Essential facts

What is usually referred to as a Shepherd direction is a direction, in a case where the Crown presents a circumstantial case, that directs the jury that certain facts are “indispensable” in the Crown case.

What is usually referred to as a Shepherd direction is a direction, in a case where the Crown presents a circumstantial case, that directs the jury that certain facts are “indispensable” in the Crown case.

In DAVIDSON v R [2009] NSWCCA 150, Simpson J framed the question of whether a fact is indispensable in the following way:

Whether a fact on which the Crown relies as part of a circumstantial case is or is not “indispensable” may be tested by asking whether, in the absence of evidence of that fact, there would nonetheless be a case to go to the jury. If the answer is in the affirmative, even if the Crown case is weakened, even considerably, the fact is not “indispensable”. Where the answer is in the negative, the fact is “indispensable” and the jury should be directed accordingly.

There is considerable danger, however, in giving the direction as it may well serve only to confuse the jury.

In Robert Minniti v R [2006] NSWCCA 30, the Court of Criminal Appeal found that the trial judge was right to decline to give a Shepherd direction as to do so would result in the Crown case being “complicated in its presentation by the trial Judge to the jury by an arcane philosophical digression that issues in directions which are likely to confuse rather than to assist the jury.”

 

Shepherd

Shepherd v R [1990] HCA 56

“On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence, vol.9 (Chadbourn rev. 1981), par.2497, pp 412-414 - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.”