 2006, with the exception of the encounter with the appellant. There was evidence that the virus could not have been contracted during the Mardi Gras incident because of the short period between that incident and the taking of the blood sample which proved positive.
DB gave evidence of a sexual encounter he had had with the appellant in about March 2005. According to the medical evidence, he was infected with the virus between 22 December 2004 and about the middle of April 2005.
DB said he had a relationship with a male partner which ended in the first half of 2005. He said he had unprotected sex with his partner, but only after receiving negative test results from samples taken from both of them.
According to DB he met the appellant a week or two after the break up of the relationship with his partner. He said he met the appellant in the parklands near King William Road. DB and the appellant made contact about a week later and met at a boarding house in the city. DB said he asked the appellant if he was HIV-positive and the appellant replied “No”. DB told the appellant that he had had tests for the virus which were negative. He said that oral sex took place following which the appellant penetrated DB’s anus with his penis. It became evident that a condom which the appellant was using became dislodged in the course of penetration but the two men nevertheless proceeded to have unprotected sex.
DB said that the following week he felt “a bit fluey”. He underwent a test on 26 April 2005 and was subsequently advised that the test established he was HIV-positive. DB said that, between September 2004 and the positive HIV test, his partner and the appellant were the only persons with whom he had had sex.
The appellant did not give evidence at the trial. It was an agreed fact that he was diagnosed as being HIV-positive on 9 February 1998 and became aware of his status by the end of February 1998.
At the trial, the credibility and reliability of GP and DB were in issue. However, it was not argued on appeal that the evidence of either of these complainants was so unreliable as to be incapable of acceptance by the jury. Nor was it argued on appeal that the evidence of each complainant, if accepted, could not support a conviction on the count relating to that complainant.
The focus of the appeal is on the prosecution’s scientific evidence which I now summarise.
The prosecution called Dr Geoffrey Higgins, who is Head of Virology at SA Pathology, formerly known as The Institute of Medical and Veterinary Science. Dr Higgins supervises biological testing at SA Pathology. The laboratory is responsible for undertaking the more sophisticated procedures for HIV testing in South Australia. The equipment used in the laboratory is able to detect the antibodies in the blood specimens which are associated with the HIV virus and, if the test is positive, the extent of the viral load in each specimen.
The tests which were carried out in the laboratory in relation to the present matter established that the specimens taken from each of the complainants and, in particular, from DB and GP who were the complainants in the counts on which the appellant was convicted, were HIV-positive. This evidence was not in dispute.
The evidence which gives rise to the grounds of appeal involved further tests which resulted in what was referred to during the trial as the “cluster evidence”.
Dr Higgins explained that his laboratory undertakes genotype testing of persons who are HIV-positive. The testing is conducted on viral ribonucleic acid (“RNA”) present in the blood. The viral RNA is made up of four different bases which give the virus its genetic code. The four bases repeat in a different manner. The molecules in the RNA which are referred to as nucleotides can be sequenced. The pattern or sequence can reveal similarities between samples and, when this occurs, it is sometimes referred to as an epidemiological cluster.
The information obtained in this way is used by the laboratory for epidemiological purposes, for example to alert public health authorities to a potential risk in the event that there appeared to be a linkage between the persons in a particular group.
Dr Higgins gave the following evidence about clusters of this type:[1]
[1] T1520-1521.
AWe call it an epidemiological cluster.
QWhat does that mean.
AIt means it looks like there is some spread between the members in this cluster, we don't know how or when that is happening or we don't have enough information for finer resolution than that to say it’s going from one person to another but, within the context of our population and our experience, we believe there are links between these people that are enabling the infection to spread.
QThe cluster of itself, can that prove transmission.
AFrom one specific person to another?
QYes.
ANo.
QWhat can we take from it.
AIt gives you a suspicion that this group has some links, sexual activity, other activities that might lead to transmission of HIV in that group. It doesn’t exclude that there are other members that appear in that group for which there is no obvious link, they may occur by chance; as we made the point earlier, it doesn't tell us who has transmitted it to who and it doesn’t tell us when or how recently those transmissions may have occurred.
Dr Higgins said that his laboratory has collected some 1,200 sequences relating to 770 persons who were HIV-positive at the time of the testing.
The comparison between various sequences can be set out in a pictorial representation called a dendogram. Dr Ratcliff, a colleague of Dr Higgins, explained the nature of a cluster:[2]
[2] T1684.
