1 I have had the considerable advantage of reading in draft the reasons for judgment of Coghlan AJA and I agree with his Honour that the appeal should be allowed and a new trial ordered. But I wish to add some observations of my own.

2 The case which the Crown sought to prove at trial was that, on 27 February 2009, Andrew Paterson attended the Burvale Hotel in Nunawading with his twelve year old son, girlfriend Alana Skelsey and friend Andrew Mack. The group was seated at an outside table in the beer garden. The appellant was seated nearby with his girlfriend, Adele Dosser, and three male friends.

3 While Paterson was away in the toilet, the appellant approached the group's table and removed two chairs. Skelsey took offence at the removal of the chairs and went to the appellant's table and demanded their return. The appellant responded with words to the effect of 'fuck off ya bitch.' Dosser began verbally to abuse Skelsey. Skelsely grabbed a handful of chips from the appellant's plate and ate them as she returned to her own table.

4 The appellant and Dosser went over and confronted Skelsey at her table and they and she exchanged insults. Mack intervened and the situation momentarily quietened down.

5 Paterson then returned from the bathroom and joined in the exchange of abuse. A physical altercation began after the appellant began to throw food towards the group. The appellant spat at Paterson's face and Paterson approached the appellant. The appellant was observed to be holding a Stanley knife box cutter behind his back in his left hand. When Paterson approached, the appellant pulled him down and slashed his back across the shoulders from left to right. Paterson was then punched by a friend of the appellant.

6 The appellant was intercepted by police on the Burwood Highway. As police approached, he was seen to reach into his right-hand side pocket and throw two knives onto the ground beside him. He was arrested but made no comment during interview. CCTV footage of the incident was obtained from the hotel.

7 Paterson sustained a 35-40 centimetre wound between his shoulder blades and an eight centimetre wound on his lower left back. The larger wound penetrated all layers of skin into the fatty tissue and muscle. He was referred to a plastic surgical team for debridement and repair of his injuries using a variety of suturing techniques, including cauterization and stapling treatment. He was discharged from the Box Hill Hospital four days later on 2 May 2009 and later still returned as an outpatient for removal of the sutures.

8 At trial, Paterson accepted that he lost his temper, charged the appellant and barreled into him and tried to hit him. He accepted, too, that he intended to attack the appellant. He also refused to say whether he was affected by any substance other than alcohol, on the ground that to answer the question might incriminate him.[1]

a) Whether the appellant intended to cause or was reckless as to causing serious injury to Paterson; and

Grounds 1 and 2 - Admission of inadmissible evidence

10 The major complaint made under Ground 1 was that the judge erred in allowing the informant to give evidence (over defence counsels' objection) of the informant's interpretation of events shown on CCTV footage of the alleged offence.

11 That ground must be allowed. The informant was not an expert in the interpretation of CCTV footage and he was not otherwise better placed than the jury to interpret the footage. His assertion of what occurred at the hotel was founded on material no different from the material available to the jury from their own observation of the footage. Consequently, his opinion was not evidence that could rationally affect the assessment by the jury of the question of what happened. In principle[2] and as a matter of authority[3] it was plainly inadmissible.

12 The Crown properly conceded that the evidence was inadmissible but argued that its admission was not productive of a substantial miscarriage of justice. Counsel for the Crown contended that any damage that might otherwise have been done by its admission was nullified by the judge's directions to the jury that what appeared on the CCTV footage was a matter to be determined by them solely on the basis of what they believed it showed. In counsel's submission, with the benefit of those directions, it was 'highly unlikely' that the jury would have acted on the informant's expressions of opinion as to what had occurred and so, therefore, 'highly unlikely' that the evidence would have made a difference to the outcome of the trial.

13 I do not accept the argument. The jury were not directed to disregard the informant's opinions; as clearly they should have been. To the contrary, the judge compounded the problem by summarising the informant's opinions as part of the evidence to which the jury should have regard. And, in directing the jury on specific intent, her Honour stated that:

Senior Constable Mitchell described the conduct of the accused when he witnessed the CCTV footage, as a deliberate act when the accused pulled Paterson in and then slashed him.

14 When that misdirection is combined with the fact that the informant spoke with the apparent authority and reliability of a police officer, there is every reason to suppose that his assertions of opinion may have had a significant influence on the minds of the jury.[4]

15 In directing the jury on self-defence, the judge told them that:

The law says that people who start an attack cannot then claim that they acted to defend themselves against a counterattack, unless their original aggression had ended at the time of that counterattack...However, if the[y] end their aggression but are then required to defend themselves against a new attack, the law allows them to raise self-defence.

