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This version of the judgment has been prepared by: Dr Robert N Moles and Bibi Sangha
Underlining where it occurs is for editorial emphasis

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The Queen v Hillier [2007] HCA 13

This case was subsequently referred to in Fazzari, Martinez and Pereiras in West Australia

22 March 2007

Gummow, Hayne and Crennan JJ

On 2 October 2002, Ana Louise Hardwick was found dead in her bedroom. There had been a fire in the room but she had died before the fire. She had a skin abrasion on her nose and a complex abraded injury predominantly to the left side of her neck. She had small bruises on the outer aspect of each wrist, one measuring two centimetres, the other measuring four centimetres. The cause of her death was neck compression, though the pathologist could not say whether as a result of ligature, rod or manual strangulation.

The respondent, Steven Wayne Hillier, was charged with Ms Hardwick's murder. Mr Hillier and Ms Hardwick had lived together for about 12 years, from 1987 to 1999. They had two children. When the couple separated in 1999, they agreed that the two children would live with their father. In June 2002, on Ms Hardwick's application, the Family Court of Australia ordered that the children reside with her. Pending an appeal against those orders by Mr Hillier, orders were made that the children live week and week about with each parent, but those interim orders were discharged on 20 September 2002, with the result that the orders for the children to reside with their mother took effect. The prosecution's case at Mr Hillier's trial was that he murdered Ms Hardwick to regain custody of his children.

Mr Hillier was tried in the Supreme Court of the Australian Capital Territory by Gray J and a jury. The trial occupied 15 days but the jury deliberated for only a few hours before returning a verdict of guilty. Mr Hillier appealed to the Court of Appeal of the Supreme Court of the Australian Capital Territory against his conviction. As finally amended, his notice of appeal stated six grounds. The first two grounds alleged that the verdict was "unsafe and unsatisfactory" and was "against the evidence and the weight of the evidence". Other grounds alleged errors in the judge's charge to the jury and in the judge not excluding certain evidence. It is not necessary to notice the detail of these other grounds.

The Court of Appeal held, by majority (Higgins CJ and Crispin P; Spender J dissenting Hillier v The Queen [2005] ACTCA 48, that the appeal should be allowed. The only orders the Court made were that the appeal be allowed and the conviction and sentence be set aside. No order was made directing entry of a verdict of acquittal, although it would follow from the reasons given by the majority of the Court of Appeal that such an order should have been made.

The Director of Public Prosecutions seeks special leave to appeal against those orders. He contends that "this was an inappropriate case for the Court of Appeal to set aside the verdict of the jury" and that the majority of the Court of Appeal "erred in combining a series of factual matters which each had little or no evidentiary foundation in order to find a real possibility that the respondent did not commit the murder". The Director contends that the interests of the administration of justice in the particular case warranted the grant of special leave to appeal. The application for special leave was referred for argument before the whole Court as on appeal. To examine the parties' submissions it will be necessary to examine the reasons of the Court of Appeal, and the evidence given at trial. Before embarking on that task, however, it is essential to begin by considering the statutory framework within which the questions that arise in the matter must be identified and considered.

Criminal appeals in the Australian Capital Territory

Criminal appeals from the Supreme Court of the Australian Capital Territory have never been governed by legislation of the kind, long found in each of the States of the Commonwealth, which derives from the Criminal Appeal Act 1907 (UK). The Supreme Court of the Australian Capital Territory was created by the Seat of Government Supreme Court Act 1933 (Cth). Section 52 of that Act conferred an appellate jurisdiction upon the High Court in respect of convictions on indictment before the Supreme Court. Appeal to this Court lay as of right on any ground of appeal which involved "a question of law alone"; appeal lay, with leave of the Supreme Court, on any ground of appeal which c involved "a question of fact alone or a question of mixed law and fact" or, with the leave of the Full Court of this Court, on any ground which involved a question of fact alone or a question of mixed law and fact, "or on any other ground which appears to the Full Court of the High Court to be a sufficient ground of appeal". These provisions, although amended in 1964, remained in substantially identical form until the establishment of the Federal Court of Australia.