From our point of view, really a cluster is a group of sequences that have some similarity, and they seem to locate together and be separate from other viruses in the other parts of the dendogram.
Dr Higgins also commented on the inferences which might be drawn from a dendogram:[3]
QIf you have the same individual more than once on the database, so someone who’s had a number of viral loads on different occasions, where would you expect to see their viral loads on a dendogram relative to each other.
AIf you imagine a dendogram is like a tree with different branches, then we would want to see viral loads cluster together on the same branch. There may be other patient sequences between them but by and large they are somewhere on a branch within a branch.
QSo what may a cluster of viruses indicate.
AWell, it indicates some - that they are somehow related to each other and that – in our community we often interpret that as saying: well, it might be that there’s some sort of transmission going on through groups we don’t know but that might be the origin. It may also be that they have occurred by chance, so we know that we are getting HIV coming in from all over the world so it’s quite possible that viruses related to person X also exist in some other country of the world that may appear in South Australia by chance.
QMight it also be that the relatedness between two individuals in a cluster might be through a third party who is not on the dendogram.
AAbsolutely.
[3] T1479-1480.
The prosecution experts readily conceded the limitations of their findings in a forensic context. They spoke of similarities in the comparison of the results obtained from specimens taken from each of the complaints. The prosecution relied upon that evidence to establish a possible link between the appellant and the complainants, including DB and GP.
Up to this point there would seem to be no valid objection to the use of this material as an item of circumstantial evidence which was capable of providing some support for the direct evidence of the complainants which was relied upon by the prosecution. There was no objection to the evidence and it was not argued on appeal that the evidence was inadmissible. It is appropriate to bear in mind the following observations of Gleeson CJ in Festa v The Queen:[4]
Questions as to the admissibility of evidence may be related to, but are different from, questions as to whether the totality of the evidence in a case is sufficient to sustain a jury’s verdict, or questions as to the warnings that need to be given to a jury about the use that may properly be made of the evidence. If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury’s consideration. It is not enough to say that it is “weak”, and, as already mentioned, whether it is weak might depend on what use is made of it. The totality of the evidence may be such as to render a conviction unsafe. But that does not affect admissibility. And the jury may need to be warned that evidence, if accepted, only shows consistency of appearance between the person and the offender; a fact which may or may not be of much significance depending upon other matters. Evidence of blood sampling may be relevant and admissible, for example, even though, standing alone, it only establishes that it is consistent with the accused being the offender. Evidence may show that an accused was near the scene of a crime. Such evidence, on its own, does not show that the accused committed the crime. That does not mean it is of no probative value; in the end, it will have to be considered together with all the other admissible evidence.
[4] (2001) 208 CLR 593 at [14].
The essence of the defence criticism of the prosecution’s scientific evidence is that it did not go far enough. It is claimed that further tests should have been done which might have excluded the appellant as the person responsible for infecting DB and GP with the HIV virus. This, so it is said, rendered the convictions unsafe and unsatisfactory.
The defence relies upon the evidence of their expert, Professor Vandamme, in support of this argument. According to Professor Vandamme, it is possible to conduct a test which would enable sub-clusters to be identified. The test was referred to in the evidence as “transmission analysis”. Professor Vandamme said that this test could not establish that a particular person transmitted the virus, but it could exclude a person as having been so responsible. In other words, the epidemiological cluster observed by the prosecution experts could be broken down into sub-clusters which would render exclusion possible.
Dr Higgins said that the analysis suggested by Professor Vandamme was beyond the expertise of his laboratory. He did not suggest that the test could not be done, although it would also seem that his level of understanding was such that he could not comment to any significant extent on the efficacy of the proposed test. There is some doubt on the evidence as to whether the test is, or has been, done anywhere in Australia.
Professor Vandamme suggested that she could do the test, but that her role in the case was restricted to that of a critic of the extent of the test which had been done. No adequate reason was put to the Court on the hearing of the appeal as to why the defence did not make arrangements for the transmission test to be carried out by Professor Vandamme or some other expert. It is apparent that the prosecution gave the defence full cooperation in doing tests within the capability of their witnesses. The defence did not request access to the material which, on the defence case, would be required in order to undertake a transmission test. Nevertheless it is argued that the failure of the prosecution to undertake the transmission test resulted in a miscarriage of justice because the circumstances raise a real doubt as to whether the convictions were safe or just.[5]
[5] Jones v R (1997) 149 ALR 598 at 606.
