Moore v R

Court of Criminal Appeal (NSW)|2016-07-15|Before: Basten JA, Hulme J, Adamson J, Mr P

R [2014] NSWCCA 98 Viro v The Queen (1976-78) 141 CLR 88 Ward v R [2013] NSWCCA 46 Williams v R [2010] NSWCCA 15 Woolmington v Director of Public Prosecutions [1935] AC 462 Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 Texts Cited: Criminal Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code - Chapter 2, General Principles of Criminal Responsibility: Final Report December 1992, pp 66, 68 Category: Principal judgment Parties: James Kevin Moore (Applicant) Regina (Respondent) Representation: Counsel: Mr T A Game SC/Ms C O'Neill (Applicant) Mr P Ingram SC (Crown)

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2012/341616 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: R v Moore (No 2) [2015] NSWSC 214 Date of Decision: 13 March 2015 Before: Garling J File Number(s): 2012/341616

(a) background circumstances

Although the jury heard detailed accounts of communications between the applicant and the deceased over the day of the assaults, and several accounts of the altercation, which occurred in a public street in broad daylight, most of this material can be succinctly summarised for the purposes of the appeal. That is because the two grounds of appeal were directed to the manner in which the trial judge, Garling J, directed the jury in relation to questions of self-defence and provocation.
The applicant and the deceased were both users of marijuana. It appears that the applicant was intending to purchase some marijuana from a dealer for his own use and offered to obtain a few ounces for the deceased. The applicant described the disagreement that then arose between them in an electronically recorded record of interview in the following terms: [1] "I woke up that morning I was gunna go and get a bag of pot for myself but Dennis ring up and asked if I could get a bag of pot for him. Um I said to him, Yeah I guess I could get you a bag of pot, 'cause I was going out to get my own anyway. I put $40 on top of it 'cause I told him that my son's due next week and I need money to help get his penis cut."
It appears that a discussion occurred shortly after 10 in the morning when the applicant was driven by a friend to the house occupied by the deceased. The deceased objected to the extra charge, and said that he believed that the last lot had been "underweight". [2] The deceased got more irate over the ensuing hours about the demands of the applicant. The deceased was drinking and there was an unedifying exchange of text messages. Some of them were read by the applicant's partner, Cassie Little. In summing up, the trial judge read to the jury Ms Little's summary, in the following terms: [3] "I read over some of the messages and it appeared as though there was a dispute between James and Dennis over the price of cannabis. The messages that James sent back to Dennis were not nasty. He was just explaining the reason why he had put the price up. James kept sending and receiving texts from Dennis. I think James received a phone call. I heard James say, 'Look, calm down. What's going on?'. James appeared to be listening to the other person, then he said, 'What, you're going to do my missus in the arse?'. The phone call ended then and James said to me, 'Did you hear that? I'm going to call mum'."
The applicant did thereafter contact his mother, Michelle Moore, who sent a text message to the deceased at about 14:57, saying, "You got a problem with James, you got a problem with his kin …". At the same time, the applicant sent a text to the deceased saying, "One more bad call or text cunt, this is your warning, pull up". At about 3:30pm there was an aggressive text message from the deceased to the applicant, "Fuck you, I'm waiting. You got. Fuck you. Waiting for you." The summing up continued: [4] "At 15.42 the accused sent a message to his mother, 'Still going right on with it' and shortly after that, about 30 seconds later, a text message, 'I want to go kick his teeth in'. It is message after message."
At about 4:00pm, Michelle Moore and her partner, Brendan Price, arrived at the applicant's house. The summing up continued: [5] "There was a discussion and Ms Little told you that Ms Moore appeared very aggressive and she was saying, 'I'm going to go and sort this bastard out'. And Ms Little then tells you of this exchange between mother and son, Ms Moore and the accused, 'Calm down', the accused said, 'Don't worry about it, he's drunk'. His mother said, 'If you're not going to come, I know where he lives anyway' and the accused said, 'He's a knife man and known to have knives. He's drunk and you look like you've had a bit yourself'."
The prevarication appears not to have lasted long: the applicant obtained a mattock, removed the head and took the handle; Ms Moore was armed with a hammer and a long cardboard tube, while Mr Price had grabbed a fishing rod.
The three took Ms Moore's car and stopped near the deceased's home. The deceased came out of his home armed with two knives and was confronted by the applicant, his mother and Mr Price, in the street. Although there were several witnesses to at least parts of the fight which followed, the only evidence as to how the deceased came to meet them in the street came from the applicant's interview with police. (He did not give evidence.) That explanation was as follows: [6] "I stood where I knew that he could see me outside of his door but from a great distance 'cause I knew that, 'cause he was off, he was ringing up saying, Come on just come in the door, just come straight in the door. … He says, where are yah, come on, where are yah I'm waitin' here for yah, I said, look out the front of your house, he goes, yeah, I see yah, hang straight up and he comes charging out the house. But first he's got nothing in his hand and gets closer and closer and then I just let him see the bat, you know thinking, maybe he won't come near me if he sees it. And then he pulls knives out, blades about this long."
In the fight which followed, the evidence confirmed that the deceased had two knives. The deceased had bruising to his chest and the back of his chest, rib fractures, a fracture of the left forearm and bruising and a fracture of the right hand. It was not in dispute that the applicant hit him on one arm with the mattock handle, dislodging one of the knives. Nor was it in dispute that Ms Moore hit him on the head with the hammer, causing a laceration. There was also a "midline laceration to the top of the skull and associated fractures." The medical evidence was that the larger laceration was the cause of death and was consistent with the deceased being struck with a mattock handle.
Although at the start of the trial the prosecution had relied upon the three individuals being engaged in a joint criminal enterprise, before the matter was left to the jury, the prosecutor limited the case against the applicant to one alleging direct responsibility for the blow causing death.

(b) directions to jury

The trial judge gave the jury a set of written directions, setting out the elements of the offence of murder and the principles of self-defence; manslaughter based on excessive self-defence and provocation, and manslaughter based on the commission of an unlawful and dangerous act causing death. Towards the end of his summing up, the judge also left the jury with copies of a document entitled "Possible question trail", setting out a course of five questions (two with two internal questions).
The written directions with respect to murder involved six elements and read as follows: "A. Murder In order to prove the offence of murder, the Crown must establish beyond reasonable doubt, each of the following elements: (i) the death of Dennis Burns; (ii) that it was the act of the accused, James Moore, that caused his death; (iii) that his act was deliberate; (iv) that his act was done with an intention to inflict grievous bodily harm (which means really serious physical injury); (v) that his act was not done in self-defence (see B below); and (vi) that his act was not as a result of provocation (see D below). Unless the Crown proves each and every one of elements (i) to (vi) inclusive, beyond reasonable doubt, then you must find the accused not guilty of murder."
The case was left to the jury on the basis that none of (i)-(iv) was seriously in dispute. Clearly the jury was satisfied beyond reasonable doubt in respect of each of those elements and no issue arises on the appeal with respect to them.
In relation to element (v), self-defence, the following written direction was given: "B. Self defence In order to prove the accused guilty of murder, the Crown must in addition to the matters (i) to (iv) in paragraph A, also prove that the accused was not acting in self-defence: (i) The accused acted in self-defence if: (a) he personally believed that his conduct (ie his delivery of the blow or blows which caused the death of Dennis Burns) was necessary to defend himself or another person; and (b) that his conduct was a reasonable response in the circumstances as he saw them at the time. (ii) If the Crown has proved, beyond reasonable doubt, that the accused did not personally believe that his conduct was necessary in order to defend himself, then the Crown has proved that the accused was not acting in self-defence. In those circumstances, you would not need to consider the issue of self-defence any further. (iii) If, on the other hand, you are not satisfied that the Crown has proved beyond reasonable doubt that the accused did not personally believe that his conduct was necessary in order to defend himself, then you must find the accused not guilty of murder because the Crown would not in those circumstances eliminated self-defence from the case."
Part C of the directions dealt with excessive self-defence and need not be set out in full: there is no objection to the formal content of the direction. The fourth section involved provocation and was as follows: "D. Provocation In order to prove the accused, James Moore, guilty of murder, the Crown must also prove, beyond reasonable doubt, that the accused, James Moore, was not acting under provocation. An act is done under provocation where: (i) the act is the result of a loss of self-control on the part of the accused that was induced by conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused; and (ii) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to inflict grievous bodily harm upon the deceased. If the Crown has not excluded provocation, beyond reasonable doubt, then you must find the accused not guilty of murder, but guilty of manslaughter."
The fifth part of the written directions, concerning unlawful and dangerous acts, need not be repeated; again, there was no challenge to the adequacy of the direction.
The terms in which the "question trail" document dealt with these issues will be addressed in dealing with the grounds of appeal.
In his summary of the submissions of counsel, the judge said that the prosecution denied that self-defence could arise, because the applicant, his mother and Mr Price went to the victim's house "with an offensive intent." [7] The judge continued: [8] "The Crown points to the fact that at all times the accused had in his mind what was obvious. Namely that there was going to be a physical confrontation because his mother turned up with the roll to protect her arm and the hammer and the accused took the mattock handle with him. He reminded you that the accused said, in answer 23, 'In my head I knew there might be an altercation, so that's why we all took weapons'."
After referring to the eyewitness accounts and the position of the blood stains, the judge continued: "[311] … Shortly put, the Crown set out to submit to you that the probable sequence of events and the sequence of events that you would find in the fight was that there had been an attack by the accused on the deceased firstly to the right hand which had fractured the metacarpal bones, the bones in the finger on the right hand, causing, the Crown put to you, the deceased to drop the knife. [312] The Crown put to you that at the same time there had been an attempt to hit the deceased which the deceased had responded to in a defensive way with his left hand and that had caused the breaking of the left ulnar bone. Then the Crown submitted to you that after that point in time the deceased had been effectively disarmed and thereafter there was no room in what occurred and which followed for any question of self-defence or any question of provocation. The Crown put to you that the final blows that were administered were the blows that killed the deceased and, consequently, the Crown had disproved by a combination of all of those facts that the accused was acting in self-defence at the time he inflicted the fatal blow or blows."
In summing up the submissions for the accused, the judge stated: "[338] Mr Smith said to you that you would be persuaded that the accused had good reason to think that the deceased may get back up off the ground and attack him again, and once he was confronted with the attack by knives, and once his mother was threatened, you might think he said with her life, that the accused as well was threatened with his life. Mr Smith then said this, you might think in his shoes what are you supposed to do, he did not have time to reflect, he did not have time to consider arguments of the parties, he did not have the time that you now have, you might think he did not even have the time of that pause just then, you will remember he stopped. You might think that there were three consistent points he said to you, there were knives, the accused's involvement in the confrontation physically was after the use of them, and that the knife that was found on the ground is being used in the moments before the deceased was on the ground. Mr Smith submitted to you that you would be persuaded that the Crown had not discharged its onus with respect to self-defence and that the conduct of his client was not at all unreasonable."

