Beattie v R

Court of Criminal Appeal (NSW)|2021-09-17|Before: McCallum JA, Walton J, Fullerton J, Button J

Judgment

THE COURT: The applicant, Matthew Beattie, was tried in the Supreme Court of New South Wales for the murder of his close friend, Dennis O'Brien. It was not in issue in the trial that he committed the acts that caused Mr O'Brien's death. After consuming a vast amount of alcohol and various drugs over a period of around 18 hours, the applicant unexpectedly set upon his friend and beat him savagely, leaving him bleeding and barely conscious. Over the following days, Mr O'Brien appeared to be recovering but his condition deteriorated suddenly and he died in hospital about a week after the assault.
The applicant pleaded guilty to manslaughter in the presence of the jury but the Crown did not accept that plea in discharge of the indictment. The case for murder was put on the basis that the applicant committed the acts in question with the intention of causing really serious harm (it was not alleged that he had an intention to kill). The principal issue in the trial was whether the Crown had proved the element of intention beyond reasonable doubt having regard to the applicant's intoxication at the relevant time.
The trial proceeded before Button J over three weeks in March 2015. After deliberating for two days, the jury returned a verdict of guilty of murder. The applicant was sentenced to a term of imprisonment for 20 years with a non-parole period of 15 years commencing on 7 July 2013, the date on which he handed himself in to police after learning that Mr O'Brien had died. The applicant now seeks leave to appeal against his conviction. There is no appeal against the sentence imposed.
The single ground of appeal is: "A miscarriage of justice resulted from the trial judge directing the jury that they should decide the extent of the applicant's intoxication and the effect it had on the mind of the [applicant]."

Requirement for an extension of time

The appeal was not commenced within three months after sentence (as required under r 3B of the Criminal Appeal Rules) and indeed involved a lengthy delay after that time. The notice of appeal was filed on 20 April 2021, some five and a half years out of time. An appeal filed a year earlier had to be withdrawn when counsel became unavailable owing to the constraints on travel imposed during the COVID-19 pandemic. Even that earlier appeal was commenced four and a half years out of time.
An account of the reasons for the delay was provided in the affidavit of Seemab Awan dated 20 April 2021. The affidavit identified a series of difficulties including a period of two years of complete inattention to the case on the part of the applicant's previous solicitor (not the solicitor who acted for him on the present appeal). Unfortunately, that is not an uncommon experience in this Court. Such delay is always regrettable and may in some cases have professional implications for the lawyers involved but should not stand to the prejudice of a convicted person who has grounds for an appeal. During the period in question, the applicant made a number of inquiries as to the progress of his appeal. The true state of affairs does not appear to have been conveyed to him in response to those inquiries. More recently, the prosecution of the appeal has been delayed primarily by the withdrawal of the initial grant of legal aid (following the inaction of the previous solicitor) and difficulties encountered by the applicant's current solicitors in obtaining advice and a further grant of aid. The single ground of appeal now pressed raises an important question. The required extension of time should be granted.

