The sole issue at trial was the identity of the offender but the appellant did not give or call evidence. The appellant argued that the giving of a Weissensteiner direction caused a miscarriage of justice. The judgment of Sofronoff P considers where such a direction may be appropriate and what is meant by a ‘reasonable’ hypothesis consistent with innocence. In the result, the appeal was dismissed.
Sofronoff P and Fraser JA and Douglas J
6 November 2018
Following a jury trial, the appellant was convicted of various offences relating to a road rage incident. The incident involved a man in a Toyota Avalon chasing the complainants’ vehicle at high speed and repeatedly ramming it, then disembarking from the Avalon to wield a sword at the male complainant. , . The offender appeared intoxicated, swearing and stumbling. . The sole issue at trial was the identity of the offender, who was not known to the complainants. .
The Crown case on identity was circumstantial. . The Toyota Avalon was registered to the appellant. A few hours after the incident, the appellant was found some 1500m up the road, in the direction witnesses had seen the offender flee. . He was intoxicated and his appearance matched the general description of the offender. .
The appellant did not give or call evidence at the trial. In summing-up, the learned trial judge gave a Weissensteiner direction to the jury. . The sole ground of appeal was that giving such a direction caused a miscarriage of justice. .
The appellant contended that in this case the effect of the direction was to foreclose proper consideration by the jury of a reasonable hypothesis consistent with innocence, namely that somebody other than the appellant used his car and committed the offences. . It was submitted that there was no evidence that the appellant had any capacity “to perpetually know where his car was” and that the car might have been lent or sold. .
The reasons of Sofronoff P (with whom Douglas J agreed) consider the history and rationale of the Weissensteiner principle and conclude that the direction was appropriate in this case. -. His Honour notes that the Crown only has to exclude every reasonable hypothesis consistent with innocence, observing:
“… the word ‘reasonable’ does not mean ‘logically open in theory’. Many inferences might be open as a matter of theoretical logic but which, in truth, are entirely unrealistic. Various terms have been used to describe such unreal, but theoretically possible, inferences They have been called ‘light’ or ‘rash’ and they have been described as ‘mere conjecture’. An alternative hypothesis must be a reasonable one in the sense that it rests on something more than a theoretical possibility or, if one prefers, upon “something more than mere conjecture”. It must be based upon evidence.” .
His Honour continued:
“Hypotheses consistent with innocence cease to be reasonable when there is no evidence to support them, particularly when that evidence, if it exists, must be within the knowledge of the accused. … His decision not to give evidence foreclosed any other rational conclusion but that the appellant was guilty.” , .
Justices Fraser noted the reasoning of Sofronoff P at  to  but reached a conclusion without either adopting or disagreeing with those paragraphs. , . The appeal was dismissed.
K Gover of Counsel