The grounds of appeal against conviction were as follows: "1. His Honour's directions to the jury, including the question trail, distorted the burden and standard of proof. 2. His Honour's directions to the jury regarding the first limb of self-defence were contradictory and, in part, wrong.

(i) wording of question 4(a)

At the heart of the challenge was a formulation of the questions to be addressed in determining whether the prosecution had negatived the possible excuses of self-defence (and provocation). To assess this ground, it is necessary to set out the impugned passages in the "question trail" document and the directions given by the trial judge with respect to the use of the question trail. This evidence must be assessed in two stages. First, it is necessary to understand the nature of the complaint about the content of the document. Secondly, it is necessary to consider the content in the context of the whole of the summing up to the jury in order to understand whether it may have been the source of a miscarriage of justice.
As noted above, there were said to be six elements for the prosecution to establish beyond reasonable doubt, for a conviction of murder. The first, the death of the deceased, was not the subject of a question. In respect of the next three elements, three simple questions were asked according to a formula, namely (a) "has the Crown satisfied you, beyond reasonable doubt, that the accused …" delivered a blow or blows to the deceased which caused his death; (b) … that such conduct was deliberate, and (c) … that the accused intended to cause the deceased grievous bodily harm. No issue is taken with the formulation of those questions, nor with the requirement of each that, if answered "yes", the jury should proceed to the next question and if answered no, return a verdict of not guilty, except in respect of the third, which allowed the possibility of an alternative verdict of manslaughter by unlawful and dangerous act.
In opening his final address, counsel for the accused identified various matters which were not in issue and continued: [9] "You will remember at the beginning of this trial Mr Moore effectively said to you the very important issue in this trial is self-defence. That was true then and that is very true now. Very true now."
Consistently with that statement, the focus of the appeal was on the directions with respect to self-defence. Since 22 February 2002, self-defence has been identified in the Crimes Act 1900 (NSW) in general terms, relevantly as follows: [10] 418 Self-defence - when available (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or … and the conduct is a reasonable response in the circumstances as he or she perceives them. 419 Self-defence - onus of proof In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence. … 421 Self-defence - excessive force that inflicts death (1) This section applies if: (a) the person uses force that involves the infliction of death, and (b) the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary: (c) to defend himself or herself or another person, or … (2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter.
Self-defence was addressed in question 4, which followed the statutory separation of the subjective (the person believes) and objective (the conduct is a reasonable response) elements in s 418(2): "4. Has the Crown satisfied you, beyond reasonable doubt, that James Moore was not acting in self-defence when he delivered the blow or blows which caused the death of Dennis Burns? There are two separate parts to be considered in order to answer this question: a. Is there a reasonable possibility that James Moore genuinely believed that his conduct in delivering the blow or blows which caused the death of Dennis Burns was necessary in order to defend himself or another person? ● If the answer is yes, then proceed to consider question 4b. ● If the answer is no, then proceed to consider question 5. b. Is there a reasonable possibility that the conduct of James Moore in delivering the blow or blows which caused the death of Dennis Burns was a reasonable response to the circumstances as he, James Moore, perceived them to be? ● If the answer is yes, you must return to Court with the verdict of Not Guilty. ● If the answer is no, then you must return to Court with a verdict of Not Guilty of Murder, but Guilty of Manslaughter."
The general question with which this passage started was not challenged. As senior counsel for the applicant acknowledged, it was a fair reflection of the well-understood principle as to the burden of negating self-defence, as established in Viro v The Queen [11] and now found in s 419 of the Crimes Act. Although the general law has been replaced by the statutory formulation, it is helpful to be reminded of the propositions put forward in that case. Barwick CJ stated: [12] "Although it is common enough to speak of the 'defence' of self-defence, since Woolmington v Director of Public Prosecutions, [13] where the proven facts give rise to the reasonable possibility that the fatal act was done in self-defence and the accused raises the question …, the onus rests upon the Crown to negative that possibility, i.e. to remove any reasonable doubt that the fatal act was not done in self-defence."
In Viro, the High Court reinstated the principle that a verdict of manslaughter was available if the jury concluded that the accused had killed in self-defence, but had used excessive force, not an issue of immediate relevance. What is significant is that the statement of principle as to the burden of proof equated negativing "the reasonable possibility that the fatal act was done in self-defence" with removal of "any reasonable doubt that the fatal act was not done in self-defence."
The administration of justice would be much improved if the following proposition from Palmer v The Queen [14] accurately described the legal principles at stake: "In their Lordships' view the defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. It requires no set words by way of explanation. No formula need be employed in reference to it. Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances."
The judgment of Mason J in Viro set out a number of propositions which were said to state the law, at least where there was a threat of death or grievous bodily harm to the accused. [15] In some respects the principles have been reformulated over the decades, so that it is not helpful to set them out. [16] However, the statements reveal both that directions can be given appropriately without circumlocution, but, in some respects, involving double negatives (as discussed below). On the other hand, there is an awkwardness in the use of double negatives which has led, as in the question 4, to an attempt to state the obverse, by reference to a positive proposition. That, as will be seen shortly, constitutes the major concern identified by the applicant.
Although the applicant took objection to the second sentence in the question (that there were "two separate parts" to be considered) the objection was not developed and can be put to one side: it followed closely the structure of s 418 and is not legally flawed. The substance of the objection was to be found in the formulation of each part as a separate question, commencing with the words "[i]s there a reasonable possibility that …". The first part of the objection is common to both questions; a second part is better considered separately with respect to each.
The first part of the objection focused on the opening words set out above. Properly formulated, bearing in mind the party on whom the onus of proof lay (the prosecutor) and the standard of proof (beyond reasonable doubt), the question was whether the jury was satisfied beyond reasonable doubt that the accused did not genuinely believe that his conduct (which caused the death of the victim) was necessary to defend himself or another person. To formulate the question in the passive form, it was submitted, was to distract attention from the fact that the absence of a genuine belief must be demonstrated by the prosecution. Secondly, to remove the qualifier "reasonable" from the opinion formed by the jury to the factual circumstance being considered is apt to distract the jury from the heavy burden imposed on the prosecution. Thus, the language "is there a reasonable possibility", if answered "no", involves a rejection of the excuse of self-defence, without regard to the need to consider whether the prosecution satisfied its burden of proof, and did so beyond reasonable doubt.
There was a second and conceptually separate objection raised to the formulation of the questions. This objection accepted that the existence of a reasonable doubt was the mirror (in negative form) of the positive assertion that there existed a reasonable possibility. However, as a matter of logic, the applicant argued, rejection of proposition 'A' did not necessarily entail acceptance of 'not-A'. Put in slightly different terms, satisfaction of A and satisfaction of not-A did not constitute the universe of possible outcomes. If one is in doubt, one will not be satisfied of either 'A' or 'not-A'. Yet the formulation of question 4(a), the submission proceeded, ignored this possibility. In doing so it distracted attention from the burden of proof on the prosecution to prove not-A.
Counsel appearing for the Director was inclined to accept this analysis, although he said he had no instructions to concede error. He was also inclined to accept the applicant's submission that part of the difficulty lay with the application of the qualifier "reasonable" to a possibility. Thus, he agreed that there might be possibilities which led a juror to hold a reasonable doubt as to the absence of a genuine belief, but which might not be identified as "reasonable possibilities". If that were the case, the question imposed a gloss on the requirement that the jury be satisfied beyond reasonable doubt as to the absence of the belief.
While both arguments have a superficial attraction, in practical terms, they are fallacious. The reference to a "reasonable possibility" is a reference to that which would be required in order to hold a reasonable doubt. In other words, the jury could not doubt that the accused had no such belief unless there was a possibility that he did have such a belief. Conceptually, there is no third position available. The juror cannot say, "I don't accept A or not-A", because these are not affirmative states of mind, but the existence or absence of doubt.
Further, it was necessary for that the possibility that the accused held a particular belief to be a reasonable (and not fanciful or entirely speculative) possibility in order for the doubt to be reasonable. That answer is consistent with the language and reasoning adopted by Barwick CJ in Viro, set out above.
In a sense, the requirement that a doubt be "reasonable" requires a juror who has formed such a doubt to interrogate the basis of the doubt. That is not to say that it will be done in these terms, and the High Court has disparaged any suggestion that a juror be required to interrogate his or her thought processes. Nevertheless, the doubt will not be "reasonable" if there is no reasonable ground to entertain it.
The experience of the law requires, in effect, that the phrase be understood and not be the subject of self-analysis. Thus, Windeyer J stated in Thomas v The Queen: [17] "The task of the jury in a criminal case is to examine the evidence, bearing in mind that they must be satisfied beyond reasonable doubt - that they cannot be so satisfied if there be still open some reasonable hypothesis compatible with innocence. But it is not their task to analyse their own mental processes."
In other words, what is required is an analysis of the facts. Senior counsel for the applicant noted that the exercise required was so described in cases depending on circumstantial evidence. Thus, in Peacock v The King, [18] O'Connor J stated: "The duty of a jury in regard to circumstantial evidence is often in practice stated briefly, and, I think, accurately, in these words: - 'The circumstances must be such that the jury may reasonably draw from them an inference of the prisoner's guilt, and can reasonably draw no other inference.' It is, I think, necessary for the purposes of this case to add that an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence."
In Martin v Osborne [19] the respondent was charged with driving a commercial passenger vehicle without a licence. There was evidence that he carried passengers, but no evidence in relation to the payment of money. There were, a number of aspects of the carriage of passengers from Ballarat to Melbourne and back from which it could be inferred that the respondent was undertaking a commercial business. The circumstantial evidence was dealt with by all members of the Court by rejecting any innocent hypothesis as "quite unreasonable". [20] Evatt J undertook the most expansive consideration in the following terms: [21] "In the present case the course of argument before us also laid bare the paucity both in number and quality of the hypotheses which might be advanced to explain the services rendered to the passengers by the defendant. I shall write down three, viz: (1) his object was purely charitable and philanthropic …; (2) the journeys proved were visits for some non-commercial purpose such as some family or sporting reunion with which the defendant was closely connected; (3) there was some form of joint ownership of the car on the part of the passengers, eg, they were members of a transport club. Merely to write them down demonstrates the improbability of each of these three hypotheses." Evatt J considered and dismissed each hypothesis as untenable: "In truth, the only rational explanation of the defendant's systematic driving of passengers between the cities is that he did so for some payment or reward."
In Plomp v The Queen [22] Dixon CJ referred to "the rule that you cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances."
Similar language was used with respect to the excuse of self-defence in Viro. Thus, in any number of cases of high authority the courts have accepted that proof of a matter beyond reasonable doubt involves rejection of all reasonable hypotheses or any reasonable possibility inconsistent with the prosecution case. Asking whether there is a reasonable possibility that the accused did hold an exculpatory belief does not equate to the creation of an incomplete universe, nor does it distract attention from either the burden or standard of proof; rather, it is consistent with both.

