Ground 5
His Honour erred in giving directions which were capable of misleading the jury as to the application of the onus and standard of proof.
97 In written submissions the appellant supported ground 5 in this way:
"This ground is to be argued in the context of ground 1.
The prosecutor was allowed to put to the jury that it should accept that of the various out of court statements made by the witness Mills to police, they would accept the statements made on 25 & 26 July 2000. It was further put that those statements reflected the true facts of what happened. This involved a suggestion of choice between competing versions by the witness Mills. It also implied an onus of proof resting on the defence."
98 In his written submissions Mr Nicholson did not identify the passage or passages in the summing up that were the subject of the complaint made in this ground. In the course of oral submissions Mr Nicholson referred to a passage at SU 65. It is appropriate to put the passage complained of in its proper context:
"Members of the jury, it is in fact common ground between the Crown and the accused that if you accept as a reasonable possibility that the death of the deceased occurred in the circumstances described by the accused, then the accused is entitled to be acquitted on the charge of murder brought against him. I must warn you however that you should not consider that the accused could be acquitted only if you do accept the version of the incident which he has given in evidence before you.
The fact that the accused has - as he was entitled to do - given evidence in this trial, and placed before you a version of what he says happened, does not mean that the accused has accepted some onus of establishing that he is innocent. The accused bears no onus at all in these proceedings. The onus remains on the Crown at all times of satisfying you beyond reasonable doubt that the accused is guilty of the crime charged.
The version of the incident given by the accused in his evidence is one matter you must consider in coming to your decision on this central issue. Even were you to disbelieve what he has said regarding the shooting, that disbelief does not of itself amount to material upon which you can be satisfied by the Crown that the accused was guilty of the crime, although such disbelief of the accused, if you took that view of his evidence, might assist you in deciding whether to accept more readily the conclusions which are otherwise available from the evidence led by the Crown.
The point I am making is that you do not have to determine whether the accused is telling the truth. You may not accept his version of the incident, and yet still find him not guilty. The question that you have to determine is not whether the accused is guilty, but rather whether the Crown has satisfied you that the accused is guilty. If the Crown has so satisfied you and has done so beyond reasonable doubt, then you are entitled to convict the accused of the charge of murder.
In coming to that decision as to whether or not you are so satisfied, you must take into account the version he has given you; and you must ask yourselves whether that version operates to cast a reasonable doubt upon the case that the Crown seeks to make out. Putting it another way, if you are satisfied that there is a reasonable possibility that the death of the deceased occurred in the manner described by the accused then you will be obliged to acquit the accused of the charge of murder . (Emphasis added.)
That will be because there will be a reasonable doubt upon the case that the Crown has sought to make out. That is, a reasonable doubt about each of the essential ingredients I have identified for you in the summary sheet under paragraph (b) and (c). They are, as I have said, the critical issues which the parties have contested during this trial." (SU 64-65).
99 The direction the subject of complaint is contained in the penultimate paragraph above in bold. Mr Nicholson submitted that by this direction the Judge reversed the onus of proof.
100 At the commencement of the summing up his Honour directed the jury in these terms:
"The first thing I want to speak to you about are the legal principles relating to the onus of proof and the standard of proof. Both counsel have mentioned this to you already. It is important that I make clear what those principles are. There are two principles of the law which are fundamental to our criminal justice system.
The first is that every accused person is presumed innocent unless and until they are found guilty. The accused in this trial has the benefit of that presumption of innocence. That means that he is entitled to have you return a verdict of not guilty unless you find the Crown has proved that he is guilty as charged. At no stage of the trial is there any onus or obligation on the accused to prove that he is innocent. At no stage is there any onus or obligation on him to disprove any part of the Crown case. Nor indeed does he have an obligation to prove anything at all. From the start of the trial to its finish the onus rests on the Crown to prove every matter necessary to establish against the accused that he is guilty.
The second fundamental principle is this: Whatever the Crown has to establish in order to prove the offence must be proved to your satisfaction beyond reasonable doubt. In respect of every offence known to the law the law defines particular matters which the Crown has to prove before an accused person can be found guilty of the offence. Those matters are usually referred to as the elements or the essential ingredients of the charge.
