Towney v R [2018] NSWCCA 65 | Case summary

Judgment

HOEBEN CJ at CL: Nature of proceedings The applicant was charged with having murdered John Frail (the deceased) on 20 July 2013 at Gilgandra. The applicant entered a plea before the jury of not guilty to murder but guilty of manslaughter. The Crown did not accept the plea in satisfaction of the indictment and the applicant was tried in the Supreme Court before Fagan J and a jury of twelve in a trial that commenced on 1 February 2016. On 11 February 2016 the jury returned a verdict of guilty of murder.
At trial the applicant conceded that he had inflicted the stab wounds that killed the deceased. He contended that he was not guilty of murder because he was acting in self-defence, or he acted under provocation, or he did not have the necessary intent to kill or cause grievous bodily harm. In respect of the issue of self-defence, the applicant conceded that his conduct was not a reasonable response in the circumstances as he perceived them. For this reason, the only question for the jury in respect of self-defence was whether the Crown had proved beyond reasonable doubt that the applicant did not believe that his actions were necessary to defend himself.
The applicant has appealed against his conviction for murder on the following grounds: Ground 1 - The trial judge's directions in relation to self-defence were contrary to law, and contravened principles by which juries must be directed as to the legal onus upon the Crown. Ground 2 - The trial judge erred in directing the jury to first determine whether self-defence was established, before determining whether the Crown had proved that the applicant had the necessary intent for murder. Factual background
The following facts are uncontroversial. Late in the evening of 19 July 2013 the deceased went to a party at the home of the applicant and the applicant's partner in Gilgandra. The deceased left and returned to the party a number of times during the course of the evening. At one point the deceased left the party to buy some marijuana for the applicant. When the deceased returned about half an hour later, he had an argument with the applicant about the quantity of marijuana.
Early on the following morning, the deceased who had been drinking attempted to flirt with Karah Towney, the applicant's sister. The deceased was talking loudly and dancing around and was told to leave which he did. He returned shortly to get his jumper and then went away.
The deceased again returned to the party, some time between 2.30am and 3am. He knocked loudly on the door. Ms Towney and another young woman told the deceased that he was not welcome and that he should leave. There was some pushing and shoving between the deceased and the women.
The applicant, who had also been drinking, then came out and said words to the effect of "You've hit my sister. Don't touch my sister". Ms Towney kept saying loudly that she was not hurt. Despite this, the applicant and the deceased took off their shirts and started a fist fight in the front yard of the house. There was some disagreement amongst the eye witnesses as to how serious that contest was and as to how many punches were exchanged. The women intervened and the applicant and the deceased stopped throwing punches.
About 10 seconds after the last punch, the applicant said words to the effect of "You just wait" and went inside the house. Ms Towney heard him say that he was going to get a knife. The applicant then went into the house and selected a 30cm carving knife from the kitchen (this became Exhibit M in the proceedings).
By the time the applicant emerged from the house with the knife, the deceased had left the yard and was walking towards town having climbed over a metal Armco traffic barrier, which separated the house from the road. The applicant ran towards the deceased and stabbed him with the knife a number of times. The deceased staggered away from the house and fell to the ground against a wall. The deceased died while being treated by ambulance officers at the scene.
In her report of the autopsy of the deceased, Dr Vuletic expressed the opinion that he had died as a result of a stab wound to the right side of the neck. This wound had an approximate depth of 17cm. It passed through the neck at an angle to the left lung, severing the right and left carotid arteries, the trachea and partially transected the oesophagus and the aorta. Dr Vuletic reported that there were two other incised wounds on the right forearm and right upper arm of the deceased, each of which was consistent with defence wounds. There was an incised wound on the deceased's back which was consistent with having been caused by a knife.
Police arrested the applicant the following morning and cautioned him. The applicant said "I understand what you said but I don't know what the f*** happened." He agreed that he had been drinking and said that he went to sleep early, that he was going to have a party and that he ended up having a few drinks and going to sleep.
