NPK -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 50 (9 April 2020)

1. The trial judge gave a general direction, in conventional terms, concerning the burden and standard of proof.[1]
2. The judge provided the jury with a jury aid of five pages.[2] The judge told the jury that it did not supplant or replace his oral directions, but was given with the intention that it would assist the jury to follow the directions he was about to give them. His Honour also observed that the aid may be useful to the jury in their deliberations when looking at each count individually.[3]
3. In relation to count 7, the judge told the jury that the four elements of the offence were set out on the jury aid.[4] The first three elements - that the appellant was driving the motor vehicle; that the vehicle was involved in an incident; and that the incident occasioned grievous bodily harm to the complainant - were all not in issue.[5] The fourth element was whether, at the time of the incident, the appellant drove in a manner that was dangerous to the public or to the complainant, having regard to all the circumstances.[6] The judge told the jury that, in considering count 7, they must also consider whether or not the manner of driving was excused by reason of the fact that it occurred in circumstances of sudden or extraordinary emergency.[7]
4. The judge then told the jury that he wanted to refer them to what was set out on page 4 of the jury aid.[8] In that regard, the jury aid provided as follows:[9]

Defence of emergency

A person is not criminally responsible for an act done in an emergency if -

(a) the person believes -

(i) circumstances of sudden or extraordinary emergency exist; and

(ii) doing the act is a necessary response to the emergency;

and

(b) the act is a reasonable response to the emergency in the circumstances as the person believes them to be; and

(c) there are reasonable grounds for those beliefs.

The onus of proof is on the State to satisfy you [beyond reasonable doubt (BRD)] that [the appellant (A)] did not drive in the manner alleged in an emergency.

The State can discharge its burden of proof by satisfying you BRD that any one of the above grounds did not exist at the relevant time of the alleged offence.

Issue: has the State proved BRD that A's manner of driving was not the result of an emergency?

• If no, then your verdict is not guilty (original emphasis)

1. The judge then said the following to the jury, the correctness of which is accepted by all parties:[10]

The onus is on the State to negative the defence, there being no onus on an accused person in a criminal trial, except in relation to count 3 which I have mentioned, to prove anything. The State can do this by satisfying you beyond reasonable doubt that any one of the four conditions set out on the jury aid did not exist. So if you look at the jury aid you can see that I set out for you the requirements for the defence of emergency.

The first factual issue is that the person believes circumstances of sudden or extraordinary emergency exist, the second is that the person believes doing the act is a necessary response to the emergency, the third is that the act is a reasonable response to the emergency in the circumstances as the person believes them to be, and the fourth is that there are reasonable grounds for each of those beliefs.

So, members of the jury, you must look at each requirement separately and if you are satisfied beyond reasonable doubt that any of the four requirements did not exist at the relevant time then the State will have disproved the defence and [the appellant] will not, as a matter of law, be entitled to rely on it with respect to his manner of driving which is the subject of count 7.

So it is a matter for you to separately consider each of the four matters set out for you on the jury aid in the course of your deliberations to see if the State has proved any of those beyond reasonable doubt, or I should say disproved any of those beyond reasonable doubt.

1. His Honour then immediately continued as follows:[11]

It is of course entirely a matter for you, members of the jury. [The appellant] gave evidence that he believed that a circumstance of sudden or extraordinary emergency existed. Those circumstances that he outlined for you included his state of mind at the time that the driving occurred. He indicated that he was scared, having been already suspicious ... when he ... arrived at the ... car park.

He also asks you to take into account the time and place, the distance that he drove he described as short, the fact that he had to take a turn at the end of the road. He accepts that there was some acceleration, he accepts that he panicked ... but his explanation is that he thought there was a sudden or extraordinary emergency which caused him to be panicked and he had no time to react in those circumstances.

So it's a question of fact for you, members of the jury, whether or not you find that in those circumstances that he was confronted with at this time and place there was, in his belief, a sudden or extraordinary emergency.