You will, therefore, need to determine whether the accused started the attack in this case, and if so, whether he ended his aggression by the time he says he defended himself.

If the prosecution has proven beyond reasonable doubt, that his aggressive behaviour had not ended at the relevant time, then you must find that he did not act in self-defence. Here, the prosecutor submitted that the acts of the accused amounted to escalating aggression. He was armed even before there was any threat of physical violence upon him and he was ready to attack with a weapon.

16 Defence counsel quite properly took exception on the basis that so to direct the jury was likely to lead them to conclude that, if the appellant started the verbal confrontation which ultimately led to Paterson being injured, the appellant was not entitled to defend himself against Paterson's physical attack. The judge declined to redirect. She should have done so.

17 Presumably, what her Honour intended to convey was the substance of Wilson, Dawson and Toohey JJ's observation in Zecevic v DPP,[5] that:

There is, however, one situation which requires particular mention. It should, we think, be regarded as raising only evidentiary matters to be considered in arriving at an answer to the ultimate question, although in the code States it is treated as raising matters of law... Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it. Indeed, even in circumstances in which the accused was not the original aggressor, retreat in the face of a threat of violence before resort to force may be relevant to the belief of the accused or the reasonableness of the grounds upon which the accused based his belief. There is, however, no longer any rule that the accused must have retreated as far as possible before attempting to defend himself. It is a circumstance to be considered with all the others in determining whether the accused believed upon reasonable grounds that what he did was necessary in self-defence ...

18 The trouble with her Honour's direction was that it misrepresented the effect of that observation in three respects. First, when Wilson, Dawson and Toohey JJ spoke of an accused person being the original aggressor, their Honours were speaking of aggression which involved the use of force; not just any aggressive behaviour as the judge's direction suggested.

19 Secondly, Wilson, Dawson and Toohey JJ did not say that the self-defence is not open unless an accused who is the original aggressor ceases to behave aggressively 'before the relevant time'. Their Honours said that, if an accused is the original aggressor (in the sense of committing the first aggressive violent act), it is relevant for the jury to consider whether the 'extent to which' the original aggression ceased before the accused committed the act of violence with which he is charged; and that its relevance is that rationally it bears on the assessment of whether the accused could have formed the view on reasonable grounds that it was necessary in self-defence to commit the act with which he was charged.

20 Thirdly, and most importantly, Wilson, Dawson and Toohey JJ did not say that an accused who is the original aggressor cannot in any circumstances come honestly to the view on reasonable grounds that it is necessary in self-defence to commit the act with which he is charged. They made plain that in each case the question of whether the Crown has excluded self-defence depends on all the circumstances of the case.

21 The Crown contended that it was never its case that the appellant should be seen as the original aggressor merely because he took the two chairs and thus initiated the subsequent disharmony. Rather, the Crown said, its case was that the appellant's overall conduct should be characterised as one of escalating aggression from start to finish which in aggregate pointed against the appellant believing on reasonable grounds that he needed to defend himself in the way he said he did.

22 I allow that may be so. But for present purposes it makes little difference. It does not exclude the reasonable possibility that the jury took the judge's direction to mean that, because the appellant started the contretemps by taking two chairs from the other party's table, or perhaps by yelling verbal abuse at the other party or perhaps even by throwing food at them, he was the original aggressor and therefore could not rely on self-defence as a justification for committing the act with which he was charged.

23 The Crown further contended that, because the jury were directed that self-defence could apply if the original aggression had ceased by the time the accused committed the act with which he was charged, there was no possibility of the jury having proceeded on the basis that, if the appellant started the aggression, he was automatically disqualified from relying upon self-defence.

24 I do not think that to be an answer either. The problem at this point of the argument is not that the jury may have considered that self-defence was automatically excluded if the appellant was the original aggressor; but rather that the jury may not have understood that, even if the original aggression had not ceased, the appellant may still have acted in self-defence in response to Paterson's physical rush towards him, if he believed on reasonable grounds that it was necessary in self-defence to react as he did.

25 The Crown pointed to the fact that, after defence counsel took exception to the direction, the judge redirected them that the appellant did not attack Paterson with a knife before the injuries were inflicted, and that defence counsel did not then take further exception. Perhaps that implies that defence counsel considered the re-direction was sufficient to cure the problem. But I do not accept that it did. The jury were fundamentally misdirected on an aspect of the law of self-defence which was critical to the defence. Merely to tell them that it was not alleged that the appellant used a knife before the act with which he was charged was a long way short of overcoming the problem. The appellant was entitled to have the jury correctly directed. As McHugh J said in BRS v The Queen:[6] 'If the failure to give a required direction may have brought about the accused's conviction, there is a miscarriage of justice'.