Following his arrest, a number of recordings were lawfully made of telephone calls when the applicant was in custody and bail refused. In those calls, the applicant said: 1. "I still don't even remember what happened. I don't even know if I did it." (23 August 2013, in conversation with his father); 2. "No well, the c*** tried to rape Jade... Yeah so I snapped" and later in the same call "Yeah I was off my head. I didn't even remember nothing for like, two or three weeks. And like those first two or three weeks being in here are pretty much a blur." (29 August 2013, in conversation with an uncle.) It was common ground that there was no evidence that the deceased had tried to rape Jade, who was the applicant's partner. 3. "I'm not going to fight it because I'm not trying to prove I'm innocent ... you know, I want to get it across that it was an accident, it was manslaughter, it wasn't murder." (2 November 2013, in conversation with his grandmother.)
A search warrant was executed in the applicant's cell. A number of documents were located, one of which had had been torn into pieces and was put back together by a forensic document examiner and examined by a handwriting expert. That document stated "I Trent David James Towney **dmit to stabbing Jhon Frail (by accident) it was unintentional to actually connect with the knife." In another document, which was addressed to "Jhon's Family", the applicant wrote "I snapped when he tried to rape my fionce & he was told to leave ... I wanted to protect my family so I grabbed knifes to scare him off but he ran at me so I closed my eyes and swung randomly next thing you and I know he is dead."
The applicant did not give evidence at trial and there was no evidence called in the defence case.
The issues in the trial were of narrow compass. In particular, it was not disputed that the deceased died on 20 July 2013 as a result of having been stabbed by the applicant. The applicant's case was that he acted in self-defence (while acknowledging that his actions were not reasonable in the circumstances) or that he was provoked, or that he lacked the necessary intent when stabbing the deceased to kill him or cause grievous bodily harm.
The trial judge's summing up concluded at 3.57pm on 10 February 2016 and the jury left court at that time. The jury having reconvened at 9am the following morning, returned a verdict of guilty in respect of the charge of murder at 10.30am.
In order to better understand the basis for the applicant's case that he acted in self-defence, it is necessary to set out the evidence on that issue. That evidence was relatively brief.
Brody Roach gave evidence. He was aged 14 in July 2013. He was related to the applicant. He attended a party at the applicant's home on the evening of 19 July 2013. He was drinking rum and Coca-Cola. At some point in the evening, he went to sleep.
Some time later he was awakened by shouting and went to the front of the house. He saw that the applicant and the deceased had removed their shirts, were facing each other and were throwing punches at each other. They were on the access road at the front of the house. He saw a couple of punches connect. The fight did not last very long. He heard the applicant say "You just wait" and then saw him run into the house.
Mr Roach followed the applicant into the house and saw him walk into the kitchen and then walk out again. When the applicant was outside the house, Mr Roach saw the blade of a knife in his hand. At that time the deceased was on the road talking to someone in a car that was stopped in Federation Street.
Mr Roach gave the following evidence: "Q. What did you see Trent do? A. I seen him hop the rail and then I tried to look away. … Q. And that rail is that the barrier along the edge of the road? A. Yeah. Q. In Federation Street? A. Yeah. … Q. Did you see Trent do anything after he hopped over the rail? A. Yeah. Q. What did he do? A. Stabbed John. … Q. Did you see him stab John? A. Yeah. Q. What did you see him actually do? A. I just seen the arm go up and then I seen John running across the road. … Q. When you say you saw his arm go up, which arm? A. Right arm. Q. And can you demonstrate how it went up? A. Like that. HIS HONOUR: The witness is indicating his right hand bending at the elbow and bringing his fist in the witness's motion back past his right ear. Carry on Mr Crown. CROWN PROSECUTOR Q. And then did you see his arm go downwards? A. Yeah. HIS HONOUR Q. Can you demonstrate that? A. Just went straight down like that. HIS HONOUR: The witness then demonstrates the fist being brought back from the right side of his ear and back to extend the elbow joint horizontally. … Q. What happened then? A. Everyone started screaming and what not, and I just, don't know, everyone started screaming. Q. What did you do? A. Just took a couple of steps back. I wasn't sure if it was real or not. Q. Okay. A. And then I seen him walk past me. Q. Who went past you? A. Trent. Q. Trent. Where did he go? A. Back inside." (T112.20-114.46)
Mr Roach gave evidence that he was standing at the gate when he made these observations but that when the applicant came back into the house, Mr Roach was standing "just off" the veranda (T115.6).