If you are satisfied beyond reasonable doubt - if you are satisfied that there was such a belief then you would move on to consider whether or not his manner of driving was a necessary response to the emergency that he believed existed. Again, that's a matter of fact for you to determine having regard to the whole of the evidence.

If you are not satisfied beyond reasonable doubt that his manner of driving was a necessary response to the circumstances as he understood them to be at the time then the defence cannot [sic] relied upon by [the appellant].

If you are then you move to the next part of the defence and the question of whether or not his manner of driving was a reasonable response to the emergency in the circumstances as he believed them to be. This requires you to objectively assess the position from his viewpoint in the time that he had available to make decisions as to how to react and respond to the threat that he perceived he was confronted within [sic] the circumstances.

If you are satisfied beyond reasonable doubt that it was not a reasonable response to the emergency in the circumstances as he believed them to be then the defence is not available to [the appellant]. And then finally you need to be satisfied whether or not there were reasonable grounds for those beliefs. So if the State has proved to your satisfaction beyond reasonable doubt that any one of these grounds did not exist at the relevant time of the emergency as alleged then the defence cannot be relied upon by [the appellant].

You would still need to be satisfied pursuant to the fourth element that the manner of driving in the circumstances was dangerous to [the victim] ... having regard to all the circumstances. If the State has not disproved the defence of sudden or extraordinary emergency then, as I say, you go back to the fourth element. (emphasis added)

The italicised portions of this passage are the subject matter of the ground of appeal.

1. The judge reminded the jury of the respective evidence of the appellant and another witness.[12]

1. The appellant advances a single ground of appeal. The ground asserts that his conviction on count 7 constituted a miscarriage of justice as the trial judge misdirected the jury in relation to the defence of emergency, alternatively his Honour's misdirection constituted a wrong decision on a question of law.
2. The question of leave was referred to the hearing of the appeal.[13]

The parties' submissions Appellant's submissions

1. The appellant's submissions focus on the italicised words in the passage set out at [12] above. The appellant submits that those parts of the direction reversed the onus of proof. In particular, he submits that the judge reversed the onus of proof in relation to the first and second of the four components of[14]mergency.14
2. The appellant accepts that the position set out in the jury aid was correct,[15] and that the judge provided a correct overview of the position both at the beginning and the end of the emergency direction.[16] He also accepts that the judge correctly directed on the third component of the defence.[17]
3. The appellant submits that, nevertheless, viewed as a whole, the direction reversed the onus of proof as to some components of the defence of emergency.[18]

1. The respondent accepts that, viewed in isolation, the impugned aspects of the summing up were incorrect. However, the respondent contends that, when the summing up is considered as a whole, it can safely be concluded that the jury would not have derived a false perception of the basis upon which they must decide count 7. The respondent emphasises the following matters:

(1) The judge's general directions, given immediately after the selection of the jury[19] and during the summing up, that the burden of proof was upon the prosecution and not upon the accused.[20]

(2) At the outset of the emergency direction concerning count 7, the judge told the jury that the onus is on the State to negative the defence of extraordinary emergency which they could do by satisfying the jury beyond reasonable doubt that any one of the four conditions did not exist.[21] The judge twice told the jury that the prosecution were required to disprove the defence of emergency by disproving beyond reasonable doubt any one of the four conditions.[22]

(3) The judge again correctly told the jury that the prosecution was required to disprove the defence of emergency beyond reasonable doubt by proving beyond reasonable doubt that any one of the four conditions of emergency did not exist.[23]

(4) While the judge was addressing the jury on the defence of emergency, he, and they, were referring to the jury aid. The jury aid correctly set out the law. Any errors in what the judge said would have been apparent to the jury as they read the jury aid in listening to the judge.

(5) In both their opening and closing addresses to the jury, the prosecutor and defence counsel referred to the burden of proof upon the State. Among other things, the prosecutor said, in opening, that if it was asserted that the driving was excused on the basis of an emergency the prosecution has to prove that there was no such emergency or that the appellant did not believe that it was an emergency or that what he did was not a necessary response.[24]

(6) Defence counsel took no exception to the impugned words and sought no further direction concerning the emergency defence.

