Barca v R [1975] HCA 42; (1975) 133 CLR 82 (10 October 1975)

HIGH COURT OF AUSTRALIA

BARCA v. THE QUEEN [1975] HCA 42; (1975) 133 CLR 82

Criminal Law

High Court of Australia
McTiernan(1), Gibbs(2), Stephen(2), Mason(2) and Murphy(3) JJ.

CATCHWORDS

Criminal Law - Murder - Case for prosecution dependent on circumstantial evidence - Whether conviction improper unless circumstances inconsistent with any rational conclusion other than guilt.

HEARING

Sydney, 1975, August 18-20;
Melbourne, 1975, October 10. 10:10:1975
APPLICATION for special leave to appeal from the Court of Criminal Appeal of New South Wales.

DECISION

October 10.
The following written judgments were delivered:-
McTIERNAN J. I am of the opinion that special leave to appeal should not be to grant the application. (at p85)

2. This is a motion brought by Domenico Barca in purported pursuance to s. 35 (1) (b) of the Judiciary Act 1903-1969 (Cth) for special leave to appeal from a judgment of the Supreme Court of New South Wales constituted as the Court of Criminal Appeal dismissing an appeal under the Criminal Appeal Act, 1912, as amended, (N.S.W.) against a conviction on indictment for the crime of the murder - Crimes Act, 1900, as amended, (N.S.W.), s. 19 - of Raffaele Petula at Llandilo, New South Wales, on or about 27th September 1973. (at p85)

3. Section 35 (1) provides, so far as material, that the appellate jurisdiction of the High Court with respect to judgments of the Supreme Court shall extend to any judgment whether final or interlocutory or whether in a civil or criminal matter, "with respect to which the High Court thinks fit to give special leave to appeal". (at p85)

4. The deceased, Raffaele Petula, was the husband of Grazzia Petula, a sister of the applicant. The deceased and his wife lived at 171 Great Western Highway in the town of St. Marys, New South Wales, and the applicant lived with his wife at 121 Wrench Street, Cambridge Park, New South Wales. All were born in the Italian province of Calabria. The applicant was nearly thirty-seven years of age at the time of the murder of Raffaele Petula. He emigrated from Italy to Australia about twenty-two years ago and has been a naturalized Australian for approximately fourteen years. On Friday evening, 28th September 1973 the deceased's body was found in a rubbish dump in a lonely area of bush at Llandilo, New South Wales, partially concealed by a mudguard and felt. The deceased had been shot twice in the head with a .22 rifle, his skull was fractured and in the opinion of the doctor who performed the post mortem, this could have been caused by heavy clubbing over and around the head with a blunt object or instrument. (at p86)

5. Salvatore Manna, a witness called for the Crown, gave evidence of what he said was a Calabrian custom that if a woman was dishonoured by her husband he was liable to be killed according to the special custom called putting a cross on him. The paths of the two bullets, one fired through the nose, the other through the ear, into the head, intersected within the skull of the deceased in the form of a cross. The deceased had been accused by his wife of actions which might be regarded as dishonouring her. In cross-examination Salvatore Manna said that the first responsibility to vindicate the honour of a woman rests on her father. The deceased's wife's father lived at Llandilo. In cross-examination of the witness it was further said:

"Q. Do you know very much about this Calabrian custom that
you have mentioned?
A. Only what I have heard and been brought up with, you
know.
Q. Is this something you came to know about in the first 12
years of your life in Calabris (sic) or have you heard it among
people in Australia?
A. No, well, I have been brought up in the Calabrian custom
way and what I have heard amongst Calabrians." (at p86)

6. The learned primary judge in summing up told the jury there was no evidence at all that the accused's father was implicated in the murder, and the fact that he was of the class who, according to what is said about the custom, may carry out the murder, did not alter the conclusion. (at p86)

7. The accused did not rely solely on this for his defence. He raised a question whether or not the evidence established that the crime was committed at some time other than was said in the Crown case. The Crown called the doctor who performed the post mortem on the victim of the murder. She gave her opinion that death occurred approximately twenty-four to twenty-eight hours before the post mortem took place. This would make the time of death 7.30 p.m. to 11.30 p.m. on Thursday, 27th September 1973. The contents of the deceased's stomach were regarded as important on this matter since on that day the deceased had a meal at 11.30 a.m. consisting of potato chips, olives, cheese, salami and chilli (or capsicum in vinegar), and according to the evidence of the condition of the food found in his stomach the deceased would have eaten the food at the most an hour before his death. Moreover the expert evidence with regard to the stomach contents indicated that the remains of cucumber was present and there was no evidence that cucumber was part of the luncheon food. The Crown's case was that the murder occurred between 1.00 p.m. and 3.00 p.m. on that day and that the doctor was in error in her estimation of the time of death. (at p87)

8. But there was evidence that the applicant prepared an alibi consisting of the alteration of invoices for the purchase of roofing nails at a local store. In the record of the interview of 24th November 1973 between the police and the applicant it was said:

"Q. You will remember that on 4th October this year, you
came to this police station.
A. Yes, I remember.
Q. At that time you produced these two receipts to me. (Shown
Gabriels Builders Hardware receipt no. 36 dated 27.9.73, and
Homemakers Store receipt no. 42461 dated 26.9.73.) Are those
the two receipts you showed me?
A. Yes.
Q. Do you agree that at the time you produced those receipts
to me you told me that you were given them at the time you
obtained the nails?
A. Yes.
Q. And do you agree that at the time you handed me those
receipts they were in a very crumpled condition?
A. Yes.
Q. Do you remember that when you handed me those receipts
I asked why they were crumpled?
A. Yes, I told you I had them in my pocket since I got the nail.
Q. Since 4th October, we have made inquiries at Gabriels
Hardware Store, St. Marys and have been informed that receipt
no. 36 was not issued to you at the time you got the nails at all,
but was issued to you on 2nd October, and at your request back
dated to 27th September 1973. Have you anything to say about
that?
A. I went there on Tuesday and asked them to give me a
receipt for the nail and the lady was there. I wanted to see the
one that served me, but he wasn't there and I say I bought four
pound of nail and they didn't give me the receipt. She say I give
you the receipt. I said, 'Do you remember the time I left here
was about five to one'. She say, 'I can't remember'.
Q. Why did you go back to Gabriels on Tuesday and ask them
for a receipt dated 27th September?
A. It was very important to me to have the receipt.
Q. Why was it very important to you?
A. So if anyone ask me I could say that's my receipt where I
bought the nail.
Q. Why was it important to show anyone where you bought
the nails?
A. If someone ask me it handy to have.
Q. And do you say that is the only reason why you went back
to Gabriels and had the receipt back dated.
A. The only reason.
Q. We have also made inquiries at the Homemakers Store at
St. Marys and have been informed that on Tuesday 4th
October, you also visited that store and asked for this receipt
no. 42461 for two pound of nails to be back dated to 26th
September 1973. Why did you do that?
A. If anyone ask me for the receipt it handy to have it.
Q. And do you ask for receipts for everything you buy?
A. Yes.
Q. Do you normally get the receipts at the time you buy the
articles?
A. It never worry me if I get or not.
Q. If it does not worry you if you get the receipts or not, why
did you go back and especially get these (sic) receipts back
dated.
A. When I bee (sic) here first I did not have the receipt with me
and then I better go an ask to give me the receipt, to show to you
where I been thats (sic) days.
Q. Why didn't you tell Detective Sergeant Sawyer that you did
not have a receipt for the nails, but if he went to the store the
people would remember you.
A. No one ask me I not worry about it.
Q. But you did worry enough about it to go back to the store
and ask them to back date the receipt for you.
A. Yes.
Q. And do you agree that you asked the woman at Gabriels
Hardware to write on the docket that you purchased the nails
about one o'clock?
A. I ask her to put a time on the receipt and told her I was
there about five to one and she told me that they don't put time
on the receipt.
Q. When you asked her if she would put a time on the receipt
was that to try and show that you were at Gabriels Builders
Store purchasing nails about one o'clock on the Thursday, 27th
September 1973.
A. Yes.
Q. And do you agree that when the man at the Homemakers
Store first wrote this receipt (Shown receipt no. 42461) that he
put the date of the docket 2nd September 1973?
A. Yes I agree.
Q. And do you agree that you asked him to alter the date to
26th September.
A. Yes.
Q. And we have been informed that he overwrote the 26th over
the date and you then said to him, 'That is no good, I don't want
it written over. I will have to have another docket'.
A. Yes I tell him that.
Q. Would you care to tell me why you didn't want it written
over?
A. To make him careful he do it properly next time.
Q. I suggest to you that the reason you did not want the date
altered was that you wanted anyone inspecting that docket
(Points to 42461) that docket, to believe that it was written out
on the 26.9.73.
A. That's it.
Q. Would you say that the only reason you get either of those
two dockets was to show the Police that you had purchased the
nails on the dates and at the places you had previously told.
A. Yes. Could I have a glass of water." (at p89)