Mr Roach was cross-examined about evidence which he gave in an earlier trial. It was put to him that on that earlier occasion he did not give evidence about seeing the applicant actually use the knife. It was also put to him that when he made a statement to the police, he said nothing about seeing the applicant use the knife. Mr Roach agreed with that proposition.
Stevie Smith gave evidence. Shortly before 3am on 20 July 2013 she was the driver of a car with two passengers, Ms Williams and Mr Mackenzie, which had travelled down Warren Road into Federation Street. She stopped in the middle of the road because she saw two men fighting on the gravel in front of the applicant's house. She saw that the applicant and the deceased were punching each other and that Bec and Karah Towney were trying to break up the fight. When they separated, the applicant ran inside the house. The deceased stepped over the rail and walked close to Ms Smith's car and said loudly "Tell Trent I'll come back tomorrow for a fair go". Ms Smith was not sure to whom those words were directed.
Her evidence was: "A. Was walking towards my car and I saw Trent run inside. John had stepped over the rail, he was walking close to my car. I heard some screaming so I looked to the left and I saw Trent running out of the house. He was running towards the rail and jumped over the rail. Q. Okay, can I stop you there? The rail we're talking about, is that the Armco barrier, the metal barrier? A. Yeah. Q. Okay, go on? A. So, as he was running towards the rail John was close to my car. Trent had jumped the rail and at this point John is towards the front of my car, just near the rear vision mirror. I saw him go to take off because I saw Trent's arm go up. I went to take off because I saw his arm go up and then - do you want me to keep going? Q. Yes, please, if you can? A. So, John was in front of my car, just near - could I just have a break for a minute, please?" (T170.22-.40) "Q. And you said you then saw Trent running, was he? A. Yes. Q. And you got to the point I think where you told us you saw him raise his hand? A. Yeah. Q. Can you described what you saw, please? A. So, as Trent jumped the railing he - when he was running towards John, I went to take of my - take off, as they were very close to my car. I saw Trent raise his hand. There was something in there, I couldn't recall what it was. I kept - I went to take off, as they were close to my car. I pulled up a couple of doors down. Q. Okay, if I can just go back to when you saw Trent raise his hand, are you able to describe or demonstrate what you saw him do? … Q. As best you can recall, Miss Smith? A. Yep. Just his arm go up like that. HIS HONOUR: Witness is indicating bending her right elbow and raising the right hand to about the level of the right side of her head, near her ear. CROWN PROSECUTOR Q. And you said there was something? A. In his hand. Q. Something in his hand? A. Yeah. Q. You didn't know what it was, is that right? A. No. Q. When you saw him raise his arm like that, how far from John was he? A. He was very close. Q. What was John doing? A. John started to walk away. He was about - he was walking towards the front of my car when Trent was running towards him and the arm went up. So, I started to take off. As I was taking off I saw Trent's arm go down and I think it got him in the arm. I don't know what it was and so I kept driving and I pulled up a couple of doors down, looked in my rear vision mirror. I saw John on the other side of the road, just sliding down what you'd call a shed fence. I saw blood everywhere, so I rang triple-O." (T174.6-175.8) "Q. Now, I don't know whether you've described this but when you saw Trent's arm go up as he was very close, you said, to John - A. Yep. Q. - what was John doing? A. Walking with his back towards it, back to everybody. … HIS HONOUR Q. Walking back to everybody, did