(ii) wording of question 4 (b)

The second part of the question was in the same form as the first, raising an issue as to whether there was a "reasonable possibility" inconsistent with the prosecution case, but the formula was unnecessary (there could be no concern about a double negative) and was awkward because it used the qualifier "reasonable" in two different contexts, namely whether there was "a reasonable possibility" that the conduct was "a reasonable response".
In this situation, the jury was not being asked to consider what the accused believed, but to form an objective assessment as to whether an ordinary person in the circumstances of the accused would consider the response to be proportionate to the threat. To the extent that the reasonableness of the response is an essential element of self-defence, it too must be negated by the prosecution. Accordingly, the formulation with respect to "a reasonable possibility" is to be analysed in the same way as set out above: if there is a reasonable possibility, the prosecution has failed to establish the absence of that element beyond reasonable doubt.
When a majority of the High Court reformulated the Viro principles in Zecevic, they accepted the observation of the Privy Council in Palmer "that an explanation of the law of self-defence requires no set words or formula" and that "[t]he question to be asked in the end is quite simple." [23] They then identified the question in the following terms: "It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal."
Now that s 148(2) of the Crimes Act separates the subjective belief from the question of reasonableness of the conduct, it is obviously appropriate, if not necessary, to identify the two elements as separate questions. Differentiating between the two elements also allows the jury readily to consider the alternative verdict of manslaughter in the event that it was unable to reject the reasonable possibility that the accused believed his conduct was necessary, but concluded that the response was excessive.
It follows that, although the structure of the question identified as the second limb of the test in respect of self-defence involved a different exercise from the first limb, the formulation in question 4(b) did not involve a misdirection.

(d) other directions

On the assumption that the question trail involved one or more elements of misdirection, diverting the jury's attention from the burden and standard of proof imposed on the prosecution, a separate issue arose as to whether the Court would be satisfied that the trial miscarried in circumstances where the correct principles were stated in both the written directions which were before the jury, and the oral directions where they were repeated, relentlessly. In the absence of error in the question trail document it is unnecessary to address that issue; but the submissions should be noted in case a different view were taken of the question trail document. Further, such an exercise will provide the context within which a specific challenge was brought to the oral directions, as noted below.
The materiality of the question trail (and hence the materiality of any misdirection it contained) was founded upon two separate propositions. The first proposition denied the possibility of disregarding an error contained in a document of which each juror had a copy in the jury room when deliberating. A similar issue arose in Justins v The Queen, [24] a trial involving an early form of "question trail", though not identified as such. [25] In the course of considering the omission of a critical issue from written directions described as having the capacity to operate as a checklist, [26] Simpson J gave the following assessment of the significance of written directions: [27] "Written directions are, in my opinion, a most useful, important, and, in some cases, crucial, development in the conduct of criminal trials. That is, in part, because of the increasing complexity and length of criminal trials. It is also a recognition that juries, in the past, were expected, in an unfamiliar environment, to absorb what amounted to a lecture on legal theory (sometimes of considerable complexity) and the facts of the particular case, and that this was unfair both to the jury and to the accused (and sometimes also to the Crown). But it must also be remembered that a jury will have the written directions in the jury room long after the oral directions have concluded. It will be written directions to which the jury will have resort, perhaps repeatedly. And the force of the written word will be likely to override the recollection the jury has of the oral directions."
That was said in a context where the oral directions only corrected the omission by an oblique reference in circumstances where, in the view of Simpson J, "it would take a very astute juror to make that connection." [28] In those circumstances, it was understandable that directions in the form of a checklist which contained a critical omission would result in the conclusion that the trial miscarried. That assessment will depend upon the particular error (whether by way of misdirection or omission), the scope and coverage of the oral directions on the point and other written material which may have been before the jury.
An adoption of the same principle may be found in the recent decision in H v R, [29] in which the Court spoke in even more emphatic terms: [30] "Where a direction to the jury is in part oral and in part written, then to the extent that the written document overlaps with the oral direction, the written document will tend to swamp the force of the oral direction in the jury room. It will do so because of (a) the power of the written word, (b) the fact that it is with the jury at the critical time, and (c) unlike the oral directions, it is apt to be read repeatedly."
For reasons which need not be explored in detail, in the circumstances of H, the conclusion that the trial had miscarried need not be doubted. However, it is by no means clear that the three reasons given for thinking that the written direction would tend to "swamp" any oral direction are entirely separate from or independent of each other; nor does the statement reflect a matter of legal principle, but rather an important consideration, the strength of which will vary depending upon the circumstances of the case.
Apart from relying upon these propositions as a sufficient foundation in themselves to support a miscarriage in the event that any error were to be identified in the written document, the applicant also relied upon the manner in which the document was left with the jury. On one view, the summing up revealed a level of ambivalence in this regard. At the outset, the judge stated: [31] "[6] … I will give to you a number of documents in the course of my summing up and they are for you to take with you into the jury room. [7] The first document or set of pages I will give you are simple, I hope, written directions encompassing the points of law that I give you. What are the elements of the offence, etc. [8] The second document which I will give you just before I conclude my summing up is a document which I have called a possible question trail. That is one way that you can follow through your task addressing particular questions and answers logically in a path with various results indicated if you answer various questions in a particular way. But of course I need to emphasise, and I will tell you again when that document is produced and you get to look at it, that is only one possible way of you addressing your task. You can in fact address your task any way you like. It's a matter entirely for you members of the jury."
After a lengthy and careful explanation of the burden of proof, the legal principles to be applied and important aspects of the evidence, with only a brief outline of the submissions of counsel to follow, the judge returned to the "question trail". When the document was handed to the jury he said: [32] "[300] … Now you will see that this reflects, but in slightly different words, the written directions. It is not intended to derogate from or take away from those written directions but it is provided to you as a possible pathway to reasoning to an end point. You may choose to ignore it. You may choose to follow it. How you reason to your end point is a matter for each of you individually. [301] But you will see, and I just want to introduce the format to you, that if you look at the first question you are asked …. So that is how it is set out to follow as a path of reasoning so that you can be certain, if you follow this path, that you cover each of the alternatives that are discussed in the written directions. So that is what I mean about a question trail."
The document itself contained no direction as to how it was to be used; it was headed "Possible question trail".
Whilst generally adopting the approach that the document would "swamp" any oral directions, counsel for the applicant relied upon the oral direction that the jurors could be "certain" of covering "each of the alternatives" if they followed the question trail as a strong indication that they should do so, which direction they would have followed, rather than directions that they might choose to ignore it and that it was not intended to derogate from the (unimpeached) written directions.
It is not possible to reach a conclusion as to whether the trial would have miscarried had there been error in the formulation of one or more questions in the question trail document, without knowing the precise nature of the error. That will usually be an important, if not critical, element in the assessment.
Other circumstances will also be important. For example, this was not a case in which the jury was taken through the question trail in the course of the oral summing up: the document was given to them only at the end of that exercise, during which they had the unimpeached written directions in front of them, on which they could no doubt make notes or to which they could have reference while following the oral directions. It would also be significant that in all respects, except the subdividing of questions 4 and 5, the question trail document was itself unimpeached. It would also be relevant that the jury had other material in the jury room, including a transcript of all the evidence and all of the exhibits.
Finally, in considering whether there had been a miscarriage of justice, it would be necessary to give some weight to the fact that no objection was taken to the form of the question trail document by counsel for the accused and no redirection was sought at any stage.

(e) "the boy with the peashooter"

As noted above, there was one specific respect in which an issue was raised with respect to the oral directions. That involved an hypothetical example given by the judge in seeking to explain when a response may be disproportionate to a threat. The judge said: [33] "Let me give you an example. If an adult male was threatened by a seven year old boy, with a peashooter, and the adult male pulled out a shotgun, to take an absurd example, and shot the boy, then you might well be satisfied beyond reasonable doubt, using your common sense, that the particular accused did not believe that what he did was necessary to defend himself, or, if he did believe that genuinely, for some extraordinary reason, then his conduct could not be regarded as a reasonable response in the circumstances as they unfolded. So that is an example of how, by looking at the facts, you might find that the Crown in that case had well negatived the issue of self-defence."
The applicant submitted that the use of extreme examples was apt to suggest an air of incredulity in relation to the submission that the accused may have acted in self-defence. However, there was a further aspect to the challenge.
The trial judge returned to his example much later in the summing up, when, again considering the concept of an excessive or unreasonable response, he said: [34] "May I just return to the example I gave you earlier of the gentleman and the boy, the boy with the pea shooter. Imagine that the boy shot the pea shooter at the gentleman, and the gentleman, not with a shotgun or anything else as I mentioned, simply lunged out with his hand and punched the boy. You might think he was doing it to defend himself and that what he did was not an unreasonable response. You earlier remember I said what if he pulled the shotgun and shot the boy, that would be clearly an unreasonable response. Perhaps you might think if what happened was he reached out and slapped the boy or punched him, that might not be unreasonable, in which case self-defence would not have been negatived. So that is how you look at this issue of excessive self-defence."
The written submissions asserted that the reference back to the use of the shotgun would have confused the jury in considering the "first limb of self-defence", namely whether the actual belief of the accused was that what he did was necessary to defend himself or another.
It is sometimes possible that an extreme example, intended to be remote from the facts, can introduce a false point of emphasis, or even a distraction. That is not to say that concrete examples may not be valuable in explaining somewhat abstract statements of legal principle; context is critical.
The complaint about the hypothetical example must be rejected. The whole of the passage relied on in the later direction when there is a reference back to the boy with the peashooter, was directed, not to the first limb of the test (actual belief) but to the second (the reasonableness of the response).
With respect to the first passage, it was correct to submit that the judge was considering the first limb, namely the beliefs or perceptions of the accused. However, there was no error in suggesting that in making such an assessment, the jury could take account of all the circumstances. Thus, when the accused had not given evidence and had not, in his recorded interview with police, addressed his state of mind at the precise point at which the fatal blow was inflicted, it was undoubtedly a matter for the jury to infer from the circumstantial material available to them whether they were satisfied beyond reasonable doubt that he did not harbour a belief that his conduct was necessary. If the objective circumstances were simply inconsistent with any rational inference that the accused could hold such a belief, the jury were entitled to take that into account. It was the same exercise as asking, in the absence of direct evidence, whether there were any plausible hypothesis consistent with an innocent belief.