Circumstances in which the charges were brought

The deceased lived in Nelson Bay with his partner and her children. The applicant's wife, Simone Beattie, was a long-time friend of the family. She arranged for her and the applicant to visit them for the weekend together with the deceased's mother, Lisa Carr. They left Sydney on Friday 28 June 2013, arriving at Nelson Bay that night. They planned to stay with the deceased's family for the weekend and watch the deceased play football on the Saturday afternoon.
Over the course of the following day and night, the applicant consumed somewhere between about 30 to 40 alcoholic drinks. He also took amphetamines, his prescription medication and a Xanax tablet. He began the day with a trip to the local tavern at 9am with his wife and the deceased. The deceased was not drinking alcohol at that time because he was due to play football later in the day. The applicant had two or three vodka and apple juice drinks. The group returned to the tavern for lunch where the applicant drank a further five vodka and apple juice drinks. In the afternoon he went to watch the deceased play football, during which time he drank four vodka cruisers and perhaps two beers or cans of pre-mixed Jim Beam and Cola. He also took amphetamines during the football game. He estimated that he had "a couple of points of speed". His wife thought they took amphetamines twice, a couple of points each time.
After the football game, the group returned to the tavern for dinner and drinks. The applicant, Ms Beattie and the deceased bought five or six rounds of drinks. At about 11pm the applicant and the deceased went to the RSL club where the applicant had another four or five drinks. At 1am, security staff asked them to leave but they refused. Police were called and escorted them from the premises. The applicant's evidence in the trial was that he was "blind drunk" at that time. Police described him as being loud and aggressive and said that he appeared to take photos of them on his phone, saying "this is for my barrister, you're gone".
The two men were collected by Ms Beattie and Ms Carr. Ms Beattie assessed the two men as being extremely drunk at that time. They returned to the deceased's house which had a self-contained granny flat on the bottom floor. The applicant went down to the flat and took a Seroquel, some Sodium Valproate and a Xanax tablet. He then went back upstairs where the deceased poured them more vodka drinks. The applicant said that the deceased was mucking around feeding him corn chips. He gave evidence that he had no memory of events from that point until the following afternoon when he woke up in a police cell. He woke up with swollen, cut hands but did not know why. He was permitted to call his wife and told her he thought his hand was broken (he was right). She said, "never mind about your hand" and told him he had "bashed" the deceased.
In the absence of any recollection of the assault on the part of the applicant, the main evidence as to what happened after the men returned to the flat came from Ms Beattie and Ms Carr. The applicant's wife gave evidence that, while the men were drinking upstairs, the applicant told her that he was seeing someone else. She became upset and went into another room where she hid and overheard the applicant telling the deceased he had only said that to her to see if she would reveal that she was seeing someone else.
The applicant and deceased then went downstairs. At one point they went into a courtyard outside the granny flat where the applicant had a cigarette. Ms Carr, who was then on the veranda upstairs, overheard them saying to each other "I love you bro". The men then went back inside the granny flat. Ms Carr said at that stage their voices became loud and argumentative so she and Ms Beattie went downstairs and opened the door to the granny flat. Ms Carr saw the two men with their foreheads pressed together. The deceased said "I love you bro" again. Ms Beattie heard the deceased ask the applicant why he had not heard from him lately. The applicant responded, "well how do you think I feel, people telling me that my best mate dogged me and set me up being robbed?...Did ya?...You did, didn't ya?".
