Lane v R - [2017] NSWCCA 46 - NSWCCA 2016 case summary — Zoe

NSWNSWCCA

Lane v R

[2017] NSWCCA 46

Court of Criminal Appeal (NSW)|2016-10-21|Before: Meagher JA, Davies J, Fagan J

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Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2016-10-21

Before

Meagher JA, Davies J, Fagan J

Source

Original judgment source is linked above.

Judgment (18 paragraphs)

[1]

] HCA 43 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16 Magnus v The Queen (2013) 41 VR 612; [2013] VSCA 163 Moore v R [2016] NSWCCA 185 Moore v The Queen [2016] HCASL 323 Mraz v The Queen (1955) 93 CLR 493 Pratten v R [2014] NSWCCA 117 Quartermaine v The Queen (1980) 143 CLR 595 R v Boreman [2000] 1 All ER 307 R v Emmett (1988) 14 NSWLR 327 R v K (2003) 59 NSWLR 431; [2003] NSWCCA 406 R v Klamo (2008) 18 VR 644; [2008] VSCA 75 R v Dally [2000] NSWCCA 162; 115 A Crim R 582 R v Marsland (NSWCCA, 17 July 1991, unrep) R v Mead [2002] 1 NZLR 594 R v Medici (1995) 79 A Crim R 582 R v Moffatt [2000] NSWCCA 174; 112 A Crim R 201 R v More [1987] 1 WLR 1578 R v PL [2009] NSWCCA 256; 199 A Crim R 199 R v Puckeridge [1999] HCA 68; (1999) 74 ALJR 373 R v R (1989) 18 NSWLR 74 R v Smith [1997] 1 Crim App R 14 R v Walsh [2002] VSCA 98; 131 A Crim R 299 Royall v The Queen (1991) 172 CLR 378 Smith v State of Western Australia (2014) 250 CLR 473; [2014] HCA 3 Webb v The Queen (1994) 181 CLR 41 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Wells v The Queen (1994) 181 CLR 41 Wilde v The Queen (1987) 164 CLR 565 Wilson v The Queen [2016] VSCA 62 Category: Principal judgment Parties: Paul Ian Lane (appellant) Crown (respondent) Representation: Counsel: S Buchen with M Burke (appellant) N Williams (Crown)

[2]

Solicitors: S E O'Connor for Legal Aid (appellant) C Hyland Solicitor for Public Prosecutions (Crown) File Number(s): 2012/289582 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Criminal Citation: 2015 NSWSC 50 2015 NSWSC 118 Date of Decision: 27 February 2015 Before: Campbell J File Number(s): 2012/289582

[3]

Introduction

On 7 October 2014 the appellant was arraigned on an indictment charging him with the murder of Peter Morris. On 27 October 2014 the jury returned a verdict of not guilty of murder, but guilty of manslaughter. The alternative verdict of manslaughter was left to the jury as being available on two bases; namely manslaughter by excessive self-defence (Crimes Act 1900 (NSW), s 421) and manslaughter by unlawful and dangerous act (ie "punishable homicide" within Crimes Act, s 18(1)).
On 27 February 2015 the appellant was sentenced to a term of imprisonment having a non-parole period of 6 years and 4 months commencing 27 September 2013 with an additional term of 2 years and 2 months expiring on 26 March 2022.
The appellant appeals against his conviction on the following grounds: 1. The trial judge erred in failing to direct the jury that in their consideration of the charge of manslaughter they were to be unanimous in their deliberations as to the factual basis on which they might convict the applicant of manslaughter. 2. The trial miscarried because the Crown misled the jury by describing the offence as a "king hit" offence and "one punch" offence with reference to evidence that the trial judge had expressly excluded. 3. The verdict of the jury was affected by the improper conduct of a member or members of the jury. 4. The learned trial judge misdirected the jury on self-defence, particularly having regard to the onus and standard of proof.
The appellant's notice of appeal filed on 17 June 2016 relied on grounds 1, 2 and 3. The appellant requires an extension of the time for giving that notice. That application is not opposed and should be granted. One explanation for part of the delay is that it was not until April or May of 2016 that the appellant's solicitor received a copy of the sheriff's report described below.
The appellant also requires an extension of the time in which to raise ground 4, which was not advised to the Crown until further written submissions were filed on 18 October 2016. That extension is sought under r 25A(1) of the Criminal Appeal Rules. We also consider that application should be granted. The ground raises difficult questions concerning the directions as to self-defence.

[4]

Summary of relevant events and issues at trial

The relevant events occurred late in the evening of 15 September 2012. Both the appellant and the deceased had been drinking at the Commercial Hotel in Barker Street, Casino, and each was intoxicated to some degree. Each was in his mid-50s and neither was previously known to the other. Each had left the hotel with a companion, the deceased with Mr Schwager and the appellant with his son.
Barker Street runs in an east-west direction and the hotel is on the southern side of that street. After the men left the hotel and proceeded in a westerly direction along Barker Street, there was an altercation between them that occurred on the footpath and roadway outside a dental surgery which was the fifth shopfront to the west of the hotel. That altercation was captured by a CCTV security camera. That camera was protecting a bank ATM and was outside the second of two shopfronts further to the west of the dental surgery.
It will be necessary later to describe in more detail what can be seen on the CCTV footage. It shows the deceased falling to the ground and striking his head on the roadway on two occasions, the first happening about 10 seconds before the second. By the conclusion of the trial it was accepted that the head injuries sustained by the deceased in each fall were separately sufficient to cause his death, which occurred in Southport Hospital nine days later.
In the Crown opening the first fall was described to the jury as caused by contact between the appellant and the deceased which "perhaps [caused] the deceased to trip and to fall" on the roadway. The second fall was described as being the result of the appellant swinging a "round house type left hook impacting with the deceased's face to the right hand side". Five witnesses gave evidence of having seen or heard this second incident.
The appellant did not give evidence. His case was that the jury could not be satisfied that either fall was caused by a voluntary act on his part. On the first occasion the CCTV was said to show the deceased stumbling backwards and falling. In relation to the second there was said to be no movement consistent with his having thrown a punch. It was also the defence case that on each occasion the jury was entitled to consider that he was engaged in self-defence.
In his summing up, the trial judge (Campbell J) made clear that if the jury were not satisfied that the appellant was guilty of murder they had to consider whether he was guilty of manslaughter. His Honour identified the two alternative paths by which they might reason to that verdict. The first - manslaughter by excessive self-defence - arose if the jury was satisfied that the appellant deliberately struck the deceased intending to inflict really serious physical injury but was not satisfied that he had not done so because he believed that it was necessary to do so to defend himself. In that circumstance, although the outcome was that the appellant could not be found guilty of murder, the jury had to consider whether the Crown had also proved that the appellant's conduct in striking the deceased was not a reasonable response. If the jury was so satisfied the appellant was guilty of manslaughter (Crimes Act, s 421).
The second alternative - manslaughter by unlawful and dangerous act - arose if the jury were satisfied that the appellant had deliberately struck the deceased but not satisfied that he had done so intending to inflict really serious physical injury. In that event the jury had to consider whether the Crown had established that the striking was an unlawful and dangerous act. That meant that the jury had to be satisfied that the Crown had proved that the appellant did not strike the deceased believing that was necessary to defend himself (Crimes Act, s 419) and that a reasonable person in his position would have realised that in doing so he exposed the deceased to an appreciable risk of serious injury.
Two further matters should be mentioned in the course of introducing the issues in the appeal. The first is the subject of ground 2 and the second the subject of ground 3.
In the course of his evidence-in-chief, one of the witnesses to the deceased's second fall, Mr Perkins, described what the appellant did as involving "one hit, a king hit". He then explained what he meant by those expressions. The trial judge directed the jury that they should not take account of that evidence because it went beyond evidence of what had been seen and heard and involved "conclusionary statements". That direction was given at the end of Mr Perkins' evidence.
However in its final address the Crown made further reference to Mr Perkins' "one hit, a king hit" evidence and also described that witness as "the young chap with a description of a king hit and we all know what that is". In his closing address defence counsel referred to that exchange and reminded the jury of the earlier direction given by the trial judge. At the conclusion of that address the Crown was given leave to withdraw reliance on the evidence earlier referred to and requested that the jury "ignore it". The trial judge returned to that subject at the commencement of his summing up.
The second matter is that after the jury had returned its verdict the sheriff's officer at Coffs Harbour, where the trial was conducted, found in the jury room a typewritten note and two magazines each of which had handwriting on its front and back pages. The typewritten note contained extracts of dictionary definitions of "murder", "manslaughter", "malice" and "aforethought". The front and back pages of the magazine covers contained handwritten messages or commands, including the following: "STOP THE COWARD PUNCH IT DESTROYS LIVES Please - think before you Act" "NO MORE COWARD PUNCHES IT COULD BE YOU-ONE DAY SUFFERING". "STOP THE COWARD PUNCH IT HAS TO STOP IT DESTROYS LIVES. THINK FIRST DON'T ACT"
Following the discovery of that material the sheriff, at the request of the trial judge, undertook an investigation under s 73A of the Jury Act 1977 (NSW). That investigation was the subject of a written report, parts of which were tendered by the appellant in relation to the argument on grounds 2 and 3.

[5]

Was a specific direction required that the jury had to be unanimous as to the voluntary act of the appellant that caused death? (ground 1)