(f) "genuinely believed"

By way of further complaint, the applicant submitted that an earlier direction with respect to the first limb of the test included the following: "a person who genuinely thought he was in danger, or that another was in danger, even if he were wrong about that perception, may still be regarded as having acted lawfully in self-defence". [35] That articulation was said to be misleading because it inserted the word "genuinely".
The last objection is without substance. The jury can have been in no doubt that they were required to consider the actual belief of the accused: indeed, question 4(a) in the question trail referred to the possibility that the accused "genuinely believed" that his conduct was necessary. No complaint was made of such language in that context. In other places, the judge spoke of whether the accused "personally believed" that his conduct was necessary. [36] The descriptive language had the effect of emphasising the subjectivity of the first limb. These are not the kind of complaints that could possibly succeed in the absence of any suggested redirection at trial. (None was sought.)

(g) conclusions on conviction appeal

The grounds of appeal being arguable and the conviction of murder being for a most serious offence, the applicant should have leave to appeal against his conviction. The challenges to the content of the question trail document having been rejected, and the additional objections to the oral directions being rejected, the appeal against conviction must be dismissed.

Sentence appeal

The applicant also sought leave to appeal against the sentence imposed on 13 March 2015 for the offence of murder. [37] The judge imposed a sentence of 24 years imprisonment, with a non-parole period of 18 years and an additional term of 6 years. Three specific grounds were identified, namely that the sentencing judge erred: 1. in finding that the offence was aggravated because it was part of a planned criminal activity; 2. in failing to take into account provocation in assessing the objective seriousness of the offence, and 3. in failing to take into account the applicant's intention in his assessment of the objective seriousness of the offence. A fourth ground asserted that the sentence was manifestly excessive.

(a) "planned criminal activity"

In considering factors which tended to aggravate the objective seriousness of the offence, the judge had regard to the checklist to be found in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act"). He dealt first with the offender's record of previous convictions which, he concluded, pointed to the need "to give weight to personal deterrence and the protection of society." [38] He also took into account that the offence was committed in company. [39]
The judge then stated: [40] "The offence was part of a planned criminal activity. I am satisfied that before they set out from his home, the offender agreed with his mother and her partner that they would go and 'sort the deceased out' and in so doing, probably to inflict physical injury upon him. That, I am satisfied, was their intention at all times. I am not satisfied that there was any sophisticated plan to kill the deceased. To the extent described, the killing occurred in the course of a planned criminal activity. That is an aggravating factor to which I will have regard: s 21A(2)(n) Crimes (Sentencing Procedure) Act."
The gravamen of the applicant's complaint was that the degree of planning did not fall within the scope of the factor identified in s 21A(2)(n), namely that the offence "was part of a planned or organised criminal activity". This Court has noted on a number of occasions that the ordinary meaning of par (n) is not satisfied by some degree of planning, but requires a more extensive criminal undertaking. [41] Paragraph (n) does not say that "the offence was planned", but rather that the offence was "part of a … criminal activity", the criminal activity being that which was planned or organised.
The submissions for the applicant should be accepted in so far as the sentencing judge was in error in identifying the aggravating factor by reference to s 21A(2)(n). However, as also appears from RL, [42] planning may nevertheless constitute a factor affecting the relative seriousness of the offence, for the purposes of s 21A(1)(c). Whether an offence is "planned" will involve matters of degree; the comparison is between a level of premeditation of criminal conduct and a response which is spontaneous, ill-considered or opportunistic. In this sense, there was a level of planning; the sentencing judge was satisfied that the attack was not simply a response to an unforeseen confrontation. Thus, although the judge was wrong to identify the statutory basis for his finding of aggravation, what he took into account were the matters set out in the passage quoted above. There was no error in treating those matters as aggravating; the incorrect statutory classification cannot be said to have affected the sentence imposed. The error was immaterial.

(b) "provocation"

It is a potential mitigating factor that an offender was "provoked by the victim". [43] As Simpson J noted in Fahda, [44] the fact that the jury had, in convicting of murder, rejected a defence of provocation under s 23 of the Crimes Act, "did not preclude a finding of provocation as a mitigating factor for the purposes of s 21A(3)(c) of the Sentencing Procedure Act."
The applicant submitted that there were a number of aspects of the evidence which demonstrated that the deceased had in fact provoked the attack in ways which mitigated the seriousness of the offending. In written submissions counsel for the applicant stated: [45] "His Honour found that the deceased threatened to sexually assault the applicant's partner who was then pregnant with their baby (at [24]). The deceased issued a challenge to the applicant by text message 'telling him that he was waiting for him to come and visit' (at [29]) and continued to send the applicant text messages pointing out that he was waiting for the applicant to arrive. When the applicant, Ms Moore and Mr Price went to the deceased's house the deceased came out of his house and engaged in a verbal argument with Ms Moore. He pushed Ms Moore and then produced knives and held them out towards Ms Moore (at [32]). Only after this occurred did the applicant confront the deceased. It was only after the deceased threatened to throw a knife at Ms Moore that the applicant 'advanced upon the deceased' and delivered the blow that caused the deceased to fall to the ground (at [33(d)])."
As the internal references show, each of these matters was the subject of a finding, expressly set out in the reasons given by the sentencing judge. The complaint is, in substance, not that the sentencing judge failed to take these matters into account, but that he failed to specify that each constituted a "mitigating factor" within the terms of s 21A(3)(c).
The manner in which the sentencing judge took these factors into account is clear from a reading of the whole of his judgment on sentence. They formed part of the history and explained in part why the confrontation occurred. They did little to reduce the moral responsibility of the offender for what the judge described as "a vicious, brutal and unremitting assault." [46]
In his concluding assessment, the judge stated: "[80] I have discussed all of the facts which are relevant to the decision including the relevant subjective circumstances of the offender, and it is now necessary to make a value judgment as to what is the appropriate sentence. [81] This was a serious offence involving the killing of a man over a minor dispute about drug supply. The victim was confronted by three armed people. All self-control was lost. Rational behaviour was set to one side. The victim was bashed about the head with a weapon and died from the blows inflicted by the offender. [82] There is nothing which adequately justifies the conduct of the offender. That he was young, immature, and clearly influenced by the temper and malevolence of his mother may partly explain what happened. I am not satisfied that he was acting in self-defence. [83] I have taken into account the facts as I have found, and all of the factors and matters to which attention has been paid in these remarks."
It may be seen from this assessment that, in one sense, it was as much the malevolent response of his mother towards the deceased as the deceased's own conduct which may have limited the sentence imposed. In any event, all the circumstances having been recounted and relevant findings made, no error warranting the intervention of this Court has been demonstrated in respect of the element of provocation.

The applicant submitted that this was a case in which the observations of Hamill J in Versluys v R [47] were engaged. Hamill J stated: "While every case will turn on its own facts, and while no categorical proposition can be discerned from past murder cases, it is generally the case that murders involving a lack of intention to kill and a lack of premeditation are likely to be less serious than those in which there is established premeditation and an intention to kill."
The judge's finding as to intention prior to the confrontation was set out at [50], in the passage quoted at [73**] above. In short, there was an intention to inflict physical injury, but not to kill. Further, the judge dealt with the evidence that, during the melee the applicant was heard to say on three occasions, "I'll kill you". The judge found that the words were to be treated as a threat, but were not meant literally. [48] Nevertheless, the judge was satisfied that "the accused perpetrated the assault intending to cause grievous bodily harm to the deceased." [49]
The ultimate complaint was that the judge did not explain how the findings as to the applicant's intention affected his assessment of the objective seriousness of the offence. It was true that the judge did not make an express statement in those terms. However, the assessment of factors in the sentencing process inevitably involves a synthesis of many different elements. It is not, and has never been, the law that a sentencing judge is required to identify with precision how each element affected the final conclusion. Such an exercise would not promote transparency, but would tend to reduce the reasoning process to an artificial structure which did not truly reflect reality. The ground should be rejected.

(d) manifest excess

The final complaint was that the sentence, although involving "a brutal assault over a trivial matter", did not warrant a sentence of 24 years imprisonment.
In support of that proposition, the applicant's counsel set out a number of factors which warranted a degree of leniency. These included that (a) the offence was not premeditated or planned; (b) the intention was to cause grievous bodily harm, not to kill; (c) there was a degree of provocation on the part of the deceased; (d) the offence immediately followed threats by the deceased towards the applicant's mother; (e) the applicant demonstrated remorse, and (f) the applicant conducted the trial in an efficient manner which facilitated the administration of justice.
The applicant also accepted that it was (a) a brutal assault, (b) committed in company with two other adults, (c) committed by a person with an extensive criminal history, including for matters of violence and (d) the offender was on a bond (for a driving offence) at the time of the murder.
All of these factors were taken into account and weighed by the sentencing judge. He assessed the objective seriousness of the offending as "serious" and "slightly above the mid-range of seriousness of objective criminality." [50] It would have been possible to take a more lenient view of the offending, for the reasons noted by the applicant, but it cannot be said that the judge's assessment was outside the permissible range. The general reluctance of this Court to entertain challenges to the assessment of objective seriousness has particular force in circumstances where the sentencing judge has conducted a contested trial.
As amply explained in his judgment on sentence, the judge gave careful consideration to all the relevant factors and to the assessment of both the objective seriousness of the offending and the personal circumstances of the offender. This Court should not disregard the fact that the non-parole period, though lengthy, is less than the "standard non-parole period" of 20 years provided in the Sentencing Procedure Act, Pt 4, Div 1A.
In all the circumstances, it has not been established that the sentence was manifestly excessive.

Conclusions

The applicant has failed to make good the specific grounds, and the general ground, upon which he seeks to challenge his sentence. The applicant should have leave to appeal, but the appeal must be dismissed.
The Court should make the following orders: 1. Grant the applicant leave to appeal against his conviction for the murder of Dennis Burns. 2. Dismiss the appeal against conviction. 3. Grant the applicant leave to appeal from the sentence imposed on him for the said murder. 4. Dismiss the appeal against sentence.
R A HULME J: I have had the benefit of reading in draft the judgments of Basten JA and Adamson J and note their different reasons and conclusions as to the disposition of Ground 1 of the appeal against conviction.
I agree with the conclusions reached by Basten JA as to each of the grounds of appeal against both conviction and sentence and the orders he proposes. I generally agree with his Honour's reasons but wish to say more about Grounds 1 and 2 of the appeal against conviction.