The applicant then headbutted the deceased and started punching him repeatedly in the head. The deceased did not fight back. Ms Beattie yelled for the applicant to stop and swung her bag at him but it broke. Ms Carr said, "stop Matt stop" and picked up a child's scooter with which she hit him a number of times but he continued the assault. She then tried to pin him against the wall with the scooter but he pushed her aside. Ms Beattie said, "Matt stop think of [our son]". She repeatedly said their son's name but the applicant did not react. She said "he turned and looked straight through me like I was not even there". The deceased ended up lying on the ground where Ms Carr saw the applicant kick him to the stomach area and twice to the head.
Ms Carr and Ms Beattie ran upstairs and called the police. The deceased's partner had by that point been woken up by the noise and had joined the other two women. Sergeant Allwood and Constable Cook arrived and, through the partly glass door downstairs, saw the applicant kicking the door frame while the deceased lay on his back. The applicant was aggressive and abusive to police and refused to let them into the room. Sergeant Allwood said "Mate, open the door so we can help your friend. He looks hurt to me". The applicant responded, "He's all right" and tried to pull the deceased up by his arms, saying "Get up you cunt. You're all right mate". However, the deceased's head flopped back and he appeared unconscious. The applicant then let him drop back to the floor.
Police decided to force entry and drew their batons for that purpose. At that point, the applicant opened the door. After taking an aggressive stand against police, he was subdued and arrested. He remained aggressive towards police and had to be handcuffed. When cautioned by police, the applicant said "You won't get anything out of anyone. You got nothing". Between the time when Ms Carr and Ms Beattie left the granny flat and police entered, furniture had been thrown about and the room was in complete disarray. The deceased's injuries included a distinctive mark on his leg where he appeared to have been jabbed with the base of the pedestal of a portable fan.
As already noted, the principal issue at the trial was whether the applicant had the intention to cause grievous bodily harm to the deceased given the extent of his intoxication. Two expert witnesses, Dr Yvonne Skinner and Professor MacDonald Christie, were called to give evidence on that issue. As the ground of appeal is confined to a complaint concerning the trial judge's directions, it is not necessary to summarise their evidence in detail.
The evidence was directed primarily to the issue whether the applicant was so intoxicated as to be incapable of forming the necessary intent. The expert called by the Crown, Dr Skinner, expressed the opinion that he was not. Dr Skinner is a psychiatrist. It was her opinion that the applicant was more affected by stimulants (amphetamines) than alcohol at the relevant time. Based on his words and conduct at the RSL Club at around 1am, back at the house at around 3am when the assault occurred and at the Police Station at around 4:30am after the assault, she considered that the applicant was capable of forming an intention to cause really serious physical injury to the deceased at the time of the assault.
Professor Christie was called by the accused. He is a professor of pharmacology at the University of Sydney. He explained that pharmacology is the study of the actions of drugs on the body including the brain. He did not think it was possible to come to a view one way or the other as to whether the applicant had the capacity to form the intention to cause serious harm to the deceased at the relevant time. He thought the applicant must have had an extremely high blood alcohol reading by the time of the assault. He considered that the applicant's intoxication would have had a substantial effect on his ability to reason. He explained that, although experienced drinkers can develop a tolerance to alcohol, they cannot overcome the deficits it creates in thinking and reasoning. He also explained that the effect of amphetamines, being stimulants, can be to mask the true level of drunkenness. Professor Christie also expressed the opinion that the Xanax, also known as Alprazolam, would have made the effects of the alcohol on thinking and reasoning even worse. He expressed the opinion that it would be possible for an extremely intoxicated person to punch and kick another person repeatedly, being aware that they were punching and kicking but unaware of what the consequences of the punches and kicks might be.