This formulation of ground 1 reflects the way in which, without objection, this ground was argued. As we note below, an argument supporting the ground as pleaded (see [3] above) was abandoned. There is no issue between the parties as to the relevant principles which for present purposes are sufficiently summarised by Phillips and Buchanan JJA (Ormiston JA agreeing) in R v Walsh [2002] VSCA 98; 131 A Crim R 299 at [57]. In that passage, their Honours address two of the more common situations in which the need for a specific direction as to jury unanimity may arise: … The first is that exemplified by the cases concerning murder and manslaughter, where, when alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts, there is no need for a direction on "unanimity" about one or other or more of those bases, at least if they do not "involve materially different issues or consequences". (How far in cases of murder or manslaughter this qualification extends - having regard especially to Clarke and Johnstone which has been long accepted in Victoria and to the similar practice in New South Wales - is of no present relevance). The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend "upon the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence". …
That statement was cited with approval by this Court in Chapman v R [2013] NSWCCA 91; 232 A Crim R 500 at [28] (Adamson J, Hoeben CJ at CL and Davies J agreeing) and Pratten v R [2014] NSWCCA 117 at [45] (Meagher JA, Fullerton and Hamill JJ). It was also applied in Magnus v The Queen (2013) 41 VR 612; [2013] VSCA 163 at [35]-[37] (Buchanan, Ashley and Redlich JJA); Wilson v The Queen [2016] VSCA 62 at [32] (Weinberg AP, Priest and Beech JJA); and Fermanis v The State of Western Australia (2007) 33 WAR 434; [2007] WASCA 84 at [68]-[69], [73] (Steytler P, Roberts-Smith and McLure JJ agreeing).
The essence of the distinction to which reference is made with respect to cases concerning murder and manslaughter was described by Barr J (Sully J and Ireland JJ agreeing) in Cramp v The Queen (1999) 110 A Crim R 198 at [65]: A distinction is to be made between alternative factual bases of liability and alternative legal formulations of liability based on the same or substantially the same facts. The cases to which I have referred [which included Clarke and Johnstone] speak about the former. This appeal is about the latter.
As was observed in Pratten, the reference in Walsh at [57] to the need in this context to consider the "live issues at the conclusion of the evidence" is from the judgment of Lord Ackner in R v More [1987] 1 WLR 1578 at 1584. As was also noted in Pratten, observations to the same effect were made by Elias CJ in her Honour's dissenting judgment in R v Mead [2002] 1 NZLR 594 at [17].
The appellant submits that there were alternative factual bases of liability in the present case. Ultimately, two discrete acts of the appellant were relied on as having been capable of constituting the voluntary act which caused Mr Morris' death. For that reason it was necessary that the jury be directed in relation to any verdict of murder or manslaughter that they had to be unanimous as to the deliberate act or acts of the appellant that had caused the deceased's death and resulted in the relevant verdict.
In his written submissions the appellant also argued, consistently with ground 1 as originally formulated, that the alternative bases of liability for manslaughter relied on in this case were not alternative legal formulations of liability for manslaughter based on the same or substantially the same facts. If that was the position there may have been a separate need for a specific direction that the jury be unanimous as to which of the alternative bases of liability for manslaughter was made out. That submission was abandoned in oral argument in this Court.
The appellant correctly emphasised that in relation to the charge of murder, and each of the manslaughter alternatives left to the jury, it was necessary that the voluntary act causing death be identified with precision. This was because proof of the elements of the offence charged, and any available alternative verdict, directed attention to the act said to constitute the crime and the appellant's intention at the time that act was done; to whether it was done in self-defence; and, to whether it was dangerous. The appellant referred to R v Klamo (2008) 18 VR 644; [2008] VSCA 75 in which the prosecution case was that the voluntary act causing the death of a four week old baby was the shaking of it by the accused, either on the night of the baby's death or approximately a week earlier. Applying Walsh, the Court (Maxwell P, Vincent and Neave JJA agreeing) concluded (at [76]) that the jury should have been directed that they could not convict unless they were "agreed upon [the] act which, in their opinion, does constitute" the crime.
In response the Crown did not accept the description or characterisation of its case as being that there were two separate voluntary acts, each of which caused death and was capable of constituting murder or manslaughter. Specifically, the Crown submitted that its case had been that the acts of the appellant occurred in the course of an assault upon the deceased, that the medical evidence was such that the head injuries could not be attributed to a particular fall and that the position was that either or both of those falls could have been the cause of death. In such a case a direction that the jury be unanimous as to which of the falls caused death would be wrong because that was not part of the case made.
It is undoubtedly correct that it is not always necessary to prove the precise act causing death in order to establish either murder or manslaughter. As Spigelman CJ noted in R v PL [2009] NSWCCA 256; 199 A Crim R 199 at [47] the position in that respect was as stated by Ackner LJ in Attorney General's Reference (No 4 of 1980) [1981] 1 WLR 705 at 710: [T]his reference raises a single and simple question, viz: if an accused kills another by one or other of two or more different acts each of which, if it caused the death, is a sufficient act to establish manslaughter, is it necessary in order to found a conviction to prove which act caused the death? The answer to that question is "No, it is not necessary to found a conviction to prove which act caused the death".
Where there is more than one act capable of causing death it is not necessary to prove which of those acts did so provided the jury may be satisfied that each of the two or more acts referred to "is a sufficient act to establish" murder or manslaughter. In other words in such a case the Crown has to establish that each of the acts, which in combination or separately caused death, was also accompanied by any relevant mental state and other characteristic: Royall v The Queen (1991) 172 CLR 378 at 404-405 (Brennan J); R v PL at [47]-[49] (Spigelman CJ).
In the present case, as will become apparent, there was an issue as to whether either of the falls was caused by a voluntary act of the appellant and also an issue as to whether the elements of the offences of murder or manslaughter were established with respect to any such act. At the same time the jury was told clearly that the injuries sustained from each fall were sufficient separately to cause, and eventually had caused, Mr Morris' death. The Crown's case as left to the jury was not that either or both of the falls had caused death and that each involved a sufficient act of the appellant to establish murder or manslaughter. Had that been its case it would have been necessary for the jury to have been directed that they had to be satisfied that each of the acts which together or separately caused death was accompanied by any relevant mental state and other characteristic.
It is convenient at this point to consider in more detail the issues as they were presented to the jury. In its opening address, when referring to the CCTV footage, the Crown described the two incidents in which the deceased fell onto the roadway. In the first it was said that the appellant had made contact with the deceased "perhaps causing [him] to trip and fall". In relation to the second it was said the footage showed the appellant punching the deceased on the right side of his face.
The Crown's closing address included a detailed description of the CCTV footage. In the course of that description it was submitted that in relation to the first fall there was a "blow" from the appellant and that in relation to the second the footage and eyewitness accounts established that the appellant had landed a punch which caused the deceased to go straight to the roadway, making no attempt to break his fall. The Crown's remaining submissions as to the availability of self-defence did not focus on the immediate circumstances in which each of the deceased's falls occurred. Rather they focussed on the overall sequence of events as showing that the appellant was the aggressor and instigator and not under any threat at the time he engaged the deceased, and then Mr Schwager.
In his closing address defence counsel accepted that there was no issue as to the deceased's death having been caused by brain injuries sustained on each of the two separate occasions on which his head hit the roadway. Counsel continued: Whether it was a voluntary deliberate act by the accused is something that you do have to be satisfied about. There is less agreement as to whether that is insignificant or whether it's a given in the facts of this case. That is the case here because when you look at exhibit C, the CCTV footage, you have to see whether you can see to your satisfaction, and remember it is satisfaction beyond reasonable doubt for each of these elements, whether you can see the accused offer to do some wilful, voluntary, deliberate act that caused Mr Morris to fall to the ground. I am not suggesting that's the most significant matter in the trial, but it is a matter that you have to be satisfied beyond with reasonable doubt. Have a look at the time Mr Morris goes to the ground. Initially and on the second occasion when the accused is on the street whether there is any mechanism, whether there is anything you can discern that amounts to a deliberate act.
Defence counsel returned to that question when referring in more detail to the CCTV footage, pointing out that in the first incident "the accused has not just touched him or isn't in close physical proximity to him. There is no explanation other than unfortunately Mr Morris tripped at that stage and went headlong onto the roadway." Counsel submitted in relation to the second incident that in the footage one of the things that could not be seen was "any arm movement by the accused consistent with the blow that other witnesses have talked about".
Referring to that footage showing the "accused's head" going backwards on that second occasion, counsel observed that the question which then arose was whether "one or other of them [was] doing something in the direction of the other's head at that stage… one would normally expect one to move one's head back to evade something." The fact that the appellant's head was seen to be "going back" was said to be significant to whether, if he had delivered a blow at that stage, it was "done in self-defence".
Early in his summing up the trial judge gave the following general direction as to the need for unanimity in relation to the jury's verdict. … your verdict whether it is guilty, not guilty of murder but guilty of manslaughter, or not guilty must be unanimous. That is not to say that each of you must agree upon the same reasons for your verdict. There is room for differences of opinion about what is important in the evidence. Individually you may rely upon different parts of the evidence. You may place different emphasis on parts of the evidence. However, by whatever route individually you arrive at your decision in relation to this matter the final decision, the verdict, must be the decision of all of you, unanimously, before it can become your verdict." … As I have said to you there maybe more than one path to unanimity. That is what I meant when I explained that some of you might be persuaded by different parts of the evidence from others. Provided you are all persuaded beyond reasonable doubt in terms of a verdict of guilty your reasoning path does not have to be identical. If you are not persuaded beyond reasonable doubt there may be different reasons why you have a doubt, if I can put it that way. Again your verdict of not guilty in that situation would still be unanimous. When I speak to you about the alternative verdict of manslaughter, as the learned Crown Prosecutor touched on this morning, there are in this case two alternatives that support manslaughter. Some of you, let us say hypothetically- I will not say some of you, but say hypothetically a jury faced with such an option might be unanimously agreed that the verdict is not guilty of murder but guilty of manslaughter. But some might think or some might be persuaded that is because the case is one of excessive self-defence, where others might be persuaded that it is a case of manslaughter by an unlawful and dangerous act Even though they are quite different legal bases for the decision, the decision is the same. Different members of the jury have followed a different path but the verdict is unanimous. It is a lawful and true verdict.
In the course of that summing up the trial judge made three documents available to the jury. The first (MFI 11) contained written direction under the headings "the legal elements of murder", "murder and self-defence", and "manslaughter by unlawful and dangerous act". A separate document (MFI 12) included a summary of the elements of murder and manslaughter by unlawful and dangerous act, as well as descriptions of self-defence and excessive self-defence. The final document (MFI 15) was in the form of a flow chart suggesting a question trail or pathway to be followed by the jury in reaching their verdict. (It will be necessary to return to these directions in more detail when considering ground 4).
By reference to the second document the trial judge described the first issue for the jury as being "whether there was a deliberate act of [the appellant] which caused the death of Mr Morris". The next issue was said to be whether, if there was, that act was done with an intention to kill or cause grievous bodily harm.
Having referred to the medical evidence the trial judge directed the jury that they could be satisfied as to that first issue if they were persuaded "beyond reasonable doubt" that a deliberate act of the accused caused Mr Morris to fall to the roadway on either" of the occasions on which he fell to the roadway. There was then a discussion in the absence of the jury as to whether there was any issue that each of the falls caused brain injuries which separately were sufficient to have caused his death. In the course of that discussion defence counsel stated that his case was that the jury could not be satisfied beyond reasonable doubt that either of the deceased's falls was caused by a strike by the appellant.
Following that discussion the trial judge directed the jury that it was not in dispute that each fall had caused a significant brain injury and that each injury in its own right was sufficient to have caused death. The trial judge then returned to the first issue as described earlier and said: It is in issue and strongly in issue that either fall was occasioned by a deliberate act of Mr Lane. That is why I said to you before the break that because there are two separate injuries caused by two falls, the question is did a deliberate act of Mr Lane cause either fall and you understand that the issue that you have to determine, as presented by counsel in their arguments, is whether either fall was caused by a deliberate act of Mr Lane. That is to say Mr Lane disputes that some deliberate act of his caused the first fall and he disputes that some deliberate act of his caused the second fall.
Having referred in some detail to the evidence of the lay witnesses as to events in the hotel and the roadway, the trial judge summarised the position of the parties on the first issue as being: That first issue is are you satisfied beyond reasonable doubt that it was a deliberate act of Mr Lane's that caused Mr Morris to fall on either occasion that he fell. The way it is put is that the Crown would say to you, well despite what might be said about the limitations of some of the witnesses, intoxication, disadvantage of their position, you have got at least three witnesses as I said who say the fall, probably the second fall, was preceded by a punch and if you accept their evidence that is enough for the Crown to discharge their onus of proof provided you are satisfied beyond reasonable doubt that that is what happened. On the other hand the defence say or would say, how can you be satisfied that is what happened, how can you accept the evidence of those three witnesses when you look at all the detail of the evidence of all five eye witnesses. They are all over the shop, they are all intoxicated and not all of them see, or could see, what they said they saw. And if that is how you are left after your consideration of the evidence and your deliberations then you might conclude that you cannot be satisfied beyond reasonable doubt about that necessary element of the offence of murder, and of manslaughter, Now what you have to understand that if you are not satisfied beyond reasonable doubt that it was a deliberate act of the accused that caused Mr Morris to fall and hit his head on either occasion then Mr Lane is not guilty of either murder or manslaughter.
His Honour continued: You need only consider the rest of these matters if you have decided the first issue in favour of the Crown. If Mr Lane struck Mr Morris down you must not convict Mr Lane of murder unless and until you are satisfied that in striking Mr Lane, Mr Lane had the specific intention of causing really serious physical injury. This is the second dispute for you to resolve.
What emerges is that in relation to each of the deceased's falls it was left to the jury to decide whether it was caused by a voluntary act of the appellant. If the jury was persuaded that one or other or both of those falls was caused by a deliberate act of the appellant's they were invited to consider the other elements necessary for the Crown to establish murder and disprove self-defence, and depending on the way they resolved those questions, the elements of manslaughter by unlawful and dangerous act.
Three things follow. The first is that on the Crown case as left to the jury there were two discrete acts which were said to have been deliberate and to have caused death. Each may have been sufficient to establish murder or manslaughter and accordingly was an alternative factual basis of liability. The second is that in such circumstances the jury could not convict of murder or manslaughter unless they were agreed as to whether one or both of those acts was a criminal act of the appellant.
Finally, in the absence of any direction to that effect it remained possible that some jurors might reason to a verdict of guilty of murder or manslaughter by being satisfied that the appellant's voluntary act caused the first fall while others might reason to the same conclusion by reference to his voluntary act having caused the second fall. That possibility was not excluded by the trial judge's general direction as to unanimity (see [34] above) which accommodates only the circumstance that the same facts may support alternative legal bases of guilt.
To remove that possibility the jury should have been directed that they could not convict unless they were agreed as to the voluntary act which resulted in their being satisfied that there should be a verdict of guilty of murder or not guilty of murder but guilty of manslaughter. The trial judge erred in not giving such a direction. Because no objection was taken at trial to the adequacy of the trial judge's directions in this respect, r 4 of the Criminal Appeal Rules requires that the appellant seek leave to raise and rely on that omission. In our view that leave should be granted. The omission to direct was not trivial and a substantial miscarriage of justice may have occurred. It is in the interests of justice that the appellant have that question addressed.

[6]