In Penney v R,[6] the appellant appealed against his conviction of the attempted murder of his wife. It was argued that the police investigation was unfair and incompetent to the extent that the conviction was rendered unsafe and unsatisfactory. It was alleged that exhibits which should have been scientifically examined had not been retained by the police and that certain forensic tests which should have been done were not carried out. Other forensic examination by the prosecution was said to be inadequate.
[6] (1998) 155 ALR 605.
The appeal was dismissed. Callinan J (McHugh, Gummow, Kirby and Hayne JJ concurring) said:[7]
The appellant's submissions on these contentions fail at the threshold. They fail because even though a better investigation may, and probably should have, been conducted, there is no general proposition of Australian law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process, or indeed of a fair trial. That is not to give any imprimatur to incomplete, unfair or insufficient police investigations. Indeed there may be cases in which deficiencies in the investigation might be of such significance to a particular case as a whole that the accused will be entitled to an acquittal or a retrial. But that will all depend on the facts of the particular case.
[7] (1998) 155 ALR 605 at [18].
Ms Chapman SC, for the appellant, referred to Boyce v Nunn,[8] a case in which Martin CJ, sitting as a single Judge on appeal from a court of summary jurisdiction, held that a conviction for assault was unsafe and unsatisfactory because of the failure of the police to seek out and interview a potential eyewitness to the incident. This decision turned on its own facts and in Penney v R[9] Callinan J suggested that the judgment “is explicable on the ground that there seems to have been a wilful abstention by the police officers in charge of the investigation from interviewing a witness likely to give evidence exculpatory of the accused”.[10]
[8] (1997) 138 FLR 475.
[9] (1998) 155 ALR 605.
[10] (1998) 155 ALR 605 at [21].

It is also relevant to note that Martin CJ made the following observation in Boyce v Nunn:[11]
In some circumstances it may be, as suggested in R v Wyatt (1992) 28 FCR 61, that no injustice arises because the accused can be shown to have had an opportunity to secure the evidence for other reasons.
(Citation added)
[11] (1997) 138 FLR 475 at 480.
It has been pointed out that in the present case no adequate reason has been advanced as to why no arrangements were made by the defence to carry out the test which their expert suggested should have been done.
However, there are other reasons why the appellant’s argument should be rejected. This is not a case in which shortcomings in the investigation indicate that the evidence actually given was unreliable.[12] The defence does not rise any higher than the claim by the defence expert that a test could have been done which might have excluded the appellant. In my view the investigators were under no duty to undertake the further testing suggested by the defence and the failure to do so has not rendered the verdicts unsafe or unsatisfactory.
[12] Cf R v Penney (Court of Criminal Appeal) [1997] SASC 6071 at 11.
There is a further argument that the trial Judge should have warned the jury that it would be dangerous to convict the appellant because the scientific analysis by the prosecution was incomplete and that it would be dangerous to convict the appellant because the failure of the prosecution to undertake further scientific analysis had denied him a chance of acquittal.
The trial Judge carefully summarised the evidence of the prosecution and defence on this issue. The summary explained the limited extent of the prosecution evidence in that it established no more than a suspicion of a link in sexual activity between those in the group under consideration. Her Honour dealt with the defence criticisms of the prosecution evidence.
The trial Judge gave the following directions on the general approach to be taken with respect to the expert evidence:
I propose to discuss the cluster evidence in more detail later in these remarks, but for the moment may I sound a note of caution about how you approach that evidence.
You must not look at the evidence of the cluster and, on the basis that the accused and the complainants feature in it, jump to the conclusion that the accused must therefore be guilty of all of these offences. That is a quite impermissible process of reasoning. The cluster evidence is simply an item of evidence which you are entitled to consider along with all the other evidence you have heard with respect to the particular charge you have under consideration, always keeping firmly in mind in each case the requirement that the prosecution must prove all the elements which go to make up the charge of endanger life, which I am now discussing with you.
Furthermore, whilst there might be some dispute between the experts as to what should or could have been done with respect to further testing of the various samples, they all appear to agree that there are limitations to the evidence that has been produced and that the results as shown in the dendograms say nothing at all about the timing or direction of transmission of the virus. As Dr Higgins said, the information in the dendogram might indicate transmission between groups, but it might also be the result of chance, or it might have occurred through a third party who is not included in the dendogram because he had not yet been tested.