9. The applicant's connexion with the killing was proved by the finding of ammunition of the type which was used to kill the deceased, under the applicant's house. Also, the applicant denied having a rifle but on being told during an interview with the police that his house would be searched for the rifle, he returned home and at 2 a.m. emerged carrying a large parcel. He placed it inside the car and drove off towards the Nepean River. He was some distance later intercepted by the police who on searching his car found the rifle under the back seat wrapped in material with a sock over the end of the barrel resembling the sock in which the ammunition was found. The applicant informed the police at a later interview that he had found the rifle buried under his house. The interview continued:

"Q. How did you come to find this gun?
A. After I leave you last time I was worried about the bullets
that were found under my house, I couldn't go to sleep I got my
lead light out and got under the house and found the gun.
Q. I find it difficult to believe that any person would make a
search underneath their house at two o'clock in the morning on
the off chance that a gun might be hidden there. Further from
what you have told us it is apparent that at the time you were
spoken to by the Police you were headed away from the Penrith
Police Station and in fact was driving towards the river or the
gravel pits. Have you anything to say about that?
A. All right I will tell you. When you told me last night that
Police would come back in the morning to look again for the
gun I knew they would find it, so I dig it up and put it in my car.
I never tell my wife. She had a headache so I told her I would go
to the chemist to get something for her. I knew I had to get rid
of the gun tonight.
Q. Is this the gun that was used to kill Raffaele Petula?
A. Yes." (at p89)

10. Further in the record of the interview of 24th November 1973 between the police and the applicant it was said:

Q. We have been informed that during the morning of Thursday
27th September 1973, Raffaele and you sister Grazzia had a
very big argument at the house in your presence. What have you
to say about that?
A. I can't answer that question.
Q. We have been informed that during the course of this
argument your sister Grazzia accused Raffaele of misbehaving
towards his daughters. Have you anything to say about that.
A. I can't answer that.
Q. As at the morning of Thursday 27th September 1973, did
you know that Raffaele and your sister Grazzia had had many
fights about money, land and Raffaele's conduct towards his
daughters?
A. That is their business. I won't answer that.
Q. Do you know that Raffaele is well know (sic) in the public
bar of the St. Marys Hotel.
A. I wouldn't know this.
Q. We have made inquiries at the St. Marys Hotel, and we
have been informed that Raffaele did not go to the public bar of
that hotel on the afternoon of Thursday 27th September. We
have also made inquiries at the St. Marys railway station and
have been informed that Raffaele did not catch the 1.03 p.m.
train or the 1.18 p.m. train from that Railway Station on that
day. Have you anything to say about that?
A. I dropped him there and he go to work.
Q. We have made inquiries at the shops in Queen Street, and
from the taxi drivers operating from the taxi rank at the St.
Marys railway station, and not one person saw Raffaele in
Queen Street, or near the St. Marys railway station on the afternoon
afternoon of Thursday 27th September 1973. Although he was seen
in the area by a number of people on the preceding Monday,
Tuesday and Wednesday. Have you anything to say about that?
A. I still say I left him at the taxi rank at twelve forty five.
Q. We have caused the photograph of Raffaele and his
to be published in the local newspapers, and requested any
person who saw him between the time you say you left him at
the St. Marys railway station and when he was found in the bush
at Llandilo, to contact the police, but not one person has reported
seeing Raffaele after you say you left him. Have you anything
to say about that?
A. No I have nothing to say about that. I left him at the
station, that's it.
Q. If you had left him at the station as you say would you
expect some person to have seen him somewhere after you had
driven away?
A. Oh yeah.
Q. We have been informed that between 12 noon and 2.30 p.m.
on Thursday 27th September 1973, two persons saw Raffaele in
the public bar of the Waggon Wheel Hotel, which is situate in
the Great Western Highway, St. Marys. Have you anything to
say about that?
A. Well look I have nothing to say about that.
Q. We have been informed that Raffaele was served with a
schooner of beer and a schooner of lemonade which he carried
from the hotel into the street. Do you know anything about
that?
A. I know nothing about that.
Q. Do you deny that you were the person to whom Raffaele
took the schooner of lemonade on that day?
A. I have nothing to say about that.
Q. Do you agree that when I interviewed you on 4th October
1973, that you told me that you did not like beer very much?
A. Yes I agree with that.
Q. And do you also agree that during the course of the same
interview you told me that you often preferred to drink a schooner
of lemonade?
A. Sometime.
Q. Have you been to the Waggon Wheel Hotel at St. Marys
with Raffaele?
A. Yes on Wednesday night I go there with him from my
sister's place. I was to go home and he say to me, 'You drop me
at the pub'. I drop him at the pub, and he say, 'You come in'. I
go in with him and I had a lemonade and he had a beer. Then he
said. 'You have another one'. I say, 'No, I go home now'. He
say, 'All right' and I drive him back home to his place, and I
reach my place at ten o'clock. That was a late night I had.
Q. On that occasion which bar did you have the drink?
A. We had the drink in the bar on the corner of the street.
Q. Did you drink lemonade in the bar?
A. Yes.
Q. And how many beers did Raffaele have on that occasion?
A. He only had one.
Q. Did you and Raffaele drink your drink whilst you were
standing at the bar?
A. Yes.
Q. When you drove Raffaele from his home on Thursday 27th
September 1973, did he have his coat with him?
A. I don't remember.
Q. We have been informed that when Raffaele went to the
Waggon Wheel Hotel and bought the glass of beer and the glass
of lemonade he was wearing his coat, that is on Thursday 27th
September 1973. Have you anything to say about that?
A. When I drop him at the station at twelve forty five he no
have a coat. He have the shirt with the sleeve rolled up.
Q. Are you absolutely sure of that?
A. Oh yeah sure.
Q. What makes you so sure?
A. I remember it.
Q. What makes you so sure?
A. I remember it.
Q. Do you remember being interviewed by Detective Sergeant
Sawyer at the Penrith police station on 30th September, this
year.
A. Oh yeah.
Q. Do you remember Sergeant Sawyer saying to you, 'Can you
tell me what clothing Raffaele was wearing when you last saw
him?' Can you remember him asking you that?
A. Yes.
Q. And do you remember telling the sergeant, 'I know he was
wearing a shirt with squares, I didn't much notice'.
A. Yes.
Q. Well do you agree that there is no mention there that
Raffaele was not wearing a coat?
A. Well he probably not ask me.
Q. Do you know that Raffaele's coat (sic) was found back at
his house after he was found dead?
A. No.
Q. Were you at the Petulla (sic) home all day Friday 28th September
1973?
A. Yes.
Q. And were you there on Saturday 29th September 1973?
A. Yes.
Q. Were you there on Sunday 30th September 1973?
A. Yes.
Q. Were you there on Monday 1st October 1973?
A. Yes.
Q. And do you still say that you have knowledge that
Raffaele's coat was found in the kitchen of his home after he
was found dead?
A. I don't know.
Q. If Raffaele was wearing that coat when he was served with
the lemonade and beer at the Waggon Wheel Hotel on Thursday
27th September, can you tell me any way it could get back
into his house if he did not return to the house or leave the coat
in your car.
A. I can't answer you that.
Q. When you were last spoken to by the Police you did not say
anything about seeing Francesca going to the school at the time
you arrived back at your sister's place. Can you tell us why you
did not say this before?
A. Probably I forgot.
Q. We interviewed your sister Grazzia here today and for the
first time since this inquiry began she informed us that you
arrived at her home on Thursday 27th September just when
Francesca was stepping into the school yard. Do you think it
unusual that both you and your sister thought of this indicent
(sic) which set the time of your return to your sister's place (sic)?
A. No not unusual.
Q. Would you agree that this may suggest that you and your
sister Grazzia have talked about this and decided to tell the
Police that the time you got back to your sister's place on that
day was just when Francesca was walking back into the school?
A. Definately (sic) not.
Q. We have been informed that since the death of Raffaele you
had a conversation with Grazzia at her house, and she ask you
why you did not return to the house until two o'clock on Thursday
27th September, and you said you were buying the nails and
not to mention it to the Police. Did that conversation take
place?
A. Definately (sic) not.
Q. We have been informed that between 28th September and
4th October 1973 you were at your sister's Grazzia's home and
were overheard to say, 'For money or anything else Calabrians
will let you go, but for honor they will kill you for sure'. Did you
say that?
A. Yes I did say that.
Q. And what did you mean by that?
A. What I said.
Q. Were you suggesting that Raffaele was not killed for money
or anything else, but for honor and nothing else?
A. Yes.
Q. And did Mrs. Petulla (sic) say, 'That's for sure. Whoever
kill him kill him for honor and nothing else. They put a cross on
him by shooting him one in the nose and one in the ear.' Did she
say that?
A. I didn't hear her say that.
Q. Did you hear anyone say that they had put a cross on
Raffaele?
A. No." (at p93)