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At this stage however, I want to emphasise to you that a person may not be convicted of any offence unless each of the elements or essential ingredients of the charge is proved and proved beyond reasonable doubt. Now that does not mean the Crown is required to prove the truth of every piece of evidence that has been placed before you. What it means is the accused must not be convicted unless you have been satisfied, having regard to the whole of the evidence, that the essential elements, the essential ingredients of the charge are proved beyond reasonable doubt.
There is another way of stating this principle and it is this: A person may not be convicted of an offence if there is a reasonable possibility that he or she is not guilty as charged. You will hear me use those expressions interchangeably throughout this summing up.
Just to repeat: To convict you must be satisfied of all the elements or essential ingredients of the particular charge beyond reasonable doubt. You must not convict if there is a reasonable possibility that any of the elements or essential ingredients of the charge is absent.
I would like to say something to you about the situation that arises where an accused person chooses to give evidence in a trial. The accused has given evidence in this trial. You will understand that an accused person may give evidence at his or her trial but he or she is under no obligation to do so.
As I pointed out to you, the Crown bears the onus of satisfying you beyond reasonable doubt that the accused is guilty of the offence with which he is charged. He bears no onus. He is presumed to be innocent unless you are satisfied by the evidence that he is guilty. The accused was entitled to elect to say nothing in this trial and to put the Crown to proof of his guilt if that could be proved. Just as an accused person has a right to remain silent when questioned by police, a matter I told you about earlier - an entitlement which the accused quite properly exercised in this case - so an accused person retains that right to remain silent when on trial.
However, the accused has given evidence in this trial. By choosing to give evidence the accused submitted himself to cross-examination in the same manner as any other witness. His choice to give evidence does not mean of course that the evidence he gave before you was necessarily true. His evidence is to be evaluated by you in the same way as the evidence of other witnesses who took an oath and who subjected themselves to cross-examination during the trial. When he went into the witness box the accused made himself voluntarily a witness in the same way as did all other witnesses.
The point I wish to make is that exactly the same principles apply in evaluating his truthfulness and his reliability as apply to all other witnesses. I will say a little more about this matter of evaluating credibility and reliability at a later time in the summing up.
The point I wish to stress at the moment is that by giving evidence the accused in no way altered the fundamental principle as to where the onus of proof lies. It is never for the accused to satisfy you of his innocence. It is for the Crown to satisfy you of the accused's guilt irrespective of whether the accused has given evidence or has not given evidence" (SU 3-5).
101 The complaint that the Judge wrongly directed the jury in the passage set out at paragraph [98] by the use of the words "if you are satisfied" (rather than "if you considered") is to my mind without substance when the summing up is read as a whole. The Judge's directions to the jury as to the onus and standard of proof were extensive, clear and emphatic. I consider the passage complained of when read in context could not fairly be said to have left the jury with the impression that any onus lay upon the accused in the course of the trial.
102 In oral submissions Mr Nicholson took us to a further passage in the summing up in support of his challenge that the Judge's directions concerning the onus of proof were misleading. At SU 93 his Honour said:
"In any event, if you were satisfied beyond reasonable doubt that the accused, contrary to his own version, fired a shot because he was afraid that he might be killed, then you would have to consider the issue of self-defence.
Of course, if you were satisfied beyond reasonable doubt that the accused, again contrary to his own version, deliberately fired the second shot into the back of the deceased while the deceased was lying on the ground near death, you might well consider that no issue of self-defence could arise at all. So it depends on the facts you find."
103 Mr Nicholson complained that the Judge by these directions cast the onus on the appellant on the issue of self-defence and compounded this error by directing that the standard of proof was beyond reasonable doubt. Mr Nicholson also submitted that his Honour wrongly imposed a test that the jury be satisfied that the accused was in fear of his life before considering self-defence. This latter suggested error was said to have been repeated at SU 95 where the Judge again referred to the question of the accused's fear for his life.