Ground 1- distortion of the burden and standard of proof

It would have been clear to the jury throughout the course of the trial, from the opening address of senior counsel then appearing for the applicant to his closing address and during the judge's summing up, that the sole issue the applicant raised was that he was acting in self-defence. (He claimed to have been acting in defence of both himself and of his mother but "self-defence" is a convenient term for the sake of brevity.) The trial judge also considered it necessary to leave provocation to the jury. (Not "extreme provocation" which came into force on 13 June 2014: see Crimes Amendment (Provocation) Act 2014 (NSW).)
It was, of course, essential that the jury understood the fundamental aspect of a criminal trial that the Crown bore the onus of proving the guilt of the accused beyond reasonable doubt. Critical in this case was whether the Crown proved to that standard that the appellant was not acting in self-defence (and not acting under provocation).
As is apparent from the judgments of the other members of the Court, the critical issue is whether it was erroneous to pose questions in the form of "Is there a reasonable possibility …" when the matter the subject of the question was one the Crown was required to disprove beyond reasonable doubt.
It is convenient to confine attention to the question in 4a (1st limb of self-defence) of the "possible question trail" because the same logic and reasoning can be applied to those in 4b (2nd limb of self-defence) as well as 5a and 5b (the two limbs of provocation). Question 4a has been quoted in the other judgments but for convenience I will repeat it: "Is there a reasonable possibility that James Moore genuinely believed that his conduct in delivering the blow or blows which caused the death of Dennis Burns was necessary in order to defend himself or another person? ● If the answer is yes, then proceed to consider question 4b. ● If the answer is no, then proceed to consider question 5."

Is it wrong to direct a jury to consider whether there is a reasonable possibility of some exculpatory matter?

In directing a jury generally about the onus and standard of proof and specifically about the essential matters the Crown is required to prove beyond reasonable doubt there is nothing wrong with giving a direction about "a reasonable possibility" of there being some exculpatory matter. A theme that clearly emerges in the case law, and a matter that the appellant in this case does not challenge, is that a jury should be directed in terms that it is a matter for the Crown to "eliminate any reasonable possibility" of there being such exculpatory matter.
Thus in R v Dziduch (1990) 47 A Crim R 378 where there was an issue of self-defence, Hunt J (Enderby and Sharpe JJ agreeing) said (at 381): "It is vital to identify the issue which is to be decided as being whether the Crown has established that the accused was not acting in self-defence. To that direction should be added a reminder that the Crown bears the onus of proving that the accused did not act in self-defence. One way of explaining such a direction which makes the point correctly, where the Crown has to prove a negative, is to say that the Crown must eliminate any reasonable possibility that the accused was acting in self-defence. It is best to tell the jury that it is always somewhat difficult to give directions upon the issue of self-defence in a way which completely avoids any suggestion that the accused has raised self-defence by way of a defence to the charge. That puts the jury fairly on notice that any direction which otherwise may not express the onus completely correctly was not intended to alter the general direction on the Crown's onus which had been given." (Emphasis added)
See, similarly, R v Youssef (1990) 50 A Crim R 1 at 1, 4; R v Reeves (1992) 29 NSWLR 109 at 117; and R v Jones (1995) 38 NSWLR 652 at 659.
In R v Abusafiah (1991) 24 NSWLR 531 at 542, Hunt J (Gleeson CJ and Mahoney JA agreeing) said that in a case in which duress was raised it would be unobjectionable to direct a jury that the Crown must "establish that there is no reasonable possibility" (that the objective limb was made out).
A defence submission to a jury that there was a reasonable possibility that someone other than the accused may have committed the crime in question was said in R v Ayoub [2004] NSWCCA 209 at [4] (in additional remarks by Howie J; Grove J agreeing) to be not only permissible but "merely a different formulation of the standard direction that the jury cannot convict the accused unless they were satisfied of the offence beyond reasonable doubt". Howie J referred to cases where other exculpatory issues are raised to explain how inviting a jury to consider "whether there is any reasonable possibility" can be helpful and not erroneous: "[5] … It is not uncommon for self-defence to be put to a jury in terms of whether there is any reasonable possibility that the accused acted in self-defence. That is because the jury might have difficulty in understanding that before the Crown has proved its case, it has to disprove either a positive assertion by the accused or an inference arising on the evidence that the accused was acting in self-defence. It is also not uncommon, in my experience, where the accused has given an exculpatory account in evidence or in a recorded interview, for the jury to be told that, if there is a reasonable possibility that the account given by the accused is true, they should acquit. [6] The only possible danger with putting the standard of proof in this way is that it might suggest that the accused has an onus of raising the possible scenario that is inconsistent with the Crown case. But I do not believe that a jury would have the slightest difficulty understanding that it is not for the accused to prove that such a possibility exists, especially where it is made clear that the accused has to prove nothing by way of defence to the charge. …"
In Kanaan & Ors v R [2006] NSWCCA 109, Hunt AJA, Buddin and Hoeben JJ (as the latter then was) said (at [144]) that an appropriate direction to be given where there is an issue as to whether some other person may have committed the crime "would be that the Crown must remove or eliminate any such possibility". But it was not mandatory to direct a jury in such terms "provided that the judge makes it clear to the jury that there cannot be proof beyond reasonable doubt if there remains a reasonable possibility that the accused is not guilty: Regina v Ayoub at [9]" (at [146]).
The latter, in my view, endorses the appropriateness of a jury considering whether there is a reasonable possibility of the matter of exculpation in issue (which must, of course, be in the context of the jury being correctly directed in terms of the onus and standard of proof).
Asking a jury to consider "is there any reasonable possibility" of the exculpatory matter was not thought to be erroneous in Ward v R [2013] NSWCCA 46. That matter involved a murder trial in which the Crown case was that the accused had deliberately driven a car at the deceased. The defence case was that after a passenger pulled at the steering wheel she accidentally hit the accelerator and was unable to stop the vehicle. The impugned directions given by Howie J included: "You look at it as a concept and you think to yourself, at the end of the day has the Crown satisfied me beyond reasonable doubt, for example in murder, that when the accused drove at the deceased she did so intentionally? She must have done it intentionally if it is to be murder. Another way of doing it is to ask yourself, is there any reasonable possibility that when she drove at the deceased on the second occasion she did not intend to drive at him? If that reasonable possibility exists the Crown does not satisfy you that her version, in effect, in the record of interview could not possibly be true then the Crown has failed to prove beyond reasonable doubt that the charge of murder. It is the same way of looking at it. Am I satisfied beyond reasonable doubt, means the same thing as saying, has the Crown convinced me that the opposite could not possibly reasonably be true? The easiest way to think about it, as I say, is in relation to the accused's record of interview. The Crown must satisfy you to the charge of murder that account could not reasonably be true. She does not have the proving that it is, or could possibly be true [sic]. The Crown has to for the charge of murder has to make it clear to you that you would reject it as a possible account, as a possible scenario. So that is how the onus of proof works." (Emphasis added)
The above is only part of what was a somewhat unconventional and longer than usual direction on the onus and standard of proof. Various arguments were raised under a ground alleging that there was misdirection as to the standard of proof. None of the arguments questioned the legitimacy of asking the jury whether "there is a reasonable possibility" that the appellant's exculpatory version could be true. McClellan CJ at CL (Latham and Adamson JJ agreeing) noted (at [51]) that the judge had emphasised that the Crown must prove its case beyond reasonable doubt and (at [56]) found no misdescription of the standard of proof.
A question whether there is a reasonable possibility that alibi evidence is true has been held to be consistent with a direction that an alibi must be disproved beyond reasonable doubt. In Jubraeel v R [2015] NSWCCA 131 at [40], Macfarlan JA (Johnson J and R S Hulme AJ agreeing) referred to the following passage in the judgment of Maxwell P in R v Merrett, Piggott & Ferrari [2007] VSCA 1 at [22]: "When a Judge says that the Crown must establish beyond reasonable doubt that the accused committed the offence, it is the equivalent to saying that the Crown must prove that there is no reasonable possibility that the accused is innocent or - in the case of an alibi defence - no reasonable possibility that the accused was elsewhere at the time the offence was committed. For the Judge to have told the jury that, while neither accepting nor rejecting the alibi evidence, they might conclude nevertheless that there was a reasonable possibility that the alibi evidence was true would merely have been to restate the direction he had given - repeatedly - on the standard of proof." (Emphasis added)
In other words, it is neither an explanation of the term "beyond reasonable doubt" nor a modification or reformulation; it was just a restatement of it.
A matter raised in H v R [2016] NSWCCA 63 at [41] was that the Criminal Trial Courts Bench Book published by the Judicial Commission of New South Wales had contained the following model direction since at least 2007: "Standard of proof The Crown must prove the accused's guilt beyond reasonable doubt. That is the high standard of proof that the Crown must achieve before you can convict the accused. At the end of your consideration of the evidence in the trial and the submissions made to you by the parties you must ask yourself whether the Crown has established the accused's guilt beyond reasonable doubt. In other words, you should ask yourself, 'Is there any reasonable possibility that the accused is not guilty?'" (Emphasis added)
For at least nine years, no-one thought to suggest that the concluding sentence was erroneous until the point was taken in H v R (and the sentence has since been removed). In that case the trial judge's directions on the onus and standard of proof had included: "You should thus ask yourself, 'Is there a reasonable possibility that the accused is not guilty?' If you conclude on the evidence that there is such a possibility, then you will conclude that the Crown has not proven the charges which the accused faces."
It seems to me that what the trial judge had said in those two sentences was to the same effect as saying that, if the Crown had failed to eliminate a reasonable possibility that the accused was not guilty, then it had not succeeded in proving the charges beyond reasonable doubt which, based on the cases I have referred to, would be unexceptional.
Nevertheless, the Court in H v R noted at [39] that Mr Game SC described what the judge had said as "a serious misdirection". If posing such a question truly does distort the burden and standard of proof it is nothing short of remarkable that no-one thought so for many years. No case was referred to in this appeal, or apparently in H v R, in which a judge posing a question to a jury in terms of "is there a reasonable possibility" has ever been questioned. But does it distort the burden and standard of proof? In my respectful view it does not. Nor, it seems, did the Court in H v R conclude that it does. In dealing with the "serious misdirection" point, the Court (Leeming JA, Hall and Bellew JJ) said in relation to the suggested direction in the Bench Book (as it then was): "[42] The passage correctly refers, in a note, to "longstanding authority for the proposition that, except in certain limited circumstances, no attempt should be made to explain or embellish the meaning of the phrase 'beyond reasonable doubt'". [43] Mr Game's submission was as follows: "[W]e would say that Bench Book is wrong. And we would say it's actually also quite different to say once, shall we say, in passing. But then to turn it into an entire kind of template or to talk about it in the terms of exclusion of reasonable hypotheses consistent with innocence ..." [44] With great respect to the authors of the passage in the Bench Book, we have some difficulty reconciling the note (which correctly states the law that no attempt should be made to explain the expression) with the last sentence of the passage (which purports to explain the expression). However, that is not to say that a judge who summed up to the jury in terms taken from the Bench Book would necessarily be committing error, or even that the judge would probably be committing error. As Mr Game made clear in the passage reproduced above, the focus in this appeal is not so much equating proof beyond reasonable doubt to the existence of reasonable possibility of innocence, but the repetition of the latter terminology throughout a written direction designed to be the document against which the jury's deliberations were to be conducted. To be clear, nothing in these reasons should be taken to support the proposition that merely by reading from the passage in the Bench Book there will have been a misdirection of the jury."
It may be taken from this extract that senior counsel for the appellant in H v R did not contend, and the Court did not decide, that posing a question in terms of "is there a reasonable possibility" by itself is wrong. What followed in the judgment in that case, culminating in the ground of appeal being upheld, can be understood in the context of it being "the repetition of the … terminology throughout a written direction" that was the primary basis of the appellant's complaint. The same repetition is not evident in the present case.
There are statements in judgments of the High Court of Australia to the effect that the existence of a reasonable possibility of some exculpatory matter is the corollary of the Crown not having proved the guilt of the accused beyond reasonable doubt.
In Velevski v R [2002] HCA 4; 187 ALR 233 the Crown case was that the appellant killed his wife and three children whilst the defence case was that the wife had killed the children and then herself. Gleeson CJ and Hayne J said (at 235 [5]) that "the central question in this court is whether it was open to the jury to conclude, as it did, that the prosecution had proved beyond reasonable doubt that the appellant had murdered his wife and children or was there a reasonable possibility that Mrs Velevska [sic] had killed her children and then herself". This mode of analysis is frequently encountered when appellate courts are dealing with a ground of appeal asserting that a verdict of guilty is unreasonable or cannot be supported.
Gaudron J referred to a defence argument as to the facts which supported the "murder-suicide theory" and said (at 255 [92]) "the question for the jury was whether it was or was not a reasonable possibility". Her Honour later (at 262 [127]) made the observation that the case was circumstantial but involved "true alternatives": "[E]ither Snezana killed her children and then committed suicide or the appellant killed his wife and children. In the case of true alternatives, the exclusion of one necessarily proves the other."
She identified a potential problem in the competing expert opinion evidence in the case being that it was presented in terms of probabilities; there was a danger that the jury might have rejected the defence case as improbable and then reasoned that the appellant must be guilty. Reference was made to the trial judge having given unremarkable directions about the standard of proof. Gaudron J continued: "[129] The above direction is not itself inadequate. However, the trial judge had earlier told the jury that the words 'beyond reasonable doubt' needed no explanation. Ordinarily that will be so. But because the case, as presented, was postulated on true alternatives, the full implication of the direction that the jury could not convict the appellant unless 'satisfied beyond reasonable doubt that the killer could not have been Snezana' may not have been entirely clear. It would have been preferable for the jury to be instructed that, if there was any reasonable possibility that Snezana killed her children and then committed suicide, they should acquit and, conversely, they could only convict if that was not a reasonable possibility."
In short, her Honour endorsed a question being posed to a jury in terms of "is there a reasonable possibility". (Gaudron J was in dissent as to the outcome in this case but that has no bearing upon the above.)
In dealing with a confession alleged to have been made to police, Mason CJ, Deane, Gaudron and McHugh JJ in McKinney v The Queen; Judge v The Queen [1991] HCA 6; 171 CLR 468 said (at 475-6): "A heavy practical burden is involved in raising a reasonable doubt as to the truthfulness of police evidence of confessional statements, for, in the circumstances which invariably attend that evidence, a reasonable doubt entails that there be a reasonable possibility that police witnesses perjured themselves and conspired to that end."
Finally, and similar to the cases I have referred to earlier (beginning with R v Dziduch), in Murray v The Queen [2002] HCA 26; 211 CLR 193, Gaudron J (at 201-2 [23]) referred to directions concerning the onus of the Crown to prove guilt beyond reasonable doubt in a case where the deceased died of gunshot wounds from a gun held by the appellant who had admitted pointing the gun at the deceased but denied having deliberately pulled the trigger. Her Honour said: "Although the trial judge, in the early part of her directions, correctly instructed the jury with respect to the onus of proof, in the passages set out above, her Honour posed the question for the jury's determination with respect to murder as the question whether it accepted the prosecution's or the appellant's version of events. That was the central or critical direction in her Honour's summing up. And as the issue for the jury was not whether it should accept the appellant's version but whether the prosecution had negatived it as a reasonable possibility, that direction mis-stated the issue for determination in a way that relieved the prosecution of proving its case beyond reasonable doubt."
The origin of the questions posed in the present case in relation to self-defence may well have been R v Katarzynski [2002] NSWSC 613. The statutory provisions dealing with self-defence were inserted into the Crimes Act 1900 (NSW) by the Crimes Amendment (Self-defence) Act 2001 (NSW) and took effect on 22 February 2002. Some months later, Howie J was called upon to decide how to direct a jury in a case in which self-defence was raised as an issue. His analysis of the new provisions indicated that the law had changed. He resolved that: [22] … The questions to be asked by the jury under s 418 are: (i) is there is a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself; and, (2) if there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them.
I note that McClellan CJ at CL directed himself specifically in terms of the two questions posed in the above extract in a judge-alone trial: R v Jacobs [2009] NSWSC 235 at [9].
I am unaware of any case in which anything that was said in R v Katarzynski has been called into question. It has been referred to in this Court a number of times without any adverse comment (for example in Crawford v R [2008] NSWCCA 166 at [22]; B v R [2015] NSWCCA 103 at [77]; and Oblach v R [2005] NSWCCA 440; 65 NSWLR 75 at [50]ff) although, it must be said, more as to the meaning of the statutory self-defence provisions without specific attention to the suggested jury "questions". Mr Katarzynski was found guilty of murder and appealed: R v Katarzynski [2005] NSWCCA 72. There were various grounds of appeal challenging the correctness of the trial judge's directions to the jury but no challenge to what were described as "questions to be asked by the jury" in the above extract.