11. It was further said in the interview:

"Q. It is our intention to have that magazine and bullets
tested to see if they are the same type as used in the gun to
shoot Raffaele.
A. If they are the same they must be the ones that kill Raffaele,
anyway he a mongrul (sic) to my sister Grazzia and deserva
(sic) what he got." (at p93)

12. The interview continued:

"Barca said,
Yes I say all that. I was stupid to listen to my sister's talk and I
was more stupid not to think about the lemonade.
Sergeant Cartmer said,
Q. Is there something else you feal (sic) that you should tell
Sergeant Parrington about this?
A. No first I must think of my own family.
Sergeant Cartmer said,
Q. Are you prepared to sign this record of interview as being
true and correct?
A. Yes." (at p93)

13. In an interview on 25th November 1973 between the police and the applicant it was said:

"Q. I am now going to ask you some questions in relation
to the murder of Raffaele Petulla (sic) on Thursday 27th
September 1973.
A. You have got the gun and you have got me. What more do
you want?
Q. From our inquiries we believe that you did not drive Petulla
(sic) to the St. Marys Railway Station as you have previously
stated but went with him to the Waggon Wheel Hotel at St.
Marys. Is that right?
A. You know where I went I am the only one Raffaele would
buy lemonade for.
Q. We believe that within one hour of leaving the Petulla (sic)
home you drove him to an area of bushland at Llandilo where
after hitting him over the head you killed him by shooting him
twice in the head with that gun. (Points to gun on table.)
A. That's the gun all right but I don't want to tell you what
happened until after I see my father.
Q. Were any other persons involved in the shooting of Petulla
(sic)?
A. I won't answer that.
Q. Would you care to tell us why Raffaele Petulla (sic) was
murdered?
A. Because he is a mongrel, that's why.
Q. What time do you say you arrived back at your sister
Grazzia's place that afternoon?
A. What did she tell you?
Q. I am not prepared to tell you what your sister told me at
this time.
A. After I have seen her I will tell you.
Q. We are satisfied that you were responsible for the death of
Raffaele Petulla (sic) and you will be charged with his murder.
Is there anything further that you want to tell us or any
statement you wish to make before we complete this interview.
A. (Long pause). (Barca starts to cry). I have lost everything,
my wife, my beautiful children. It would be better if the mongrel
was still alive. I don't want to talk about it any more. I am
finished with it. All I want to do is to go home to my family."

(at p94)

14. The summing-up of the learned trial judge, which occupies thirty-one pages of the appeal book, accurately reviews all the evidence in the case. In concluding his summing-up his Honour said:

"You see, this is what you have: you have to evaluate each
piece of this circumstantial evidence and analyse how it builds
up because, it is the Crown case; and ultimately it builds up to a
point where, as reasonable men, you can come to no other
conclusion than that he was the man who committed this
murder; and it starts with the evidence of him going to build this
shed; creating, the Crown says, an opportunity; and it starts
with him doing that, and it goes on with him taking the deceased
away, ostensibly to go to work - with his coat - and they do
not go to work; they go down and they are drinking in the hotel,
and from then on the deceased is never seen again alive and the
accused does not go back to the house until twenty to three or
three o'clock. In that time, the Crown says, by fair inference,
and being consistent with no other explanation, this murder was
done; and it says that immediately he set out to establish a false
alibi for himself, being back at one o'clock, and being in the nail
shop at five to one; that was the vital period he knew, so the
Crown says, the important time to have his alibi for, and it was
between one o'clock and three o'clock the Crown says, when the
deed was done and if you take those circumstances, the
circumstances of the lies he told the police from the start, the fact

that

he was seen in this hotel, which he now admits - and if you
accept that final interview he was there and the woman is right
- and if you accept her evidence, the deceased was wearing his
coat - and you might well ask yourselves how it got back into
the house - the deceased did not bring it back, and there were
only two of them in the car - then you have the manufacture of
these receipts, and that goes on to it; and then you have this
record of interview in which he admits specifically that he set
out to create this false alibi; and then you have the finding,
firstly by the police, under his house of the sock and the tin; and
then you have him going and digging up his rifle; and by fair
inference the Crown would say - from this evidence, on his way
to get rid of that forever - and if that had happened of course
nobody would have been able to say that that rifle fired that
bullet - and you have the evidence of Letherbarrow that that is
the rifle that fired that cartridge, and that, as I apprehend it, is
not challenged.

It does not only rest on circumstantial evidence, because you
have what the accused admitted to in this last record of
interview. What that amounts to is your responsibility and for you to
say and not for me.