However, as you know, the defence says that you should not rely on this evidence at all. Ms Chapman pointed out that all the prosecution had done was to produce some scientific evidence which did no more than create suspicion and you cannot rely on suspicion to prove a charge beyond reasonable doubt. Ms Chapman described this as incomplete science because the prosecution had failed to take the next very important step, which was to proceed to do a transmission investigation cluster. The failure to do that had deprived the accused of the possibility of being excluded as a source of HIV with respect to these complainants.
Ms Chapman acknowledged that another possibility that could have arisen from such an investigation was that the accused might not have been excluded, but the point she made is that nothing has been done to produce an analysis in which one of the possible outcomes would have been to exclude the accused as the source of the HIV. She put to you that if that had been done, that would cast a serious doubt over the claims made by each of these complainants of unprotected anal intercourse with the accused, leading to HIV infection.
To draw on the jigsaw analogy again, on the defence case, you have been deprived of a very important piece of the jigsaw which might otherwise have enabled you to complete the puzzle. Without that final piece, you can never complete the picture, and without the entire picture, the defence says you can never be satisfied beyond reasonable doubt.
Ladies and gentlemen, whether the failure by the prosecution to take that next step does raise a reasonable doubt in your minds is entirely a matter for you. Ms Chapman has made detailed submissions with respect to this matter and you will be well aware by now that this particular submission is fundamental to the defence case with respect to every one of these charges. I do ask that you keep this aspect of the matter very much in your minds as I go through the various charges with you as I will not necessarily repeat that submission on every occasion.
As I have said, the point she makes is that an analysis has not been done in which one of the possible outcomes would be to exclude the accused as the source of the HIV. She says that, if that had been done, it would possibly cast serious doubt over the claims made by these men of unprotected anal intercourse with the accused.
Ms Chapman says to you that you are therefore left in the situation of not being able to be satisfied beyond reasonable doubt that there was any act of unprotected anal intercourse with respect to any of these charges as the prosecution has failed to use the science which is available to exclude that doubt.
In Longman v The Queen,[13] Brennan, Dawson and Toohey JJ stated:[14]
… the general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.
[13] (1989) 168 CLR 79.
[14] (1989) 168 CLR 79 at 86.
Although the scientific evidence called by the prosecution in the present case could not be described as inherently unreliable, it was necessary for the jury’s attention to be directed to the limited extent of the evidence and, in particular, that it did not establish the time at which any transmission between the persons affected by the virus took place; nor did it identify a transmission between particular persons within the group.
In my view, the trial Judge gave adequate and forceful directions in this regard. She expressed the need for the jury to be cautious in their approach to the evidence, coupled with a reminder that this evidence did not, of itself, lead to a conclusion of guilt, rather, it could be considered along with the other evidence in the case. Her Honour then explained the limitations inherent in the evidence and identified alternative explanations for the results of the test, namely, the possibility of pure chance or transmission through an unknown party outside the group who had been tested.
In addition to the directions in the passage from the summing up which is quoted above, the trial Judge referred to the evidence of the prosecution and defence experts and said:
Nevertheless, and notwithstanding that there is a divergence of opinion between these people about what could or should have been done about further testing and how far you can go with interpreting the results which have been produced to date, there appears to be agreement between the experts that the work which has been done so far discloses what is called an epidemiological cluster, and that shows that the complainants have a similar strain of virus as the accused, but scientifically that is all you can conclude from that.
Significantly, as has been made clear, those dendograms say nothing at all about timing or direction of transmission. As Dr Higgins said on a number of occasions, they raise a suspicion that there is a link in the group, but it could also mean the linkage has occurred by chance, or it might also be through a third party who is not included in the dendogram. You might think that this last point is borne out by the [T] evidence because there is no suggestion that [T] ever had any contact or relationship with the accused, yet he appears in the dendogram with a similar strain of virus to the accused and the others, but the man [M] from Sydney, who he believes to be source of his infection, is absent from it.
However, the prosecution says that you can obtain assistance from this evidence when you consider each of the charges against the accused. The dendogram evidence is a discrete item of evidence which, on the prosecution case, supports the claim made by each of these men in evidence that the accused had unprotected anal sex with him which ended up with him being infected with HIV.
These directions were sufficient to bring home to the jury the cautious approach needed when assessing the evidence.
The trial Judge also reminded the jury of the defence argument that the scientific evidence should not be relied upon to advance the prosecution case because it had no probative value and that there had been a failure to undertake further testing.