26 Finally, the Crown contended that, when the judge's charge is read as a whole, it is clear that the jury were instructed to consider all of the surrounding circumstances on the issue of self-defence, including the conduct of the complainant.

27 I do not think that overcame the problem either. Although the judge did tell the jury to consider all of the circumstances, it remains that, by directing them as to the significance of the original act of aggression as her Honour did, she encouraged them to conclude that, despite all the circumstances, self-defence was not available if the original act of aggression had not ceased by the time the appellant committed the act of violence with which he was charged.

Ground 4 - Failure to summarise the evidence and counsel's arguments

28 For completeness, I add that the appellant's complaint under the heading of Ground 4 was that the judge failed sufficiently to summarise the evidence and counsel's arguments. In case it matters, I do not think the complaint has any merit. Her Honour's summary of the evidence and arguments was assiduous. The only problems with her directions were those I have mentioned.

29 On 27 October 2010, after a trial lasting ten days, the appellant was convicted of one count of causing serious injury intentionally. On 29 November 2010, he was sentenced to be imprisoned for eight years and six months, and a period of six years was fixed before he would be eligible for parole.

30 By Notice dated 23 December 2010, the appellant made application for leave to appeal against conviction and sentence. On 29 July 2011, he was given leave to appeal against conviction and sentence.

31 The grounds of appeal against conviction set out in the written case of the appellant for leave were:

(1) The learned trial judge erred in allowing the informant Senior Constable Mitchell to give evidence of his observations of CCTV footage that was irrelevant or inadmissible opinion evidence

(2) When directing the jury on the issue of intent, the learned trial judge erred in referring to the evidence of the informant that the accused had acted in a 'deliberate' manner, and in failing to direct the jury to disregard that purported evidence.

(3) The learned trial judge erred in directing the jury on self-defence with regard to the appellant's purported role as an original aggressor.

(4) The learned trial judge erred in not adequately summarising the evidence of the submissions of counsel for the appellant in the charge to the jury.

(5) There was a miscarriage of justice due to an aggregation of errors by the learned trial judge.

32 Detailed written submissions had been filed in support of the application for leave and were relied upon on the hearing of the appeal. In oral argument, Grounds 1 and 3 were principally relied upon, although Grounds 1 and 2 are necessarily related.

33 In accordance with the rules, the respondent had filed a written response to the then applicant's case.

34 It was conceded by the respondent that the evidence of the informant referred to in Grounds 1 and 2 should not have been admitted, but it was submitted that there was no miscarriage of justice.

35 The facts alleged by the prosecution were that the appellant had caused serious injury to the complainant by inflicting a cut across his back by slashing him with a knife. The incident which gave rise to the allegation occurred at the Burvale Hotel in Nunawading on 27 February 2009. At about 6.30pm, the appellant took two chairs from a table occupied by Ms Alana Skelsey and friends. He took the chairs to another table where he and his girlfriend sat down and started to eat their meal. Ms Skelsey came over to the table and demanded the return of the chairs. At that stage, the complainant, Paterson, was in the toilet. It was alleged that the appellant swore at Ms Skelsey, who then took some chips from the appellant's plate and returned to her table. The appellant and his girlfriend then went to the other table and confronted Ms Skelsey. A verbal altercation followed between those three and another person who was at that table. When Paterson returned from the toilet, he became involved in the argument. The appellant was observed to have a knife (or box cutter) behind his back. After returning to his own table, the appellant threw food at the complainant's table and the complainant reacted by moving towards the appellant, who grabbed him and pulled him forward and down, and was seen to move his hand across the back of the complainant in a slashing motion.

36 The complainant was attacked by another member of the appellant's party when he was on the ground. The complainant suffered two injuries to his back; a 35 centimetre to 40 centimetre laceration from shoulder to shoulder and an eight centimetre laceration to his lower back. The complainant required his wounds to be cauterised and stapled, and he was in hospital for four days.

37 The real issue in the trial was whether or not it had been proved by the prosecution that the appellant was not acting in self-defence.

38 The incident itself had been recorded by way of closed circuit television ('CCTV'). The footage had been placed onto a DVD and became Exhibit 'C' at the trial.

39 Counsel for the appellant objected to the footage being shown to the complainant, but the trial judge allowed the footage to be shown. The footage does not appear to have been shown to the witnesses Skelsey, Beaton (who was an eye witness) and Banger (who was a security guard at the hotel).

40 When the informant came to be called, defence counsel objected to him giving evidence about what he saw on the CCTV footage. The submission was put on the basis that such commentary was irrelevant, it being for the jury to decide what could be seen on the tape.