The application of the proviso

Our conclusion makes it necessary to consider whether the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) applies and requires that this Court dismiss the appeal to the extent it relies on this first ground. For the proviso to apply we have to consider whether, notwithstanding the omission to give a specific unanimity direction, "no substantial miscarriage of justice has actually occurred". If that condition is satisfied, the proviso must be applied: Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14 at [25]; Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16 at [43]; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [15].
In Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, whilst emphasising that there is no single universally applicable description of what constitutes a "substantial miscarriage of justice", the Court (at [44]) made clear that it could not be said that no substantial miscarriage of justice has actually occurred "unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty". At the same time it was accepted (at [45]) that there may be cases where the appellate court applying the proviso may not be satisfied that no substantial miscarriage has occurred although it is satisfied as to the inevitability of conviction, assuming the jury was properly instructed: see also Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [33] (French CJ, Hayne, Crennan, Kiefel, Bell JJ), [65] (Gageler J); Castle v The Queen [2016] HCA 46; 91 ALJR 93 at [64]; and the earlier decisions in Quartermaine v The Queen (1980) 143 CLR 595 at 601; Wilde v The Queen (1987) 164 CLR 565 at 372-373; Krakouer v The Queen (1988) 194 CLR 202 at [23]-[24], [72], [74]-[76]; AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [54], [110]; and Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59 at [39], [117], [262].
To the same effect in Filippou, the plurality explained at [15]: By "substantial miscarriage of justice" what is meant is that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her or that there was some other departure from a trial according to law that warrants that description.
The appellant will have been denied a chance of acquittal which was fairly open unless this Court concludes from its review of the record that in the absence of the omission to give the unanimity direction his conviction was inevitable; or to put it another way, assuming that direction had been given, that it would not have been open to the jury to entertain a reasonable doubt as to his guilt: Baini at [32]. Accordingly, it is first necessary to consider the possible effect of the omission of that direction on the outcome of the trial.
Had such a direction been given the jury would still have had to address whether one or other or both of the deceased's falls was caused by a voluntary act of the appellant. The jury would have done so appreciating that they had to be unanimous as to that being established in respect of one or other or both of those falls before they could proceed to a verdict of guilty of murder, or not guilty of murder and guilty of manslaughter, by reason of any act that did so. For that purpose they had to consider the same evidence as was admitted at the trial, having been properly directed as to the onus and standard of proof and as to the matters which the Crown had to prove, including that the appellant did not act in self-defence.
Addressing that question in our view the jury necessarily should have entertained a doubt as to whether the deceased's first fall was caused by any voluntary act of the appellant. In other words it was not open on the evidence to the jury to be so satisfied beyond reasonable doubt: see Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Hayne J). The only evidence of that incident is the CCTV footage and, perhaps, the evidence of Mr Armstrong. None of the other four witnesses who gave evidence of the appellant striking the deceased saw him trip or fall backwards on the roadway the first time. Mr Armstrong gave evidence that he saw the appellant throw three punches. He described the deceased and Mr Schwager as still sitting in the gutter or starting to stand when the first of those punches was thrown.
That evidence of Mr Armstrong was not at all consistent with the CCTV footage of the first fall. That footage shows an initial scuffle on the footpath between the deceased and the appellant in which the deceased pushes the appellant against a shopfront. The deceased, with his back to the roadway, then proceeds to move backwards across the footpath and onto the roadway followed by the appellant who is facing the deceased as the latter moves backwards. The deceased then stumbles and falls hitting the back or side of his head on the roadway. The CCTV footage shows no punch or apparent or obvious contact between the two men. It is wholly in accord with the deceased having lost his balance as he stepped from the footpath and onto the (lower) roadway. The appellant is then shown to stand in front of and over the deceased as he starts to regain his feet. At the same time Mr Schwager moves in the direction of the deceased from his position next to a telegraph pole, which was on the footpath. As he does so the appellant turns to his right, moves back towards Mr Schwager and punches him, knocking him to the ground near the base of the telegraph pole.
In relation to the second fall, the CCTV footage, the evidence of the eyewitnesses (outlined below) and the evidence of Dr Little, the forensic pathologist who conducted the autopsy, establishes beyond reasonable doubt that it was caused by a punch thrown by the appellant. We do not consider that it was open to the jury to have any reasonable doubt about that. After the first incident (as described above), the CCTV footage shows the appellant then turn and move towards the deceased who by this time was on his feet on the roadway. The appellant steps off the footpath. As the two men come together and are facing each other, the appellant has both arms raised, in a boxing stance. The appellant's head appears to move back at the same time as the deceased falls backwards, hitting his head on the roadway. The appellant is then seen to stand over the deceased's prostrate body for a few seconds before he turns and walks back onto the footpath and continues in a westerly direction down Barker Street.
The evidence of Mr Cupitt and Ms Livingstone was that they each saw the appellant punch the deceased. Mr Marsh's evidence was that he saw the appellant swing his arm at the deceased and then saw the deceased fall backwards and hit his head on the roadway. He did not see the arm connect. Mr Perkins describes hearing the sound of a punch and turned to see one of the men falling backwards. He did not see the punch. Mr Armstrong gave evidence of seeing the appellant punch the deceased on a second occasion but did not see where that punch hit.
In our view the only sensible explanation for what is shown on the CCTV footage in relation to the second fall is that the deceased was hit causing him to fall backwards onto the roadway. That accords with what was described by at least three of the eye witnesses. It is also consistent with the evidence of Dr Little. Her evidence was that the deceased sustained two separate impacts to his head as a result of falls, as well as bruising on the right side of his jaw consistent with a blow to that side of his face. In our view it was not open to the jury on that evidence to entertain a reasonable doubt as to whether the appellant's voluntary act caused that fall.
We are also satisfied beyond reasonable doubt that that act was dangerous and that it was not open to the jury to have concluded otherwise. A reasonable person in the appellant's position would have appreciated that punching the deceased in the side of the head exposed him to an appreciable risk of serious injury, both from the direct impact of the punch and from the consequence of his falling backwards onto the roadway, as was foreseeable and occurred. Finally, we are satisfied beyond reasonable doubt that in punching the deceased on this second occasion the appellant did not act in self-defence. More specifically we are satisfied to that standard that the appellant did not believe that his conduct in punching the deceased was necessary to defend himself; and that his doing so was not a reasonable response in the circumstances as he perceived them. That is so whether one has regard to all of the circumstances, or only to those immediately preceding the second fall. In each case we do not consider it was open to the jury to have concluded otherwise. After the first incident the deceased did not represent any threat to the appellant. There was nothing that prevented him from walking away. Yet he did not do so. Instead, having punched Mr Schwager he turned his attention back to the deceased, moved towards him and punched him to the ground.
It remains for us to consider whether in the circumstances of this case the omission of the direction as to the need for unanimity involved or constituted such a departure from a trial according to law that for that reason alone we cannot be satisfied that there was no "substantial miscarriage of justice": Filippou at [15]. It is submitted on behalf of the appellant that it does because that "misdirection" was as to a "fundamental" matter (Wilde at 372), namely one as to which the jury had to be satisfied unanimously in order to convict of murder or manslaughter.
In our view this is not such a case. The omission relied on here did not have the consequence that the jury were not correctly directed about the elements of the offences of murder and manslaughter, or as to the standard and onus of proof: cf Baida at [31]; Krakouer at [23]-[24] (Gaudron, Gummow, Kirby and Hayne JJ) and [74]-[75] (McHugh J) and the discussion in Hadchiti v R [2016] NSWCA 63 at [146]-[152] (Leeming JA, Hall and Bellew JJ). Rather that omission raised at least as a theoretical possibility that some members of the jury might determine his guilt by reference to the first fall, and others by reason of his having caused the second. Where there were two separate allegedly criminal acts left to the jury, the appellant was entitled to have the jury determine unanimously whether he was guilty in relation to one or other or both of those acts.
However that possibility did not give rise to any miscarriage in this case because the evidence was not capable of supporting a finding beyond reasonable doubt that a deliberate act of the appellant caused the first fall. We have (at [51] above) referred to the absence of any evidence of a punch or other contact by the appellant which could have caused that fall. It was not the Crown's case at trial that in the absence of any such contact the jury could nevertheless conclude that the first fall and consequent head injury was caused by a deliberate act of the appellant.
It follows that the non-direction did not deprive the appellant of the opportunity of having the jury decide, on the basis that they had to be unanimous, a question that they had to determine, if he was to have a trial according to law. Whether the appellant was guilty of murder or manslaughter because of a voluntary act that caused the deceased's first fall - because of the absence of sufficient evidence supporting a finding to that effect - was not required to be determined by the jury: see R v R (1989) 18 NSWLR 74; Doney v The Queen (1990) 171 CLR 207 at 214-215. Furthermore, had the jury addressed that question, they necessarily should have entertained a doubt about the appellant's guilt. It was not open to them to conclude otherwise.
The absence of any specific unanimity direction did not prevent the jury from considering the appellant's guilt on the basis that his deliberate act caused the deceased's second fall; and acting reasonably and properly they should have done so, having necessarily entertained a doubt about the appellant's guilt with respect to the first: cf Krakouer at [23]-[24] and [75]. Having done so, it was not open to the jury to have had a reasonable doubt as to his being guilty of manslaughter by that unlawful and dangerous act.
We conclude that no substantial miscarriage of justice actually occurred in this case by reason of the absence of the specific unanimity direction. Accordingly the appeal on the basis of ground 1 should be dismissed.

[7]

Was there a miscarriage of justice by reason of the references before the jury to the offence being a "king hit" offence, and any related improper conduct of a member of the jury? (grounds 2 and 3)

It was accepted in argument by the appellant's counsel that these grounds should be dealt with together. They are directed to three matters, two of which are said to be related. Each ground relies on the third limb of s 6(1) of the Criminal Appeal Act, namely that "on any other ground whatsoever there was a miscarriage of justice". Gageler J, in dissent, uncontroversially observed of this provision in Baini at [54]: The words "on any ground" in paragraph (c) of the common form criminal appeal statute "do not postulate the demonstration of error" but rather "simply require that 'something occurred or did not occur' in the trial". The thing that occurred or did not occur in the trial may be an "irregularity" falling short of a failure to observe some condition essential to a satisfactory trial - such as a misdirection or non-direction of fact or what is shown to have been at the time of exercise or in the light of developments at the trial a wrong but legally available exercise of judicial discretion resulting in the admission of evidence prejudicial to the appellant. In those circumstances, it has been accepted that the criterion in paragraph (c) will be made out only where the appellant is able to establish a causal connection between the irregularity and the conviction in the sense that, but for the irregularity, the result might have been different and the appellant might have been acquitted.
Also, as was stated in Filippou at [14], this third limb includes cases where by reason of such an "irregularity" the accused has not received a trial according to law or has not received a fair trial; being one in which the relevant law has been correctly explained to the jury and the rules of procedure and evidence followed: Mraz v The Queen (1955) 93 CLR 493 at 514 (Fullagar J).
The first matter is the presence in the jury room of the note containing the extracts of dictionary definitions (see [16] above). The sheriff's investigation report includes a statement that one of the jurors who was interviewed prepared this note at the beginning of the trial "before the judge gave formal definitions", put the note inside an exercise book and did not further refer to it after the trial judge's opening remarks.
The Crown tendered the part of that report which established those facts. That tender was objected to by the appellant. In our view the evidence described above is relevant and not inadmissible because of the common law rule that evidence of a juror or jurors as to the deliberations of the jury is not admissible to impugn the verdict: see Smith v State of Western Australia (2014) 250 CLR 473; [2014] HCA 3 at [1]; R v Emmett (1988) 14 NSWLR 327; R v K (2003) 59 NSWLR 431 at [54]-[55]; and R v Medici (1995) 79 A Crim R 582 at 590-591. The application of this rule is preserved by the Evidence Act 1995 (NSW), s 9(2).
The admission of the evidence concerning the provenance of this note does not impinge on the jury's deliberations by disclosing any discussions between the jurors or any effect the note may have had on their deliberations.
Here there was an "irregularity" to the extent that one of the jurors, contrary to the trial judge's direction at the commencement of the trial sought to inform him or herself as to aspects of the law from the Oxford and Macquarie dictionaries. However that irregularity is not shown to have been of any moment. The trial judge having given those directions, and later written and oral directions as to the elements of the relevant offences, there is no reason for the Court to proceed otherwise than on the basis that the juror put the note aside and proceeded to consider the evidence in accordance with the directions of the trial judge. That being the position it is not established that but for this first matter the result might have been different so as to admit of the possibility that the appellant was thereby denied a chance of acquittal which was fairly open to him.
The second and third matters fall to be considered together. The second is the Crown's reference in its final address to Mr Perkins' description of a king hit and statement that "we all know what that is" (see [14] and [15] above). The third matter is the presence in the jury room of the two magazine covers containing hand written messages, which included "stop the coward punch" and "no more coward punches" (see [16] above). The evidence in the sheriff's report in relation to those magazine covers is that they were found in a secluded area of the jury room and did not come to the attention of the five jurors who were interviewed by the sheriff when undertaking the s 73A investigation.
Specifically that sheriff's report (in parts 2 and 4) includes the following statements relevant to this third matter: Jury members involved in the trial were contacted by phone and letter to request interviews and statements. 5 jurors have been interviewed. Interviews were conducted by phone. Further inquiries may be made if requested. All jurors interviewed have stated that they were not aware of any magazines in the jury room at any time. [Sheriff's officer M] … has confirmed the magazines were found in a secluded area of the jury room. All interviewed jurors state that they were unaware of any magazines being in or being brought into the jury deliberation room, nor were there any interviewed jurors that recalled notations on magazines or other jurors making notations on magazine covers.
The appellant objected to the Crown's tender of these parts of the sheriff's report. In our view those parts also are relevant and admissible. They do not disclose discussions between the jurors that constitute any part of their deliberations.
The appellant's primary submission is that considered together these matters indicate (and would do so in the assessment of a fair minded and informed member of the public) that the jury or a juror might not have decided the case impartially.
The second matter was said to constitute an invitation to the jury to deal with the case against the appellant other than on its merits by suggesting that it involved, or was to be treated as having involved, a "king hit" or "cowards punch". In relation to the third, it was submitted that the magazine notations with their slogans directed to the "prevalence or… scourge of coward punches" was a similar invitation and actualised "the risk of prejudice" which arose from the Crown's statements which are the subject of the second matter. It was contended that a reasonable inference available from the existence of the notations on the magazine covers was that one or more of the jurors had adverted to social media during the deliberation period and introduced those slogans or sentences into the deliberation process.
In the appellant's written submissions this third matter was said to constitute an "irregularity", because it involved a juror or jurors disregarding the trial judge's direction that they do not try and find information believed to be relevant to the case by their own inquiries, which this Court could not be satisfied had not affected the jury's verdict. This last submission was not pressed in oral argument; and it was submitted that the relevant question in relation to that matter was as set out below and not whether the Court could be satisfied that the irregularity had no effect on the verdict (cf R v Marsland (NSWCCA, 17 July 1991, unrep).
That question was whether there was a miscarriage of justice because there may have been a serious breach of one of the presumptions of a fair trial; namely that there be no reasonable basis for apprehending that the jury or a juror has not discharged or will not discharge their task impartially: see Smith at [52]-[55]; Medici at 598; and Wells v The Queen (1994) 181 CLR 41 at 53, 57, 65. That would be so if the presence of the magazine covers, in the context of the Crown's final address, considered from the perspective of a fair minded and informed member of the public, gives rise to a reasonable apprehension or suspicion to that effect.
The evidence does not enable a conclusion as to how the magazine covers came to be in the jury room. They could have been written by a third party and handed to a juror who brought them into the room. Or they could have been written by a juror, either before or after the magazines came to be in the jury room. They might have been intended as messages for the jury to consider, or as in our view is more likely, record what the writer read when searching the internet. As such the slogans could reflect views of the writer, or merely repeat what was written elsewhere.
We think there are two realistic possibilities. The writing on the magazine covers is either that of a juror and is the result of an internet or other inquiry, as the appellant contends, or was written by a third party and the magazines given to a juror at some stage and brought into the jury room. The former is more likely. In either case the writing on the magazine covers does not appear to have come to the attention of at least five of the jurors.
For a juror to have made such an inquiry would have been contrary to the trial judge's often repeated direction that the jury should not make inquiries about the case or conduct searches of social media to see what they could find there. For the magazine covers to have been written by a third party and found their way into the jury room via a juror is also likely to have involved that juror disregarding the trial judge's directions and requests that jurors not speak to or communicate with outsiders about the case.
The evidence does not establish or suggest when either of these possibilities might have occurred. It could have happened at the commencement of the trial and the magazines may then have been discarded to where they were found. That is more consistent with them having been found in a secluded area of the jury room, and not having come to the attention of any of the jurors who were interviewed.
The messages on the magazine covers were of the kind that the members of the jury were likely to have been familiar with, or exposed to, or not surprised by, before they were empanelled. As the trial judge observed at the outset of his opening remarks, incidents involving alcohol and altercations in public streets had "received a great deal of publicity in New South Wales and throughout Australia" in the 12 months preceding the trial. His Honour had made similar remarks to the jury before it was empanelled; and later returned to that subject when directing the jury following the giving of Mr Perkins' evidence. At that time he said: I should also tell you, of course - and this goes back to something you'll recall I said when you were all still members of the jury panel and before you had been empanelled on the jury, and that is that although we shouldn't talk about cases falling into categories, because each case is different, obviously, as I said at that time I'll repeat, events of this character or events like the Crown allege occurred in this case, because you still have to hear all the evidence and make your decision, have attracted a lot of publicity in New South Wales and in Australia, especially over the last 12 months and there has been a lot of comment about it in the press, as you would have seen if you ever read any newspapers or if you watch any television news. … You need to put to one side any preconceived notions or attitudes you may have formed about those type of things to one side. That is part of your obligation of impartiality. It is part of your sworn duty to decide the case on the basis of what happens in this courtroom, only upon the evidence you hear in this courtroom, the arguments that counsel address to you in this courtroom and the directions of law that I give to you in this courtroom. It is part of your obligation to be calm and dispassionate. It is part of your obligation to put aside prejudice, pre-judgment or even sympathy for one person or another for the purpose of deciding this case. … So that type of language that Mr Perkins used, please simply ignore. Any publicity that you've read, put entirely to one side for the reasons I've given you. … that is not a comment, that is a direction of law.
Taking these matters into account it is our view that the evidence of the magazine covers in the jury room, considered in the context of Mr Perkins' evidence and the Crown's reference to that evidence in its final address, would not give rise to reasonable suspicion on the part of a fair minded and informed member of the public that the jury or a juror had not discharged their task impartially.
In the course of argument it was accepted by the appellant's counsel that the Crown's reference to Mr Perkins' evidence would not itself give rise to any such suspicion. That reference was dealt with by the appellant's counsel in his closing addressing and, following that address, the Crown was given leave to and did withdraw reliance on the evidence referred to and its earlier submission. The trial judge also directed the jury to put aside all preconceived notions they might have had about the case before hearing the evidence; and to disregard Mr Perkins' references to "king hit" and "one punch", and whether the appellant might have been acting in self-defence, as conclusionary and as trespassing on the jury's role to decide questions of fact. It was accepted that there is no reason for this Court to believe that the jury would not have taken this direction at face value and proceeded to disregard that evidence.
The appellant contends that the presence of the notations on the magazine covers gives rise to a suspicion that a juror or jurors did not act impartially because it is likely that the notations were made by a juror following internet access to social media during the deliberation period. It is suggested that the various slogans were a call to people, such as the jurors, to do what they could to stamp out conduct which might be characterised as involving a "coward punch". In their terms the slogans were said to indicate a particular attitude of the writer which, contrary to the trial judge's direction, had not been "put aside". There was also said to be a risk the writing was seen by other members of the jury who also might have been persuaded to act partially and without proper regard to the evidence and the issues as explained by the trial judge.
This argument should not be accepted. Each of the notations is in the form of a command directed to ensuring that the reader not engage in conduct involving a "coward punch". This appears from the language imploring that the reader "think before you act" (emphasis added). None of the commands is directed specifically to members of the jury in relation to their task of dealing with the charges against the appellant. The form of the notations is consistent with their having been copied from another source. All of this might give rise to a reasonable suspicion that a juror undertook an internet search in relation to the expression "coward punch" and recorded what was found. That suspicion would not by reason of these facts alone include that the person was sympathetic to the views expressed, and prepared to act in accordance with them, when participating as a juror in the deliberations of the jury.
As was observed by Mason CJ and McHugh J in Webb (at [56]) a fair minded person would assume that the jury will do their best to follow the trial judge's directions, that they will examine the evidence calmly and dispassionately and will put aside any prejudice against the accused or sympathy for any victim. There is no reason in the evidence to suggest that the jury in this case would have acted otherwise than in accordance with the trial judge's directions. The fact that the magazine covers did not come to the attention of the five questioned jurors is consistent with that having occurred.
Another matter which speaks against the existence of such a suspicion is that the facts, as revealed by the CCTV footage, were far removed from one in which a punch was thrown without notice, so as to justify the description "coward punch". The scuffle between the appellant and Mr Morris commenced with the latter pushing the appellant up against the shop front following some verbal exchange between them. This makes it unlikely that any juror would have regarded this case as involving such a punch and been prepared to act in accordance with any sentiment underlying the slogans, rather than as directed.
We conclude that there is no reasonable basis for apprehending that the jury or a juror did not discharge their task impartially. For this reason grounds 2 and 3 are not made out.