Requirement for leave under rule 4

As already noted, the sole ground of appeal is that a miscarriage of justice resulted from the trial judge "directing the jury that they should decide the extent of the appellant's intoxication and the effect it had on the mind of the appellant".
Trial defence counsel took no objection to the judge's summing up and indeed consented to the terms of the written direction complained of by the applicant (considered below) before that document went to the jury. Accordingly, the ground relied upon by the applicant cannot be allowed as a ground of appeal without leave under r 4 of the Criminal Appeal Rules.
The absence of any objection to directions to the jury on the part of trial defence counsel can be taken into account as an indication that there was no injustice to the accused in the atmosphere of the trial: Greenhalgh v R [2017] NSWCCA 94 at [42]. That said, it is accepted that the discretion to grant leave under r 4 will be exercised in the applicant's favour where there has been a miscarriage of justice such that he or she has lost a real chance of acquittal: Obeid v R [2017] NSWCCA 221 per Bathurst CJ at [24], Leeming JA, R A Hulme, Hamill and N Adams JJ agreeing at [291], [336], [470] and [474]. The Crown accordingly accepted that it would be necessary for the Court to consider the merits of the argument in order to determine whether leave under r 4 should be granted.

Was there a misdirection?

The applicant acknowledged that the trial judge's directions were consistent with the NSW Criminal Trial Courts Bench Book at [3.255] which offers the following suggested direction: "[3-255] Suggested intoxication direction - offence of specific intent Whether [the accused] was affected by [alcohol/drugs] at the relevant time and the degree of that intoxication are issues for you to decide… Having considered the evidence and arguments on this issue, the question for you is whether, having regard to the evidence of [the accused's] intoxication, you find the Crown has proved beyond reasonable doubt that [he/she] acted with the intention to [specify the specific intention]."
The fact that a direction is suggested in the Bench Book does not mean its use cannot give rise to a miscarriage of justice. As we will explain, we do not think the suggested Bench Book direction is wrong but the applicant's argument goes further than that. The Crown accepted that, if the premise of the applicant's argument were established, it would follow that the appeal must be allowed. That is because the alleged misdirection goes to the onus and standard of proof on the critical issue in the trial. A trial that involved a misdirection on such an issue would not be a trial according to law. Accordingly, the critical issue in the appeal is whether the effect of the judge's directions was as contended by the applicant.
It is trite that the effect of the summing up must be determined by considering the written and oral directions taken as a whole and in the context of the conduct of the trial. A single phrase may be misconstrued if taken out of context. The Crown submitted that, considered as a whole, the summing up in the present case conveyed no misdirection.
The Crown noted that correct general directions were given in relation to the burden and standard of proof which were repeated multiple times throughout the summing up, including in the impugned directions (considered below). It was noted that the jury was properly instructed that the onus of proof did not shift in relation to evidence adduced by the applicant. Those directions included the following statement: "[T]he question for you is taking into account all of the evidence in the trial, including the evidence in the defence case of the accused and of Professor Christie, has the Crown proven the crucial mental element that is in dispute beyond reasonable doubt?"
The Crown further noted that a correct direction was given as to the Crown's reliance on circumstantial evidence to prove the element of intention. That direction made clear that it was necessary for the Crown to establish that the only reasonable inference to be drawn from the material was that the applicant possessed the necessary intention. On that issue, the trial judge said: "[Y]ou must consider and decide whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion that the Crown submits is established, of guilt."
To those points may be added that the directions of which the applicant complains were given in the context that the jury had repeatedly been told that they were the judges of the facts and that the facts were for them alone to determine (in both a written direction, "document 3 to the jury", and in the judge's summing up).
The applicant did not dispute the correctness of any of those directions. He submitted that the alleged misdirection was conveyed by a separate written direction provided to the jury and the way in which it was expanded upon in the trial judge's summing up.

The written direction

The written direction (MFI 17, "document 4 to jury") stated: "Any intoxication that you find was affecting the accused at the relevant time can be taken into account by you with regard to whether the Crown has proven an intention to cause really serious physical injury. Intoxication can be taken into account both for and against the Crown case."
The problem was said to lie in the reference in the opening words to what the jury might "find" and the reference in the concluding words to taking matters into account "against the Crown case". The applicant accepts that there was no error in the direction insofar as it concerned reliance by the prosecution on evidence of intoxication (for example, reliance on the consumption of amphetamines as a factor contributing to aggression). However, he submitted that it was erroneous "to direct the jury to adopt the same approach with respect to the defence reliance on the evidence of intoxication".
The submission reads too much into those few words, shorn of the context in which they were used. As already noted, the direction was given in the context that the jury had repeatedly been told that they were the judges of the facts, or that it was their role to determine the facts, and that the Crown bore the onus of proving the essential elements of the offence beyond reasonable doubt. The direction did not say anything about the approach the jury should take to its task of making an assessment of the evidence except to say, in effect, that intoxication was relevant to the element of intention. It did not direct the jury to take a staged approach. It did not say anything about onus or anything to derogate from the directions already given about onus. It simply expanded upon the proposition that intoxication was relevant to the element of intention by noting that it was a factor that could both support and undermine the Crown case on that issue.
The direction was correct in that respect. This was a trial in which the evidence of intoxication cut two ways. Both experts gave evidence that amphetamines increase aggression. That evidence could be taken into account for the Crown case because it tended to support an inference that the applicant's expression of affection for the deceased when their foreheads were pressed together quickly converted to uncontrolled and sustained aggression when he accused the deceased of "dogging" on him. There was also evidence, including CCTV evidence, to suggest that intoxication contributed to the applicant's aggressive stance towards police at an earlier point in the evening when the two men were asked to leave the premises of the RSL Club. Conversely, both experts gave evidence that alcohol depresses or impairs cognitive function. That evidence could be taken into account against the Crown case because it tended to undermine the Crown's contention that although the applicant was heavily intoxicated at the time of the fatal assault, his repeated punches and kicks to the head of the deceased, including when the deceased was on the ground, were accompanied by an intention to cause him really serious physical injury even if he had no memory of having done so.