Section 24(1)(b) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") conferred jurisdiction on the Federal Court to hear and determine appeals from judgments of the Supreme Court of a Territory. A judgment was defined by s 4 of that Act to mean "a judgment, decree or order, whether final or interlocutory, or a sentence". That definition did not include a verdict of a jury. Nonetheless, s 28(1)(e) empowered the Federal Court to "set aside the verdict and judgment in a trial on indictment and order a verdict of not guilty or other appropriate verdict to be entered". Further, the Federal Court was given power to "grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial". As was said in Duff v The Queen(1979) 28 ALR 663 at 670, "a jurisdiction to entertain any appeal from a judgment entered upon a jury verdict would not be useful unless there were power to set aside that verdict". The provisions of s 28 of the Federal Court Act that have been mentioned supplied powers of the kind held in Musgrove v McDonald (1905) 3 CLR 132 to be necessary to permit an appellate court to set aside the order of conviction entered in consequence of the jury's verdict.

Unlike the common form criminal appeal statute adopted in the States, the grounds upon which the appellate jurisdiction of the Federal Court was to be exercised in a criminal appeal were not specified in the Federal Court Act. The appeal was not an appeal in the strict sense. Not only did the powers to set aside a jury verdict and to grant a new trial extend beyond those which may be exercised on a strict appeal, the powers, to draw inferences of fact and to receive further evidence, conferred by s 27 of the Act, required the conclusion that the appeal was not an appeal in the strict sense. But whereas the common form criminal appeal statute speaks of setting aside the verdict of the jury on the ground "that it is unreasonable or cannot be supported having regard to the evidence", and setting aside the judgment of the court where "on any ground there was a miscarriage of justice", the Federal Court Actwas silent about when the verdict of the jury, or the judgment entered in consequence of the jury's verdict, was to be set aside.

In 1937, in Davies and Cody v The King (1937) 57 CLR 170, this Court examined some important aspects of the operation of the common form criminal appeal statute. At that time, the Court of Criminal Appeal in England, unlike courts of criminal appeal in the Australian States, had no power to order a new trial. The English Court therefore did not have to distinguish between cases in which there had been some miscarriage at the trial which required the conclusion that the verdict could not stand and cases in which, even if there had been no miscarriage at trial, the evidence adduced would not have sufficed to support the verdict of guilt. Nonetheless, as this Court noticed in Davies and Cody:

"from the beginning, that court [the English Court of Criminal Appeal] has acted upon no narrow view of the cases covered by its duty to quash a conviction when it thinks that on any ground there was a miscarriage of justice".

Rather, the Court went on to say in Davies and Cody:

"it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled". (emphasis added)

The distinction between the conclusion reached by the jury and the manner by which that conclusion was reached is important. The common form criminal appeal statute was understood in Davies and Cody as reaching both kinds of case.

It is against this background of the understanding of the common form criminal appeal statute that this Court's decision in Chamberlain v The Queen [No 2] (1984) 153 CLR 521 must be approached. In that case, applications were made for special leave to appeal against the dismissal of appeals to the Full Court of the Federal Court of Australia against the conviction of the applicants, in the one case for murder and in the other for being an accessory after the fact to murder, which were convictions recorded in the Supreme Court of the Northern Territory. The central ground of the proposed appeals was that the convictions were unsafe and unsatisfactory. The Court granted special leave to appeal but, by majority, dismissed the appeals.

In Chamberlain [No 2], all members of the Court proceeded on the footing that the Full Court of the Federal Court, in exercising its appellate jurisdiction on appeal against conviction in a Territory court for an indictable offence, was to undertake a task not relevantly different from the task of a court of criminal appeal acting under the common form criminal appeal statute. In particular, Gibbs CJ and Mason J noted that the power and duty of a court of criminal appeal, whose jurisdiction was governed by the common form criminal appeal statute, to set aside a verdict "if for any reason it considers that it would be unsafe or dangerous to allow the verdict to stand", was well established. Their Honours went on to say that "we cannot believe that the Parliament intended that the Federal Court should be more restricted in determining criminal appeals" and accordingly concluded that the Full Court of that Court, dealing with an appeal from a Territory court, "has the power and duty to set aside the verdict of a jury in a case where a miscarriage of justice has occurred, including a case where it would be unsafe or dangerous to allow the verdict to stand" (emphasis added).