[8]

Was there a miscarriage of justice because the trial judge misdirected the jury on self-defence, and particularly as to the onus and standard of proof? (ground 4)

As is apparent from the foregoing discussion self-defence was a central issue in the trial. The appellant submits that the trial judge's directions, both written and oral, misdirected the jury in relation to self-defence. It is said that they did so by proposing a question trail, as a suggested framework for the jury to reason to their decision, which required that the jury make positive findings or conclusions about the existence of "reasonable possibilities" as to the subjective and objective elements of that defence (see s 418(2)) before the appellant could be acquitted.
In doing so the directions are said impermissibly to equate the existence of a reasonable possibility with a reasonable doubt; and to reverse or distort the onus of proof by suggesting that the jury had to be positively satisfied of the existence of those possibilities before the appellant could be acquitted. In these respects, the trial judge's directions are said to have involved the kind of error identified in Hadchiti v R.
It is convenient at this point to refer in more detail to that decision. H was charged with murder, and an alternative verdict of manslaughter by unlawful and dangerous act was also left to the jury. The trial judge provided the jury with a seven page written direction and summed up by reference to that document. Those directions identified five issues and stated eight questions which the jury had to answer in resolving those issues. With two exceptions the questions as formulated made no reference to the prosecution's onus of proving the elements of the charged offence, and excluding any available defence, in each case beyond reasonable doubt. At the same time those questions equated the existence of a reasonable possibility with a failure of the Crown to establish affirmatively, or negate, those matters. In relation to questions directed to matters of defence it was argued in Hadchiti v R that the onus of the Crown to exclude matters of defence beyond reasonable doubt was equated to a requirement that the jury positively find the existence of a reasonable possibility in order to avoid a guilty verdict on the basis of the availability of that defence.
Ground 1 of appeal in Hadchiti v R was that these written directions considered in the context of the whole summing up (including directions that correctly addressed on the onus and standard of proof) "contravened well-established principles by which juries in criminal trials must be directed concerning the legal onus upon the Crown": Hadchiti v R at [26], [112]. The Court, focussing on the trial judge's written directions which in terms instructed the jury how they should go about reaching their verdict (at [70]), held that ground to have been made out.
In doing so the Court reasoned in [87] and [107]-[109] as follows: [87] It will be seen that, repeatedly, in the document taken into the jury room at the time of the jury's deliberations, the notion of reasonable doubt was equated to the existence of a reasonable possibility. … … [107] This was not a case where, in relation to the elements which the Crown had to negate beyond reasonable doubt, MFI 19 instructed the jury that the Crown must "remove or eliminate any reasonable possibility" (cf Kanaan at [145]) or that if any reasonable possibility remained, the jury must acquit (cf Ayoub at [4]). There is nothing wrong with such formulations. But to our minds there is a critical difference between what will necessarily result in an acquittal and what is sufficient to reach a guilty verdict. There is a critical difference between an instruction to the effect that the Crown must remove a reasonable possibility in order for a guilty verdict to be available and an instruction that turns on whether the jury has found there to be a reasonable possibility in order to avoid a guilty verdict. This is essentially the point made by Macrossan CJ in Holman and may be seen in the passages from Ayoub, Kanaan and Ward considered above. [108] Sixthly, a deal of the force in Mr Game's submissions, to our minds, was that there was no occasion for much of the elaboration in the "question trail". The first issue was whether the Crown had proved beyond reasonable doubt that the accused deliberately stabbed the deceased in the neck. The second issue was whether the Crown had proved beyond reasonable doubt that the accused intended to kill or cause grievous bodily harm to the deceased. Of course, as Hunt CJ at CL pointed out, there is a potential for confusion when the Crown must negative a defence to the criminal standard, for which reason it has long been accepted in this State that in relation to negative elements, it can be appropriate to ask whether the Crown has eliminated any reasonable possibility that the accused, say, acted in self-defence: see Jones at 659-660. But the written direction was not framed in those terms even in respect of the elements which the Crown had to negative. MFI 19 treated identically the positive and negative elements which the Crown had to prove beyond reasonable doubt. [109] We regard the departure from the conventional formulation to be material. One way of explaining why is as follows. If the answer to "Question 1" was affirmative, such that there was found to be a reasonable possibility that the appellant did not deliberately stab the deceased in the neck, then it is plain that the Crown case was not made out and a not guilty verdict should have been returned. But that is not the only way in which the Crown could fail on that issue. The Crown could fall short of establishing beyond reasonable doubt that the appellant deliberately stabbed the deceased in the neck, even if the jury were unable to conclude that there was a reasonable possibility that the appellant did not do so. We think that a jury would be unlikely readily to grasp the nuances here, between the reasonable possibility which is sufficient for an acquittal but the absence of which is not necessary for a guilty verdict.
Reference may now be made to the trial judge's summing up and written directions in this case. As will become apparent, his Honour's oral and written directions dealing with self-defence made clear that the Crown had to eliminate it as an issue by proving beyond reasonable doubt that the appellant did not act in self-defence; and that to do so the Crown had to prove that there was no reasonable possibility of one or other of the subjective or objective elements in s 418(2) of the Crimes Act applying or being satisfied.
The trial judge provided the three documents described in [35] above to the jury during the course of a summing up which proceeded over three days. The first, handed to the jury on the afternoon that the summing up commenced, became MFI 11 and included the following under the heading "Murder and self-defence". 17. It is for the Crown to prove to your satisfaction beyond reasonable doubt that Mr Lane did not kill Mr Morris in self-defence. If the Crown does not discharge its onus, Mr Lane must be acquitted of the charge of murder even if you have decided that Mr Lane struck Mr Morris down intending to inflict really serious physical injury. 18. Depending on the circumstances as found by you, self-defence may either be a complete or a partial defence to the charge of murder. If a complete defence, Mr Lane is not guilty of murder. If a partial defence, Mr Lane is not guilty of murder, but is guilty of the less serious offence of manslaughter by excessive self-defence. 19. Self-defence will be a complete defence if your answer is yes to each of these questions: (a) Is there a reasonable possibility that Mr Lane believed that striking Mr Morris was necessary in order to defend himself; and (b) Is there also a reasonable possibility that what Mr Lane did was a reasonable response to the circumstances as he perceived them. 20. Self-defence will operate as a partial defence only, reducing murder to manslaughter, if you answer yes, to the first question, but no to the second question.
Under the heading "Manslaughter by unlawful and dangerous act" MFI 11 stated: 27. However a strike will not be unlawful if it was delivered in self-defence. Unlike for murder, for manslaughter self-defence only operates as a complete defence. The elements are as discussed above at [18] [sic]. You must acquit unless satisfied beyond reasonable doubt that Mr Lane did not believe at the time he struck Mr Morris down (if it occurred) that it was necessary to do what he did in order to defend himself in the circumstances as he perceived them to be; or the punching by Mr Lane was not a reasonable response in the circumstances as he perceived them. 28. It is sufficient if the Crown excludes either element to you satisfaction. Intoxication remains relevant in the way discussed at [19] above.
Finally this direction included the following reference to the flowchart which became MFI 15: 30. I have provided a flowchart or question trail as a suggested framework for reasoning to your decision. It attempts to direct your attention to the issues for your decision in this case. You must apply the law I have given you but you are not bound to follow my suggested framework. You may discard it if you wish. You are entitled to reason to your decision by any rational path which seems appropriate to you provided you apply the directions of law I have given you.
The second document, provided to the jury on the morning of the second day of the summing up, became MFI 12. It set out the legal elements of murder and unlawful and dangerous act manslaughter, and then dealt with self-defence in the respects in which it might be available. In doing so it explained what the Crown must prove in relation to self-defence: … Although "self-defence" is referred to as a defence, it is for the Crown to eliminate it as an issue by proving beyond reasonable doubt that an accused did not act in self-defence. Self-defence has 2 components; A person acts is self-defence if and only if they believe at the time of the act that it was necessary to do what they did in order to defend him/ herself; and The conduct was a reasonable response in the circumstances as the person perceived them For the Crown to eliminate self-defence as a complete answer to a charge, it must prove that either: there is no reasonable possibility that at the time of the conduct which caused death the accused believed it was necessary to defend himself; or there is no reasonable possibility that the conduct which caused death was a reasonable response in the circumstances as perceived by the accused.
When introducing MFI 12 to the jury, the trial judge emphasised the onus and standard of proof borne by the Crown: Although self-defence is referred to as a defence, it is for the Crown to eliminate it as an issue by proving beyond reasonable doubt that the accused did not act in self-defence. It has two components [reference is made to the subjective and objective elements in s 418(2)] … Now you will see the next statement that for the Crown to eliminate self-defence as a complete answer to a charge, it must prove either that there is no reasonable possibility that at the time of the conduct which caused the death, the accused believed performing that conduct was necessary to defend himself. We put it that way there is no reasonable possibility to incorporate the onus of proof, the standard beyond reasonable doubt… But if you are not satisfied that there is no reasonable possibility, if you are not satisfied beyond reasonable doubt that it was not reasonably possible that Mr Lane in this case, let us put it in practical terms, believed that it was necessary to do what he did to defend himself, then the Crown has not displaced the first element. Now the second element is that there is no reasonable possibility that the conduct that caused the death was a reasonable response in the circumstances as perceived by the accused. Again the question is formulated that way to take account of the burden of proof.
The third document handed to the jury was the flowchart which became MFI 15. It was provided at the end of the summing up, in the morning of the third day. MFI 15 was in two parts headed "Murder flowchart" and "Manslaughter flowchart (only consider this flowchart if directed by the murder flowchart)".
Each of those parts included questions in substantially the same terms as paras 19(a) and (b) of MFI 11 (see [93] above). Questions 3 and 4 of the murder flowchart provided: (1) Are you satisfied beyond reasonable doubt that Mr Morris fell and struck his head because of a voluntary act of Mr Lane, in the sense of being deliberate, which was not a spontaneous, unintended reflex action? (i) No → Not guilty of murder (or manslaughter) (ii) Yes → Next question (2) Are you satisfied beyond reasonable doubt that Mr Lane specifically intended to cause really serious physical injury to Mr Morris? (i) No → Not guilty of murder. Turn to manslaughter flow chart. (ii) Yes → Next question (3) Is there a reasonable possibility that Mr Lane believed that striking Mr Morris was necessary in order to defend himself? (intoxication relevant as to his perceptions) (i) No → Guilty of murder (ii) Yes → Next question (4) Is there a reasonable possibility that what Mr Lane did was a reasonable response to the circumstances as he perceived them? (i) No → Not guilty of murder, guilty of manslaughter (ii) Yes → Not guilty of murder or manslaughter
The trial judge also explained that a "no" answer to the third question meant that the jury was satisfied beyond reasonable doubt that there was no reasonable possibility that the appellant believed that striking Mr Morris was necessary in order to defend himself. It followed that the Crown had discharged its onus in respect of the subject matter of that question. That direction was wholly consistent with the terms of MFI 12 (see [96] above) which included that for the Crown to eliminate self-defence as a complete answer to the murder charge it had to negate, beyond reasonable doubt, the possibility of either of the subjective and objective elements in s 418(2).
The appellant's argument, to which we now turn, has two strands. First, it is said that the flowcharts framed the jury's consideration of self-defence "in terms of finding reasonable possibilities as a pre-condition to acquittal" and that in doing so they "shifted, or at least distorted, the onus of proof". Secondly, it is contended that equating the presence of reasonable doubt with there being a reasonable possibility of the existence of some exculpatory factor and providing only for a "yes" or "no" answer to a question directed to whether there was such a possibility does not accommodate the possibility of a third answer to that question, namely "unsure". A similar argument was made and rejected by this Court (Basten JA and RA Hulme J, Adamson J dissenting on this question) in Moore v R [2016] NSWCCA 185 at [34]-[36] (Basten JA) and [128]-[129] (RA Hulme J). The High Court refused special leave to appeal from that judgment on the basis that the decision of the majority was not attended with sufficient doubt: Moore v The Queen [2016] HCASL 323.
The appellant's first argument does not take account of the oral and other written directions that accompanied the flowchart questions. MFI 12 and the trial judge's explanation of it with respect to self-defence emphasised that the Crown bore the onus of proving beyond reasonable doubt that the appellant had not acted in self-defence; and instructed the jury that the Crown satisfied that onus and standard at each point at which it arose by proving the absence of any reasonable possibility of the existence of any subjective or objective element necessary for the availability of the defence. The trial judge's description of each of the questions concerning self-defence was to the same effect. Those questions focussed on what it was necessary for the Crown to exclude beyond reasonable doubt in order to satisfy its onus. The trial judge explained that a "no" answer to each question would mean that the jury was satisfied that there was no such reasonable possibility.
The formulation of these questions did not in our view shift or distort the onus of proof. On the contrary in relation to the relevant subject matter, those questions, in circumstances where it has been made clear that the Crown bears the burden of excluding self-defence beyond reasonable doubt, inquire whether it has discharged that onus by establishing that there is no reasonable possibility of the existence of the subjective and objective elements in s 148(2). We do not understand the Court in Hadchiti v R to suggest that in relation to self-defence there is anything wrong with formulating a question for the jury in terms which inquire whether there is a "reasonable possibility", where the Crown's onus and standard of proof are otherwise stated clearly. See also Moore at [114] (RA Hulme J).
The same contention as is made by the appellant's second argument was made and rejected with respect to the written direction of the trial judge in Moore. It is dealt with by Basten JA at [34]-[36] and RA Hulme J [128]-[129]. The trial judge's summing up and written directions in the present case made clear that the questions as to there being a reasonable possibility as to each of those elements being satisfied were directed to what was required for the jury to have a reasonable doubt. Accordingly from the jury's perspective there were only two possible answers to the "reasonable possibility" questions as formulated. They were "no" or "yes" depending on whether there was such a reasonable possibility as would give rise to a reasonable doubt. There was no room for any "unsure" answer.
For these reasons the argument based on ground 4 is not made out.

