Shepherd v The Queen [1990] HCA 56

High Court of Australia Mason C.J. Dawson, Toohey, Gaudron and McHugh JJ. Shepherd v The Queen [1990] HCA 56

ORDER Application for special leave to appeal granted. Appeal dismissed.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 19 Mason C.J.

I agree with Dawson J. and McHugh J. that Chamberlain v. The Queen [No. 2] [1] is not authority for the proposition that, in cases based on circumstantial evidence, juries must be directed that they cannot use a fact as a basis for inferring guilt unless that fact is proved beyond reasonable doubt. I am also in general agreement with the reasons given by Dawson J. for the conclusion that the giving of such a direction is not required either as a matter of law or in order to ensure conformity with the general standard of proof in criminal cases.

1. (1984) 153 C.L.R. 521.

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

Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence. 1. (1984) 153 C.L.R., at p. 536.