The Crown takes all the separate circumstances, all the
separate facts proved, all the surrounding circumstances, and it fits
them together; each one on its own perhaps not of great
significance, but in their totality, when you look at them all, all the
surrounding circumstances proved - or that you find to be
proved here - amounts to such a series of undesigned and
unexpected coincidental matters that a reasonable man, as you must
find in your judgment, would be compelled to the conclusion
that the accused did it. How could all these things happen if it
were not him? How could you have this coat? How could you
have these lies told? How could you have this weapon under his
house? All these things; when they are added together are
explicable, so the Crown says, only on the basis that the accused
is the person who did this murder, and they are reinforced and
supported. It is your responsibility, I repeat. To convict the
accused you must be satisfied beyond reasonable doubt that he
it was who murdered this man, who fired the shots that killed
him, and that he intended so to do. If you are so satisfied, it is
your bounden duty to say that he is guilty of murder. If you are
not so satisfied it is your bounden duty to acquit; would you
please retire and consider your verdict." (at p95)

15. In my opinion, the submission by counsel for the applicant that the summing-up was unfair and unbalanced, was not maintainable. (at p95)

16. His Honour having concluded his survey of the Crown case said:

"That is in substance the Crown case, and I have read out to
you the statement that he made, and I tell you that you will take
this statement he made into consideration as a possible version
of the facts and consider it in the light of the sworn evidence.
You will remember it is not in itself evidence in the same way as
the statement of a witness given on oath and subjected to the
test of cross-examination. You will give the accused's statement
such weight as you think it is entitled to in comparison with the
facts which you find to be clearly established by the evidence. I
have read it to you, and there is no point in going over it again.
He denies the ultimate fact in this statement, that he is guilty,
and he does not deny any of the subsidiary facts upon which the
Crown case rests."

and continued:

"What is the defence to this case of the Crown? As I
understand it, it is an argument advanced by learned counsel that if
the death took place at 7.30 or thereabouts, then the Crown case
disappears because none of this is relevant; and then it is put to
you by way of submission or argument by counsel, that the
evidence in this case is just as consistent with his father having
done it as the accused having done it.
I repeat to you what I said to you yesterday: there is no
evidence before you in this case that his father committed this
murder. Still less is there any evidence that he was ever taken to
his father's house. It is put to you as an argument by counsel
that the real truth of the matter is that his father did it and the
accused was minding the weapon for his father, hiding it. He
was the one who had custody of the gun, and it is just as
consistent." (at p96)

17. The learned trial judge further said:

"Well, gentlemen, let me make this quite plain to you: you
are concerned here with a charge of murder by this man of this
deceased and you are not concerned with the guilt or innocence
of any other person. It matters not if somebody else planned it.
It matters not if he was the executioner of something somebody
else wanted done. If he fired the shot that killed this man he is
guilty of murder, if that is your finding, and this question of
what other people might have decided is no concern of yours.
You will remember what I told you yesterday, that there is no
evidence before you that this man was ever taken by him on that
day to his father's house; still less is there any evidence that his
father, or anybody else, fired these shots; and these are
arguments that were put by counsel, theories, and if they have
no sub-stratum or evidentiary fact, then gentlemen, you pay no
attention to them. Nothing that counsel says in a case is
evidence. It can never take the place of evidence. Your oath is to
'well and truly try and true deliverance make according to the
evidence'; and that is all you are concerned with, and it is for
you to decide the guilt or innocence of this man on the evidence
given in this court and you are not to take into account any
theories or arguments of counsel unless they have an evidentiary
basis; unless they are based on evidence that you accept, or a
reasonable inference from that evidence." (at p96)

18. In In re Eather v. The King [1915] HCA 86; (1915) 20 CLR 147 it was said that special leave "connotes the necessity for making a prima facie case showing special circumstances". A headnote of Craig v. The King reads [1933] HCA 41; (1933) 49 CLR 429 :

"The High Court will not grant special leave to appeal to a
prisoner convicted upon indictment unless (per Rich and Dixon
JJ.) the case presents some special features, (per Starke J.) it is
shown that exceptional and special circumstances exist, and that
substantial and grave injustice has been done, (per Evatt and
McTiernan JJ.) it presents features of sufficient gravity to
warrant a review of the decision of the State Supreme Court."
(at p97)

19. In Packett v. The King [1937] HCA 53; (1937) 58 CLR 190 the following dicta occur. Per Latham C.J. (1937) 58 CLR, at pp 202-203 :

"Thus, upon a full consideration of the facts and the relevant
law, I reach the conclusion that the only objection to the trial is
that the judge told the jury, to put it in the simplest form, that,
as far as he was concerned, he thought it was a plain case of
murder. But as he warned the jury most emphatically that they
were not bound in any way to accept or to follow his opinion,
this is not a sufficient objection to the summing up to raise any
doubt as to the justice of the conviction. In my opinion special
leave to appeal should be refused."

Per Starke J. (1937) 58 CLR, at p 206 :

"It would be wholly destructive of the administration of
criminal justice if it were thought that a judge was bound to
direct a jury that it could act without regard to the law and the
facts proved before them. Special leave to appeal should be
refused."

Per Evatt J. (1937) 58 CLR, at p 220 :

"But I cannot hold that, in the present case, the trial judge
erred in any matter of law.
As to whether the summing up gave a fair presentation of the
prisoner's defence, I am not disposed to dissent from Clark J.'s
conclusion that it was too one-sided. But ordinarily such
matters should be remedied by the Supreme Court sitting as the
Criminal Appeal Court. In criminal appeals the responsibilities
and duties of the Supreme Court are even greater and more
onerous than in the case of ordinary civil matters; and it will be
an evil thing if the administration of appellate criminal justice
ever comes to be regarded as of relatively minor importance.
While this court must reserve to itself an unfettered discretion to
intervene in any given case which it regards as 'special', on the
whole, I think that this is not such a case.
The application for special leave should be dismissed."

Per McTiernan J. (1937) 58 CLR, at pp 221-222 :

"The general character of the summing up would have amply
justified the Supreme Court sitting as a Court of Criminal
Appeal in ordering a new trial. But the present application is to
the discretion of this court to grant special leave to appeal.
Rules cannot be laid down in advance governing the exercise of
the discretion in every case. But leave which the court is
empowered to grant being 'special', it is necessary that a case in
which such leave is granted should be characterized by
circumstances which are special. While the summing up has the
substantial defects which have been mentioned we are called upon
to exercise this discretion in a case in which the evidence upon
which the applicant was convicted 'is what it is'. Clark J. used
that phrase to state how much he was pressed by the evidence
against the accused, notwithstanding the plain defects in the
summing up, in arriving at the conclusion that a new trial should
be ordered. It is unnecessary to recapitulate the evidence again.
... But in the present application, which is made to the
discretion of the court, we are asked to say that, although the
conviction is supported by a preponderating weight of evidence and
there is no evidence of any matter amounting in law either to
provocation or self-defence, the case is one in which special
leave to appeal should be granted because there is evidence
which might have influenced the jury in the exercise of their
undoubted discretion to return a verdict of manslaughter, or as
it would also seem a verdict of acquittal.
I cannot agree that the case is one in which special leave
should be granted."