[11]

Change in the Crown case on the actus reus

The evidence led by the Crown did not permit treatment of the two occasions on which the deceased fell and struck his head on the roadway as constituting a single incident comprised of multiple contacts by the appellant which need not be distinguished from each other. The alleged contact between the two men was not so continuous or unified as to allow the case to be presented and left the jury as one of a single, composite assault. It was necessary for the jury to discriminate between separable alleged blows or other actions and their respective consequences for the deceased.
In this respect the Crown case fell within the second of the two types of cases considered by the United Kingdom Court of Appeal, Criminal Division in R v Smith [1997] 1 Cr App R 14. The charge of affray in that case concerned events which occurred both within and outside a house. The charge of murder now before this Court, arising out of a hand to hand conflict, has given rise to a similar issue. The ground of the appeal in R v Smith, as described in the court's judgment, was: "that by embracing events both inside the house and outside, and in failing to direct the jury that they had to be satisfied that the evidence either inside the house or outside the house constituted the offence of affray, the learned recorder was guilty of an inadvertent misdirection, leading to the possibility that although the jury unanimously convicted, they did so on different factual bases. In other words, … the possibility exists that some of the jury may have found the offence of affray proved on the strength of what happened inside the house and some may have found the offence established on the strength of what they were satisfied happened outside the house, but without the jury as a whole being satisfied that an affray was committed on either basis."
The court held: "[Affray] typically involves a group of people who may well be shouting, struggling, threatening, waving weapons, throwing objects, exchanging and threatening blows and so on. Again, typically it involves a continuous course of conduct, the criminal character of which depends on the general nature and effect of the conduct as a whole and not on particular incidents and events which may take place in the course of it. Where reliance is placed on such a continuous course of conduct it is not necessary for the Crown to identify and prove particular incidents. To require such proof would deprive section 3(1) of the 1986 Act of its intended effect, and deprive law-abiding citizens of the protection which this provision intends that they should enjoy. It would be asking the impossible to require a jury of 12 men and women to be satisfied beyond reasonable doubt that each or any incident in an indiscriminate mêlée such as constitutes the typical affray was proved to the requisite standard. Different considerations may, however, arise where the conduct which is alleged to constitute an affray is not continuous but falls into separate sequences. The character of the conduct relied on in each sequence may in such a case be quite different and so may the effect on persons who are (or might hypothetically be) present at the scene. The possibility then arises that half the jury may be persuaded that the first sequence amounted to an affray and the second did not, and the other half of the jury may be persuaded that the second sequence amounted to an affray and the first did not. The result would then be that there was no unanimous jury verdict in support of conviction based on either sequence."
In the present case the Crown's only evidence of how the deceased's head first came to strike the roadway was closed circuit television ("CCTV") footage. This was open to interpretation by the jury as not showing any physical contact from the appellant nor any other action on his part which led to the fall. There was no eyewitness to the first fall whose observations could support a conclusion that the appellant had caused it by a voluntary act. In contrast a later segment of the CCTV footage could sustain a jury finding that it showed the appellant delivering a powerful and well directed punch to the deceased's head, causing him to fall and strike his head on the ground the second time. Four eyewitnesses directly supported this. Namely, Mr Cupitt, Mr Perkins, Mr Armstrong and Ms Livingstone, although the evidence of Mr Perkins had inherent weaknesses (analysed in the summing up at SU 92 - 98). A fifth witness, Mr Marsh, did not see a punch connect with the deceased but gave evidence that the appellant swung his arm in the direction of the deceased, who fell to the ground immediately thereafter.
Recognising the disparate nature of and diverse evidentiary support for these respective events, notwithstanding their separation by only about ten seconds, the Crown at trial did not attempt to present the two fatal head injuries to the deceased as the product of a single incident. In fact the Crown opened on the basis that it would only attempt to prove one voluntary act of the accused causative of death. Namely, a punch which caused the deceased to fall and strike his head on the roadway on the second occasion. This is apparent from a passage in the Crown's opening address at T 11 - 12. At that point the Crown prosecutor first described what he alleged was shown by the early part of the CCTV footage. Namely the appellant walking westwards with his son on Baker Street, Casino and overtaking the deceased and his companion, following which the appellant was said to turn back towards the deceased who pushed him against a shopfront.
The Crown prosecutor then said that, as seen on the CCTV film, the deceased moved quickly from the shopfront across the footpath towards the roadway with the appellant following. He continued: "Now, as the deceased was moving backwards over the footpath heading towards the road surface, the accused made contact, the Crown says, with the deceased, perhaps causing the deceased to trip and to fall onto that road surface. [The Crown then described an assault by the appellant upon the deceased's companion, Mr Schwager]. When the accused was involved with Mr Schwager, by this time the deceased had risen to his feet and he was backing away from the accused with his hands by his sides. The Crown says this film will show you the accused swings another roundhouse type left hook impacting with the deceased's face to the right-hand side of the face. That blow caused the deceased to go to the ground and his head, the back of his head, heavily impacted with that road surface … . When the accused struck the deceased, the deceased made no effort to break his fall. He just went straight to the ground."
In this passage the Crown did not even mention that the deceased's first fall had resulted in his head striking the ground. There was no suggestion the Crown would rely upon the first fall as having been a cause of death or that it would allege any conduct of the appellant which may have led to that fall was part of the actus reus of the alleged murder. Consistently with this, when the prosecutor opened to the jury on the medical evidence to be tendered regarding a subdural haemorrhage suffered by the deceased he said (at T 14.1): "What the Crown says is that the blow to the head caused the forehead [to] hit the ground, the substantial cause of the death is the blow … ."
The reference to "the blow", singular, was clearly to the "round house type left hook" which had earlier been said to have felled the deceased when he struck his head on the roadway the second time. That was the only "blow" the prosecutor mentioned in his opening. His reference to "the forehead" hitting the ground may be a mis-transcription or a slip on the part of Crown counsel. He had earlier clearly said that the appellant's punch had caused the back of the deceased's head to impact heavily on the road surface.
When the Crown's opening moved to the element of the appellant's intention to inflict grievous bodily harm, the prosecutor reinforced that the only voluntary act of the appellant which was said to be accompanied by this intention was the single punch he had earlier mentioned. He said this at T 14.12: "It was a deliberate act of the accused - swinging the punch - again I anticipate that is not in dispute between the parties. That that act caused the death. Again I expect that is not in dispute between the parties. That that act at the time it was done was accompanied by a certain intention. And in this case the Crown says that the intention was to inflict grievous bodily harm." [Emphasis added.]
Finally, when anticipating the possibility that the jury would have to consider manslaughter by unlawful and dangerous act the Crown prosecutor introduced this subject with the following words (at T 14.32 and 14.38): "And for example if you weren't satisfied as to the intent at the time that blow was thrown, it may well be that you'd go on and consider whether or not the Crown had proved manslaughter. […] What that Crown says is it was a deliberate act of that punch." [Emphasis added.] Again the reference to a "blow" or a "punch" in the singular could only have been to the assault which immediately preceded, and was said to have caused, the deceased's second fall to the roadway.
The brief opening address by defence counsel was consistent with his having understood that the Crown founded its case solely on the single punch by which it was alleged the appellant had knocked the deceased to the ground when his head hit the roadway the second time. Defence counsel did not state that the accused disputed having struck a blow to cause this fall but said in final address he would submit (a) there was "an insufficiency of evidence of intent to inflict grievous bodily harm" and (b) "that this accused formed the belief that was justified in the circumstances that he was acting in self defence" (T 15.28 - .31). Implicitly this opening accepted that a voluntary act of the accused had caused the deceased to fall and strike his head the second time. Cross examination of the Crown's witnesses subsequently put this very much in issue. The defence opening did not refer to the first occasion when the deceased fell to the roadway and struck his head. It may be inferred that this was for the very good reason that the Crown had not in opening attempted to make the accused's involvement (if any) in the first fall a part of the actus reus upon which the charge of murder had been laid.
The Crown called Dr Little, the pathologist who had conducted an autopsy on the body of the deceased. She gave evidence that the following injuries, amongst others, were found on examination of the deceased's head: 1. An area of abrasion on the back of the scalp, 5 cm to the left of the mid line, measuring 35 mm high by 25 mm wide. There was no bruising in this area nor any fracture of the skull. The injury was said to be typical of what "we would see in someone who falls backwards". 2. A very large area of bruising across the left side of the scalp beginning in the area of the temple and extending 140 mm toward the back of the scalp and 80 mm in height. Under this area of bruising was a horizontal fracture through the temporal bone (above the ear) extending to adjacent bones of the skull at the back and the front. The total length of this fracture on the outside of the skull was 80 mm. The fracture penetrated through the full thickness of the skull. On the inside it went across the base of the skull almost to the midline of the front, then extended through the sphenoid bone (above the top of the nose). 3. A fracture of the left cheekbone below the eye approximately 7 mm long, projecting horizontally through the bone, and a fracture of the left upper jawbone. There was a yellow bruise at the outer corner of the left eye 15 mm in diameter. 4. Bruising on the inside lining of the mouth at the right corner. 5. The frontal and temporal lobes of the brain had been bruised. There was diffuse cerebral swelling which indicated that intracranial pressure had been raised. Evidence of subdural haemorrhage - bleeding between the fibrous tissue surrounding the brain and the surface of the brain itself - was a further indication of intracranial pressure. This had caused both haemorrhaging and ischaemia within the brain.
Dr Little said at T 526.13: "Originally I was only told there was one impact and I found that difficult to reconcile. But having seen the [CCTV footage] I feel happier that there were two separate times that he fell and that would explain the constellation of injuries."
At T 533.14 - .27 the pathologist gave these answers: "Q. Are you able from the DVD [of the CCTV footage] you've seen Dr Little, to say the sequences in which those discrete injuries were sustained? A. No … Q. Doctor, lastly is it possible that both of the injuries contributed to the death? A. Yes. Q. Individually could they contribute to the death? A. Yes. I think - overall obviously it's a combination but in [sic] either injury could have led to death on its own."
From the terms of the prosecutor's final address it may be inferred that the evidence of Dr Little which has been extracted at [123] and [124] had not been expected - or had not been taken into account - when the Crown case was opened. In closing the Crown expanded its case regarding the act of the appellant which had caused death. It no longer relied solely upon the one punch which it alleged had caused the deceased to fall and strike his head the second time but instead relied upon an "act or acts" (T 609.45) which had resulted in the deceased's head striking the roadway on the first time or the second time or both. This was articulated, with lamentable lack of precision, in the following parts of the closing address recorded at T 609 - 610: "So what the Crown says with respect to this issue of causation is that the act or acts of the accused caused or substantially contributed to the death of Mr Morris. … Now the next thing the Crown has to establish for the offences of murder is that they were deliberate act or acts on the part of the accused which caused the death. So clearly, you might think the starting point is what is a voluntary act? Well, it's an act that is willed, not a reflex type situation. … So what does the Crown point to in that regard? Well, the first thing you have [is the CCTV footage]. … What it shows … is that the accused and his son walk either side of the deceased, then [the appellant] turns and goes back. … A willed, thoughtful act. … But those persons who did [see the entirety of the events] speak about blows, speak about punches. They don't speak about accidents or reflexes." [Emphasis added.]
After quoting and paraphrasing some of the evidence of three witnesses who were said to have spoken "about blows, … about punches" the Crown continued at T 611 as follows: "They are just three of those people. They're not talking about non-willed acts. They're talking about punches. They're talking about blows. They're talking about aimed blows. When you consider all of that material and you put it together, you don't have a reflex. You don't have an involuntary act. You have a decision, a deliberate decision made by a person who's gone back to confront this person, to be aggressive, to throw punches. Now that's a willed deliberate act." [Emphasis added.]
In fact the evidence the prosecutor had quoted up to this point in his address was of only one punch to the deceased, the one which knocked him to the ground when he hit his head the second time. The eyewitnesses whose evidence the Crown later summarised (at T 616.21 - 623.17) all testified that they had only seen the appellant punch the deceased once, all clearly speaking of the same occasion.
At T 613.37 - 614.14 the prosecutor submitted to the jury his interpretation of the CCTV footage from 44 seconds after it commenced to 55 seconds. This was before the deceased's first fall. The Crown said the appellant overtook the deceased on the footpath then paced back towards him and pushed forward with his chest, his arms out. It was submitted the deceased pushed the appellant away from himself, towards the shopfront, then took six steps backwards away from the appellant. The Crown said during these six steps the deceased received a blow from the accused but by the seventh step the deceased had turned and was "facing away from the accused - fleeing from him". Then "he goes to the ground, Mr Morris [the deceased], and there is a degree of separation between them".
At T 614.26 - .42 the prosecutor submitted that 62 seconds into the CCTV footage the deceased had regained his feet on the road and was facing the appellant on the footpath. At that moment the appellant commenced to advance towards the deceased until at 65 seconds they were very close, their "heads seem to go back a bit, but at that instant, that's the instant the deceased goes straight to the ground". The Crown went on to summarise (at T 616.21 - 623.17) the eyewitness accounts of these events, as referred to at [127].