41 The prosecution relied upon the definition of 'relevant' contained in s 55 of the Evidence Act 2008 and went on to submit 'it would leave a large hole in the informant's evidence to take out the part where he actually is sitting down viewing the CCTV footage taking notes as to what he is actually viewing'.

42 The following discussion then took place between her Honour and defence counsel:

HER HONOUR: Yes. Look, we're going to stop because we're up against time, I have absolutely no difficulty with what is being proposed, there is no valid objection to be taken, I'm sorry.

MR LANGSLOW: So Your Honour's saying that that s.55 applies here, I put it that it has nothing to do with this question, but if Your Honour is saying it does, then that's your ruling, I follow that.

HER HONOUR: It's the basis upon which the CCTV footage will be properly tendered as part of the investigation. The informant, as I understand it, is going to be asked what he did, and part of what he did was to view the footage, and on the basis of what he believed he saw, he took certain action.

Now the jury might say, 'well, I don't see that. Why on earth did he take that action?' I mean, it's entirely a matter for them. This is not telling the jury this is what you shall see. That's not the point of it at all. It is to give evidence, as I understand it, as to the process of the investigation. A perfectly proper course of proposed examination.

43 No authority was put before her Honour and she may well have been assisted by reference to what the High Court had said in R v Smith.[7] In that case, the majority[8] of the Court found, in analogous but not identical circumstances, that such evidence was not relevant. Kirby J found that the evidence could be relevant as opinion evidence but that the police officers in that case were not qualified to give opinion evidence.

44 Even in the absence of authority, it seems to me that evidence of what the police officer can say about what he sees is irrelevant to any issue in the trial. It will be for the jury to find what can be seen. It may be possible for a police officer to give evidence about who the relevant 'dramatic personae' are on the tape, but that would usually be done by consent. Otherwise, those who appear on the tape could give evidence of their own identity and their actions. Other eye witnesses could use it as part of the evidence of what they saw in the same way that they could refer to a plan or photograph. Unless there is some challenge to the manner of the investigation of what the informant saw or thought he saw or his interpretation of it is equally irrelevant for the purposes of the trial. It was sufficient for him to say that before proceeding with the investigation he watched the tape.

45 The informant gave evidence, apparently without reference to the CCTV footage, as to what could be seen on it. Some of his descriptions of the events appear to involve both what he had seen on the CCTV footage and what is in still photographs taken from the tape. He gives a detailed description of what he says occurred before and at about the time the complainant receives his injuries. He said, as part of the description of events leading up to the alleged offence:

So who comes down?---Mr Paterson does, comes down, because of his height difference, he rushes towards Mr Anandan, and I then think that Mr Anandan, I think it's his left hand pulls his head down towards him and that's when his right hand comes around and I believe that's when the injury is caused.

And what are you - you've just motioned a particular movement with your hand?---Yes.

What was that?---That's as - as Mr Paterson is rushing at Mr Anandan I think he sort of in some way got him around the head like that and then his back's exposed, and that's when his arm's come around and that's when I believe the injuries have been caused with a sharp object.

Can you give an indication of what occurs after the rushing on Mr Paterson, in terms of anything else - - -?---Yeah my interpretation of it is when Mr Paterson runs - - -

MR LANGSLOW: Your Honour I have to object. It's not this man's duty - - -

HER HONOUR: Yes I agree, just describe - - -?---Sorry ma'am.

- - - what you actually saw?---Sorry ma'am. Yes ma'am, what I saw is Mr Paterson rushing towards Mr Anandan and I saw Mr Anandan pull what I - pull Mr Paterson's head down and then his arm goes across and that's when I believe it goes from one side to the other with his back exposed. That's when I believe - well that's when the injury occurs.

MS VAVOULIS: So when Mr Paterson is on the ground, in terms of footage you've indicated that it was Mr Ferman, so have you identified as delivering blows?---Mr Ferman, ma'am, yeah.

47 Counsel for the appellant was faced with a difficult task of cross-examining the informant as to his evidence about the footage. The following passage shows the difficulty.

MR LANGSLOW: Well do you say that Anandan went backwards at all so far as you could tell?---Well I think he may have had to steady himself.

May have had to steady himself, and about the only thing he could grasp, no doubt, was the man who rushed him, isn't that right?---That's his interpretation, not mine, I don't think I can give that evidence, Ma'am.

Is that your interpretation too?---No, it's not.

No?---No. My interpretation is that when he's been rushed, I would say it's a deliberate act when he's pulled him in, and then cut his back, that's my interpretation.