1. Section 25(3) of the Code provides that a person does an act or makes an omission in an emergency if:

(i) circumstances of sudden or extraordinary emergency exist; and

(ii) doing the act or making the omission is a necessary response to the emergency;

and

(b) the act or omission is a reasonable response to the emergency in the circumstances as the person believes them to be; and

(c) there are reasonable grounds for those beliefs.

1. The prosecution may negate the defence of emergency by proving beyond reasonable doubt that:

(a) the accused did not hold either of the beliefs specified in s 25(3)(a); or

(b) the accused's act or omission was not a reasonable response to the emergency in the circumstances that the accused believed them to be; or

(c) there were not reasonable grounds for the accused's beliefs.[25]

1. The jury aid correctly set out the four elements of the defence of emergency. In the passage set out at [11] above, and in the jury aid, the judge correctly told the jury that:

(1) the onus was on the State to negative the defence of emergency beyond reasonable doubt, and that there was no onus on the accused; and

(2) the State could negative the defence of emergency by satisfying the jury beyond reasonable doubt that any one of the four conditions set out in the jury aid did not exist.

1. In this case, the problems arose in the judge's attempts to explain this approach more specifically, as it applied to each of the four conditions. This might have been done by simply telling the jury that the State could negative the defence of emergency by proving beyond reasonable doubt that:

(a) the accused did not believe that circumstances of sudden or extraordinary emergency existed; or

(b) the accused did not believe that doing the act in question was a necessary response to the emergency; or

(c) the act was not a reasonable response to the emergency in the circumstances as the accused believed them to be; or

(d) there were no reasonable grounds for the accused's beliefs.

1. The judge did not direct in terms along these lines. Unfortunately, there were, as the respondent concedes,[26] a significant number of errors in what the judge said, set out at [12] above, concerning the jury's consideration of the four conditions.
2. To enable reference to each part of the critical passage of what the judge told the jury, it is convenient to break down that passage as follows:[27]

So it's a question of fact for you, members of the jury, whether or not you find that in those circumstances that he was confronted with at this time and place there was, in his belief, a sudden or extraordinary emergency.

If you are satisfied beyond reasonable doubt - if you are satisfied that there was such a belief then you would move on to consider whether or not his manner of driving was a necessary response to the emergency that he believed existed. Again, that's a matter of fact for you to determine having regard to the whole of the evidence.

(c)

If you are not satisfied beyond reasonable doubt that his manner of driving was a necessary response to the circumstances as he understood them to be at the time then the defence cannot [sic] relied upon by [the appellant].

(d)

If you are then you move to the next part of the defence and the question of whether or not his manner of driving was a reasonable response to the emergency in the circumstances as he believed them to be. This requires you to objectively assess the position from his viewpoint in the time that he had available to make decisions as to how to react and respond to the threat that he perceived he was confronted within [sic] the circumstances.

(e)

(f)

(g)

If you are satisfied beyond reasonable doubt that it was not a reasonable response to the emergency in the circumstances as he believed them to be then the defence is not available to [the appellant]. And then finally you need to be satisfied whether or not there were reasonable grounds for those beliefs. So if the State has proved to your satisfaction beyond reasonable doubt that any one of these grounds did not exist at the relevant time of the emergency as alleged then the defence cannot be relied upon by [the appellant].

(h)

(i)

You would still need to be satisfied pursuant to the fourth element that the manner of driving in the circumstances was dangerous to [the victim] ... having regard to all the circumstances. If the State has not disproved the defence of sudden or extraordinary emergency then, as I say, you go back to the fourth element.