In Basto v. The Queen [1954] HCA 78; (1954) 91 CLR 628, at p 639 the Court, consisting of Dixon C.J., Webb, Fullagar, Kitto and Taylor JJ., in a joint judgment said, "The chief attack, however, made upon the course pursued by the judge at the trial...was that his Honour had not expressly submitted to the jury the question whether the confessional statement was voluntary or the question whether it was made in such circumstances that the jury ought not to act upon it or to regard it as safe to do so." The Court continued (1954) 91 CLR, at p 641 : "In fact an examination of the whole charge given by Maguire J. to the jury leaves the strong impression that it was not only legally correct but factually it was balanced, fair and sufficient". The Court concluded "The case does not disclose any ground upon which this Court should give special leave to appeal". (at p98)

20. I do not think that the summing-up of the trial judge contains any erroneous direction on a point of law or even of fact. It does not contain any statement which would cause injustice to the accused having regard to the preponderating weight of the Crown's case and what the accused put forward as his defence. There are no circumstances warranting the exercise of the discretion vested in this Court by s. 35(1)(b) of the Judiciary Act.* (*The accused was tried again in the Supreme Court of New South Wales; he was convicted of murder and was sentenced to penal servitude for life.) (at p98)

GIBBS, STEPHEN AND MASON JJ. The applicant, Domenico Barca, who was convicted on a charge that on or about 27th September 1973 at Llandilo in the State of New South Wales he did feloniously and maliciously murder Raffaele Petula, now seeks leave to appeal from the judgment of the Court of Criminal Appeal dismissing his appeal against his conviction. (at p99)

2. The deceased man, Petula, was the husband of Grazzia Petula, a sister of the applicant. The body of the deceased was found by one West in the afternoon of Friday, 28th September 1973 in an area of bush at Llandilo, partially concealed under a pile of branches, an old mudguard and a sheet of felt. The deceased had been shot twice in the head at close range with a .22 rifle and the bullet wounds had caused his death. His skull was fractured, possibly by a blow to the head although perhaps by a fall. There were some marks on his arms and thighs which it was submitted in argument could have been caused by two persons pulling or lifting his body. There were, however, indications that he had been shot at or near the place where he was found. The medical witness called on behalf of the Crown said that rigor mortis had set in before she examined the body and that she therefore estimated that death had occurred approximately twenty-four to twenty-eight hours before that time - i.e. that the deceased had died between 7.30 p.m. and 11.30 p.m. on Thursday, 27th September. However, the Crown case was that the murder had occurred between 1 p.m. and 3 p.m. on that day and the jury were directed that if they found that the murder had occurred at 7.30 p.m. they should acquit. (at p99)

3. The applicant is a migrant from Calabria. There was evidence - imprecise but uncontradicted - that amongst Calabrians there exists a custom to vindicate the honour of a woman by murdering the man who has dishonoured her and to do so in such a manner as to leave "a sign of honour", a cross, upon the murdered man. The paths of the two bullets fired into the head of the deceased intersected within his skull in the form of a cross. The deceased had been accused by his wife of actions which might be regarded as dishonouring her and it was put by the Crown at the trial that the applicant had killed the deceased to vindicate the honour of the deceased's wife, his sister. The evidence, however, was that under the Calabrian custom the first responsibility to vindicate the honour of a woman rests on her father. Carmello Barca, who is the father of the applicant and of Mrs. Petula, as well as of other children, lived at Llandilo, not far from where the deceased's body was found. (at p99)

4. Before us counsel for the applicant did not deny that there was substantial evidence upon which a jury might safely have convicted the applicant. It is accordingly unnecessary either to canvass the evidence in full or to refer specifically to every piece of evidence which the Crown asserted, rightly or wrongly, added to the strength of its case. It is, however, necessary to refer particularly to some of the evidence concerning the movements of the deceased and of the applicant on 27th September and the subsequent conduct and statements of the applicant. On the morning of 27th September the applicant was helping the deceased to build a shed on his land at St. Marys. At some time between 11.30 a.m. and noon the deceased and his family and the applicant ate lunch together. There was evidence as to the food provided for that meal. Expert evidence was given that the stomach of the deceased after his death was found to contain food which, being undigested, would probably not have been eaten more than one hour before death. On behalf of the applicant it was submitted that the evidence showed that the deceased's stomach contained some food that had not been available at the luncheon at his home and that it could therefore be inferred that the death had occurred, not within an hour or so after that luncheon, but after another meal. This, it was said, was inconsistent with the Crown theory that death had occurred between 1 p.m. and 3 p.m. Moreover West, who later found the body, had throughout the morning of 27th September and until about 3 p.m. on that day been in the area within a quarter of a mile from where the body was found; he then left the area, returning again later that afternoon. He at no time heard any shots and this could possibly have been regarded as some evidence that the murder did not take place before 3 p.m. (at p100)

5. After they had finished lunch the applicant and the deceased left the deceased's home in the applicant's car. According to statements made by the applicant to the police they drove together to the railway station at St. Marys where the deceased, who was a shift worker, intended to catch a train to his employment. The applicant said that he left the deceased at the railway station at about 12.45 and then, after visiting two different shops for the purpose of buying nails, returned to the deceased's home at about 1 p.m. According to his statements he remained there working on the shed during the afternoon until he returned to his own home at Cambridge Park which he reached at about a quarter to six. There is no doubt that he was back at the shed by 3 p.m. and the account which he gave of his movements after that time was not challenged either by the police in the course of his questioning or at the trial. However, there was evidence on which the jury could have been satisfied that the account given by the applicant of his movements before 3 p.m. was false. At the committal proceedings Mrs. Petula had corroborated the statement of the applicant that he had returned to the deceased's home at about 1 p.m. but at the trial she said that in fact the applicant had not returned until about 3 p.m. She said that she had given false evidence at the committal proceedings because she had been threatened by Carmello Barca that if she did not do so he would stab her. Moreover, it was established that at some time between 12.30 and 1 p.m. that day the deceased entered the bar of the Waggon Wheel Hotel near St. Marys and ordered a schooner of beer and a schooner of lemonade and some of the statements subsequently made by the applicant to the police could have been regarded as amounting to admissions that the lemonade had been for him. There was also evidence that the applicant subsequently obtained receipts for the purchase of nails in circumstances that might perhaps have suggested that he was endeavouring to concoct evidence as to the time at which he made the purchase on the Thursday and thus to fabricate support for his account of his movements at about 1 p.m. on that day. (at p101)

6. When the applicant was first questioned by the police, on 30th September 1973, he denied that he owned a rifle. He was questioned again on the afternoon of 24th November 1973 and repeated this denial. On that day the police had found some bullets at his house and told him that they intended to search again on the following day in the hope of finding a rifle. This information was given to the applicant - quite legitimately - in the hope that he would give himself away. The plan worked. In the early hours of the next morning the applicant dug up from underneath his house a .22 rifle that had been buried there - there was evidence that it was the weapon that had been used to commit the murder. The rifle was wrapped in material that had been torn from a piece of bedspread found in the applicant's house. The applicant drove off with the rifle, apparently with the intention of disposing of it, but the police had been keeping him under observation and apprehended him. He was then questioned again, and the following is a record of some of the questions and answers:

"I am now going to ask you some questions in relation to the
murder of Raffaele Petula on Thursday the 27th September,
1973. - You have got the gun and you have got me. What more
do you want.
From our inquiries we believe that you did not drive Petula to
the St. Marys Railway Station as you have previously stated but
went with him to the Waggon Wheel Hotel at St. Marys. Is that
right? - You know where I went. I am the only one Raffaele
would buy lemonade for.
We believe that within one hour of leaving the Petula home
you drove him to an area of bushland at Llandilo where after
hitting him over the head you killed him by shooting him twice
in the head with that gun. POINTS TO GUN ON TABLE - That's
the gun all right but I don't want to tell you what happened until
after I see my father.
Were any other persons involved in the shooting of Petula? -
I won't answer that.
Would you care to tell us why Raffaele Petula was murdered?
- Because he is a mongrel, that's why.
What time do you say you arrived back at your sister
Grazzia's place that afternoon? - What did she tell you?
I am not prepared to tell you what your sister told me at this
time. - After I have seen her I will tell you.
We are satisfied that you were responsible for the death of
Raffaele Petula and you will be charged with his murder. Is
there anything further that you want to tell us or any statement
you wish to make before we complete this interview? - (Long
pause.) (Barca starts to cry.) I have lost everything, my wife, my
beautiful children. It would be better if the mongrel was still
alive. I don't want to talk about it any more. I am finished with
it. All I want to do is to go home to my family." (at p102)

7. At his trial the applicant gave no evidence but made the following short statement from the dock:

"There are some things with reference to this case that I do
not want to say. What I do want to say is that I did not see
Raffaele Petula alive after Thursday. I did not kill him or take
any part in his killing.
I personally do not follow this custom, this Calabrian custom,
to kill for honour.
I cannot say anything else in reference to this, but please
believe me, I am not guilty.
That is all." (at p102)

8. His counsel then proceeded to address the jury and to suggest to them that the evidence was consistent with the murder having been committed by Carmello Barca. During the trial evidence had emerged that Carmello Barca had shot and killed one Perri, Mrs. Petula's first husband, and that he had been incensed at the deceased's conduct and had threatened the deceased with dire physical consequences. There was in addition the evidence already mentioned that the first responsibility for vindicating a woman's honour in accordance with the Calabrian custom rests on her father, and that Carmello Barca had threatened Mrs. Petula in an effort to persuade her to give false testimony. It was put that on the evidence generally it was a real possibility that it was the father who had killed the deceased and that while it might be accepted that the applicant had lied about certain of his movements after lunch on the fatal Thursday and had also concealed the murder weapon, all this was consistent with the father's guilt and with his son, the applicant, being no more than an accessory after the fact. It was submitted that after lunch on Thursday the applicant may have taken the deceased to the house of Carmello Barca and left him there and that the deceased was in fact later murdered by Carmello Barca. Further support for these submissions was found in the medical evidence as to the time of death, and the other evidence which it was said suggested that the deceased had not died before 3 p.m. (at p103)

9. At the conclusion of the address of counsel for the applicant, and before the Crown prosecutor had commenced his address, the learned trial judge made some remarks to the jury. Amongst other things he said:

"There is not any evidence in this case that the accused ever
took the deceased to his father's home: no evidence at all. Nor
has the accused in his case, in his interviews with the police or at
any time or anywhere ever suggested that this is so; so that any
argument that has this as a basis must be rejected by you. Do
you understand that?
There is not a tittle of evidence in this case that this accused
person ever took the deceased to his father's home. There is no
evidence in this case, not a tittle of evidence, that the father or
any of the brothers were in any way involved in the killing of
this man, nor has the accused ever suggested that this is so: so
that any invitation extended to you to acquit this man because
this murder may have been done by his father is completely
without foundation in evidence and would be a completely
wrong thing for you to do."

He went on to say that counsel in making his submissions was theorizing, putting "theories that had no foundation in fact", and then said:

"And, gentlemen lastly, you are not entitled to read into this
statement of the accused - these words - 'there are some
things with reference to this case that I do not want to say' -
what the words mean is for you, but you are not entitled to read
into that, this statement by him, that his family has committed
this murder and he is trying to protect them." (at p103)

10. When the learned trial judge came to sum up, he commenced by giving to the jury a clear and accurate direction as to their duties. He told them, amongst other things, that if there was any reasonable explanation of the circumstances consistent with the innocence of the applicant, then they must adopt that explanation and find the applicant not guilty. Later, after discussing in some detail the evidence led for the Crown, he turned to the defence, and in particular to the submission that the evidence was equally consistent with the conclusion that Carmello Barca had committed the murder. He said:

"I repeat to you what I said to you yesterday: there is no
evidence before you in this case that his father committed the
murder. Still less is there any evidence that he was ever taken to
his father's house. It is put to you as an argument by counsel
that the real truth of the matter is that his father did it and the
accused was minding the weapon for his father, hiding it. He
was the one who had custody of the gun, and it is just as
consistent."

After saying that it would be immaterial if someone else had planned the crime, he continued:

"You will remember what I told you yesterday, that there is
no evidence before you that this man was ever taken by him on
that day to his father's house; still less is there any evidence

that

his father, or anybody else, fired these shots; and these are
arguments that were put by counsel, theories, and if they have
no sub-stratum of evidentiary fact, then, gentlemen, you pay no
attention to them. Nothing that counsel says in a case is
evidence. It can never take the place of evidence. Your oath is to
'well and truly try and true deliverance make according to the
evidence'; and that is all you are concerned with, and it is for
you to decide the guilt or innocence of this man on the evidence
given in this court and you are not to take into account any
theories or arguments of counsel unless they have an evidentiary
basis; unless they are based on evidence that you accept, or a
reasonable inference from that evidence."

He then concluded his summing up by giving a summary of the case for the prosecution, and by reminding the jury that if they were not satisfied beyond reasonable doubt that the applicant had murdered the deceased it was their duty to acquit. (at p104)

11. When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are "such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused": Peacock v. The King [1911] HCA 66; (1911) 13 CLR 619, at p 634 . To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be "the only rational inference that the circumstances would enable them to draw": Plomp v. The Queen [1963] HCA 44; (1963) 110 CLR 234, at p 252 ; see also Thomas v. The Queen [1960] HCA 2; (1960) 102 CLR 584, at pp 605-606 . However, "an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence." (Peacock v. The King (1911) 13 CLR, at p 661 ). These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v. Director of Public Prosecutions (1973) 1 WLR 276; (1973) 1 All ER 503 that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense. (at p105)

12. The remarks made by the learned trial judge when he intervened at the conclusion of the address by defence counsel could only have been understood as meaning that it would be wrong for the jury to accept that the evidence was consistent with the hypothesis that the murder had been committed by Carmello Barca. In other words, the jury were in effect directed to reject one of the main arguments put forward on behalf of the defence, and to decide one issue of fact in favour of the prosecution. This was a misdirection. It was for the jury to decide for themselves whether they were satisfied that the evidence as a whole was inconsistent with the hypothesis that Carmello Barca and not the applicant had murdered the deceased. Of course it was not proved that Carmello Barca had committed the murder. Moreover, the learned trial judge was perfectly correct in saying that there was no evidence that the applicant took the deceased to Carmello Barca's house or that Carmello Barca fired the shots that killed the deceased. However, although a jury cannot be asked to engage in groundless speculation it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference. If the jury think that the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed the crime charged the accused is entitled to be acquitted. The learned trial judge told the jury that there was no evidence that Carmello Barca was involved in the killing; this was incorrect, for there was some circumstantial evidence - far too slight, it is true, to support a positive finding of guilt - pointing to his involvement. The evidence showed that Carmello Barca had at least as strong a motive to kill the deceased as that attributed to the applicant, that he had been enraged at the deceased's behaviour and had in consequence threatened him and that he had threatened Mrs. Petula in an endeavour to persuade her to give false testimony as to the time at which the applicant returned to her house after he had driven away with the deceased. In these circumstances it was open to the jury to think that the hypothesis that Carmello Barca had committed the murder could reasonably be based upon the evidence. Moreover, in the very special circumstances of the case, and particularly having regard to the evidence as to the custom amongst Calabrians, the evidence that Carmello Barca had killed Mrs. Petula's first husband might properly have been regarded by the jury as further circumstantial evidence supporting that hypothesis. It should therefore have been left to the jury to consider whether the suggested hypothesis that Carmello Barca had committed the murder was reasonable and consistent with the evidence since unless they rejected that hypothesis they could not have been satisfied of the guilt of the applicant. Further, the learned trial judge directed the jury that they could not understand the statement made by the applicant from the dock - "There are some things with reference to this case that I do not want to say" - as meaning that the applicant's family had committed the murder and that he was trying to protect them. It was not for the judge but for the jury to decide what meaning should be attached to the statement and what inferences should be drawn from it. (at p106)