48 That particular answer was not responsive to the line of cross-examination being pursued by counsel.

49 As I have already pointed out, the respondent accepts that the procedure adopted which forms the complaint in ground one was not appropriate. It was, however, further submitted that no miscarriage flows from the error.

50 The situation is more complicated than that because ground two directly raises at least one of the difficulties which arises from the procedure which was followed.

The prosecution says there is no reasonable basis for having a belief of that kind, that he was in danger, that he was needing to use a knife to defend himself. Again it is a matter for you to take into account in terms of all of the circumstances of the case.

You heard from the informant Detective Senior Constable Raymond Mitchell with 21 years of experience, he gave his account in terms of what his understanding was of this type of - of the conduct of Mr Anandan.

When he was asked by Mr Langslow in relation to what his interpretation was of - sorry the question was, 'Well, do you say that Anandan went backwards at all so far as you could tell?' And the answer was, 'Well, I think he may have had to steady himself', and then the question again, 'May have had to steady himself, and about the only thing he could grasp no doubt was the man who rushed him, isn't that right?' And Detective Senior Constable Mitchell says, 'That's his interpretation, not mine, I don't think I can give that evidence, Ma'am.' And then he is challenged, 'Is that your interpretation too?' And his answer is, 'No, it's not.' 'No.' 'No.' 'My interpretation is that when he has been rushed, I would say it's a deliberate act when he's pulled him in and then cut his back, that is my interpretation.'

Ladies and gentlemen of the jury, that is the interpretation that is rightly within and consistent with the evidence that you have seen in the last few days. Thank you.

52 Those remarks were at the very end of her address and were intended to convey to the jury that they could act on the opinion expressed. The material was being used in an argument to rebut the defence of self-defence. It was not admissible as evidence of the opinion of the officer, but was being relied upon in that way. It was not permissible.

53 In her charge to the jury, the learned trial judge said:

Members of the jury if you are satisfied beyond reasonable doubt that the accused participated in the physical assault upon the complainant as alleged, then the prosecution says to you that the only reasonable inference you will make, is that the accused intended to cause serious injury.

In this case the prosecutor submitted that the accused was the aggressor from start to finish. He carried two knives and simply waited for an opportunity to use them. Three witnesses saw the accused holding a knife and appearing to conceal it behind his leg. He behaved in an aggressive and confrontational manner right up to the time he slashed Paterson's back. Senior Constable Mitchell described the conduct of the accused when he witnessed the CCTV footage, as a deliberate act when the accused pulled Paterson in then slashed him.

Mr Langslow submitted that if you find that he did have a knife, you could find that he had the knife for deterrence and did not intend to use it at all, or cause any harm with it. Mr Langslow also submitted that the accused could have reacted involuntarily. That is a sudden reflex action, although you must note that Paterson did receive two lacerations.

54 That was not exactly the purpose for which the evidence had been used by the prosecutor, but the prosecutor had not separately dealt with the question of intent.

55 Counsel for the appellant took exception to what was said in the charge.

Then, Your Honour referred to, when dealing with Dr Glover, the question of opinion evidence and when witnesses were permitted to give opinion evidence and spoke about giving evidence, an expert giving evidence on the ultimate issue and then when you came to Mr Mitchell and the CCTV footage you said in relation to Mr Mitchell, that when he viewed the CCTV footage, he said that - gave his view - his opinion - as to what could be seen and as to whether the behaviour of the accused was deliberate.

Your Honour, it's not - that flies in the face; that fact that he was (A) Permitted to do it in the first place, give that sort of evidence in the first place and (B) Your Honour commented upon it, with apparent approval and not without any reservation - flies in the face of the expert evidence direction you gave and it's without even saying to the jury, Mr Mitchell's opinion about the behaviour of the accused is not either (A) Not admissible, which it isn't and (B) Is only his opinion.

Now, I simply put it, Your Honour, that it must be corrected and it should be indicated that the witness (1) Gave an opinion and gave an opinion on the ultimate issue and he is not qualified to give an opinion, nor is his opinion to be preferred or relied upon by the jury, and you didn't do that.

56 The prosecutor replied that since the evidence was only one of interpretation, it did not present any problem because the informant was not put forward as an expert.

The second matter in relation to Mr Mitchell, and I just say this in relation to other things that were said, I have no comment about the evidence that's been given. I gave that in the context of presenting submissions that had been made in final address, and I clearly prefaced that comment as 'in this case the prosecutor submitted'. And that was an example that had been given by the prosecutor. Now, it wasn't, I find it extraordinary that it's now being objected to, being an answer that was given in cross-examination. I mean, the witnesses were interrogated up hill and down dale about - Senior Constable Mitchell was - about what he saw on the CCTV footage, and to be now complaining about one of his responses I find frankly ingenuous. In any event, I gave no weight to that view.