The oral directions

The trial judge expanded upon the written direction in MFI 17 in his summing up. The applicant submitted that "the misdirection identified in MFI 17" was "repeated" in those oral directions. He relied on the following passage from the summing-up: "I am sure you appreciate by now that the issue of intoxication by way of alcohol, prohibited drugs, prescribed drugs, that was affecting the accused at the time of the assault is a very important part of the evidence with regard to the question of whether the Crown has proven that the accused had this particular intention. Intoxication by alcohol, or prohibited drugs, or prescribed drugs, or anything else is not some sort of defence or excuse that the criminal law permits an accused person to rely upon. Rather, intoxication is evidence. By that I mean, evidence of intoxication can be taken into account by a jury in determining whether or not the Crown has proven a mental element of an offence such as murder. It goes without saying that you 12 as the judges of the facts will determine whether the accused was intoxicated at the time, by alcohol, prohibited drugs, prescription drugs or anything else. And, if so, you 12 will determine what effect, if any, that intoxication had upon the state of mind of the accused. To be clear, it is not a matter of deciding whether the accused was capable of forming the intention under discussion, bearing in mind any intoxication. That is just something that you may think about in your deliberations. I repeat: the central question is whether the Crown has proven beyond reasonable doubt that at the relevant time the accused actually did have an intention to cause really serious physical injury. Now, any intoxication that you find existed can be used by you for or against the Crown case. By that I mean, any intoxication by any substance that you find existed could lead you to find that it supports the proposition that the accused had the necessary intention. On the other hand, it could lead you to find that it points away from that proposition. As ever, those questions are for your resolution, members of the jury."
The Crown noted that this passage was one of the many occasions on which the trial judge repeated his general directions in relation to the onus and standard of proof ("I repeat: the central question is whether the Crown has proven beyond reasonable doubt that at the relevant time the accused actually did have an intention to cause really serious physical injury").
The applicant submitted that the import of those directions was to direct the jury to approach the issue of intoxication in two stages, first making a factual determination as to the extent of intoxication and its impact on the applicant's awareness of the likely consequences of his actions and only then turning to consider, in light of that determination, whether the element of intention was proved. The applicant submitted that, in dealing with the defence case as to the extent of his intoxication and its impact on his state of mind at the relevant time, the only question the jury should have been deciding was whether or not the evidence caused them to have a reasonable doubt as to an element of the offence.
Perhaps putting the same proposition in different terms, the applicant submitted that the instruction that the jury "will determine whether the accused was intoxicated… [and] will determine what effect, if any, that intoxication had" amounted to a direction to determine the existence of an intermediate fact before considering whether the Crown had proven beyond reasonable doubt that the applicant had the requisite intention.
In our assessment, those words would have been understood simply as a recognition of the jury's role as the sole judges of the facts. The phrase "any intoxication that you find existed" is the kind of language used in a summing up out of caution, to avoid any suggestion of interference by the judge in the jury's fact-finding role. The judge had been careful to explain their respective roles. That explains his choice of words "it goes without saying that you 12 as the judges of the facts will determine whether the accused was intoxicated at the time". In other words, "that is a matter for you, members of the jury, not me".
The applicant also relied on the last paragraph, which was a paraphrase of the written direction considered above. It may be accepted that the oral version more directly linked the prospect of making a finding as to the extent of intoxication ("any intoxication that you find existed") and its impact on the accused's state of mind with the possibility of use against the Crown case. However, it strains the words to read them as a direction or suggestion that the jury needed to make those findings as a gateway step before they could turn to consider the applicant's arguments. Again, the submission reads too much into the words used. In the concluding paragraph, the judge said, "any intoxication by any substance that you find existed… could lead you to find that it points away from [the proposition that the accused had the necessary intention]". In the context of the clear directions as to the respective roles of judge and jury and onus and standard of proof, we are not persuaded that those remarks would have been misconstrued as contended by the applicant.
Further, the argument assumes that the jury would have understood the notion of using evidence "against the Crown case" as an indication that the applicant bore an onus to establish his defence. Taken in isolation, the words "against the Crown case" might be taken to refer to a case for the accused but it is a significant leap to construe those words as having anything to say about onus. With respect, the submission reflects an overly lawyerly analysis. It is difficult to conduct a criminal trial without referring to "the case for the accused" as well as the Crown case. It would not necessarily be inferred from the fact that an accused person has presented or argued a particular case (as opposed to merely putting the Crown to proof) that they bear an onus. No general principle can be stated here; the impact of the particular directions must be assessed in each case.