Conclusion

From all of this it is clear, in my view, that it is not erroneous when directing a jury about the Crown's obligation to prove the guilt of an accused beyond reasonable doubt to direct that if there is a reasonable possibility of some exculpatory factor existing then the jury should find in favour of the accused; the Crown will have failed to eliminate (negative) the existence of that reasonable possibility which it must do in order to prove the matter beyond reasonable doubt. The converse is also true; that if the asserted reasonable possibility has been eliminated (negatived), then the Crown has proved the matter beyond reasonable doubt. I am satisfied that, when seen in the context of the entirety of the oral and written directions, the jury in the present case would have well-understood that this was so.
In any event, once it is accepted, as the appellant does, that it is unobjectionable to direct a jury that the Crown must eliminate any reasonable possibility of whatever exculpatory matter is in issue, that by logical necessity requires a jury to ask itself, "is there a reasonable possibility?" To be specific, if a judge directed a jury that it was necessary for the Crown to eliminate any reasonable possibility that the accused believed that it was necessary to do what he did in order to defend himself, it would only be natural for the jury to ask itself whether such a possibility existed.
Posing the questions in 4a and 4b in relation to self-defence, and 5a and 5b in relation to provocation, did not distort the onus and standard of proof when they are seen in the context of the entirety of the summing up. I accept that the "possible question trail" document might well have been used by the jury to guide their deliberations, but I cannot conceive that they would have put aside or forgotten the repeated ("relentless" as Basten JA has described them) references to the Crown bearing the onus of proof beyond reasonable doubt. Moreover, both questions 4 and 5 were prefaced with yet another reminder.

Question not amenable to only a "yes" or "no" answer

Part of the appellant's argument in relation to Ground 1 was to the effect that the question "is there a reasonable possibility" is not amenable only to answers of "Yes" or "No"; there is a middle-ground, a potential answer of "Not sure". Reference was made to the observation by Callinan J in Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at 441 [101]: "It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered, particularly when, as here, a particular choice was not the only or inevitable choice.
This issue may be dealt with briefly. The question is directed to whether there is a possibility that something exists, not whether something in fact exists. That is not a difficult concept for a jury to understand. The word possibility is "an ordinary English word of perfectly clear meaning": Aubrey v R [2015] NSWCCA 323 at [84]. There is either a possibility of something or there is not. If one is unsure about it, the answer cannot be "no"; it must be "yes". This is far from being the "variety of choice" that Callinan J was speaking about (between murder and acquittal on the one hand and murder, manslaughter or acquittal on the other).

Ground 2 - directions regarding the first limb of self-defence contradictory and, in part, wrong

It was submitted that in directing the jury as to the first, subjective, limb of self-defence, "it was not made clear that this issue only required the jury to consider the personal belief of the accused without regard to the reasonableness of that belief". It was contended that his Honour "gave the impression that the jury was entitled or required to assess the accused's belief objectively". Reference was made to the judge telling the jury to consider the accused's belief or perception by reference to "the location and circumstances in which he found himself" and that it must be considered "in a real life setting". The jury were told that they could consider who made the threat, how serious it was and whether the response was disproportionate to the threat". The example of the boy with the peashooter indicated that an accused whose response was disproportionate would not, except in extraordinary circumstances, believe that what he did was necessary to defend himself.
I do not believe that the jury could have been under any misapprehension about the subjective nature of the first limb of self-defence.
In the written directions the judge included: "(i) The accused acted in self-defence if: (a) he personally believed that his conduct … was necessary to defend himself or another person; and (b) that his conduct was a reasonable response in the circumstances as he saw them at the time. (ii) If the Crown has proved, beyond reasonable doubt, that the accused did not personally believe that his conduct was necessary in order to defend himself, then the Crown has proved that the accused was not acting in self-defence. In those circumstances, you would not need to consider the issue of self-defence any further. (iii) If, on the other hand, you are not satisfied that the Crown has proved beyond reasonable doubt that the accused did not personally believe that his conduct was necessary in order to defend himself, then you must find the accused not guilty of murder because the Crown would not in those circumstances have eliminated self-defence from the case." (Italicisation in original; underlining added)
The references to the "personal belief" of the accused conveyed that the first limb of self-defence involved a subjective element. The judge amplified these directions orally and made the point abundantly clear. He repeated the words "personally believed" (or similar) quite a number of times. He also said: "[139] … It is important that you keep in mind that the belief or perception of the accused with which we are concerned involves you looking at this accused personally in the physical and mental state that he was at the time, in the location and the circumstances in which he found himself. You look at him personally to see what was in his mind."
A little later he said: "[144] I underline again that it is important for you, however, to consider this issue by looking at the mind of this accused, not to the mind of some hypothetical or objectively reasonable person in the circumstances. You have to take into account obviously the danger that the accused contemplated the deceased posed to him or to others."
None of the matters identified by the appellant lead me to conclude that the jury might have been led to think that there was some objective element to the first limb of self-defence. The judge was simply directing the jury to look at all of the potentially relevant circumstances in order to assess whether the accused himself, personally, believed that it was necessary to do what he did. There is nothing wrong with reference being included to the proportionality of the response. A response that is grossly disproportionate to a threat is clearly relevant to the question whether a person did in fact hold the belief that it was necessary to do what they did (which was clearly the intended point of the boy with the peashooter example). I do not see that including reference to this might have influenced the jury to do other than what the law requires in its assessment of the first limb.