[12]

The defence closing address and crystallisation of the issues

Perhaps because of the confused way in which the prosecutor in final address had transformed the alleged actus reus from a single punch which caused a single fall into an ill-defined amalgam of "willed acts", "blows" and "punches", defence counsel responded with matching lack of clarity and in a manner which was at times tentative and in some respects contradictory. At T 631.1 - .13 he submitted: "Whether it was a voluntary deliberate act by the accused is something that you do have to be satisfied about. …..[You] have to see whether you can see to your satisfaction … the accused offer or do some wilful, voluntary, deliberate act that caused Mr Morris to fall to the ground. I'm not suggesting that's the most significant matter in the trial, but it is a matter which you have to be satisfied beyond with [sic] reasonable doubt. Have a look at the time Mr Morris goes to the ground. Initially and on the second occasion when the accused is on the street whether there is any mechanism, whether there is anything you can discern that amounts of [sic] a deliberate act."
Dealing with the first occasion on which the deceased fell and hit his head defence counsel addressed in these terms at T 640.31 - 641.5: "So what we see is eventually Mr Morris goes backwards for a short time, turns, and goes onto the street and the Crown suggest there is some sort of physical contact between the time they leave the shopfront and go to the kerb. That is a matter to you. I can't see it with sufficient clarity, with respect, to be able to agree or disagree with the Crown. What is clear is that Mr Morris goes to the ground and remember he's going face on at this stage, towards the roadway, with the accused behind him. At the time he goes to the roadway initially the accused has not just touched him or isn't in close physical proximity to him. There is no explanation other than unfortunately Mr Morris tripped at that stage and went headlong onto the roadway. … … [The fractures to the left cheekbone and deeper internal fracture to the left temporal bone of the skull] are roughly in the same area and what you should do with respect is see if the way he went down on that first occasion at a time when the accused was behind him and not touching him, could have caused those injuries because as you watch the video run through, there doesn't appear to be another contact with a hard surface that would account for the injuries in that part of the head. Remember the second fall was more consistent with the injury to the back left hand side of the scalp which similarly caused brain damage"
At T 641.7 - 642.7 defence counsel offered his own analysis of the CCTV footage and of the eyewitness accounts of the deceased's second fall to the roadway. He said that on the CCTV footage the jury would not see "any arm movement by the accused consistent with the blow that other witnesses have talked about".
Thus the appellant put in issue whether the Crown had proved beyond reasonable doubt a voluntary act which had caused either of the deceased's falls. At T 641.39 the jury were urged to examine the CCTV footage to see whether they could be satisfied beyond reasonable doubt that at the time of the deceased's second fall "the accused intended to inflict really serious bodily injury on Mr Morris". At T 640.15 - .31 defence counsel addressed on self defence with respect to the interaction between the appellant and the deceased immediately before the first fall and at T 642.9 - .33 he raised it more clearly in relation to the second fall.
From all of this, by the time his Honour came to sum up the following were live issues: 1. Whether the Crown had proved beyond reasonable doubt that a voluntary act or acts of the appellant had caused either or both of the falls in which the deceased struck his head on the roadway. 2. With respect to whichever fall (or both) the Crown had proved was caused by a voluntary act of the appellant, whether the Crown had proved the appellant intended to cause death or grievous bodily harm by the voluntary act (or acts). 3. With respect to whichever fall (or both) the Crown had proved was caused by a voluntary act of the appellant accompanied by intent to cause either death or grievous bodily harm, whether the Crown had proved there was no reasonable possibility 1. that the appellant acted in the belief it was necessary to defend himself or 2. that his actions were a reasonable response to what he perceived as the need to defend himself. 1. With respect to whichever fall (or both) the Crown had proved was caused by a voluntary act of the appellant but not accompanied by intent to cause either death or grievous bodily harm, whether the Crown had proved that the appellant's conduct 1. constituted an unlawful act; 2. involved an appreciable risk of causing serious harm to the deceased and 3. was such that a reasonable person in the position of the accused would have appreciated the risk of serious harm.

[13]

The need for unanimity on the actus reus

Each of the issues identified at (2), (3) and (4) in the previous paragraph could only be considered in relation to one or the other or both of the falls. There could not be unanimity on a verdict of guilty (of either murder or manslaughter) unless the jury were unanimous, as a starting point, as to what act the appellant had committed which was (a) causative of the deceased's head striking the roadway and, hence, (b) causative of his death (issue (1)). (I use the word "act" in the singular but as indicated in the formulation of issue (1) at [134] the act to be found unanimously by the jury could be an act causing the first fall or an act causing the second fall or acts causing both falls). The jury could only deliberate towards findings on the three further issues (which, again, would have to be unanimous) if they were first unanimously agreed as to what was the act of the appellant which may or may not have been accompanied by the requisite intent (issue (2)), may or may not have flowed from a perceived need for self defence (issue (3)) and may or may not have been unlawful and dangerous (in the sense necessary to sustain manslaughter by unlawful and dangerous act) (issue (4)).
The necessity to direct the jury that they must be unanimous as to the factual basis of an essential element of a charge, where alternative possible factual bases are presented in the evidence, is well-established: R v Smith (cited at [112]); R v Boreman [2000] 1 All ER 307; R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 229; Pratten v R [2014] NSWCCA 117. In R v Walsh the court stated that where a number of discrete acts are relied upon as proof of an essential ingredient of an offence and any one of them would entitle the jury to find the charge proved "the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient". The passage is more fully set out in the judgment of Meagher JA and Davies J at [18].
A useful illustration for present purposes is provided by the facts of R v Klamo (2008) 18 VR 644; [2008] VSCA 75. The accused was convicted of the manslaughter of his four-week-old son. The cause of death was a subdural haemorrhage which occurred at some time in the 24 hours before death. A pathologist called by the Crown said the haemorrhage may have resulted from indirect trauma by shaking. In a record of interview the accused had admitted to having shaken the baby on an occasion one to two weeks before he died. The Crown in final address invited the jury to infer that the accused had shaken the baby again at about 3:00 am on the morning of his death. However it also addressed on the alternative basis that the fatal haemorrhage may have been a spontaneous re-bleed from a subdural haemorrhage caused on the occasion of the first, admitted shaking, one to two weeks earlier.
The trial judge summed up on the footing that these alternative occasions of shaking were both open on the evidence; either could be found proved beyond reasonable doubt. His Honour did not direct that in order to return a verdict of guilty the jury had to be unanimous about which of the occasions they found proved. At [76] Maxwell P, with whom Vincent and Neave JJA agreed, held as follows: "Although the presentment charged only that the applicant had killed the child, the case against him was that he was guilty of manslaughter by dangerous and unlawful act. Proof of an act having both those characteristics was essential to conviction. The prosecution relied on - and the judge left to the jury - two 'discrete acts', some days apart, each of which was said to be capable of constituting the crime charged. On the authority of Walsh - and the cases on which the analysis was based - the jury could not convict unless they were 'agreed upon that act which, in their opinion, does constitute' the crime."
On the present appeal the Crown sought to distinguish R v Klamo by submitting that the acts of the appellant which it had relied upon at trial, being those which caused the first fall and those which caused the second, were not "some days apart" but were separated by only approximately 10 seconds. That is not a point of distinction which would invalidate application of the Victorian Court of Appeal's reasoning to the present circumstances. Importantly the two causative acts of the appellant which the Crown submitted for the jury's consideration were distinct in three respects: 1. in character, the first not involving any discernible contact with the deceased, the second consisting in a hard punch; 2. with respect to the source of the evidence which supported them and 3. in giving rise to two separate heavy contacts of the deceased's head with the roadway.
This case did not fall within the principle that "if an accused person kills another by one or other of two or more different acts each of which, if it caused the death, is a sufficient act to establish murder", then it is "not necessary to found a conviction to prove which act caused the death": Attorney General's Reference (No 4 of 1980) [1981] 1 WLR 705 at 710. As pointed out at [131] - [133] there were in the present case very significant live issues bearing upon whether there had occurred either of the two alleged acts of the appellant (that which caused the first fall and that which caused the second). Further, there were issues as to whether either, if proved, was "a sufficient act to establish murder". Namely, the issues of whether any act which might be found proved had been accompanied by the requisite intent and whether, if so, it had been self-defensive. Those additional issues might well be resolved with different results as between the appellant's actions alleged to have caused the first fall and his actions alleged to have caused the second. The evidence upon which his intent (issue (2)) and any perception of a need to defend himself (issue (3)) could be inferred was entirely distinct as between the two alleged occurrences.

[14]

The summing up

The first of the written directions provided by his Honour to the jury during his summing up (MFI 11, distributed at SU 12) explained the element of a voluntary act causative of death in these terms (extracted so far as relevant): "9. There is an issue in this case about whether a voluntary act of Mr Lane caused the death of Mr Morris. In this context 'voluntary' means a willed movement of the muscles. … 10. In the way the issues have been presented for your decision you may not find a voluntary act unless you are satisfied that Mr Lane knocked Mr Morris down by the deliberate application of force by way of a punch, or a push or some other striking. I will refer to this as a strike. This is the first dispute for you to resolve."
These directions did not acknowledge that by this closing stage of the trial the Crown was alleging there were two separate occasions of the deceased having been knocked down. They did not acknowledge that each was said to have resulted in a separate head injury which was a substantial cause of death and that the alleged voluntary acts of the appellant which had been causative of the two falls respectively were distinct from one another. The jury were told in par 10 that it was for them to resolve whether they could "find a voluntary act" but the directions did not explain that this had to be either an act which caused the first striking of the head or an act which caused the second striking or multiple acts which caused both. By merging these alternatives into the single defined term "strike" the MFI 11 directions obscured from the jury a critical issue upon which the appellant had defended the charge and which he was entitled to have the jury decide and decide unanimously.
Throughout the balance of MFI 11 the defined term "strike" (or a derivative of it such as "striking") was used consistently (with one exception in par 27 where "punching" was used). This had the consequence that the written directions about intent, about the appellant's perception of a need to defend himself and about unlawful and dangerous act (which appear at pars 11 - 29 of MFI 11) were not made referable to a primary finding, unanimously arrived at, of either a willed act which caused the first striking of the head, or such an act which caused the second, or willed acts which caused both impacts.
At SU 26 the jury received the second of the written directions distributed by his Honour during the summing up, MFI 12. This set out in bullet point form the elements of murder and of manslaughter by unlawful and dangerous act. In a similar format it set out the constituents of self defence and of manslaughter in the case of excessive self defence. So far as the actus reus was concerned, it was expressed as "a deliberate act which caused death". MFI 12 contained nothing which would give the jury an understanding that they had to come to a unanimous decision which, if any, of the appellant's alleged acts had taken place and caused the deceased to strike his head. That is, they would not have understood that to return a verdict of guilty of either murder or manslaughter they had to be unanimous that some contact, push, shove or pursuit had caused the deceased to fall the first time, or that a punch had caused him to fall again, or that both had occurred.
Paragraphs 9 and 10 of the MFI 11 directions were expanded upon at SU 34 - 35. The deficiency referred to at [142] - [144] was not corrected. His Honour said: "Then the first issue is, was it a voluntary act of Mr Lane that struck Mr Morris down because it was the falling down and striking his head on the ground on two occasions which caused his death. … If you are satisfied beyond reasonable doubt that what caused Mr Morris to fall to the roadway on either occasion was a punch or a push or a shove from Mr Lane, then that punch or push or shove would be a voluntary act. So the real question here is, is that what happened? That is to say, did Mr Lane punch or push or shove Mr Morris in such a way that he fell to the ground on either occasion?" [Emphasis added.]
Having regard to the evidence and counsel's closing addresses the reference to a "push or a shove" could only have been to the Crown's allegations in relation to the first fall. The reference to "a punch" could only have related to the Crown case on the second event. Following the passage quoted at [145], at SU 35 his Honour restated the issue with respect to the actus reus a number of times, repeating each time the expression "on either occasion".
There was a short adjournment, recorded at SU 36 - 38, during which defence counsel complained that his Honour "may have given the jury the impression that it was uncontested that Mr Morris was struck down twice" and reminded the learned trial judge of counsel's "submission that the first time he may have fallen without any -- anything -- fallen accidentally off the kerb without any intervention by the accused at that stage". His Honour said he quite understood the defence case to be "that on the evidence the jury cannot be satisfied beyond reasonable doubt that on either occasion when he fell, that it was because of any strike by Mr Lane".
Consequently when the jury returned to court and the summing up resumed His Honour reminded them in these terms at SU 39: "Mr Lane disputes that some deliberate act of his caused the first fall and he disputes that some deliberate act of his caused the second fall. So that is the primary issue of fact that you have to determine as I discussed before the adjournment." Whilst confirming that all aspects of the actus reus alleged by the Crown were disputed, this did nothing to bring to their attention the need to be unanimous on either one aspect or the other or both.
At SU 42 - 102 his Honour reminded the jury of the CCTV and eyewitness evidence of the entire altercation between the appellant and the deceased and others. Most of this summary was concerned with the evidence of Messrs Cupitt, Perkins and Marsh and Ms Livingstone which related to the alleged punch immediately preceding the second fall. In the course of the summary his Honour reminded the jury of counsel's competing submissions as to what this evidence established. But again, nothing said at this point would have conveyed to them that in order to find the appellant guilty of either murder or manslaughter they had to reach a unanimous finding on one or the other or both of the alleged acts of the appellant said to have caused the deceased to strike his head on the roadway on the two occasions respectively.
At SU 103 his Honour restated the issue with respect to whether the accused had been shown to have committed a voluntary act as follows (emphasis added): "That first issue is are you satisfied beyond reasonable doubt that it was a deliberate act of Mr Lane's that caused Mr Morris to fall on either occasion that he fell. … [T]he Crown would say to you, well despite what might be said about the limitations of some of the witnesses, intoxication, disadvantage of their position, you have got at least three witnesses … who say the fall, probably the second fall, was preceded by a punch and if you accept their evidence that is enough for the Crown to discharge their onus of proof provided you are satisfied beyond reasonable doubt that that is what happened." [Emphasis added.]
This was followed by reference to the defence position that the eye witnesses were "all over the shop" and then by this final word on the actus reus: "… If you are not satisfied beyond reasonable doubt that it was a deliberate act of the accused that caused Mr Morris to fall and hit his head on either occasion then Mr Lane is not guilty of either murder or manslaughter." [Emphasis added.]
The two passages quoted above at [150] and [151] left intact the deficiency to which I have referred. Yet a further written direction in the form of a flowchart marked MFI 15 was provided to the jury at SU 138. Neither this nor the explanation of it at SU 138 - 140 corrected the error which has been identified.