MR LANGSLOW: Do you mean disingenuous?

HER HONOUR: Disingenuous, thank you. I am faithfully trying to present, not in total and in no way am I pretending that I'm giving a complete recitation of what was said yesterday. That was just one of the examples that had been given.

Secondly, when I made a reference to Mr Mitchell, what he observed the accused doing in the CCTV footage, he was cross-examined about that and gave the answer that the prosecutor referred to you. Of course, he was not giving evidence as an expert and what appears in the CCTV footage at the end of the day, is what you think it shows.

He was then taken through that CCTV footage for the purpose of identifying those things in it that he considered required further investigation. I am not going to take you through what he said. Again, what you see in the CCTV footage is what you see. The purpose of that evidence was to indicate the basis upon which the informant made further investigations and he has just given his view of what he believed appeared in the footage.

He was then cross-examined at some length about that and again, I just advise you that what he says appears in the footage, is entirely his opinion. What in fact appears in the footage, for your purposes, is what you say.

59 Her Honour did not at any stage say that it was not legitimate for the prosecution to rely upon the informant's interpretation of what was to be seen. It was left open to the jury that although it was for them to decide what was on the tape and for them to decide matters of evidence generally, that it may have been also open to them to be assisted in that task of deciding both questions of intent and self-defence.

60 In my view, once the evidence of interpretation had been given by the witness, it was incumbent on the trial judge to explain to the jury that the informant's interpretation of what could be seen was irrelevant. That would be so irrespective of whether the reply given by the informant in cross-examination was responsive or not.

61 The difficulty was, once the informant was allowed to give evidence of what could be seen on the CCTV footage, defence counsel was entitled to draw his attention to matters which counsel thought assisted the defence and at the time the impugned evidence was given, he was pursuing a line to do with what appeared on the footage. If any matter of interpretation was being invited, it related to what could be seen, not as to what the appellant intended.

62 Whether ground one would have succeeded separately from the evidence referred to, ground two is moot. It is sufficient to say that the process adopted was irregular and of little or no point. Defence counsel had correctly objected to the procedure. The procedure could not be justified as showing the course of the investigation. It was open for the informant to say that at any stage in the investigation he saw the CCTV footage and after that described the steps he took. If he was challenged as to the appropriateness of what he did in investigations, the jury could assess such criteria by reference to the footage. The informant's interpretation of it was simply irrelevant.

63 In my view, the whole procedure, together with the failure of the trial judge to deal with the evidence of interpretation, did occasion a miscarriage of justice and I would allow the appeal and order a new trial.

64 The case was to a large degree one about self-defence.

65 The prosecution had constructed its case by saying that the appellant had engaged in a course of conduct which was escalating accompanied by violence. He had taken the chairs, was abused by Ms Skelsey and returned to confront Ms Skelsey. He was seen at an early stage to be holding a knife, which he had when the complainant rejoined the group. Later, the accused threw some food, which continued the aggression. It followed on the prosecution's argument that the appellant was not really acting in self-defence and any aspect of self-defence was not based on reasonable grounds, particularly regarding the use of a weapon.

66 The case for the appellant was that he responded to the complainant rushing at him and the use of the weapon was justified because he had no way of knowing what the complainant was about to do.

67 In her charge about self-defence, her Honour said in part:

In this case you may consider that the accused had the opportunity to retreat or desist from any further confrontation, but failed to do so. Although the law does not require people to retreat from an attack before defending themselves, you can take into account a failure to do so when determining whether the accused believed that what he was doing was necessary in self-defence. A failure to take obvious evasive action is also one of the factors that you can take into account in deciding whether the accused's belief in the necessity of his actions, was based on reasonable grounds.

In this case you have also heard that it was the accused who started the confrontation with Paterson's girlfriend, by first taking the chairs and then responding in an abusive manner and escalating the confrontation when she took some chips.

The law says that people who start an attack cannot then claim that they acted to defend themselves against a counterattack, unless their original aggression had ended at the time of that counterattack. However, if [they] end their aggression but are then required to defend themselves against a new attack, the law allows them to raise self-defence.

You will, therefore, need to determine whether the accused started the attack in this case, and if so, whether he ended his aggression by the time he says he defended himself.

If the prosecution has proven beyond reasonable doubt, that his aggressive behaviour had not ended at the relevant time, then you must find that he did not act in self defence. Here, the prosecutor submitted, that the acts of the accused amounted to escalating aggression. He was armed even before there was any threat of physical violence upon him and he was ready to attack with a weapon.