Conclusion

As I indicated earlier, I agree with the orders proposed by Basten JA.
ADAMSON J: I have had the advantage of reading Basten JA's reasons in draft and gratefully adopt his Honour's summary of the trial, the evidence and the directions given by the trial judge. I agree with his Honour's reasons with respect to the application for leave to appeal against sentence. I also agree that leave ought be granted to the applicant under rule 4 of the Criminal Appeal Rules to appeal against his conviction. I have also had the benefit of reading the reasons of R A Hulme J in draft and considering the authorities to which his Honour has referred.
In summary, my views do not accord with the majority in two significant respects. First, I am not persuaded that the question whether there is a reasonable possibility necessarily admits of a "yes" or "no" answer, since it is possible not to be sure whether there is or is not a "reasonable possibility". Secondly, I consider that to ask the question of a jury whether there is a reasonable possibility is not the same as asking whether the jury is satisfied that there is no reasonable possibility since the former tends to reverse the onus of proof whereas the latter formulation accords with the fundamental principle that the onus is on the Crown. My reasons for coming to a different view from that of the majority with respect to the first ground of appeal against conviction are as follows.

Ground 1: alleged distortion of the burden and standard of proof

Whether the question trail was erroneous because it distorted the burden and standard of proof

There are two aspects to the challenge to the question trail provided by the trial judge to the jury: the first is the use of the term "reasonable possibility" and the second is the form of the questions that commence, Is there a reasonable possibility. Although these aspects overlap in some respects I propose to address them in turn before turning to the overall effect of the summing up, including the question trail.

The meaning and appropriate use of the term "reasonable possibility"

Mr Game SC, who appeared with Ms O'Neil for the applicant, contended that the substitution of the term "reasonable possibility" for "reasonable doubt" was problematic in the present case. He contended that the word "possibility" had at least two distinct meanings: first, a hypothesis; and secondly, a chance, although these two uses may overlap. He submitted that the expression could appropriately be used in the context of a circumstantial case (using the first meaning) but that it ought not be used in a case such as the present to paraphrase the words "beyond reasonable doubt".
The expression "reasonable possibility" is used in the context of a circumstantial case where the Crown must exclude all reasonable (in the sense of not being fanciful or far-fetched) hypotheses (or possibilities) consistent with innocence. The language of reasonable, or real, possibility is also used in the context of an unreasonable verdict. For example, in The Queen v Hillier [2007] HCA 13; 228 CLR 618, the plurality (Gummow, Hayne and Crennan JJ) said at [39]: "The ultimate conclusion reached by the majority [of the Supreme Court of the ACT (Court of Appeal)] was expressed as being that 'there is a real possibility that another person was responsible' for Ms Hardwick's death. That, of course, is no more or less than a conclusion that it was not established beyond reasonable doubt that Mr Hillier was responsible for her death. Five, perhaps six, matters were identified as yielding one or more alternative hypotheses consistent with Mr Hillier's innocence." [Footnotes omitted.]
Their Honours said at [46]: "The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence." [Footnotes omitted.]
The reasonable possibility that the Crown must exclude may be external (as in The Queen v Hillier where the issue was the identity of the killer) or internal. In Knight v The Queen (1992) 175 CLR 495 (where the reasonable possibility was that the second shot was fired recklessly), the High Court considered the test for determining whether a verdict was unsafe and unsatisfactory in circumstances where the appellant's intention was the relevant issue. The plurality (Mason CJ, Dawson and Toohey JJ) said, at 504-505: "The verdict of the jury obviously entails a finding that the rifle was not discharged accidentally, but the evidence, in our view, leaves it entirely open that the second shot was fired recklessly by the appellant without the intent necessary to sustain a charge of attempted murder. That possibility could not reasonably have been excluded by the jury, even if they were of the view that the evidence was also consistent with an intent to kill on the part of the appellant. . . . it was . . ., in our view, not possible for the jury, acting reasonably, to have excluded as a rational inference the possibility that the second shot was fired without an intent to kill."
Another example of the term "reasonable possibility" being used in the context of the requisite mental element of an accused charged with murder appears from the following passage in R v Youssef (1990) 50 A Crim R 1 at 2-3: "It is clear law that the Crown bears the onus of establishing each ingredient of the offence which has been charged. That is the 'golden thread' which runs throughout the web of the criminal law: Woolmington v DPP [1935] AC 462 at 481-482. That obligation of the Crown is subject to exception only in relation to the defence of mental illness (an exception to which I will return), and in cases where the onus of proof in relation to a particular issue is placed upon the accused by statute (at 475, 481); Mancini v DPP [1942] AC 1 at 11. In relation to every other issue which may arise at the trial, the Crown bears the onus of proof; many such issues are frequently (but misleadingly) called 'defences'. The Crown must therefore remove any reasonable possibility that the act of the accused was accidental (Woolmington v DPP at 482 ), or that it was involuntary as a result of a state of automatism (Bratty v A-G (Northern Ireland) [1963] AC 386 at 407, 414, 415; (1961) 46 Cr App R 1 at 14, 22, 23; Ryan (1967) 121 CLR 205 at 215-216), or as a result of duress: Gill (1963) 47 Cr App R 166 at 171-172; Lawrence [1980] 1 NSWLR 122 at 131. The Crown must also remove any reasonable doubt raised by the accused's intoxication in determining whether the accused had formed the state of mind required for the offence charged: O'Connor (1980) 146 CLR 64 at 71, 88, 118; 4 A Crim R 348 at 351-352, 364-365, 386; Coleman (1990) 19 NSWLR 467 at 486; 47 A Crim R 306 at 323-324; as well as any reasonable possibility that the act of the accused was provoked: Moffa (1977) 138 CLR 601 at 607, 612, 628; or done in self-defence: Zecevic v DPP (1987) 162 CLR 645 at 654, 657, 681, 686; 25 A Crim R 163 at 168, 170-171, 188, 192."
What was said in R v Youssef also echoes what Barwick CJ said in Viro v The Queen (1978) 141 CLR 88 at 95: "Although it is common enough to speak of the "defence" of self-defence, since Woolmington v. Director of Public Prosecutions, where the proven facts give rise to the reasonable possibility that the fatal act was done in self-defence and the accused raises the question (see Director of Public Prosecutions v. Walker), the onus rests upon the Crown to negative that possibility, i.e. to remove any reasonable doubt that the fatal act was not done in self-defence." [Footnotes omitted.]
It can be seen that the term "reasonable possibility" is one that is used by appellate courts in the context of appeals against jury verdicts on the basis that they are, depending on the wording of the relevant statute, unreasonable, or unsafe and unsatisfactory.
The authorities that concern the directions to be given to juries about the onus and standard of proof are redolent with warnings against the paraphrasing of the expression "beyond reasonable doubt": see, for example, Green v The Queen (1971) 126 CLR 28 at 31-32. Although there is a strong judicial preference against directing the jury in terms other than the conventional "beyond reasonable doubt", I do not read the authorities as prohibiting any reference in such directions to "reasonable possibility" as long as the term is used correctly and not in such a way as to reverse the onus. For example, a direction which paraphrased what Hunt J said in the passage from R v Youssef set out above would not be erroneous. After all, the purpose of a direction is to provide instruction as to the law which the jury requires in order to fulfil its functions as the tribunal of fact.
Thus, a jury could properly be asked whether it was satisfied that there was no reasonable possibility that the act of the accused was done in self-defence. If the jury was not satisfied of that matter (either because they thought there was a reasonable possibility that the accused was acting in self-defence or because they were unsure), the accused would be entitled to be acquitted. It would, however, be preferable to tell the jury that it was required to be satisfied beyond reasonable doubt that the accused's act which resulted in the death of the deceased was not done in self-defence.
There are considerable differences between the approach taken by the trial judge in the present case and that of the trial judge in H v R [2016] NSWCCA 63, in which this Court quashed a conviction on the basis of her Honour's directions to the jury; and a question trail which repeatedly asked whether there was a reasonable possibility of certain matters. Nonetheless passages from H v R are relevant to the resolution of the present appeal, because of the Court's consideration of the words "reasonable possibility" in the context of a question trail. Neither party sought to argue that H v R was wrongly decided or was not relevant to the present appeal. Indeed, Mr Game submitted that this Court would not be entitled to find that the directions in the present case were correct unless it concluded that H v R was wrongly decided.
The Court in H v R Court considered the following question posed by the trial judge in a question trail (which was marked MFI 19): "Question 1 - Is there a reasonable possibility that the accused did not deliberately stab [the deceased] in the neck?"
The Court said: "[106] But the central point is that the "reasonable possibility" established by the evidence was one that the Crown had to eliminate or remove as part of its onus of proof. It was important that the directions in MFI 19 made that clear. [107] This was not a case where, in relation to the elements which the Crown had to negate beyond reasonable doubt, MFI 19 [the question trail] 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." [Emphasis added.]
In my view, this passage from the Court's judgment in H v R indicates that the Court accepted that the use of the term "reasonable possibility" is permissible as long as it does not distort the onus or standard of proof.

The form of the questions that commence with the words: Is there a reasonable possibility

The appellant also challenged the form of the questions, which included the following in Q 4: "Has the Crown satisfied you, beyond reasonable doubt, that James Moore was not acting in self-defence when he delivered the blow or blows which caused the death of Dennis Burns? There are two separate parts to be considered in order to answer this question: a. Is there a reasonable possibility that James Moore genuinely believed that his conduct in delivering the blow or blows which caused the death of Dennis Burns was necessary in order to defend himself or another person? ● If the answer is yes, then proceed to consider question 4b. ● If the answer is no, then proceed to consider question 5. b. Is there a reasonable possibility that the conduct of James Moore in delivering the blow or blows which caused the death of Dennis Burns was a reasonable response to the circumstances as he, James Moore, perceived them to be? ● If the answer is yes, you must return to Court with the verdict of Not Guilty. ● If the answer is no, then you must return to Court with a verdict of Not Guilty of Murder, but Guilty of Manslaughter."