you say? A. No. Walking towards the front of my car with his back towards everybody. Q. Who do you mean by "everybody", Ms Smith, when you say - I don't mean all the names but - A. To - Q. - where was everybody? A. Out of the front of Trent's house. CROWN PROSECUTOR Q. Okay, so is that you're described him facing away from Trent's house? A. Yes. Q. Across Federation Street? A. Yes. Q. Did you ever see him turn or anything like that? A. No." (T176.6-.36) "Q. Okay. Now, did you ever - during that time did you hear him say anything? A. Yeah. Q. What did he say? A. "Tell Trent I'll come back tomorrow for a fair go," along those lines. Q. Are you able to say whom he said that to? A. No. Q. Did he say it loudly? A. Yes. Q. Is that the only thing he said that you remember? A. That's all I can remember. HIS HONOUR Q. Are you able to say at what point in the sequence of events that you've described that was said? The words when he said that, where was he in relation to the road barrier and -- A. He was on my side, so closer to my car. Q. And when he said that, do you know where Trent was? A. Running inside. CROWN PROSECUTOR Q. When you saw Trent raise his arm and his arm come down, was John facing towards or away from Trent? A. Away." (T178.9-.38)
In cross-examination Ms Smith said: "Q. And at some point after he had crossed over the barrier he said words to the effect of, "Tell Trent I'll be back tomorrow" or something to that effect? A. Yeah. Q. And it was at the point that he was saying that over the barrier that you saw or recall seeing Trent going into the house, is that right? A. Yeah. Q. And he was going into the house at that point? A. He was running into the house." (T190.10) "Q. In any event, ma'am, you were - at the point in time that you saw Trent with the object in his hand coming together with John Frail, you were distracted by putting your car back into gear and moving it or attempting to do that? A. It all just happened in the one motion. Q. Is it possible, ma'am, that John Frail instead of moving towards the front of your car actually moved away from it and back towards the direction that Trent was coming from before they came back together? A. No." (T207.23) "Q. Ma'am, just a couple of more questions, I think I've already put one of them to you and that is that isn't the case that John Frail as Trent was moving towards him with something in his hand, that John Frail actually moved towards Trent? A. No. Q. I've asked you whether you could be mistaken about the motion that you saw Trent move his hand in with the object in it, you remember me asking you before lunch some questions about whether you were mistaken about that? A. Mm-hmm. Q. It's not the case that his arm motion was more of a swing in a punching motion or a rounder motion if I could describe it that way? A. No. Q. Or an upwards motion? A. No. Q. In the direction of John's belly or stomach? A. No." (T213.10)
Mr Mackenzie was a passenger in Ms Smith's vehicle. His recollection was that he left a different party shortly before 3am and was picked up by Ms Smith and Ms Williams in Ms Smith's car. They drove along Warren Road away from town and turned into Federation Street. They stopped inside the left lane on the corner because the applicant and another person whom he did not know were fighting inside the railing in front of the house on the corner. It was about five metres from the left side of the car to the railing. The two men were facing each other in a boxing stance, but were not throwing any punches. There was a female between them trying to stop the fight.
Mr Mackenzie saw the applicant go into the house. The other man picked up his hoodie, stepped over the railing and walked down Federation Street. He yelled out that he would come back tomorrow. Mr Mackenzie was not sure to whom those words were directed because the applicant was inside the house.