Even if you determine that the accused had ended his aggressive behaviour, and so can legitimately claim that he acted in self defence, the fact that he started the confrontation will be one of the factors for you to consider in determining whether he believed that his acts were necessary. You can also take it into account in deciding whether the accused believed it was based on reasonable grounds.

In making your determination, you should take into account, matters such as the extent to which the accused declined further conflict, stopped using force or attempted to retreat. In response, Mr Langslow submitted that it was Paterson who was the aggressor, and he admitted that he intended to stop him, referring to the accused, and probably throw a punch. The accused was merely standing his ground.

Mr Langslow says that the CCTV footage only shows the accused reaching out to maintain his balance. He said that if he had knives, which he later threw away, this did not prove a guilty conscience of what happened earlier; merely did not want to be found with knives. Mr Langslow submitted that maybe the accused did have a knife, but you cannot see it clearly and should have a doubt about that.

68 The part of the charge referring to retreat was in accordance with the law. I doubt that it had much relevance to the present case, but it is of little consequence.

69 The next portion of the charge referring to the 'start of the confrontation' and that part which continued 'The law says' was not applicable to the case. The question of escalating violence was an argument about the facts. It had not been put that, as a matter of law, self-defence was not open, i.e. it was not a case where the appellant had behaved in such a way that self-defence was not open.

70 It is true that the paragraph which sets out the law was correct when such principles are applicable.

71 In the present case, the difficulty which arose was that once the trial judge had suggested that 'the confrontation' might have commenced with the taking of the chair, it was very difficult for the jury to give meaning to the phrase 'unless their original aggression had ended'. That was particularly so when the prosecution's argument had been that in a purely factual sense this had been an occasion of escalating violence.

72 Counsel for the appellant took exception to the charge and in relation to the position referred to above, the prosecution submitted that a redirection was appropriate.

73 Her Honour did redirect the jury. Her Honour said:

Finally, I did not say, but certainly did not mean to suggest that there had been an earlier attack by the accused person with a knife, before the final injury that occurred with the knife.

There was no suggestion by the prosecution and I did not mean, in any way, to suggest to you there was an earlier use of the knife. In fact, the complainant Paterson never saw a knife or never saw the accused threatening him with a knife and it certainly was not used in any earlier attack.

What I did refer to, was an earlier confrontation and other witnesses of course, the prosecution pointed out to you, saw the accused appearing to hide a knife behind his leg and other witnesses - I think Mr Mack referred to a scuffle going on between the parties and some physical confrontation at least, going on to that extent.

74 It followed that there was no instruction to the jury to disregard the earlier instruction that the appellant might have initiated the violence and would not have the defence of self-defence open to him 'unless their original aggression had ended at the time of that counter-attack'. The fact that there was no alleged previous knife attack was not to the point.

75 That is the context that the charge had also included the instruction:

If the prosecution has proven beyond reasonable doubt, that his aggressive behaviour had not ended at the relevant time, then you must find that he did not act in self defence. Here, the prosecutor submitted, that the acts of the accused amounted to escalating aggression. He was armed even before there was any threat of physical violence upon him and he was ready to attack with a weapon.

76 When later describing the prosecutor's submissions, her Honour continued to make reference to 'escalating aggression' shortly after the intended correction referred to above.

77 It was submitted on behalf of the respondent that the direction was accurate and since it contained a direction that if the original aggression had ceased, then self-defence could apply.

78 It was further submitted that the prosecution case at trial was not reliant upon the appellant being the original aggressor other than as part of the appellant's overall conduct.

79 In my view, no proper explanation was given to the jury that it was not part of the prosecution case that self-defence could not apply in this case because the appellant had been the original aggressor.

80 I doubt that this was a case which required a direction of the kind. There were three issues to be decided. On the whole of the evidence, could the prosecution prove that the appellant was not acting in self-defence at all because he was determined to get into a fight and use the knife. Or could the prosecution prove that even if the appellant was acting in self-defence to some degree, it was not necessary for him to do what he did (particularly use the knife) in self-defence. Finally, could the prosecution prove beyond reasonable doubt that the appellant's belief was not based on reasonable grounds.

81 I accept that after the directions were given, a jury might have believed that if the appellant had been the original aggressor as set out in the charge, he could not be acting in self-defence. It was open for the prosecution to put the case on the basis that on an examination of the whole of the evidence, the appellant was either not acting in self-defence or that any belief he held was not based on reasonable grounds. In this case, it was really the former. It followed because of the argument based on the evidence being advanced by the prosecution, the correct direction on self-defence was critical and no possibility of the jury acting on the misdirection should have been left open.