As subsequent cases revealed, expressing the content of the proposition that it would be "unsafe or dangerous" to allow a verdict to stand was not without difficulty. The difficulties focused upon the dictum of Barwick CJ in Ratten v The Queen(1974) 131 CLR 510 at 516. that:

"There is a miscarriage if on the material before the court of criminal appeal, which where no new evidence is produced will consist of the evidence given at the trial, the appellant is shown to be innocent, or if the court is of the opinion that there exists such a doubt as to his guilt that the verdict of guilty should not be allowed to stand. It is the reasonable doubt in the mind of the court which is the operative factor. It is of no practical consequence whether this is expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution; as I have said it is the doubt in the court's mind upon its review and assessment of the evidence which is the operative consideration."

The difficulties were resolved in M v The Queen(1994) 181 CLR 487 where the Court examined what had been said in a number of previous cases on the subject of a miscarriage because the jury's verdict was "unsafe or unsatisfactory". Four members of the Court in M (Mason CJ, Deane, Dawson and Toohey JJ) joined in stating four propositions in a form intended "to provide authoritative guidance to courts of criminal appeal". Their Honours said:

"It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."

It was the exercise of the power to set aside the verdict of a jury where a miscarriage had occurred, in the sense described in M,that fell for consideration in Chamberlain [No 2].

In Conway v The Queen(2002) 209 CLR 203, this Court examined some questions presented by the provisions of the Federal Court Actdealing with appeals to the Full Court of that Court from convictions on indictment in Territory courts. The central question in Conway was not whether the verdict of the jury should be set aside as unsafe or unsatisfactory. Rather, there having been misdirections at trial, was the conviction to be set aside regardless of the significance to be attached to those misdirections?  If the common form criminal appeal statute had applied, the question would have been whether the proviso was engaged. Those issues were resolved in Conway by reference to the content of rules that had developed at common law to govern applications for new trial as applied to a criminal appeal under s 52 of what was then the Australian Capital Territory Supreme Court Act 1933 in Stokes v The Queen (1960) 105 CLR 279. In Stokes, the Court said:

"In the end we think the decision of the application must depend upon the general rule that if an error of law or a misdirection or the like occurring at the trial is of such a nature that it could not reasonably be supposed to have influenced the result a new trial need not be ordered. The rule applies, we think, in an appeal under s 52."

But the questions that arise in the present case differ from those considered in Conway and in Stokes and are of the same kind as were considered in Chamberlain [No 2]. What was sought in this case, in the Court of Appeal of the Australian Capital Territory, was not an order for a new trial, it was an order quashing the verdict and conviction and, in its place, the recording of a verdict of acquittal, on the ground that it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused. That question fell to be determined under a different statutory framework from that considered in Chamberlain [No 2].

The legislation regulating Mr Hillier's appeal to the Court of Appeal of the Australian Capital Territory was contained in Pt 2A of the Supreme Court Act 1933. Those provisions were introduced into the 1933 Act by the Supreme Court Amendment Act 2001 (No 2) (ACT). That Act provided for the establishment of the Court of Appeal.

Part 2A of the 1933 Act required the Court of Appeal to "have regard to the evidence given in the proceeding out of which the appeal arose", empowered the Court to draw inferences of fact from that evidence, and empowered the Court to receive further evidence in any of a number of ways. The powers given to the Court of Appeal by s 37O of the Act included powers cast in terms not relevantly different from those that had previously been given to the Federal Court of Australia by the Federal Court Act in respect of appeals to that Court from convictions in Territory Supreme Courts. They included power to set aside the verdict and order in a trial on indictment and order a verdict of not guilty (or another verdict) to be entered and power to order a new trial, with or without jury, on any appropriate ground. But as had been the case with the Federal Court Act, the provisions of Pt 2A, governing the jurisdiction of the Court of Appeal of the Australian Capital Territory in appeals from convictions for indictable offences, said nothing about the principles governing the exercise of the powers given by the Act.