I have expressed the view that the evidence was relevant and admissible. I do not agree that the trial Judge was required to go beyond reminding the jury of this aspect of the defence case as a matter which they were entitled to take into account and should keep in mind when considering each of the charges. I would reject the argument that more was required in order to prevent a possible miscarriage of justice.
Although not argued on appeal, there is an assertion in the grounds of appeal that the trial Judge should have told the jury that the prosecution must exclude any reasonable hypothesis consistent with innocence. The circumstances in which it is appropriate to give such a direction were considered in R v Rajakaruna (No 2).[15]Redlich JA (Callaway JA and Smith AJA concurring) said:[16]
[15] (2006) 15 VR 592.
[16] (2006) 15 VR 592 at [16].
Customarily, the jury is directed that if they consider that there is any reasonable explanation of the relevant circumstances which is consistent with the innocence of the accused, they are bound to find the accused not guilty: Hodges’ case; Peacock v The King;[17] Plomp v The Queen;[18] Thomas v The Queen;[19] Barca v The Queen;[20] Grant v The Queen;[21] Shepherd v The Queen.[22] In the joint judgment of Gibbs, Stephen and Mason JJ in Barca, it was suggested that such a customary direction is given when the case against an accused rests substantially upon circumstantial evidence. It is well recognised that a direction of this kind is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt: Grant v The Queen;[23] Barca; R v Van Beelen;[24] R v Poulter;[25] Shepherd v The Queen; Knight v The Queen;[26] R v Chapman (No 2);[27] R v Bikic.[28]
In Grant, Barwick CJ said that there was neither a rule of law nor an invariable rule of practice that the direction must or should be given in a case in which the prosecution relies upon circumstantial evidence. The Chief Justice said:
“Unquestionably there are cases which depend upon circumstantial evidence in which it would be proper, and indeed, there are cases in which it is necessary, for the trial judge to assist the jury by way of some such direction as is now being sought. Whether or not it is either proper or necessary is a matter which, in the first place, the trial judge must resolve for himself. I use the word ‘proper’ because I can well understand that in some cases the direction might confuse more than assist the jury, depending on the nature of the case and of the evidence given in support of it.
Where the circumstances of the case seem to require that some such direction be given, the summing up, regarded as a whole, may prove to be, and generally may be likely to be, inadequate. On the other hand, having regard to the circumstances of the case and the nature of the summing up, the failure to give the special direction may not in a particular case result in an inadequacy of the summing up as a whole. It may nonetheless be concluded from the terms of the summing up that the jury were fully instructed.
The trial judge, therefore, in the case where circumstantial evidence is relied upon by the prosecution, must consider whether or not the case calls for the assistance of the jury by the giving of a direction specifically directed to the application of the onus of proof to circumstantial evidence.”[29]
Subsequently in Shepherd v The Queen Dawson J, with whom Mason CJ and Toohey and Gaudron JJ agreed, said:
“In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction. In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful. Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given.”[30]
[17] (1911) 13 CLR 619 at 634.
[18] (1963) 110 CLR 234 at 243.
[19] (1960) 102 CLR 584 at 605-6.
[20] (1975) 133 CLR 82 at 104.
[21] (1975) 11 ALR 503 at 504.
[22] (1990) 170 CLR 573 at 578.
[23] (1975) 11 ALR 503 per Barwick CJ at 504.
[24] (1973) 4 SASR 353.
[25] (1978) 19 SASR 370 per Bray CJ at 374.
[26] (1992) 175 CLR 495.
[27] (2002) 83 SASR 286.
[28] [2002] NSWCCA 227.
[29] (1975) 11 ALR 503 at 504.
[30] (1990) 170 CLR 573 at 578-9.
As Callaway JA pointed out in R v Rajakaruna (No 2), the direction is required only in a case that is largely circumstantial.[31]
[31] (2006) 15 VR 592 at [2].
In the present case, the prosecution relied mainly on the evidence of GP and DB. As has been said, the circumstantial evidence of a scientific nature was of limited probative value. It fell far short of proving each case by itself. The trial Judge gave clear directions as to the onus and standard of proof. In my view it was unnecessary to give the special direction which is given in a circumstantial evidence case.
I would dismiss the appeal.
GRAY J: This appeal should be dismissed. I agree with the reasons of Duggan J.

[2011] SASCFC 57

23 June 2011

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Charge

Expert Evidence

Procedural Fairness

Sentencing