104 In this passage of the summing up the Judge was dealing with the circumstance that on the appellant's case the discharge of the firearm was accidental. It was the appellant's case he did not deliberately fire the weapon on any occasion. The Judge's directions emphasised that it was incumbent on the Crown to prove beyond reasonable doubt that the appellant had deliberately fired the gun before any question of self-defence arose. It is appropriate to set out the remainder of the directions that his Honour gave on the topic of self-defence:
"If you find that self-defence arises in the way I have suggested, then that is a matter that the Crown has to confront. The Crown has to leave you satisfied beyond reasonable doubt that the accused was not acting in self-defence. Unless the Crown satisfies you that the accused was not acting in self-defence, then it fails to prove that the death of the deceased was an unlawful act. It will then have failed to have proved one of the essential ingredients in the charge of murder.
On the other hand, if on the facts you find there is no reasonable possibility that self-defence arises, then the Crown will have eliminated self-defence.
It is necessary for me to say this about self-defence; I am sure as a matter of common sense that you would appreciate that a person who believes that he has been attacked, or is about to be attacked, is entitled to defend himself against attack. You would, I am sure, not expect the law to be so foolish as to expect that a person who is facing the risk of attack has to stand passively by and allow the attack to take place and suffer personal harm before responding to it. The law says in such a situation that a person is entitled to defend himself or herself, although that is subject to some very important requirements of the law. Generally it is unlawful for a citizen to injure another without the others consent, whether that is done by using a weapon or otherwise.
The only way in which the accused's act could have been lawful - if you are satisfied it was his deliberate act which inflicted the wound that led to the deceased's death - would be if he were acting in self-defence. That is the issue that I am raising with you here.
The first thing that I should tell you about self-defence is that it is not a defence at all. The accused does not have to establish that he was acting in self-defence. As I have said, the Crown must prove that the accused did not act in self-defence when he killed the deceased, if you find that is what he did. The Crown must satisfy you about this beyond reasonable doubt before you could find the accused guilty.
What the Crown must establish is that the accused did not believe, on reasonable grounds, that it was necessary in self-defence to do what he did. If a person believes on reasonable grounds that he is being attacked or about to be attacked he is entitled to defend himself. You will see the common sense in that I think.
A person under attack is not obliged to stand by and simply allow his attacker to harm him. However the law recognises limits to what a person may do in self-defence. It is for that reason in law that a person may only do what he believes on reasonable grounds is necessary to defend himself. If an accused person forms such a belief on reasonable grounds, he cannot be found to have committed murder.
As I said to you earlier, in order to prove that the act of the accused was unlawful, the Crown must prove either of two things. They are the two matters set out in your summary sheet at page 2 (a) or (b).
In the present case in relation to the first matter, ie, 'the accused did not believe that what he did to the deceased was necessary to protect himself', the accused of course has said nothing about that belief in the present case. He has not said anything. In fact, he said he did not deliberately do the act or acts which caused the death.
Nevertheless, if you were to accept that aspect of the evidence of Rebecca Mills which I have drawn your attention to, and if you were to infer from that evidence that in some way the accused got hold of this gun in circumstances where he had been struck and was in fear of his life, then you would need to ask yourself whether the Crown has established that the accused did not believe that it was necessary in self-defence to do the act causing death.
The second way in which the Crown may eliminate self-defence, is to show that the accused had no reasonable grounds for believing that it was necessary in self-defence to do the act causing death.
Again the Crown case is that the accused deliberately and intentionally shot the deceased in circumstances where he had come to the house with the intention of doing him really serious physical harm. The Crown says no threat was posed at all to the accused by the deceased. Further, the Crown says that the deceased was slain by two shots fired by the accused, the second of which was a shot to his back when the deceased was lying face down on the ground.
The Crown suggests that it has - if you come to consider self-defence - satisfied you beyond reasonable doubt that it has eliminated that matter of self-defence.
If the Crown does satisfy you about either of those matters, it does not have to prove them both, it will have proved that the accused's act was unlawful because it will have proved that he was not acting in self-defence. On the other hand, if the Crown fails to satisfy you of those matters beyond reasonable doubt, then you must acquit the accused of the charge of murder.