13. The erroneous directions given by the learned trial judge on the occasion of his intervention gained emphasis from the fact that they were given in the course of a forceful direction interposed between the addresses of counsel. In his summing up the learned trial judge did not correct these misdirections. On the contrary, his remarks, which have been quoted above, with reference to the defence case might well have been understood by the jury as reinforcing the earlier direction that they were bound to reject the hypothesis upon which counsel for the applicant had placed so much reliance. Perhaps the directions in the summing up were not quite as adverse to the applicant as those made during counsel's addresses; the learned trial judge said that if the arguments put by counsel had no sub-stratum of evidentiary fact no attention could be paid to them, but since he prefaced these remarks by saying that there was no evidence of certain facts, the jury may well have considered that he was directing them that the hypothesis advanced by the applicant had no basis in the evidence. At any rate, whatever might have been said if this direction had stood alone, there can be no doubt that it was insufficient to correct the misdirection that had been given to the jury when the learned trial judge intervened during the course of addresses. (at p106)

14. For these reasons there was a fundamental misdirection which removed from the consideration of the jury an important question which it lay within their province to decide. In these circumstances special leave to appeal must be granted and the conviction must be set aside. However, since there was ample evidence on which a jury, properly directed, could have convicted, a new trial should be ordered. (at p106)

15. Since the applicant must again stand his trial, it seems right to deal with a further submission made on his behalf, namely that the learned trial judge failed to direct the jury that the evidence as to certain statements made by the police in the course of questioning the applicant had no evidential value because the applicant had not by words or conduct admitted the truth of the statements. The record of one of the interviews shows that the applicant was asked: "We have interviewed your sister, Grazzia Petula, and she informs us that some fifteen years ago she gave you a rifle. Is that true?" To that question he replied: "That's not true." Later, he was asked the following questions and made the following replies:

"We have made inquiries at the St. Marys Hotel, and we have
been informed that Raffaele did not go to the Public Bar of that
hotel on the afternoon of Thursday the 27th September. We
have also made inquiries at the St. Marys Railway Station and
have been informed that Raffaele did not catch the 1.03 p.m.
train or the 1.18 p.m. train from that railway station on that
day. Have you anything to say about that? - I dropped him
there and he go to work.
We have made inquiries at the shops in Queen Street, and
from the taxi drivers operating from the taxi rank at the St.
Marys Railway Station, and not one person saw Raffaele in
Queen Street, or near the St. Marys Railway Station on the
afternoon of Thursday the 27th September, 1973. Although he
was seen in that area by a number of people on the preceding
Monday, Tuesday and Wednesday. Have you anything to say
about that? - I still say I left him at the taxi rank at twelve
forty five.
We have caused the photograph of Raffaele and his
description to be published in the local newspapers, and requested

any

person who saw him between the time you say you left him at
the St. Marys Railway Station and when he was found in the
bush at Llandilo, to contact the Police, but not one person has
reported seeing Raffaele after you say you left him. Have you
anything to say about that? - No I have nothing to say about
that. I left him in the station, that's it." (at p107)

16. It is trite law that a statement made in the presence of a party is only evidence against him of the truth of the matter asserted if he has in some way admitted its truth. If an accused person denies the truth of a statement when it is made and there is nothing in his conduct and demeanour from which the jury, notwithstanding his denial, could infer that he acknowledged its truth in whole or in part, it would accord with accepted practice to exclude the statement altogether: R. v. Christie (1914) AC 545, at p 565 . In any case, where evidence is admitted of statements made in the presence of an accused it is in general desirable that the judge should explain to the jury that they can only use the statements as evidence of the truth of what was stated if they are satisfied that the accused has by his speech, silence or conduct admitted their truth. The applicant clearly denied the statement that his sister had given him a rifle and there was no evidence that by his demeanour or conduct he accepted its truth. That statement had no evidential value and would have been better excluded. The answers given by the applicant in response to the statements made by the police concerning their enquiries as to the movements of the deceased on the early afternoon of Thursday 27th September, although in themselves admissible, did not amount to admissions of the truth of those statements, which were no evidence of the fact that the enquiries were made or of the result of the enquiries. The learned trial judge did not regard it as necessary to give the directions that were sought as to the effect of this evidence but it needs to be remembered that principles of law that seem elementary to an experienced judge may be quite novel to a jury and also that particular care may be called for in the case of written records of interview. When tendered in evidence these exhibits may be present before the jury throughout their deliberations and may, to an inadequately instructed jury, provide a ready source from which to cull prejudicial material which they may put to impermissible use. However, in the present case it is not necessary to consider the effect of the failure to give a direction as to the effect of the evidence as to the statements made in the presence of the applicant, because for the reasons already given the conviction cannot stand. (at p108)

17. Special leave to appeal should be granted, the conviction should be set aside, and a new trial should be ordered. (at p108)

MURPHY J. This is an application by a prisoner, Domenico Barca, for special leave to appeal from the judgment of the Court of Criminal Appeal of the Supreme Court of New South Wales. That Court (McClemens, Isaacs and Lee JJ.) had dismissed his appeal against his conviction of murder at a trial by jury. (at p108)

2. Evidence presented at the trial was enough to justify the applicant's conviction, as his counsel conceded. This evidence (set out in greater detail in other judgments of this Court) consisted of statements by the applicant which could be construed as admissions of guilt and of circumstances pointing to his guilt. He was the last person known to have been with the deceased; he tried to construct a false alibi for the time at which it was contended the murder had occurred; the murder weapon was concealed at his home, and he tried to dispose of it two months after the murder, when he was told that the police intended to search his home. (at p108)

3. The case was said to be one of circumstantial evidence, but it is only circumstantial in the sense that there was no direct evidence of how the murder occurred. The evidentiary material included lengthy police interviews with the applicant and his statement from the dock in which he denied any part in the killing of the deceased. The statement from the dock is evidentiary (see Peacock v. The King [1911] HCA 66; (1911) 13 CLR 619 ). (at p109)

4. Two main grounds were argued in support of the application to this Court. (at p109)

5. The first ground was that the trial judge had misdirected the jury by failing "to put the defence fully, fairly or at all to the jury and (failing) to allow the jury to consider fairly, properly or at all submissions properly made on behalf of the applicant, in particular with regard to an hypothesis which was open upon the evidence, which the jury might properly have considered reasonable and which was consistent with the innocence of the applicant". (at p109)

6. The second and subsidiary ground was that the trial judge should not have intervened after the address by counsel for the defence to direct the jury to disregard arguments relating to the hypothesis advanced for the defence. (at p109)