82 I am therefore satisfied that the directions gave rise to a miscarriage of justice.

83 I would allow the appeal on this ground also and order a retrial.

84 It is unnecessary to consider Grounds 4 and 5 on the appeal against conviction and the appeal against sentence.

85 I have been provided with a draft of the reasons of Coghlan AJA. I agree with the outcome he proposes, being that the appeal should be allowed on Grounds 1, 2 and 3 and that a re-trial be ordered. I wish to make some observations of my own about those three grounds.

86 As Coghlan AJA has described, Ground 1 concerned whether or not the informant should have been permitted to give evidence of what he saw on the CCTV recording of the incident, and in particular, his interpretation of the actions of the appellant where that recording was an exhibit in the trial and available for the jury to look at for themselves. The respondent conceded that this evidence should not have been admitted but argued that there was no consequential miscarriage of justice.

87 Ground 2 concerned the manner in which the trial judge referred to the evidence the subject of complaint in Ground 1 and the directions she gave (and those it is asserted she failed to give) to the jury about that evidence. Her directions were also argued to be erroneous and inadequate.

88 In my opinion, the evidence should not have been admitted and its admission and the manner in which it was later referred to have caused a miscarriage of justice.

89 The brief debate before the trial judge about the admissibility of this evidence was thoroughly misconceived and both the trial prosecutor and the trial judge misunderstood what was required to fulfil the requirements of relevance under s 55 of the Evidence Act 2008. As Coghlan AJA has referred to, the relevant principle was

plainly spelt out in the joint judgment in Smith v The Queen in the following terms[9]:

Because the witness's assertion of identity was founded on material no different from the material available to the jury from its own observation, the witness's assertion that he recognised the appellant is not evidence that could rationally affect the assessment by the jury of the question we have identified. The fact that someone else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for affecting the jury's assessment of the probability of the existence of that fact when the conclusion is based only on material that is not different in any substantial way from what is available to the jury.

90 In that case there had been an issue about the identity of one of the armed robbers involved in the offending and what the security camera which recorded the incident had shown. In this case there was not even that issue to explain why this evidence could have been thought to be admissible. The only basis on which its admission was justified was that the informant had viewed the CCTV footage as 'part of his investigations'. In her ruling the trial judge adopted that as a reason for its admission.

91 In my opinion, both the first and second grounds of appeal must succeed in relation to this evidence. As Coghlan AJA has described, it is the admission of the evidence (Ground 1) coupled with the manner in which both the prosecutor and the trial judge then later referred to it (Ground 2) which compounded the error and led to a miscarriage of justice.

92 In my opinion the submissions of the prosecutor on the topic of this evidence in her final address and the directions of the trial judge amounted to an invitation to the jury to substitute the evidence of the police officer about what he said he saw on the CCTV recording for their own analysis of the exhibit. Bearing in mind that the primary issue in the case was self defence and though it might be said it was a strong Crown case, the accused lost a chance of acquittal as a result of the admission and use of this evidence. The trial judge's directions were thoroughly inadequate to prevent a miscarriage of justice.

93 Ground 3 alleges that the trial judge's directions to the jury on self defence were in error. So far as this ground is concerned, I agree with the thrust of the submission of the appellant that the direction given by the trial judge concerning self defence and which Coghlan AJA has quoted in his reasons, may very well have led the jury to think that the appellant forfeited his legal entitlement to rely on the defence of self defence because he had 'start[ed] an attack'. That attack included the removal of chairs from the table of the victim and his friends and, later, the appellant being abusive. The misdirection, on its own, was such as to require the appeal to be allowed and a retrial ordered.

94 I therefore agree with the orders proposed by Coghlan AJA.

[1] It is not clear whether the judge considered requiring that an answer be given under the procedures provided for in s 128(4) of the Evidence Act 2008: Cureton v Blackshaw Services Pty Ltd [2002] NSWCA 187, [37] (Sheller JA).

[2] Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486, 491-2 (Dixon CJ).

[3] Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650, 654 [11].

[4] See and compare HG v The Queen [1999] HCA 2; (1999) 197 CLR 414, 429 [43] and [44] (Gleeson CJ).

[5] [1987] HCA 26; (1987) 162 CLR 645, 663.

[6] [1997] HCA 47; (1997) 191 CLR 275, 306.

[7] [2001] HCA 50; (2001) 206 CLR 650.

[8] Gleeson CJ, Gaudron, Gummow and Hayne JJ.

[9] [2001] HCA 50; (2001) 206 CLR 650, 655 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).