Directions in other cases

As already noted, the applicant offered as an example of an appropriate direction the direction considered in Hayes at [51]. The circumstances of that case were so different from the present as to make the comparison, with respect, unhelpful. The principal point for which the applicant relied on Hayes was the fact that the trial judge told the jury that, if they excluded it as a reasonable possibility that the accused was affected by amphetamine at the time of the fire, they did not need to consider intoxication further. The example illustrates the importance of considering the fairness of any direction in the context in which it was given. In Hayes, the accused did not rely on intoxication; his case was that he had nothing to do with the fire. The trial judge nonetheless felt compelled to direct the jury on intoxication because it was raised on the evidence. On the one hand, it follows that the direction was all the more important in the present case, where intoxication was the central issue, but the two cases raised completely different issues. Really, the only point to be taken from Hayes is the fact that the direction reiterated the requirement for the Crown to exclude any reasonable doubt as to the element of intention. The directions complained of here did just that, in the fourth paragraph of the extract set out at [34] above.
The applicant relied on other decisions suggesting that, in contrast to the trial judge's direction that the jury would "find" or "decide" the extent and effect of the accused's intoxication, the proper direction should require them to consider whether evidence of the accused's intoxication causes them to have a reasonable doubt as to the element of intention. He relied on Viro v The Queen (1978) 141 CLR 88; [1978] HCA 9 where Gibbs J (as his Honour then was) said at 112: "[112] [T]he jury should be told that if, because of the evidence as to the effect of the intoxication or otherwise, they are not satisfied that the accused did in fact have the necessary intent, they must acquit of the crime which involves that intent."
Similarly, in R v O'Connor (1980) 146 CLR 64; [1980] HCA 17 at 88, Barwick CJ said: "[88]…[T]he jury should be told that if that evidence raises in their minds a reasonable doubt as to voluntariness or actual intent, it is for the Crown to remove that doubt from their minds".
Finally, in R v Coleman (1990) 47 A Crim R 306, Hunt J said at 323: "[323] [T]he judge should tell the jury that the onus lies on the Crown to remove any reasonable doubt from their minds which may have been raised by the evidence of the accused's intoxication."
The Crown submitted that the trial judge's directions in the present case were consistent with those authorities. In Viro, after stating that the jury was entitled to consider that the applicant was on heroin in deciding whether the necessary intent existed, Gibbs J stated at 113: "[113] …[T]he effect of that material was entirely for the jury to evaluate. In the circumstances the jury should have been told that in deciding whether they were satisfied that the applicant intended to kill or harm [the victim] they might have regard to the fact that the applicant had taken heroin."
There is no authoritative statement in the decisions relied upon by the applicant that compels the conclusion that the directions given in the present case were wrong or such as to give rise to a miscarriage of justice.