Whether there was a reversal of onus

Mr Game relied on the following passage from Callinan J's reasons in Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at [101]: "The appellant was entitled to a trial at which directions according to law were given. It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered, particularly when, as here, a particular choice was not the only or inevitable choice."
In the present case, since the charge was murder, the Crown was obliged to prove that the applicant's act that killed the deceased was not carried out in self-defence. The Crown must prove that matter beyond reasonable doubt. The orthodox direction to the jury is in those terms; the words "beyond reasonable doubt" are not explained further.
An alternative formulation, which has nonetheless been approved, is that the Crown must exclude the possibility that the act that killed the deceased was carried out in self-defence. The word "reasonable" as a qualification to "possibility" has also been approved on the basis that the Crown can discharge the onus by removing all possibilities that are not far-fetched or fanciful.
Question 4 as posed by the trial judge in the question trail asked the correct question in conventional terms in the prefatory words in the question. However, the next question was posited in the reverse: Is there a reasonable possibility that James Moore genuinely believed that his conduct in delivering the blow or blows which caused the death of Dennis Burns was necessary in order to defend himself or another person? When the reverse question is posited, the form of the question tends to reverse the onus since it tends to imply that it is for the appellant to establish the existence of a reasonable possibility. This implication is contrary to principle. In my view, there is an inconsistency between a direction that the Crown establish each element of the offence beyond reasonable doubt, which is plainly correct, and an invitation to the jury to determine whether there is a reasonable possibility of a matter which the Crown bears the onus of disproving (for example, that the accused was acting in self-defence).

Whether there is a third alternative, or whether the question must be answered "yes" or "no"

Because the question is posed in a positive way ("Is there a reasonable possibility of x?") and does not provide for the option of a "don't know" or "not sure" answer, the question implies both that the question admits of only two answers, yes or no; and that any uncertainty about the existence of such a possibility ought be resolved against the appellant.
The affirmative (satisfaction of existence of a reasonable possibility) and the negative (lack of satisfaction that there is a reasonable possibility) do not cover the field. In my view, there is a third possibility: that the jury is unsure whether there is, or is not, a possibility. The Crown accepted in the present appeal that if this Court considered there to be a "middle ground", the appeal ought be allowed. For the following reasons my reading of this Court's decision in H v R is that it decided that there was such a middle ground.
The Court said at [109]: "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."
I regard the Court in H v R as accepting, in [109], the existence of a middle ground between the affirmative and negative answers. This proposition can be tested in the following way by reference to the trial judge's question 4, which is extracted above. If the jury was unsure about whether there was a reasonable possibility of the matter in 4a, the jury would reject "yes" as an answer. The jury might select "no" as the only remaining alternative. In that event, the applicant might lose the chance of being acquitted altogether (of both murder and manslaughter) on the ground that the Crown had not excluded self-defence. A similar scenario would apply if the jury answered "yes" to question 4a but was unsure about the existence of a reasonable possibility in 4b.
I do not consider that this argument can be answered by postulating that, if a jury is unsure, it could always ask a further question. This suggestion ignores the practical reality that the way a question is formulated can have a real bearing on the answer and on the assumptions, if any, made by the person required to answer it, as recognised in the passage from Callinan J's judgment in Gilbert v The Queen set out above.

The effect of the question trail in the overall context of the oral summing up and the written directions of law

Whether an error in a direction to the jury ought lead to a conviction being quashed is to be determined by reference to the overall impression of the summing up in the minds of the jury: H v R at [68]. Accordingly, it is necessary to decide whether the written directions (which were accepted to be correct) and the oral directions in the summing up were sufficient to remove any misapprehension about the onus which might have been created by the question trail.
When his Honour provided the question trail document to the jury in the course of the summing up his Honour said: "So that is how it is set out to follow as a path of reasoning so that you can be certain, if you follow this path, that you cover each of the alternatives that are discussed in the written directions. So that is what I mean about a question trail." [Emphasis added.]
In my view, the trial judge made it clear to the jury that they could fulfil their task as the tribunal of fact if they followed the process set out in the question trail. In these circumstances, I do not consider that any error in the question trail ought be taken as being remedied by a statement of the correct principle in the written directions or in the summing up. Whether the jury, or any of its members, detected any inconsistency; whether the jury followed the question trail or followed the written directions; or how the jury deliberated, cannot be determined. It is sufficient that it was possible that the jury accepted the trial judge's invitation to comply with his Honour's directions and arrive at their verdicts by following the path set out in the question trail. The assumption that the jury faithfully applies the trial judge's directions is fundamental: Demirok v The Queen (1977) 137 CLR 20 at 22 per Barwick CJ.
In my view, for the reasons given above, there was a fundamental error in the question trail. Because of the way question 4 was expressed in the question trail, I consider that the appellant did not have a trial at which directions according to law were given. Accordingly, the verdict must be quashed, it being accepted by the Crown that the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) would not apply in the present case, since it could not be said that, if error was established, there was no substantial miscarriage of justice.

The authorities referred to in the reasons of R A Hulme J

The authorities referred to by R A Hulme J in the present appeal do not, in my view, detract from what was said in H v R. Indeed, in my view, they support the proposition that, if the question is to be asked in terms of "reasonable possibility", care ought be taken in the formulation of the question. Thus, in R v Dziduch the question set out in the passage extracted in R A Hulme J's reasons above from [381] was, correctly, posed in terms of whether the Crown had "eliminated any reasonable possibility". Similarly, in R v Abusafiah at [542], this Court gave its imprimatur to the direction that the Crown must "establish that there is no reasonable possibility" (that the objective limb was made out).
The cases referred to by R A Hulme J largely deal with the standard of proof and only peripherally with the burden, or onus, of proof. A reference to "reasonable possibility" in the context of standard of proof does not deal with the onus question, which is, relevantly: has the Crown eliminated any reasonable possibility?
The danger of asking the question in a positive way was adverted to by Howie J in R v Ayoub in the passage taken from [6] set out above by R A Hulme J: namely, that it might suggest that the onus falls on the accused. The directions considered by this Court in R v Ward, which are set out in R A Hulme J's reasons above, were put in the negative and therefore do not provide support for the asking of the question whether there is a reasonable possibility in a positive way.
In Velevski v The Queen Gaudron J said, at [129] (in the passage quoted by R A Hulme J set out above), that it would have been preferable for the jury to be instructed that, if there was a reasonable possibility that the mother killed her children and then committed suicide, they should acquit and, conversely, they could only convict if that was not a reasonable possibility. I do not regard her Honour as addressing, much less answering, the question of whether there was a middle ground between the existence and non-existence of a reasonable possibility. Rather, I consider her Honour was saying no more than that if the jury considered there to be a reasonable possibility that a person other than the accused killed the children they should acquit but that if they were satisfied that there was no reasonable possibility, they must convict.
Moreover, the authorities to which R A Hulme J has referred concerned directions which were given by trial judges as part of a narrative rather than the form of a question trail. Where directions are given in the course of a narrative, it is a matter of judgment whether, even if the question "Is there a reasonable possibility?" is put in a positive way, there is any overall distortion of the onus of proof. The reason for this is that, if the trial judge asks such a question in the midst of a narrative which emphasises that the onus is on the Crown to prove the negative beyond reasonable doubt, any concern that the jury has been misled is likely to be ameliorated by the context. By contrast, where a question trail is offered to a jury as a means of complying with the trial judge's directions, and the question trail poses the question in a positive way, the distortion of the onus of proof that the formulation tends to create remains, for the reasons given above, unremedied.

Conclusion and proposed orders

By reason of my view on the first ground, it is not necessary to consider the second ground of appeal against conviction.
For the reasons set out above, I propose the following orders: 1. Grant leave to appeal against conviction. 2. Allow the appeal against conviction. 3. Quash the conviction. 4. Order that the appellant be retried according to law.
My view on the conviction appeal is a minority one. In these circumstances, I record my concurrence with the orders proposed by Basten JA with respect to the application for leave to appeal against sentence.

Endnotes

Transcript of ERISP of 1 November 2012, Q18.
Evidence of Christopher Barnes, Tcpt, p 191-192.
Summing up at par 153.
Par 158.
Par 159.
ERISP, Q25 and Q26.
Summing up at [304].
Summing up at [307].
Tcpt, 25/11/14, p 329(15)-(18).
Amendments introduced by the Crimes Amendment (Self-defence) Act 2001 (NSW), following proposals by the Criminal Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code - Chapter 2, General Principles of Criminal Responsibility: Final Report December 1992, pp 66, 68.
(1976-78) 141 CLR 88.
Viro at 95; Barwick CJ was in dissent, but not relevantly for present purposes.
[1935] AC 462.
[1971] AC 814 at 831, quoted by Gibbs J in Viro at 115.
Viro at 146-147.
See Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 654 (Mason CJ).
(1960) 102 CLR 584 at 605-606.
(1912) 13 CLR 619 at 661.
(1936) 55 CLR 367.
Martin at 378 (Dixon J).
Martin at 381-382.
(1963) 110 CLR 234 at 243.
Zecevic at 661.
(2010) 79 NSWLR 544; [2010] NSWCCA 242.
Justins at [24] and [25].
Justins at [243] (Simpson J).
Justins at [242].
Justins at [241].
[2016] NSWCCA 63 (presently restricted).
H at [73].
Summing up at [6]-[8].
Summing up at [300]-[301].
Summing up at [143].
Summing up at [266].
Summing up at [138].
Written directions, B Self-defence, set out at [15**] above.
R v Moore (No 2) [2015] NSWSC 214 ("sentencing judgment").
Sentencing Procedure Act, s 21A(2)(d); Sentencing judgment at [48].
Sentencing Procedure Act, s 21A(2)(e); Sentencing judgment at [49].
Sentencing judgment at [50].
RL v R [2015] NSWCCA 106 at [36], referring to Williams v R [2010] NSWCCA 15, in which McClellan CJ at CL (Simpson and Hidden JJ agreeing) adopted the reasoning of Howie J in Fahs v R [2007] NSWCCA 26 at [21] (Simpson and Buddin JJ agreeing).
RL at [37].
Sentencing Procedure Act, s 21A(3)(c).
R v Fahda [2013] NSWCCA 86 at [18].
Applicant's written submissions, par 191.
Sentencing judgment at [35].
[2014] NSWCCA 98 at [21] (Hidden and Simpson JJ agreeing).
Sentencing judgment at [35].
Sentencing judgment at [35].
Sentencing judgment at [65], [66].

Amendments 23 August 2016 - [42] - Amending to read "Dixon CJ". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 August 2016

Crimes Amendment (Provocation) Act 2014(NSW)

Crimes Amendment (Self-defence) Act 2001(NSW)

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