May I put it another way. If there is a reasonable possibility that the accused believed on reasonable grounds, that it was necessary to fire off the first shot in self-defence, and there is a reasonable possibility that he had no involvement with the second shot, then the Crown's case would fail in relation to the charge of murder. In those circumstances, you would acquit the accused of the charge of murder.
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At the end of the day, this is like so many questions you have to consider, a matter of commonsense. Bear in mind there is no rule that there has to be an absolute proportion between the threat and the response. Normally an accused person faced with a sudden danger or a threat, face or faced with an aggressive act does not have much opportunity for reflection or calm deliberation.
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You should also take into account, depending on the nature of the facts you find, the nature of any threat. It is common sense that the more serious the threat in the eyes of the person under attack, the more serious the response might be. A person faced, for example, with a deadly weapon such as a firearm, might more readily believe that it is necessary in self-defence to offer a high degree of force in response. It might be said that he or she may well have reasonable grounds for having that belief.
Finally on this point may I say that matters that I have dealt with may be expressed in short form as follows. Did the accused believe on reasonable grounds that it was necessary to do what he did in defence of his person? If he had that belief and had reasonable grounds for it, then the accused is entitled to an acquittal on the charge of murder.
The onus is on the Crown to prove that he did not have that belief on reasonable grounds. If the Crown has failed to eliminate as a reasonable possibility that the accused had that belief on reasonable grounds, then the Crown will not have proved this essential ingredient in the charge of murder." (SU 93-97)
105 The Judge distributed to the jury written directions setting out the ingredients of the offence. The fourth ingredient of the offence set out at 1(d) on page 1 of those written directions was "The death of the deceased was an unlawful act (ie not an act done in self-defence) see section 2.
" Section 2. Self Defence
In order to establish that the act was unlawful the Crown must prove beyond reasonable doubt that the act of the accused which caused the death of the deceased was NOT done in self defence.
It would do that by proving beyond reasonable doubt EITHER that:
(a) The accused did not believe that what he did to the deceased (and which brought about his death) was necessary, to protect himself
or
(b) if he did have that belief, then he did not have reasonable grounds for holding that belief
Note :
The accused does not have any onus to show that he acted in self defence - the Crown must prove that he was NOT acting in self defence.
If you are left with a reasonable doubt as to whether the act of the accused which killed the relevant deceased was not done in self defence, then you must acquit him of ANY offence, and return a verdict of NOT GUILTY .
Note:
(i) If the Crown has satisfied you beyond reasonable doubt of the essential ingredients of murder, 1(a), 1(b), 1(c) and 9d) set out on page 1, you go to consider the final ingredient provocation see section 3"
106 I do not consider that there is substance to the contention that, in the context of the directions as a whole the passage complained of served to mislead the jury or to convey that the appellant bore the onus of proving that he acted in self-defence. The Judge on more than one occasion directed the jury in accordance with the law as stated by the High Court in Zecevic v Director of Public Prosecutions (Vic)(1987) 162 CLR 645. He explained that proportionality of the response to the perceived threat was only one matter to be taken into account. Viewed as a whole the directions did not confine the jury to a consideration of self-defence only in the event that they considered that the appellant was in fear of his life. It is necessary to assess Mr Nicholson's complaint in the light of the issues as they were put to the jury at the trial. This was a case in which the appellant gave evidence that he was subject to an unprovoked attack in which he was knocked unconscious and that when he regained consciousness he was confronted by a man pointing a gun at him. He feared that he was going to be shot. I consider that the Judge's references to the appellant's fears for his life in the context of the issues in the trial to have been unexceptional.
107 No complaint was made by trial counsel that the directions in any respect served to reverse the onus of proof. No complaint was made as to the adequacy of the directions on self-defence.
108 I would refuse leave to the appellant to rely on ground 5 pursuant to r 4 of the Criminal Appeal Rules 1952. I would, in any event, have rejected this ground for the reasons that I have given.