Additional directions raised in reply

In his written submissions in reply, the applicant identified additional parts of the summing up to support the contention that the jury would have understood the directions as a whole to convey the alleged misdirection. The additional material relied upon included the following directions: "You have to determine what facts have been established by the evidence, apply the law as I give it to you to those facts and then make a judgment as to what your verdict should be"; "The Crown does not have to prove beyond reasonable doubt every single fact that arises from the evidence and that could be in dispute… it is [the essential elements] the Crown must prove beyond reasonable doubt"; "The jury's role 'includes drawing rational inferences or conclusions from facts you find established'"; [The Crown is] "asking you to draw inferences from all of the surrounding evidence" regarding "what was in the mind of the accused" while defence counsel "asks you to draw other inferences from other evidence" and "in doing so he submits that you would not be satisfied beyond reasonable doubt about the mental element".
It was submitted that those directions would have been understood to convey that the defence, like the prosecution, invited the jury to "draw inferences". In our view, the submission rests on an artificial dissection of the task of the tribunal of fact. Where an accused person puts forward a particular case theory, as opposed to simply putting the Crown to proof, of course the defence invites the jury to draw inferences; often, but not always, inferences adverse to those the Crown invites the jury to draw. That is a necessary and integral part of the jury's role in assessing the evidence. The critical task for the trial judge is to ensure that the direction as to onus and standard of proof is clearly conveyed. The ultimate question is whether the party that bears the onus on an issue has discharged it, but it is unrealistic and artificial to think that question can be answered without determining the facts. In the present case, the trial judge was obliged to direct the jury that it was for the Crown to prove beyond reasonable doubt that the accused had the intention to cause really serious bodily harm when he assaulted the deceased causing his death and to remind the jury that there were competing inferences arising from the evidence as to what was in the accused's mind at that time. The directions as to onus and standard of proof do the work of explaining to the jury: "in your assessment of the evidence with a view to determining the facts, if you cannot be satisfied to the necessary standard of proof, the element in question is not proved".

Directions regarding expert evidence

The next point relied upon was the trial judge's direction to the jury that they did not have to accept the opinion of an expert witness "where the assumptions upon which the opinion is based do not fit with the facts as you find them to be". The trial judge said, "if you decide that the facts [the opinion evidence is based upon] have not been proven, or the assumptions are not valid, then any opinion based upon them will be of no assistance, because it has no foundation, and if that is the case, the opinion evidence should be disregarded". The applicant submitted "expert evidence adduced by the defence is not exhausted in its effect just because the assumed facts on which the opinion is based 'have not been proven'". He submitted that, even if the evidence is "doubtful", it may nevertheless raise a reasonable doubt.
The authority cited for that proposition was the decision of the Queensland Court of Appeal in R v Ogunseye [2021] QCA 192 at [16]. The decision does not support the applicant's submission in the present case. Ogunseye was a doctor charged with rape after performing a gynaecological examination on the complainant. His defence was that she had misunderstood what had occurred. The Crown case included a recorded telephone call in which Ogunseye had said sorry to the complainant. He was of Nigerian birth born to parents of Yoruba ethnicity. The defence led evidence from a professor of linguistics with expertise in sociolinguistics, "a field which includes the study of how words are used differently in different cultures" (at [8]). The expert was himself of Yoruba ethnicity and was fluent in both English and in the Yoruba language. He gave evidence of the different cultural understandings of the nature of an apology and said there was no Yoruba word that exactly equated to the word "sorry". He gave examples of Nigerian students using the word "sorry" when they had not done anything wrong as a way of expressing empathy.
The challenge to the expert's evidence was not based on any failure to prove the factual premises on which the evidence was based; in the nature of linguistics, it was the expert whose evidence proved the relevant fact (the meaning of a word in a different language). Rather, the issue was that the expert had previously been reprimanded by a statutory body in a different capacity (when he was acting as a real estate agent). The trial judge gave a direction drawn from the Bench Book concerning evidence of witnesses who have prior convictions.
It was in that context that the Court of Appeal said, "Expert evidence called by the defence is not exhausted in its effect just because the jury is not prepared to conclude that it is truthful and accurate": at [16]. That conclusion has no application in the present case.
In the present case, the evidence of both experts rested on factual assumptions as to how much alcohol, amphetamines and other drugs the applicant had consumed as well as variable assumptions as to his tolerance to and likely rate of digestion of those substances. An expert opinion cannot have any weight if it rests on an assumption as to a fact that does not exist. The direction was correct in that respect. Further, it was given in the context of yet another reminder as to the onus and standard of proof in the following direction at page 30 of the summing up: "It is not a matter of the accused needing to persuade you that the evidence of Professor Christie is definitely correct, or probably correct, or possibly correct. If I may repeat one last time the basic proposition: the question for you is, taking into account all of the evidence in the trial, including the evidence in the defence case of the accused and of Professor Christie, has the Crown proven the crucial mental element that is in dispute beyond reasonable doubt?"
It may be noted that this issue was raised only in reply, in submissions not seen by the Crown before the commencement of the hearing. In any event, we are not persuaded that the directions concerning the expert evidence gave rise to any misdirection.