There is no persuasive reason to read the provisions of Pt 2A of the Act, spare as they are, as giving to the Court of Appeal of the Australian Capital Territory duties and powers in criminal appeals narrower than those described in Davies and Cody and held in Chamberlain [No 2] to apply in criminal appeals from Territories regulated by earlier, equally spare, legislative provisions. In particular, the duties and powers of the Court of Appeal given by Pt 2A of the 1933 Act extend to setting aside a conviction "whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled" Davies and Cody v The King (1937) 57. The circumstances in which it might be concluded that there was a substantial possibility that "in the conclusion itself ... the jury may have been mistaken" are those identified in the joint reasons in M. To understand how the powers and duties of the Court of Appeal fell to be exercised in this case, it is necessary to begin by considering the case at trial.

The case at trial

Counsel for the prosecution, in his final address to the jury, identified three "major components" of the prosecution case against Mr Hillier. First, the prosecution submitted that Mr Hillier had the opportunity to kill Ms Hardwick. It was submitted that he was alone and his movements were unaccounted for on the night she died. Secondly, it was submitted that he had a motive to kill Ms Hardwick. It was submitted that the custody proceedings in the Family Court caused him "to decide to take the law into his own hands in order to ensure that he retained custody of the children". The third "major component" of the prosecution case was evidence said to demonstrate the presence of Mr Hillier's DNA on the pyjama top Ms Hardwick had been wearing at the time of her death.

A fourth aspect of the evidence, concerning chemical injuries to Mr Hillier's fingertips and his explanations of how he came by these injuries, assumed significance at the trial. The prosecution submitted that it showed an attempt by Mr Hillier to conceal his involvement in the offence. It is convenient to examine the evidence led at trial following the pattern adopted by the prosecution.

Opportunity

As noted earlier, Ms Hardwick was found dead on the morning of 2 October 2002, a Wednesday. At about 9pm on the previous Monday, 30 September, she had spoken by telephone with a friend. She did not attend work on Tuesday, 1 October and when she was not at work on the Wednesday. Her parents went to her house to investigate. It was they who found her body. A pathologist called to give evidence at Mr Hillier's trial was unable to form an opinion about when Ms Hardwick had died. Mr Hillier had picked his children up from school on Friday, 27 September 2002. He arranged for the children to sleep at his father's house on the night of Monday, 30 September as he had an early morning business meeting on Tuesday, 1 October. There was no dispute at trial that he was alone on the night of Monday, 30 September.

Ms Hardwick's parents, who found her body, had gained access to the house by unlocking the back door using keys their daughter had previously given them. Mr Hardwick described his wife, Ms Hardwick's mother, going to call the ambulance and then both going outside to wait for the emergency services to arrive. He said in evidence that "at that stage" his wife had opened "the door", and she later gave evidence consistent with her having opened the front door of the house from inside. The only keys the parents had were keys to the back door of the house; there was no evidence that Mrs Hardwick used a key to open the front door to let the emergency services in.

Expert evidence was given at the trial to the effect that the four sets of keys found in the house showed no sign of having been copied and that the locks on neither the front nor the back door showed any sign of forced entry or entry by manipulation. There was no evidence that Mr Hillier had possession of any key which would have given him access to the house. There was no evidence suggesting how the person who killed Ms Hardwick had obtained entry. As the evidence stood, one inference available was that Ms Hardwick had let her killer into the house. The evidence given by the parents about opening a door to wait for the emergency services was consistent with the possibility that the person who had killed Ms Hardwick left the house by that means, closing the door as he or she left.

Motive

Mr Hillier and Ms Hardwick had been actively engaged in litigation about the custody of their children for some time before Ms Hardwick was killed. At the time of her death, Ms Hardwick had obtained orders of the Family Court in her favour. Mr Hillier was dissatisfied with that outcome and had instituted an appeal against the orders. The interim arrangements that had been made for shared custody of the children had come to an end shortly before Ms Hardwick's death. The prosecution case at trial was that Mr Hillier had been taking very active steps towards the prosecution of that appeal until the end of the week before Ms Hardwick died. Those steps were not maintained on the Monday or Tuesday before the discovery of her body on the Wednesday morning.