In chief, Mr Mackenzie gave the following evidence: "Q. And you said that you saw Trent coming? A. Yes. Q. From where? A. He came from back out of the house and proceeded to jump over the railing onto the road. Q. Where was the other man in relation to you at that stage? A. He was in front of the car in the middle of the road near the double white lines. Q. Near the double lines, okay. What happened then? A. Trent proceeded to go towards the other person and started swinging with his right hand, as he was doing that the other person tried to protect himself and was backing away at the same time. Q. Firstly, I will ask you a bit about each of those things you've just described, you said Trent had a knife in his right hand? A. Yes. Q. How big was the knife? A. Approximately, I believe to be 30 centimetres. Q. Is that the, what the blade or the whole knife? A. The whole knife. Q. With the handle as well? A. Yes. Q. And you said he was swinging the knife? A. Yes. Q. What was he doing, can you demonstrate for us what he was doing? A. Had the knife with the blade and coming out of the top of the fist. Q. Okay just stop you there, between the thumb and forefinger, is that right? A. Yes. Q. Okay and? A. And then proceeded to swing in a motion like he was punching." (T218.30-219.23)
Mr Mackenzie demonstrated that motion, which was described by his Honour, as follows: "The witness is indicating with his arm commencing from behind himself with a fist down about the belt level, the arm moving forward and the fist rising as it comes forward to a point where the arm is almost horizontal." (T219.38) "Q. Now you said that when Trent did that the other man tried to defend himself? A. Correct Q. You said he turned towards Trent is that right? A. Correct. Q. What did he do? A. As he was backing away he proceeded to lift his arms up in front of himself in a forward action. Q. I see so you've demonstrated then both of your arms with your fists closed but did you mean to have them closed like that? A. Yes clenched - Q. Is that what he did? A. Yes. Q. And his arms went up in front of his face or head? A. Yes. … Q. What happened? A. As he put his arms up and Trent was swinging with his right hand, he started to like walk backwards, away from Trent. At that point Stevie proceeded to drive forward in the car, up to the corner of Federation and Bob Street, where she pulled over." (T219.44-220.30)
Sharlette Williams was the other passenger in the vehicle being driven by Ms Smith. She was a front seat passenger with Ms Smith. Shortly before 3am they drove along Warren Road and turned right into Federation Street and stopped in the middle of the road. Ms Williams saw the applicant and the deceased fighting on the other side of the Armco railing in the front yard of a house. They were swinging punches at each other. When the fighting stopped, she saw the deceased walk away. As he passed the car he said "Tell Trent I'll come and see him in the morning". He said this as he stepped over the Armco railing. As he was doing this, she saw Trent go inside the house. She thought that the deceased was heading down Warren Road towards town.
Ms Williams described what happened next as follows: "Q. And what did you see Trent do? A. He was running, he was just running out of the house, he went towards John, and that's all - … HIS HONOUR Q. And what point had John reached on the roadway when Trent came -- A. Not far. Q. --over the railing? A. Not far, he was still on the left side of me." (T233.25-.50) "CROWN PROSECUTOR Q. At that stage was the car you were in still stopped, still stationary? A. Kind of, we were just about to take off. Q. But you were still in that position - A. Yes. Q. -- you'd stopped in, okay. When Trent came over the, jumped over the railing, did you see what Trent did? A. We were taking off and Trent was - John's back was towards Trent and Trent was running, so we were starting to take off and then that's when Trent raised his arm up with the knife and stabbed John. Q. Okay, when you say he raised his arm with the knife, did you see the knife? A. Yes. Q. You said he had it in his right arm? A. Yes. Q. And when he raised it, where did he raise it to? A. It just like came over, like that. … HIS HONOUR: Just stop you there, the witness demonstrated an action of her arm similar to a cricketer bowling a ball. CROWN PROSECUTOR Q. You raised your arm in an overhand motion-- A. It came over. Q. -- it came over with the knife - A. Yes. Q. And the knife at that time was sticking out of his hand, I take it? A. Yes." (T234.10-.47) "Q. Did you see what happened to the knife in relation to John? A. It was, yes, it was like, I seen it come down and it touched and then I put my head down and screamed." (T235.22) "CROWN PROSECUTOR Q. When Trent swung the knife, are you able to say which way John was facing? A. He was back towards him, but he swung around to defend himself. Q. Okay, so he'd - do I understand from that, that he'd swung around to face towards Trent? A. Yes. Q. And was that before the knife was swung? A. Yes. Q. After you put your head down, do I take it you kept your head down whilst the car moved forward? A. Yes." (T236.22-.37)