1. It can be seen that the critical part of what the trial judge told the jury comprised the following statements:

(a) the jury had to decide as 'a question of fact' 'whether or not' the circumstances that confronted the accused at the relevant time and place were 'in his belief, a sudden or extraordinary emergency';[28]

(b) if the jury was satisfied beyond reasonable doubt/satisfied that the accused had a belief that circumstances of sudden or extraordinary emergency existed the jury must consider whether or not the accused's manner of driving was, 'as a matter of fact', a necessary response to the emergency that he believed existed;[29]

(c) if the jury was 'not satisfied beyond reasonable doubt that [the accused's] manner of driving was a necessary response to the circumstances as he understood them to be' then the accused could not rely upon the defence;[30]

(d) if the jury was satisfied beyond reasonable doubt that the accused's manner of driving was a necessary response to the circumstances as he understood them to be, then the jury must consider whether or not, on an objective appraisal of the position from the accused's view point, the accused's manner of driving was a reasonable response to the emergency that he believed existed;[31]

(e) if the jury was 'satisfied beyond reasonable doubt that [the accused's manner of driving] was not a reasonable response to the emergency' in the circumstances that the accused believed existed, then the defence could not be relied upon by the accused;[32]

(f) then, finally, the jury needed to be 'satisfied whether or not there were reasonable grounds for [the accused's beliefs]';[33]

(g) if the State proved beyond reasonable doubt that any one of the grounds referred to by his Honour did not exist at the relevant time and place, then the defence could not be relied upon by the accused;[34]

(h) however, the jury would still need to be satisfied of the fourth element of the offence, namely that the accused's manner of driving in the circumstances was dangerous to the complainant having regard to all the circumstances;[35]

(i) if the State did not 'disprove the defence of sudden or extraordinary emergency', then the jury must go back and consider the fourth element of the offence.[36]

1. There are difficulties with most of these statements.
2. The statements in (a) and (b) both tended to direct the jury's attention, in their process of fact finding, to the wrong question. Both tended to invite the jury's attention to the question, 'did or did not the accused have a belief that circumstances of sudden or extraordinary emergency existed?' Statement (a) directed the jury to the 'question of fact' 'whether or not' this was so. Statement (b) directed the jury to whether 'as a matter of fact' they were 'satisfied' that this was so. These were not the questions for the jury. The question was whether the State had proved beyond reasonable doubt that the appellant did not have such a belief.
3. Statement (c) says, in terms, that the accused could not rely on the defence of emergency if the jury were not satisfied beyond reasonable doubt that his manner of driving was a necessary response to the circumstances as he understood them to be. Had this error stood alone, there would be considerable force in the respondent's submission that the jury would have recognised the direct inconsistency of this statement with the repeated statements that the onus was on the State to prove its case, and to negative emergency, beyond reasonable doubt. However, this error does not stand alone.
4. What is said in statement (d) tends to reinforce the error in (c) because it deals with the converse case from the passage in (c). Statement (d) directs the jury that if they were satisfied beyond reasonable doubt, they would go on to consider the next question.
5. Statement (e), in dealing with the third condition, correctly explains the position to the jury.
6. Statement (f) tends to reinforce the earlier errors, particularly those in statements (a) and (b), in that it directs attention to 'whether or not' there were reasonable grounds for the accused's belief. Again, that tends to invite an inquiry into whether the jury were or were not satisfied of the existence of reasonable grounds.
7. What is said in statements (g) and (h) correctly states the position.
8. Statement (i) is erroneous. If the State had not disproved emergency, the jury was required to return a verdict of not guilty. It can safely be inferred that the inclusion of the word 'not' was unintended: in its terms, statement (i) makes no sense in light of what immediately precedes it. Had this error stood alone, we are satisfied that it would have been clear to the jury that this was an unintended slip.
9. The principles relevant to the issues in this appeal were recently summarised by Buss P and Mazza JA in DKA v The State of Western Australia in the following terms:[37]

It is trite that an impugned passage in a trial judge's summing up cannot be read in isolation, but must be evaluated in the context of the summing up as a whole. See Murray v The Queen [[2002] HCA 26; [2002] HCA 26; (2002) 211 CLR 193 [72] (Kirby J)]. The critical issue is whether the words spoken by the trial judge in his or her summing up are such that the jury would have derived an erroneous perception in relation to a material matter of fact or law. An appellate court must decide that issue by taking the summing up as a whole and as a jury listening to it might understand it. The issue is not to be decided upon a subtle examination of the transcript of the summing up or by giving undue prominence to any part of the summing up. See R v Dookheea [[2017] HCA 36; [2017] HCA 36; (2017) 262 CLR 402 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ)].