The DNA evidence

Several tape lifts were taken from the pyjamas Ms Hardwick had been wearing at the time of her death and these lifts were subjected to DNA analysis. One tape lift, taken from the right‑side flap of the collar of the pyjama top worn by Ms Hardwick, revealed a mixed DNA profile consistent with the profiles of Ms Hardwick and Mr Hillier. Three scientists gave evidence about the DNA analyses that were conducted. Each gave a different opinion about the probability that the contributors to the DNA found on the particular tape lift taken from the right‑side flap of the collar of the pyjama top were Ms Hardwick and Mr Hillier rather than Ms Hardwick and another person chosen at random. Two witnesses, called by the prosecution, estimated the likelihood that the contributors were the deceased and Mr Hillier rather than the deceased and another person as very high. The third witness, a Dr McDonald, who was called by the defence at trial, considered that it was not possible to exclude Mr Hillier or the children as possible contributors to the DNA profile. He said that he regarded it as a "real possibility" that Mr Hillier's DNA had been transferred to the pyjama top without him ever touching the pyjamas, it having been transferred, innocently, by the children.

Another tape lift was taken from an area of the collar of the pyjamas closer to Ms Hardwick's neck. All three experts gave evidence that there was an unidentified contributor to the DNA found at that point. They did not agree about whether Mr Hillier could be excluded as a possible contributor to that DNA. One expert, Ms Ristevska, concluded that he could not be excluded; another, Dr Roberts, concluded that there was no clear evidence either way; Dr McDonald concluded that there was evidence to exclude Mr Hillier.

Damage to Mr Hillier's hands

On 14 October 2002, police wrote to Mr Hillier's solicitors asking that he provide fingerprints and DNA samples. A court order was subsequently obtained that these be provided and on 1 November Mr Hillier attended to provide fingerprints. His fingers had been damaged and he told the officer taking the prints that the damage had been caused by chemicals he had been using while cleaning. Other evidence was given which the prosecution alleged showed Mr Hillier giving inconsistent or implausible accounts about the cause of damage to his fingers. The prosecution submitted that this evidence showed consciousness of guilt because, so it was submitted, the jury should conclude that the injuries to the fingers had been self‑inflicted in order to impede the police investigation. The trial judge instructed the jury that the evidence could be used as pointing to Mr Hillier's guilt only if the jury were satisfied beyond reasonable doubt that what had happened to his fingers was a deliberate act on his part done because he knew the taking of his fingerprints could implicate him as the person who killed Ms Hardwick. The judge further directed the jury that even if they were satisfied of those matters, that evidence, standing by itself, could not prove Mr Hillier's guilt. No exception was taken to these instructions at trial or on appeal.

The reasons of the Court of Appeal

All members of the Court of Appeal referred to this Court's decision in M. Examination of the joint reasons of the majority of the Court of Appeal reveals, however, that the answer given by the majority to the question presented in M – whether "upon the whole of the evidence [at Mr Hillier's trial] it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" – depended, in important respects, upon considering certain features of the circumstantial case sought to be made against Mr Hillier, in isolation from the evidence as a whole. In particular, the identification of facts which, when examined in isolation from other evidence led at the trial were consistent with Mr Hillier's innocence, was treated as requiring the conclusion that it was not open to the jury to be satisfied of Mr Hillier's guilt beyond reasonable doubt.

The ultimate conclusion reached by the majority was expressed as being that "there is a real possibility that another person was responsible" for Ms Hardwick's death. That, of course, is no more or less than a conclusion that it was not established beyond reasonable doubt that Mr Hillier was responsible for her death. Five, perhaps six, matters were identified as yielding one or more alternative hypotheses consistent with Mr Hillier's innocence. Those matters were, or at least included, some evidence about handcuffs found at Ms Hardwick's house and some marks on her bed‑head, the bruises on her wrists, the DNA from an unknown person on her collar, some footprints observed in soot deposited by the fire in her bedroom and other evidence said to be consistent with the presence of a third person at the relevant time.