Under cross-examination Ms Williams gave the following evidence: "Q. When Trent came back out of the house with the knife and came over the railing, John turned around to face Trent? A. Yes. Q. And he moved towards Trent, didn't he? A. To defend himself, yes. Q. Well, if you could just answer the question about what you saw, please. He moved towards Trent? A. Yes. Q. And the two men came together about 2 metres in your recollection -- A. Yes. Q. - from the car? Other than moving towards Trent, did you see John do anything else? A. No. Q. You said that you saw Trent move the arm that he had the knife in, his arm that he had the knife in? A. Yes. Q. And I think you've said that you saw, and please correct me if I'm wrong, but the knife come into contact with John's body? A. Yes. Q. Somewhere near the top of the body you say - A. Yes." (T246.25-247.2)
After the conclusion of cross-examination, Ms Williams was asked some questions by his Honour. "HIS HONOUR: Q. Isn't that - is that your recollection, that when he came across, John Frail came across the barrier and he came towards your car-- A. Oh yes. Q. - and he came to within about a metre of your car? A. Yes. Q. And then a later answer you gave was that Mr Frail turned and faced Trent Towney - A. Yes. Q. - as Trent Towney came from the house, and that John Frail moved about a metre back towards Mr Towney? A. Yep. Q. And that thus when the two of them came together, they were about two metres away from the side of your car? A. Yes. … Q. You see, what I'm asking you is if, that if - I'm not challenging you about it, I'm just asking you to clarify, that you said that John Frail got to within about a metre of the car? A. Yep. Q. And then he went back about a metre towards Trent? A. Yep. Q. And if that occurred, it would mean that on your estimate that the distance of the car off the rail was two metres - A. Yep. Q. -- and once John Frail had gone back towards Trent Towney and he would've been two metres away from the car, he would've been very near to the rail-- A. Yes. Q. -- when Trent Towney swung the knife, and so I'm just asking you to confirm, is that your recollection, that they were both quite close to the rail? A. Yes. Q. The curved rail, at the time-- A. Yep. Q. -- when you saw that blow being struck and in relation to which you've put your head down -- A. Yeah. Q. -- just as when it was about to touch? That's correct? A. Yep." (T251.6-252.12)
Emma Towney gave evidence. The applicant is her cousin. She attended the party. At around 2.30am she and Karah Towney were intending to leave the party when the deceased knocked on the front door and a scuffle occurred between him and Karah Towney. She saw the applicant then come to the door and yell "You hit my sister. Don't touch my sister." Karah tried to calm the applicant. Emma Towney did not see the deceased hit Karah. When the applicant and the deceased went into the front yard, they danced around each other as though they were going to hit each other, but she did not see any punches connect because there was someone in the middle trying to separate them.
She saw a green hatchback car drive from Warren Road into Federation Street and stop. She observed two females in the car. After the fight had been broken up, Emma Towney made the following observations: "Q. What happened then? A. Then I seen Trent disappear into the house and a short time later he came back running out with what I thought was two knives. I know there was at least one." (T272.4) "Q. When you saw Trent come out of the house and you became fearful and made your way away, did you see where John was? A. In the middle of the access road. Q. That was where John was at that time? A. Yes. Q. And that's at the point in time when Trent came out of the house? A. Yes. Q. And you saw that he had a knife or knives? A. Yes. Q. Did you see where John went after that? A. No." (T273.22-.37)
Karah Towney gave evidence. The applicant is her brother. She was aged 21 at the time. She had a few drinks at the "Tatts Hotel" and arrived at the applicant's house at approximately midnight. She consumed more alcohol there. She agreed that she was affected by alcohol. At about 2.30am she and Emma Towney were walking towards the front door of the house when the deceased knocked. She asked him why he had returned and the exchange became heated. The deceased grabbed her arm and she turned around and punched him. The applicant then approached her and the deceased and said "You don't touch my sister" or "Don't hurt her". Karah kept saying loudly that she was not hurt.