1. The need to consider the summing up as a whole has been emphasised in many cases.[38]
2. The critical question is not whether, on the balance of probabilities, the erroneous aspect(s) of the direction would have led the jury into error. Rather, the question is whether, in the context of the summing up as a whole, there is a real (as distinct from fanciful) risk that the erroneous aspect(s) could have led the jury to decide the case on an erroneous basis.[39]
3. In the present context, the question is whether there is a real risk that the impugned passages could have led the jury to think, in respect of any one (or more) of the elements of the emergency defence, that unless they were satisfied of the existence of that element, the defence of emergency could be put to one side.
4. What his Honour had said, in general terms, in his oral direction and in the jury aid, as to the approach to the emergency defence was correct. However, the judge went on to identify the specific question for the jury concerning each individual condition. In doing so, the judge erred in the several respects explained above. The respondent accepts that that is so.[40]
5. Statements (a) to (f) comprise the entirety of what the judge said to the jury concerning each of the four individual conditions. Five of the six statements were apt to mislead the jury. Of the four conditions, the judge correctly explained and identified the question for the jury on only one of them; there were problems in relation to the judge's specification of the question relating to three of them.
6. In our view, it is significant that there were several errors in the judge's identification of the specific questions as to three of the four conditions. Those several errors were in close proximity and all had the same problem: they tended to direct the jury to the question of whether the jury was or was not satisfied that the condition existed. The errors are likely to have had a compounding effect.
7. The jury aid included only general statements as to the approach to the defence of emergency. The judge's oral direction did not, and did not purport to, merely mirror the jury aid. The oral direction embellished the general statements in the jury aid. Statements (a), (b), (c), (d), (f) and (i) all conflicted with and detracted from the judge's correct general statements, in his oral direction and in the jury aid, concerning the approach to be taken to the defence of emergency. The jury would have proceeded correctly only if they recognised this conflict and decided to ignore the erroneous specific statements in (a), (b), (c), (d) and (f) and instead apply the general statements. To our mind, it is significant that the errors concerned the judge's identification and formulation of the specific questions for the jury as to emergency. In that sense, as the appellant submits, the errors related to 'the nuts and the bolts of' the defence of emergency.[41] We think there is a real risk that the jury might have applied these more specific directions without recognising and resolving their inconsistency with the judge's statements as to the general approach to be taken.
8. At the least, the several erroneous statements were likely to have caused confusion on the part of the jury.
9. The judge had directed the jury that they were bound to follow what he told them concerning the law. When a judge makes an obvious verbal slip, saying something which is plainly inconsistent with the other relevant parts of a summing up, it may readily be concluded that there is no real risk that the jury will be misled. In our view, the subject matter, extent and nature of the errors in the summing up mean that this is not such a case.
10. For the reasons in [39] ‑ [44], in our view, the risk of erroneous reasoning, arising from the judge's misdirections, was not removed by the judge's correct general directions as to, or counsel's correct references to, the onus and standard of proof.
11. In our respectful opinion, the judge's erroneous statements in the impugned passages gave rise to a real risk that the jury were given a false basis for determining whether the State had proved its case. Consequently, the judge's erroneous statements gave rise to a miscarriage of justice. That is so, in our opinion, notwithstanding that defence counsel took no exception to the judge's summing up. In the circumstances of this case, there is no basis to suppose that the absence of objection or a request for a redirection reflected a forensic or tactical decision.

1. For the above reasons, we would grant leave to appeal, uphold the appeal, set aside the conviction on count 7 and order a retrial on that count.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[13] Order of Mazza JA, 13 September 2019.

[25] Petersen v The State of Western Australia [2016] WASCA 66; (2016) 50 WAR 45 [131].

[37] DKA v The State of Western Australia [2019] WASCA 123 [43].

[38] See, for example, Cooper v The State of Western Australia [2010] WASCA 190 [23], [54].

[39] Cooper [53]; DKA [48], [182].