To understand the significance to be attached to at least some of these matters it is necessary to say something more about some aspects of the way in which the trial was conducted by the parties. In his final address at the trial, counsel for Mr Hillier expressly disavowed a suggestion that had emerged in the course of the trial that Ms Hardwick may have died as a result of a sexual misadventure. For present purposes, it does not matter how or why that suggestion had first emerged. Police examining Ms Hardwick's bedroom had seen a pair of handcuffs in her wardrobe. The handcuffs appeared to be in their original packaging. Police had investigated the possibility of death as a result of sexual misadventure, and evidence was given at the trial that there were some marks on the bed‑head that were consistent with the use of handcuffs. But the point which counsel for Mr Hillier sought to make at trial was not that Ms Hardwick had met her death as the result of sexual misadventure, it was that there was a real possibility that there was "someone else involved in this case". Who that person might be, and why that person might have murdered Ms Hardwick, was not identified.

The jury heard evidence from Ms Hardwick's boyfriend, Mr Michael Koppie, and from a person described as her "best friend", Ms Lesa Wells, as well as from Mr Hillier. Neither Mr Koppie nor Ms Wells knew of any possible involvement of Ms Hardwick with some other man. Mr Koppie knew nothing of the handcuffs, and knew nothing about certain pornographic videos found at the premises. There was, however, evidence of a third, unidentified contributor to DNA found on Ms Hardwick's pyjamas. It was in this setting that trial counsel for Mr Hillier, in his final address, said to the jury:

"Now, why isn't there, on this evidence because of C1 [the tape lift revealing DNA of a third, unidentified person], a Mr X, who may or may not have been involved in bondage and discipline, who may or may not have been involved in porno videos or handcuffs. Just because there was handcuffs that were there, that doesn't mean they were the ones that were used, but the marks are consistent with handcuffs, and why would Ana tell Mick Koppie or Lesa if there was something going on of this sort that she didn't want anyone to know about?  But why wouldn't the pattern have been that the front door was left open for Mr X to come in? There's a real possibility of that and even if it doesn't go to the scenario of bondage and handcuffs, the evidence of someone else on C1 is something of great significance in this case that the Crown can't counter and forms a foundation for you to acquit in this case."

The majority in the Court of Appeal added several further features of the evidence, to the matters advanced by counsel for Mr Hillier in final address, to reach the conclusion that "there is a real possibility that another person was responsible" for Ms Hardwick's death. Although no witness gave evidence to this effect, the majority concluded that the bruises found on Ms Hardwick's wrists, and some marks similar to fingermarks found on her thigh, "are all suggestive of a sexual relationship or incident with someone" other than Mr Hillier or Mr Koppie, though when this might have happened was not stated. In addition, their Honours referred to evidence of fingerprints from an unidentified person which had been found on door handles in Ms Hardwick's house and also on an ashtray, cigarette packet and lighter found near her bed. And as noted earlier, their Honours also referred to evidence of footprints observed in the soot that had been deposited in the bedroom as a result of the fire that had taken place after Ms Hardwick's death and that were footprints "not those of firemen or of [Mr Hillier]". Their Honours recognised, however, that the footprints may have been left by Ms Hardwick's father when he discovered her body and that the evidence which had been led at trial had not excluded that possibility. Finally, their Honours referred to evidence that hair had been found on Ms Hardwick's pyjamas and in the bed which had not been identified as being hair of Ms Hardwick or Mr Hillier.

Their Honours said that "at face value" these considerations provided "strong grounds for an inference that someone else may have entered the house and been responsible for the death" of Ms Hardwick. The majority went on to say that "there may be explanations for these matters that are compatible with the Crown case" but said that "potentially exculpatory inferences cannot be ignored merely because there may be other possible explanations for the relevant facts". This reasoning was erroneous.

A circumstantial case

The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances [ See, for example, Martin v Osborne (1936) 55 CLR 367 at 375; Plomp v The Queen (1963) 110 CLR 234 at 243 per Dixon CJ]. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence Shepherd v The Queen (1990) 170 CLR 573 at 579 per Dawson J.

The force of that proposition is well illustrated by the decision in Plomp v The Queen (1963) 110 CLR 234. There, this Court held that the motive of the accused to murder his wife (he having proposed marriage to another woman on the representation of his being a widower) was one circumstance to be taken into account in deciding whether he had killed his wife while they were surfing alone together, at dusk, in apparently good conditions. His application for special leave to appeal against conviction was refused upon the basis that it was open to the jury to be satisfied beyond reasonable doubt that he had murdered his wife. Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. As Gibbs CJ and Mason J said in Chamberlain [No 2]:

"At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness 'separately in, so to speak, a hermetically sealed compartment'; they should consider the accumulation of the evidence:  cf Weeder v The Queen (1980) 71 Cr App R 228 at 231.

Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider 'the weight which is to be given to the united force of all the circumstances put together':  per Lord Cairns, in Belhaven and Stenton Peerage(1875) 1 App Cas 278 at 279, cited in Reg v Van Beelen(1973) 4 SASR 353 at 373; and see Thomas v The Queen[1972] NZLR 34 at 37‑38, 40 and cases there cited." And as Dixon CJ said in Plomp:

"All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done."  (emphasis added)

In the present case, there was evidence (such as the evidence of unidentified DNA on the pyjama top) which was consistent with Mr Hillier's innocence. But the question for the Court of Appeal was whether, on the whole of the evidence, it was open to the jury to be persuaded beyond reasonable doubt that he was guilty. In that regard it is important to recognise that Mr Hillier gave evidence at his trial. The Court of Appeal made no reference to this evidence when considering whether the jury's verdict should be set aside. One question which the jury was bound to consider was what they made of Mr Hillier's evidence. Did they believe that Mr Hillier may have been telling the truth when he denied responsibility for Ms Hardwick's death?  Or were they, as the verdict revealed, positively persuaded on a consideration of all of the evidence (including his) that he was not?

None of the matters mentioned by the majority in the Court of Appeal as permitting an inference that someone other than Mr Hillier caused Ms Hardwick's death was said to require that conclusion. (As the majority said, "There may be explanations for these matters that are compatible with the Crown case.")  And as the majority also said:

"Aspects of the evidence, particularly that relating to motive, timing and DNA extracted from the 15C7 tape lift, provided ample grounds for grave suspicion that [Mr Hillier] may have murdered [Ms Hardwick]."

But the conclusion then reached (that it was "impossible ... to conclude that it was open to the jury to find that the guilt of [Mr Hillier] had been proven beyond reasonable doubt") was said to depend upon:

"other aspects of the evidence, such as that relating to the unusual features of the injuries she suffered and the apparent use of the handcuffs [which] make it difficult to reconstruct what actually occurred on the night in question and the evidence suggesting that another person may have been present at the time of her death". (emphasis added)

Assuming, as one must, that these "other aspects of the evidence" were those identified earlier in their Honours' reasons, it by no means followed that it was not open to the jury to conclude that guilt had been proved beyond reasonable doubt. The asserted conclusion would follow only if the significance to be given to the "other aspects of the evidence" was assessed separately from the rest of the evidence. The reasoning of the majority was, therefore, erroneous.

Conclusion and orders

It has been said that this Court will grant special leave to the prosecution to appeal only in very exceptional circumstances R v Wilkes (1948) 77 CLR 511 at 516‑517; R v Lee (1950) 82 CLR 133 at 138; R v Benz (1989) 168 CLR 110 at 111, 119‑120, 131‑132, 146. While it is clear that the Court has several times said it is, and should be, reluctant to grant special leave to the prosecution, it is not necessary to consider the exact content of the principle that underpins that reluctance.

Where, as here, the verdict of a jury has been quashed by an intermediate court of appeal, and it is demonstrated, as here, that that court reached its order by a path that was not in accordance with proper principle, it is in the interests of the administration of justice, both generally and in this particular case, that the error be corrected. Because the error that has been made will require that the whole case be reviewed to decide whether "upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty", the interests of justice will best be served by granting special leave to appeal, treating the appeal as instituted and heard instanter and allowed, setting aside the order of the Court of Appeal, and remitting the matter to the Court of Appeal for rehearing.

Upon a rehearing by a differently constituted Court of Appeal, it will be open to the parties to canvass the whole of the evidence at trial to an extent greater than reasonably possible in this Court, and to do that in light of this Court's identification of the error made by the majority of the Court of Appeal in the judgment which gives rise to this appeal.

We would therefore make the following orders:
Grant special leave to appeal.
Treat the appeal as instituted and heard instanter and allowed.
Set aside the orders of the Court of Appeal of the Australian Capital Territory made on 15 December 2005 and remit the matter to that Court for rehearing.

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