APPEAL GROUND 1: ABSENCE OF DIRECTION IN ACCORDANCE WITH LIBERATO v THE QUEEN 159 CLR 507 AS SET OUT IN THE BENCH BOOK
12The appellant contended that the trial judge should have given a direction in accordance with the observations of Brennan J in Liberato v The Queen [1985] HCA 66; 159 CLR 507 at 515, adapted to the circumstances of the present case.
13Liberato was a decision of the High Court on an application for special leave to appeal. At the trial, there had been a conflict between the evidence of the complainant, MK, and that of the accused. In the course of his summing-up the trial judge had said:
"The case may well be one as I have put to you before, where the real question is who do you believe on the whole of the evidence [M.K.] or the accused?" (at 515).
14The majority of the High Court favoured dismissal of the application and did not comment on the point presently at issue. In dissent, Brennan J (with whom Deane J agreed) said (at 515):
"The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue".
15The Criminal Trial Courts Bench Book published by the Judicial Commission of New South Wales gives at [3-620] a suggested direction, based upon Brennan J's observations in Liberato, applicable "where the accused gives or calls exculpatory evidence relevant to a critical element in the Crown case". That direction is in part as follows:
"If, after having given consideration to the evidence of the accused [and/or evidence on the accused's behalf] and any evidence which the Crown asks you to take into consideration, you do not positively accept the evidence of [identify the relevant evidence] in support of the accused's case, but that evidence leaves you nevertheless with a reasonable doubt as to whether the Crown has made out its case in respect of any essential matter which it must prove, then you are bound, in law, to bring in a verdict of 'not guilty'. In other words, it is not the position that you have to believe that the accused [and/or his/her witnesses] [is/are] telling the truth before the accused is entitled to be acquitted. As I have previously emphasised to you throughout the whole of this case, it remains the position that the Crown must establish beyond reasonable doubt the charge which it brings against the accused, and it is never for the accused to prove that he or she is not guilty".
16On the appeal, the appellant recognised that this suggested direction, even if otherwise appropriate, required adaptation for use in the present case to reflect the fact that the appellant's evidence was not directed to wholly defeating the Crown's case but to resisting the Crown's attempt to negative, beyond reasonable doubt, the appellant's assertion that he acted under provocation.
17The trial judge gave conventional directions to the jury concerning the elements of the offences of murder and manslaughter, and the burden of proof. The appellant makes no complaint about these. The written directions indicated that the jury could return a verdict of manslaughter if it found that the Crown had failed to negative provocation and identified one of the two questions to be answered by the jury concerning provocation as:
"May the deceased's conduct, that is, the things he did or said, or both, have induced (that is, caused) the accused to lose his self-control?"
18They then informed the jury that if it was satisfied beyond reasonable doubt that the answer to that question was "no" then the Crown had negatived provocation.
19In his summing-up, the trial judge emphasised more than once the need for the Crown to prove each element of the offences beyond reasonable doubt and that it was for the Crown to prove beyond reasonable doubt that the accused did not act under provocation. He referred to the appellant's evidence of provocation and said:
"If the accused's version of what happened when he collided with the car is possibly true, then you have to consider whether he acted under provocation.
...
There must be a possibility that the provocation actually caused the accused to lose his self-control and kill the deceased while deprived of that self-control" (emphasis added).
20In dealing with the defence of provocation, his Honour referred on at least three further occasions to the issue being whether there was a reasonable "possibility" that the appellant lost his self-control by reason of words spoken to him by the deceased.
21The effect of the appellant's submissions in support of this ground of appeal is that the jury would, or may, have been under the misapprehension that if it did not accept the appellant's evidence about what the deceased said, the appellant's defence of provocation failed, whereas in fact it should have been aware that non-acceptance of that evidence would have still required the jury to consider whether the Crown had negatived provocation beyond reasonable doubt.
22I do not accept that the jury could have been under any such misapprehension. The trial judge made it plain to the jury that it needed, not only to consider whether the appellant's evidence should or should not be accepted, but whether it considered the accused's evidence as possibly true. As the trial judge expressly stated, if the jury considered that evidence to be possibly true, it then had to consider whether the appellant acted under provocation. The trial judge made it clear both orally and in writing that, when considering whether the appellant acted under provocation, the Crown bore the onus of proving, beyond reasonable doubt, that he did not.
23This was not a case in which there was a conflict between the evidence of a principal Crown witness and that of the accused where the trial judge directed the jury that the issue for it was which to believe. It is an error to give such a direction (Douglass v The Queen [2012] HCA 34; 86 ALJR 1086 at [12] - [13]). As Liberato indicates, it should be made clear that even if the jury prefers the evidence of the Crown witness, it should not convict unless satisfied beyond reasonable doubt of the truth of that evidence.
24In the present case, there was no conflict between the evidence of a principal Crown witness and that of the appellant, and the only evidence capable of supporting a finding of provocation was the evidence of the appellant himself. If the jury did not consider that that evidence was, to use the words of the trial judge in his summing-up, "possibly true", the defence of provocation had to fail. It would not have assisted the appellant for the jury to be told, as the appellant now contends it should have been, that if it did not believe the appellant, it should put his testimony to one side and consider whether the Crown had negatived provocation beyond reasonable doubt. In a case where the only evidence of provocation was the accused's oral testimony, it was accurate, and less likely to confuse the jury, to direct it that it only had to consider whether the appellant acted under provocation if it considered the appellant's version of events to be "possibly true". As in Regina v Niass [2005] NSWCCA 120, the direction given "prevented any likelihood that the jury obtained the impression that it was only if they believed the appellant's evidence to be true that it could give rise to a reasonable doubt as to his guilt" and the trial judge did not suggest that the jury had to choose whether to believe a Crown witness or the appellant (at [29]; see also R v Anderson [2001] NSWCCA 488; 127 A Crim R 116 at [25] - [28]).
25This ground of appeal suffers from the further fundamental difficulty that the appellant's counsel at the trial did not request the trial judge to give any direction of the type now under consideration. The absence of such a request is a further indication of the fairness of the directions that the trial judge gave. For the reasons I have given, there was no error in the trial judge not giving the direction now identified. A fortiori no miscarriage of justice flowed from it not being given. As a result, I would refuse to grant leave under r 4 of the Criminal Appeal Rules to raise this ground of appeal.