7. The reference to the hypothesis was an invocation by the applicant of the approach referred to in Peacock v. The King and Plomp v. The Queen [1963] HCA 44; (1963) 110 CLR 234 that, to convict, the jury must be satisfied that the facts were inconsistent with any rational conclusion other than that the prisoner was guilty. To express this in another way, the circumstances must be "inconsistent with any reasonable hypothesis other than the guilt of the accused" (see Peacock v. The King (1911) 13 CLR, at p 634 ). (at p109)

8. The hypothesis was that the applicant's father, and not the applicant, had committed the murder. (at p109)

9. It was clear that someone had murdered the deceased. The presumption of innocence and the applicant's statement from the dock entitled him to advance himself or through his counsel the hypothesis that someone else (unspecified) had committed the murder. (at p109)

10. The applicant was then entitled, because the Crown had adduced evidence which tended to show that the murder was committed by a member of his family, to narrow the hypothesis to a member of his family, submitting that as he did not commit the murder and, if it were done by a member of his family as evidence for the Crown suggested, it must have been done by one of the other members of his family. (at p109)

11. If the applicant was prevented from advancing this hypothesis, he was unable to argue effectively the logical consequences of the presumption of innocence, his statement from the dock and that part of the Crown case which pointed to the murderer as being one of his family. (at p109)

12. There was other evidence from which it might be inferred that the applicant was not guilty and therefore that someone else had committed the murder. This was that the death occurred during a period of time some hours later than that specified by the Crown as the time the applicant killed the deceased. It was conceded by the Crown that if there was any reasonable doubt that the death occurred at the time stipulated by the Crown, the applicant should be acquitted. (at p110)

13. The applicant was entitled to rely on all those parts of the evidence, taken separately or in any combination, which might justify advancing the hypothesis. (at p110)

14. The statement from the dock and the evidence of the time of death provided evidentiary bases for arguing that someone else had committed the murder, while material relating to the family, particularly to the father, allowed the hypothesis to be narrowed to the father. (at p110)

15. The material relating directly or inferentially to the family follows. The method of killing was that of a ritual murder of vengeance for dishonour under Calabrian custom. The deceased had dishonoured the applicant's family in a way which warranted his execution under this custom. The obligation to carry out the murder was primarily on the applicant's father who had made threats which could be taken as threats to murder the deceased. (at p110)

16. Further evidence, while not tending to implicate the father directly, could be taken as giving support to the other material. The father had threatened to stab his daughter, the widow of the deceased, to induce her to give false evidence at the committal proceedings of the applicant, and he had shot and killed his daughter's previous husband in circumstances which were not disclosed at the trial. (at p110)

17. A jury could have taken the view from this material that the father was one of a small group of people (the applicant's family) with a strong motive to murder the deceased, that his motivation was stronger than the others' (including the applicant's), and that he was a person capable of committing murder. (at p110)

18. The judge gave firm and clear directions to the jury to acquit if they were not satisfied beyond reasonable doubt that the death occurred at the time stipulated by the Crown, or if they were otherwise not satisfied beyond reasonable doubt that the applicant had committed the murder. He did this, however, in the context of excluding from their consideration the hypothesis that one or more members of the family, in particular the father, had committed the murder. (at p110)

19. The judge directed the jury that there was "no evidence in this case, not a tittle of evidence, that the father or any of the brothers were in any way involved in the killing of this man", and said further:

"You will remember what I told you yesterday, that there is
no evidence before you that this man was ever taken by him on
that day to his father's house; still less is there any evidence

that

his father, or anybody else, fired these shots; and these are
arguments that were put by counsel, theories, and if they have
no sub-stratum or evidentiary fact, then, gentlemen, you pay no
attention to them. Nothing that counsel says in a case is
evidence. It can never take the place of evidence. Your oath is to
'well and truly try and true deliverance make according to the
evidence'; and that is all you are concerned with, and it is for
you to decide the guilt or innocence of this man on the evidence
given in this court and you are not to take into account any
theories or arguments of counsel unless they have an evidentiary
basis; unless they are based on evidence that you accept, or a
reasonable inference from that evidence." (my emphasis) (at p111)

20. It is true that there was no proof in any sense that the father killed the deceased or even had the opportunity to do so, and the judge rightly reminded the jury that various suggestions by counsel for the applicant had no basis in the evidence. Yet there was, as I have already indicated, an evidentiary basis to justify advancing the hypothesis regarding the father. There was also the evidentiary basis for suggesting that someone else had fired the shots. (at p111)

21. An hypothesis that the father was guilty, even if accepted, did not necessarily exculpate the applicant. As the judge correctly emphasized elsewhere, the issue was the guilt of the applicant, regardless of whether someone else was also guilty. The applicant was entitled to advance the hypothesis, however, and to have it left to the jury for their consideration. (at p111)

22. It is not the evidence presented but what is accepted of it by the jury which is to be considered in relation to any hypothesis, whether of guilt or innocence. To justify conviction, the jury must be satisfied beyond reasonable doubt that the evidence accepted by them is inconsistent with the hypothesis of innocence. (at p111)

23. This case illustrates the difficulty in the ordinary criminal trial of a simple application of the process of reasoning referred to in Peacock's Case [1911] HCA 66; (1911) 13 CLR 619 . Once the facts are established, it is generally not difficult to apply that approach, but in almost every criminal case, there is conflicting evidence. (at p111)

24. The application of this approach depends upon the resolution of the conflicts in the evidence. For example, the jury might refuse to accept the evidentiary bases for the hypothesis of innocence advanced, or might reject the hypothesis because it accepted the admissions to the police as accurate and truthful confessions of guilt. (at p111)

25. In truth, the method of approach in Peacock's Case assists (when the facts or circumstances are determined) in deciding whether the case against the accused has been established to such a high degree of probability that it amounts to proof beyond reasonable doubt. (at p111)

26. A further ground in support of the application was that the jury should have been directed not to treat statements which were made to the applicant during police interviews, but not accepted by him, as evidence of the truth of the statements. (at p112)

27. One of these statements was, "We have interviewed your sister Grazzia Petula and she informs us that some fifteen years ago she gave you a rifle. Is that true?" The applicant replied, "That's not true". That statement was not admissible to prove the truth of what was contained in it (see R. v. Christie (1914) AC 545 and R. v. Grills [1910] HCA 68; (1910) 11 CLR 400 ). (at p112)

28. The jury should have been told that it was not evidence that the sister made such a statement to the police and that it was not evidence that she did give a rifle to the applicant. A warning should have been given to the jury indicating the precise reasons for which the statement was admitted (see Adams v. The King (1923) 17 Cr App R 77 ). (at p112)

29. The difficulty in this case emphasizes one of the problems of the adversary system compared to the inquisitorial system. The accused may, and in fairness should be allowed to, suggest that he is not guilty because someone else committed the crime. However, if someone is named, that person has no standing to defend his reputation. The trial is almost always conducted on a basis which does not allow the suggestion to be properly investigated. Innocent persons may have their reputations damaged or destroyed without any opportunity to be heard in the proceedings and without redress. (at p112)

30. The applicant complained of general unfairness in the summing-up. I do not accept that complaint. The case against the applicant was very heavy. Some of the directions by the trial judge were distinctly favourable to the applicant. The question of the hypothesis was difficult, and made more difficult for the trial judge by the way it emerged at the trial. Because of the misdirection on the hypothesis, and only because of that, I would grant special leave. (at p112)

31. Special leave to appeal should be granted, the appeal allowed, the conviction quashed, and a new trial ordered. (at p112)

ORDER

Grant special leave to appeal. Appeal allowed.

Conviction set aside and a new trial ordered.