[15]

What may be inferred from the verdict of guilty of manslaughter

The evidence that any act on the part of the appellant caused the deceased to fall and strike his head the first time was limited to the CCTV footage. That was a very weak case. I do not find it necessary to determine whether the evidence was incapable of supporting a finding beyond reasonable doubt. His Honour's repeated formulation of the issue as whether a voluntary act of the accused caused the deceased to strike his head "on either occasion" meant that the jury would have deliberated upon the basis that it was open to them to find this element satisfied if they thought an act of the appellant had caused the first fall. Even if it should be concluded that the evidence could not reasonably support such a finding that would not mean that the jury did not make it. This would not be the first time that a jury has found a fact proved beyond reasonable doubt upon evidence which an appellate court has ruled was insufficient for the matter ever to have been left to them. Some or all of them may have found that a willed act of the appellant caused the first fall.
Because of his Honour's formulation in the words "on either occasion" it is quite possible that this jury found an actus reus sufficient to support their verdict through some jurors being satisfied beyond reasonable doubt that a voluntary act of the appellant caused the first fall, thereafter not troubling to consider the more voluminous and complicated evidence of a punch causing the second. Other jurors may not have been satisfied that any act of the appellant caused the first fall but only that a punch caused the second. Acting in accordance with His Honour's directions the jury would have thought they could pool their conclusions and thereby be unanimous that the appellant caused the deceased to fall "on either occasion".
That is, the case was left to the jury on a basis which permitted them to return a verdict of guilty of manslaughter without ever having found unanimously an actus reus. At a fundamental level that was not trial of the charge by jury according to law.

[16]