The trial judge's summary of the defence case

Next, the applicant submitted that the impression that the jury had to determine the degree of intoxication and its impact as an intermediate fact was reinforced by the terms in which the trial judge summarised the defence case. The trial judge said that defence counsel had "submitted the accused was extremely affected by alcohol" and "submitted… you would find that the ability to reason of the accused was very substantially affected, if not destroyed." For the reasons already explained, we are not persuaded that those remarks derogated from the directions as to onus and standard of proof.
Separately, the applicant relied on the fact that the trial judge did not refer in his summary of the defence case to trial defence counsel's final submission. The submission was that if the jury found it "reasonably possible" that the applicant's "rational cognition was impaired" due to his intoxication, they would entertain a reasonable doubt as to whether he had the requisite intention and so should acquit him of murder. The applicant submitted that a reference to that submission in the trial judge's summing up may have been enough to remedy the other directions complained of. This is very much an issue in respect of which the absence of any complaint by defence counsel at trial suggests that there was no absence of clarity about that central point.
While we have here dealt separately with the points addressed in the applicant's submissions, our conclusion is based on our consideration of all of the points taken together.

Conclusion

While certain phrases within the impugned directions, considered in isolation, are capable of supporting the applicant's argument, we are not persuaded that the jury would have understood the summing up as a whole to convey the misdirection contended by the applicant.
The trial judge emphasised that the "central question" for the jury was whether the prosecution had proved beyond reasonable doubt that the applicant had the intention to cause really serious physical injury at the time of the assault which caused death. That was reiterated at several points in the summing up.
The trial judge's directions were consistent with the authorities relied upon by the applicant. As commended in Viro at 112, the jury was instructed that evidence of intoxication could point away from the proposition that the accused had the necessary intention. The jury was also directed that the onus was on the Crown to prove beyond reasonable doubt that the accused actually possessed the requisite intention at the time of the assault despite his intoxication, as commended by R v O'Connor (1980) 146 CLR 64; [1980] HCA 17 at (88) and R v Coleman (1990) 47 A Crim R 306 at 323.
For those reasons, we are not persuaded that there has been a miscarriage of justice such that the applicant has lost a real chance of acquittal. The argument proceeded on the assumption that the Court's conclusion on that issue would be determinative of the question of leave under r 4. Accordingly, we make the following orders: 1. Extend the time within which the notice of appeal may be filed to 20 April 2021. 2. Refuse leave under r 4 of the Criminal Appeal Rules to argue the ground of appeal specified in the notice of appeal. 3. Dismiss the appeal. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 December 2021

Criminal Appeal Rules 1952(NSW)

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