Principles of application of the proviso

In Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59 at 514 Fullagar J elaborated the operation of the proviso to s 6(1) of the Criminal Appeal Act as follows: "It is very well established that the proviso to s. 6 (1) does not mean that a convicted person, on an appeal under the Act, must show that he ought not to have been convicted of anything. It ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried.
Brennan, Dawson and Toohey JJ in Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6 at 371 - 373 expounded the jurisprudence which had accumulated since Mraz v The Queen, as follows: "Those authorities [which are customarily cited when it is sought to challenge the application of the proviso] establish that where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost 'a chance which was fairly open to him of being acquitted' to use the phrase of Fullagar J. in Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493, at p 514 or 'a real chance of acquittal' to use the phrase of Barwick C.J. in Reg v Storey [1978] HCA 39; (1978) 140 CLR 364, at p 376. Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, at p 524; R v Storey, at p 376; Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, at pp 412-413. Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v The Queen, at p 514. The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. The question whether the jury would inevitably have convicted falls to be determined by the Court of Criminal Appeal. It is a question which the Court of Criminal Appeal must answer according to its assessment of the facts of the case. In this case the Court of Criminal Appeal answered it adversely to the applicant, and there is nothing to show that the answer was wrong. However, it was submitted that the question whether a reasonable jury would inevitably have convicted does not arise where the error in the conduct of the trial is fundamental. In such a case, it was submitted, it does not matter what the strength of the prosecution case or the weakness of the defence case was. Reliance was placed upon what was said by Gibbs J. in Quartermaine v The Queen [1980] HCA 29; (1980) 143 CLR 595, at pp 600-601: "Ordinarily, when there has been a misdirection of law, the proviso to s.689 (Criminal Code (WA)) will be applied if the Crown establishes that if there had been no misdirection the jury would (or must) have come to the same conclusion. However, Wickham J., who delivered the judgment of the Court of Criminal Appeal in the present case, recognized that even if this were established 'there might still be a substantial miscarriage of justice if the trial was so irregular that no proper trial had taken place, in that "there had been a serious departure from the essential requirements of the law"'. The Court of Criminal Appeal was right in taking that view of the law ..." This view is undoubtedly correct, for the proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being "plunged into outworn technicality" (the phrase of Barwick C.J. in Driscoll v. The Queen, at p 527); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see R v Hildebrandt (1963) 81 WN (Pt 1) (NSW) 143, at p 148; R. v Henderson [1966] VR 41 at 43; R v Couper (1985) 18 A Crim R 1 at 7-8. There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted. … But the wording of the proviso is quite general and it is clear that it may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence. In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances." [Emphasis added.]
Following the decision in Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 (considered further below) the test of whether an appropriately instructed jury "would inevitably have convicted the accused" is no longer to be applied. Instead the appellate court is to form its own conclusion whether, upon the whole of the evidence at trial and taking into account the jury's verdict, guilt was proved beyond reasonable doubt. It is unlikely the appellate court's assessment of whether guilt was proved would ever yield a result different from the answer to the question "was conviction inevitable?". Under both formulations the High Court has consistently held that an affirmative answer is a necessary but not sufficient condition for applying the proviso.
The effect of the passage quoted from Wilde v The Queen is that inevitability of conviction would not be sufficient to engage the proviso in relation to an error which was "such a departure from the essential requirements of the law that it goes to the root of the proceedings". Brennan, Dawson and Toohey JJ said in that passage that in a case involving error of that kind the appellant "has not had a proper trial and that there has been a substantial miscarriage of justice". The same point was expressed in the proposition that some errors "may be so radical or fundamental that by their very nature they exclude the application of the proviso". Their Honours were of the view that if an error of this fundamental nature should be identified the decision not to apply the proviso could be reached "without considering the effect of the irregularity upon the jury's verdict". That is, without first posing the question whether conviction was inevitable.
For reasons developed below it does not appear to me that Weiss v The Queen has altered or qualified any of this. I consider that the continuing validity of the propositions from Wilde v The Queen which I have summarised at [159] is, in different language, expressly endorsed in Weiss v The Queen and in the subsequent decision in Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14. In these decisions the High Court's disapproval of attempts to create a "taxonomy" of appellable errors appears to be a concern with the manner in which the relevant principles are expressed rather than with the substance of the principles. The final paragraph of the passage quoted at [157] shows that in Wilde v The Queen Brennan, Dawson and Toohey JJ were not purporting to define rigidly, according to a predetermined formula, a class of errors to which the proviso could not be applied. Their Honours' statement that an error in the conduct of a criminal trial may "by [its] very nature … exclude the application of the proviso" only means that the proviso is not engaged by such an error because the fundamental nature of what has occurred makes it impossible to say "no substantial miscarriage of justice has actually occurred".
KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54 concerned a charge of maintaining an unlawful relationship with a child under the age of 16 years. It was essential to a finding of guilt that the accused should have committed a sexual offence against the child on three or more occasions during the charge period. The Court of Appeal of the Supreme Court of Queensland held that the jury should have been instructed they had to be unanimous as to each of at least three sexual offences in the period, all twelve agreeing in relation to the same three instances. They were not so instructed. Instead the charge was left to them in such a way that they could return a guilty verdict if each juror should find a different group of three offences, from amongst a large number of incidents described by the complainant. The Court of Appeal applied the proviso under s 668E(1A) of the Criminal Code (Qld), dismissing the appeal on the basis that "no substantial miscarriage of justice had actually occurred".
The High Court was unanimous that the proviso should not have been applied and the conviction was quashed. Four of the justices in a joint judgment and Kirby J in a separate judgment based their decision upon an analysis of the complainant's evidence, according to which it could not be said that the verdict returned indicated the jury must have unanimously accepted the entirety of the complainant's evidence. A principal basis upon which the Court of Appeal had applied the proviso was that the contest at trial over the complainant's evidence was "all or nothing" and that the jury must have accepted "all".
The error of the Queensland trial judge was of the same kind as the error identified in ground 1 of this appeal. On the principles stated in the passage from Wilde v The Queen extracted at [157] above, the appeal in KBT v The Queen could alternatively have been upheld - that is, application of the proviso could have been refused - on the basis that the error was fundamental and no examination of what the jury's verdict implied as to their acceptance of the complainant's evidence was therefore required. The fact that the High Court was able to find the appellant had lost a fair chance of acquittal on a different basis, by examining the complainant's evidence, does not detract from the authority of the proposition summarised at [159], for which Wilde v The Queen stands. That is, the proposition that even if conviction should appear to have been inevitable the proviso will not be applied in case of a departure from the essential requirements of the law going to the root of the proceedings.
When the language of "inevitable conviction" is replaced, as required by Weiss v The Queen, with consideration of whether the evidence at trial persuades the appellate court of the appellant's guilt (a test which in my view, from the practical perspective of its likely outcome, may be regarded as equivalent), the proposition is as follows: even if the appellate court should be so persuaded, the proviso should not be applied in relation to an error which is fundamental in the sense identified in Wilde v The Queen.
In Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43 McHugh J at [74] - [76] stated the principles applicable to the operation of the proviso in case of error such as that in the present case in the following terms: "[74] In this case, the trial judge's misdirection took this critical issue [namely, whether the appellant had an intent to sell or supply a quantity of drugs] out of the jury's hands. It substituted trial by judicial direction for trial by jury by instructing the jury that the law deemed the relevant intent to be present by virtue of the quantity of methylamphetamine at issue. Misdirections of law in a criminal trial can take many forms. Of few of them can it be said that, at all times and in all circumstances, they constitute a miscarriage of justice. Legal error must often give way to cogent evidence of guilt. But on such matters as the standard or onus of proof or the functions of the jury, the position is different. These matters go to the root of a criminal trial according to law. It is difficult to see how the weight of evidence can have any relevance as to whether or not a misdirection on such matters is a miscarriage of justice. [75] That is not to say that a misdirection as to one of those matters is always a miscarriage of justice. The error may be so trivial that a Court of Criminal Appeal can properly conclude that there has been a trial according to law, notwithstanding the misdirection. But if a direction on the standard or onus of proof or the function of the jury is substantially wrong, I cannot presently conceive of a case where the weight of evidence against the accused could affect the conclusion that a miscarriage of justice has occurred. An accused person is entitled to a trial according to law. Where the law requires that an issue be tried by a jury, the accused does not have a trial in any meaningful sense where the jury is prevented by judicial direction from determining the issue. It is of no relevance in my opinion that a court of criminal appeal thinks that the evidence of guilt is overwhelming. An accused is entitled to be tried by the jury. That is the tribunal that is given the responsibility for determining the guilt of an accused person. [76] In the present case, the misdirection took away from the jury the issue of intent to sell or supply, an issue which the criminal law of Western Australia required them to determine. It was their function to decide that issue just as it was their function to decide whether there had been an attempt or a conspiracy. The misdirection prevented the constitutional tribunal from determining whether on the evidence the Crown had proved beyond a reasonable doubt one of the elements of the offence. The judge did not even leave to the jury the issue of whether on the evidence and within the meaning of s 11(a) the accused had proved to "the contrary". His directions effectively instructed the jury that, if they found an attempt or conspiracy to possess, the accused had an intent to sell or supply the drug. That being so, the accused did not have a trial according to law. His conviction constituted a substantial miscarriage of justice. The learned judges of the Court of Criminal Appeal erred therefore in holding that this was a case for applying the "proviso" to s 689(1) of the Code. [Emphasis added.]
The majority in that case, Gaudron, Gummow, Kirby and Hayne JJ, rejected application of the proviso upon the basis that "there was a clear misdirection of law about proof of one element of each of the offences that were charged" and that "[s]trong as the case against the appellant may otherwise have been, it cannot be said that conviction was inevitable" (at [37]). Their Honours did "not accept that the proceedings against the appellant were fundamentally flawed or 'have so far miscarried as hardly to be a trial at all'"; they were "not persuaded that the fact that there has been a misdirection about one element of the offence with which an accused is charged means that the trial was necessarily fundamentally flawed" (at [23]).
McHugh J was in agreement that the proviso could not be applied but on the basis, different from the majority, that "the misdirection went to the root of the trial" (at [78]). Consistently with what had been said in Wilde v The Queen, his Honour regarded as irrelevant, in the face of a fundamental error of direction on an element of the offence as occurred in Krakouer v The Queen, any appellate assessment of the strength of the Crown case or conclusion that conviction was inevitable. His Honour anticipated Weiss v The Queen by expressing this in terms that, in a case involving such a fundamental error, which would have prevented the jury from determining whether the evidence had proved an element: "It is of no relevance in my opinion that a court of criminal appeal thinks that the evidence of guilt is overwhelming."
McHugh J's statements of principle at [74] - [76] have subsequently been quoted with approval and applied in intermediate appellate courts. The extent of their acceptance was referred to in the judgment of this Court in Hadchiti v R [2016] NSWCCA 63 at [147] - [151]. As explained below I consider McHugh J's analysis is consistent with more recent pronouncements by the High Court in Weiss v The Queen and Baiada Poultry Pty Ltd v The Queen.
The appellable error in Weiss v The Queen was the reception of prejudicial evidence of an unrelated prior offence committed by the accused. It was not an error going to the root of the trial in the sense referred to in Wilde v The Queen and by McHugh J in Krakouer v The Queen. In Weiss v The Queen the High Court held that application of the proviso is not to be decided according to either a test of whether the jury which returned the verdict appealed from would inevitably have convicted or an alternative test of whether another hypothetical jury properly instructed would inevitably have convicted. Rather, the appellate court must examine for itself the entire trial record, taking into account the jury's verdict but judging for itself whether the evidence proved guilt beyond reasonable doubt.
Paragraphs [35] - [43] of the High Court's judgment in Weiss v The Queen, if read in isolation, might be understood as requiring that in every case where application of the proviso is under consideration this assessment must be undertaken by the appellate court. For example at [41] the court said, with complete generality, that the obligation of the court which has upheld an appeal ground to "decide for itself whether a substantial miscarriage of justice has actually occurred" is "to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty." [Footnotes omitted.]
Again without distinguishing between categories of error to which the proviso might be applied, the court said at [43]: "… the appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The court is not 'to speculate upon probable reconviction and decide according to how the speculation comes out'. But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial." [Footnotes omitted, emphasis in original.]
At [48] - [51] the court rejected an approach of "asking what the trial jury would have done had the wrongly admitted evidence not been before it". That would be likely to divert attention from the appellate court's proper task of simply making its own assessment of the proof which had been tendered at the trial. I have already stated my view that these alternative approaches would not be at all likely to produce different outcomes.
Paragraphs [44] - [46] of the judgment make it apparent that the High Court in Weiss v The Queen did not intend to require that in all cases, including those of fundamental misdirection going to the function of the jury (such as identified in Wilde v The Queen and in McHugh J's judgment in Krakouer v The Queen), engagement of the proviso should turn upon the appellate court's evaluation of whether guilt had been proved. Paragraph [44] states that an affirmative finding on that question is a necessary condition for applying the proviso. Paragraph [45] is to the effect that it is not in all cases a sufficient condition and [46] expressly reserves the position with respect to fundamental errors affecting the legal validity of the trial: "[44] […] No single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused guilty of the offence on which the jury returned its verdict of guilty. [45] Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for the court not to dismiss the appeal [that is, not to apply the proviso], even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of that kind. [46] It is unnecessary in this appeal to examine the issue further, or to consider the related question whether some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form of criminal appeal provision with its proviso: [Wilde v The Queen and other authorities cited]. …" [Emphasis added.]
Weiss v The Queen does not dictate that this Court must, in the face of the fundamental error in ground 1, proceed to form its own view whether the appellant was proved guilty and then apply the proviso if the answer is yes. The import of the passages quoted is that, even if full examination of the evidence led at trial should persuade this Court "to the requisite degree of the appellant's guilt", the nature of the error "may" be of such a fundamental kind that the proviso should not be applied. That being so, it is consistent with the High Court's holding that this Court may look to the second question first. That is, this Court may commence by determining whether the error involved such a "significant denial of procedural fairness" or such a "serious breach of the presuppositions of the trial" that the proviso would not be applied even if this Court should be satisfied of the appellant's guilt. The Court may go straight to that decisive point and omit the intermediate step of examining the trial record for the purpose of concluding whether guilt was proved. This is also consistent with Wilde v The Queen and McHugh J's judgment in Krakouer v The Queen.
If the possibility acknowledged by the High Court (that there "may" be cases of "significant denial of procedural fairness" or "serious breach of the presuppositions of trial" requiring that the proviso not be applied even though the court is satisfied of guilt) is ever to be realised, then the present is a case for it. It is difficult to conceive of a more serious error of this nature than one which resulted in the jury not having identified to them for their unanimous determination a factual question which was central to an element of the charge of murder and which the accused had put in issue.
In Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59 all members of the High Court recognised that the decision in Weiss v The Queen had not denied that "the proviso may not be engaged if a trial was so irregular that no proper trial had taken place", without need for the appellate court to examine the entire trial record and determine whether in its own judgment guilt had been proved: per Gummow and Hayne JJ at [39] and [50] - [51], Kirby J at [117] and Heydon J (Crennan J agreeing) at [262]. Kirby J said: "[117] There is also unanimity (for the possibility is expressly reserved in Weiss) that there may be cases where 'errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form of criminal appeal provision with its proviso'."
Gummow and Hayne JJ at [39] said that it had not been finally established by the High Court's decisions in Quartermaine v. The Queen (1980) 143 CLR 595; [1980] HCA 29 and Wilde v The Queen that there exists a class of departures from the essential requirements of the law that go to the root of criminal trial proceedings. Their Honours were clear that the proviso could not be applied where such errors are demonstrated.
In Baiada Poultry Pty Ltd v The Queen the offence charged required the prosecution to prove that the defendant company had not "so far as is reasonably practicable" provided a safe environment for its employees. The prosecution's evidence was capable of satisfying the jury that a dangerous work environment had been created by an employee of the defendant's subcontractor as a result of his operation of the subcontractor's forklift. The defendant disputed that it was "reasonably practicable" for it to direct the subcontractor or its employee. The trial judge refused to direct the jury that in order to convict they had to be satisfied beyond reasonable doubt that such direction was "reasonably practicable". The Victorian Court of Appeal held that the failure to direct the jury in this respect was an error. The appeal provision applicable was in the same terms as s 6(1) of the Criminal Appeal Act, including the proviso. The Court of Appeal applied the proviso.
In the High Court French CJ, Gummow, Hayne and Crennan JJ in a joint judgment said at [29]: "… the Court held, in Weiss, that the proviso cannot be engaged 'unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused guilty of the offence on which the jury returned its verdict of guilty'. That is a negative proposition. It states a necessary but not sufficient condition for applying the proviso. … demonstration that a chain of reasoning can be articulated that would require the verdict reached at trial does not always permit, let alone require, the conclusion that no substantial miscarriage of justice actually occurred. …"
At [23] their Honours said: "… it is neither possible nor useful to attempt to argue about the application of the proviso by reference to some supposed category of 'fundamental defects' in a trial."
In the same vein their Honours said at [31] (quoted in full below) that Weiss v The Queen had decided "the fundamental point … that the imposition of some taxonomy for the application of the proviso according to expressions - even judicially determined expressions - different from the relevant statutory expression invites error."
Despite this deprecation of attempts to define a class of appellable errors going to the root of a trial, to which the proviso should not be applied, the plurality at [21] - [29] reaffirmed what had been said in Weiss v The Queen at [44] - [46]. Namely, that in some cases "though persuaded that the evidence properly admitted at trial proves the accused's guilt beyond reasonable doubt, an appellate court should nonetheless hold the proviso is not engaged" (see Baiada Poultry Pty Ltd v The Queen at [21]) and that instances of "a significant denial of procedural fairness at trial may provide examples of such cases" (see [22]; emphasis added).
The plurality in Baiada Poultry Pty Ltd v The Queen continued as follows at [31] - [32]: "[31] It may well be right to observe that the proviso could seldom be applied in a case where, as here, the jury were not sufficiently directed of the need to be satisfied to the requisite standard of an element of the offence being considered. And it may also be right to observe that the proviso could seldom be applied if "[t]he inadequacy of the judge's direction denied Baiada the benefit of the jury's consideration of one of its two principal defences". But it is important to emphasise the fundamental point made in Weiss: that the imposition of some taxonomy for the application of the proviso according to expressions - even judicially determined expressions - different from the relevant statutory expression invites error. [32] For the reasons that have been given, the better view is that the jury were not sufficiently directed about the need to be satisfied about an element of the offence rather than about a matter of defence. A direction of the kind that was found to be necessary was required because Baiada had put the relevant element of the offence in issue. [Citation omitted.]
The quotations given thus far from the judgment of the plurality in Baiada Poultry Pty Ltd v The Queen show that the decision has not altered the understanding of this area of the law which was declared in Weiss v The Queen, as summarised at [170] - [174] above.
The error in ground 1 in the present appeal is of the same essential nature as that which occurred in Baiada Poultry Pty Ltd v The Queen. The failure to direct the jury before whom the appellant was tried that they had to be unanimous as to which if any of the acts alleged against him had been proved is a defect within the class referred to at [31] in the judgment of the plurality, to which the proviso "could seldom be applied".
Rejection of a "taxonomy" of appellable errors appears to have led the plurality to propound that the question whether the proviso should be applied could be answered by the appellate court forming a conclusion whether the charge was proved beyond reasonable doubt even where the successful appeal ground was a failure to direct the jury on a contested factual issue critical to an element of the offence - that is, error going to the root of the trial. This appears in the following further passages of the judgment: "[35] The Court of Appeal could conclude (as the majority did) that [the relevant contested fact] was proved beyond reasonable doubt … only if it was not open to a jury to conclude to the contrary. If it was open to a jury to reach a contrary conclusion, the point was not established beyond reasonable doubt. In particular, if it was open to a jury to conclude that [the contested fact] had not been proved beyond reasonable doubt … , it was open to a jury to acquit. [36] All members of the Court of Appeal agreed that the jury should have been instructed to consider the issue of reasonable practicability. And a direction of that kind was necessary only if the issue was a live issue at the trial - an issue which it was necessary for the jury to consider before returning its verdict: Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 at 466. The conclusion reached by the majority in the Court of Appeal - that the evidence established beyond reasonable doubt [the reasonable practicability of instruction of the subcontractor] - was inconsistent with the conclusion that the issue whether the prosecution had established this element beyond reasonable doubt was one which should have been put to the jury for its decision. … It may also be accepted that the evidence led at trial permitted the jury to conclude beyond reasonable doubt that it was reasonably practicable for Baiada to take steps to ensure compliance with instructions [issued to its subcontractor]. But the evidence led at trial did not compel that conclusion. … [39] It was, therefore, not open to the Court of Appeal to conclude from the record of the trial that the charge laid against Baiada was proved beyond reasonable doubt. Because the majority in the Court of Appeal were wrong to reach the conclusion that the evidence led at trial proved the guilt of Baiada beyond reasonable doubt, the proviso could not be engaged. The Court of Appeal could not be satisfied that no substantial miscarriage of justice had actually occurred." [Emphasis in italics added.]
These paragraphs incorporate the following concepts: 1. in [35], that an appellate court may determine "it was not open to the jury to conclude to the contrary" of a fact, critical to an element of the offence, having been proved beyond reasonable doubt and 2. in [36], that there is inconsistency between, on the one hand, a conclusion of an appellate court that a fact was proved beyond reasonable doubt and, on the other hand, a conclusion that a live issue about the fact was properly left to the jury.
These concepts appear to assume, or to have as a necessary corollary, that a jury may be directed to find that a contested fact critical to an element has been proved beyond reasonable doubt and/or to return a verdict of guilty. Of course a jury cannot be so directed and their Honours cannot have intended to say that they can. It is always open to a jury to have a reasonable doubt and to acquit, even on a Crown case which an appellate court may consider overwhelming. This creates a difficulty for an intermediate appellate court endeavouring to give effect to [35] and [36] of the plurality's judgment in a case where a decision has to be made about application of the proviso to an error at trial constituted by failure properly to leave the factual issues on an element of the offence for the jury's unanimous determination.
I consider the clearer and safer course in the present case is to apply their Honours' reasoning at [31] - [32], as I have sought to do at [182] - [185] above. This is consistent also with Weiss v The Queen (see [173] - [174] above), with Wilde v The Queen (see [157] - [159] above) and with McHugh J's judgment in Krakouer v The Queen (see [165] - [168] above). Within the frame of reference of McHugh J's articulation of the principles, the learned trial judge's error in ground 1 of the present appeal concerned "the function of the jury". Namely, to decide unanimously each element of the charge.
Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 was an appeal from the Victorian Court of Appeal. It was governed by an amended criminal appeal provision which, rather than incorporating a proviso, specified two of three available categories of appeal grounds in terms which required that it be shown by the appellant "there has been a substantial miscarriage of justice". The Court said at [30] that the Court of Appeal's satisfaction that a finding of guilt was inevitable was relevant to determining whether there had been a substantial miscarriage of justice "but will not in every case conclude the issue". At [32] the court said: [32] … "If it is said that a guilty verdict was inevitable (which is to say a verdict of acquittal was not open), the Court of Appeal must decide that question on the written record of the trial with 'the natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. That the jury returned a guilty verdict may, in appropriate cases, bear upon the question. But, at least in cases like the present where evidence has wrongly been admitted at trial and cases where evidence has wrongly been excluded, the Court of Appeal could not fail to be satisfied that there has been a substantial miscarriage of justice unless it determines that it was not open to the jury to entertain doubt as to guilt. Otherwise, there has been a substantial miscarriage of justice because the result of the trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made." [Emphasis added, footnotes omitted.]
In this paragraph the words emphasised give rise to the difficulty of application adverted to at [186] - [188] above. As Baini v The Queen was not concerned with the common form of criminal appeal provision with proviso, as in force in New South Wales, this decision is not directly applicable to the present appeal and does not require a different approach from that which I have proposed at [189].

[17]

Conclusion

It is understandable that the trial judge should have fallen into the error identified in ground 1. The Crown significantly changed its case in closing. The prosecutor appears not to have appreciated the significance of the change for the way in which the jury would have to be directed to decide factual issues regarding the expanded actus reus. This is apparent from the imprecise terms in which the Crown case regarding the appellant's "willed acts" was articulated in final address and from the failure of the prosecutor to ask the trial judge to revise his MFI 11 directions and/or to redirect.
The Crown's change of case was, with respect, ill-advised. The evidence of a willed act by the appellant causative of the first fall was very much weaker than that in support of the punch which caused the second fall. If the Crown could not satisfy the jury regarding the punch it would not likely satisfy them regarding causation of the first fall. Reliance upon the first fall was forensically pointless. Certainly the Crown did not need to attribute to the appellant criminal responsibility for the first strike of the deceased's head on the roadway in order to make out its case on cause of death, in medical terms. It was not in issue that the second impact was a significant or substantial cause of death. That was enough to secure a guilty verdict if the other elements of the offence were proved: Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27; R v Puckeridge [1999] HCA 68; (1999) 74 ALJR 373; R v Moffatt [2000] NSWCCA 174; 112 A Crim R 201.
The error identified in ground 1 denied the appellant a trial by jury according to law of the charge against him. There is no occasion for this Court to examine the entire trial record or to reach its own conclusion whether the appellant's guilt of manslaughter was proved beyond reasonable doubt. Even if that conclusion should be reached I consider it clear that "a substantial miscarriage of justice has actually occurred" and that the proviso should not be applied. I would extend time and grant leave to appeal so far as necessary to enable ground 1 to be determined, allow the appeal on ground 1, quash the conviction and order a new trial.

Lane v R

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