The applicant and the deceased then faced each other. Karah did not think that either one of them fell down. After the punching stopped, the applicant went inside. He said that he was going to get a knife. Karah told the deceased to leave and saw him walk around the corner and on to Federation Street. She said that the deceased had walked around the corner by the time the applicant left the house. Karah Towney then gave the following evidence: "Q. You told us you saw John go into the house - sorry, Trent go into the house and come out again with the knife. When he came out was he walking or running? A. I don't remember because I had my back to where Trent come from because I was trying to get John to leave. Q. You've told us you saw Trent with the knife? A. Yes. Q. Where did Trent go? A. He went over to John. Q. When he got to John where were they, or where was John? A. They were both just on - in that street just on the road, I think. Q. On the sealed road surface? A. In Federation Street. Q. In Federation Street were they on the sealed part of the road? A. No, I'm - Q. Or you're not sure? A. I'm not sure. Q. Where were you at that point? A. I was around the corner near - not too far away from me when that happened." (T299.46-300.21) "Q. What happened then? A. They both just went at each other and that's when I seen Trent swing his arm with the knife. Q. When you said you saw Trent swing his arm with the knife, are you able to demonstrate how you saw him swing it? A. No, I don't - I can't remember exactly. I just remember him - I don't - Q. I appreciate this is very difficult for you. Can I ask you this. Did you see him swing the knife once or more than once? A. I only thought it was once. HIS HONOUR Q. Are you able to say how high his hand went, for example, in relation to his shoulder? A. I thought - from what I can remember I thought it was around here somewhere - Q. You're indicating an area - A. - when he hit - yeah, when he swung it, it was somewhere - he hit here. Q. What I'm really talking about is not so much where it may have struck but where you saw Trent's hand when he moved the knife in what you describe as, I think, swinging. Did his hand rise up above his shoulder or not? A. No, I don't think so." (T300.37-301.11)
For transcript purposes, his Honour identified the part of the body indicated by Karah Towney as the right chest area, close to the armpit. His Honour asked some further questions as follows: "HIS HONOUR Q. Ms Towney, may I ask you this. When you saw Trent go off in the direction in which John Frail had gone, did you follow him, his movement with your eyes? Did you watch him all the way until he reached John Frail? A. Yes. …. Q. - I asked you some questions about- - A. Yeah. Q. - how Trent swung his arm and you gave a description of where on the body of John Frail you thought it had struck? A. Yeah. Q. When you saw that occur, did you then continue to watch what took place between the two men when they were close or did you look away? A. No, as soon as that happened, as soon as Trent struck him, he left. He went back to the house. He ran back to the house and I just was watching John and he walked across the road and that's when I went across the road to him." (T302.24-.49)
Under cross-examination Karah Towney gave the following evidence: "Q. And do you describe that as them going at each other? A. Yes. Q. You said after Trent had left, and I think you said he said, your recollection is he said he was going to get a knife? A. Yes. Q. That people started telling or screaming at John to leave? A. Yes. Q. And your recollection of what happened then was that John went around the corner into Federation Street? A. Yes. Q. But he stopped there? A. Yes. Q. You followed him because you wanted to try and make sure that he went right away? A. Yes. Q. But he didn't? A. No. … HIS HONOUR Q. Sorry, did we get an answer to that last - A. No. [DEFENCE COUNSEL] Q. But he didn't? A. No. Q. You're agreeing with me? A. Yes. Q. And you - he was standing somewhere on Federation Street, you telling him to leave, when Trent, you saw Trent again with the knife? A. Yes. Q. You didn't see Trent until he moved past you because you had your back facing in the direction that Trent was coming from? A. Yes. Q. And that was because you were facing where John was? A. Yes. Q. And you said that your memory of what happened after that was that the two men went at each other? A. Yes. Q. Can you describe in any more detail what you saw of the two men going at each other? A. Not really, just that they just went towards each other. John wouldn't leave, and he wouldn't turn his back, that they both, like they were going to start fighting again. HIS HONOUR Q. Could you just repeat that answer please, as best you can? A. They both just went towards each other, like they were going to start fighting again. [DEFENCE COUNSEL] Q. And other than them going towards each other, do you recall anything that John did, apart from moving towards Trent, that made you think that they were going to start fighting or going at each other again? A. Well just because they were going towards each other, just that's what I thought. I don't know. Q. Can you describe in any more detail the way that John moved towards Trent? A. No, I can't remember. HIS HONOUR Q. Or how far he moved, Ms Towney? A. I'm not sure, it just happened so fast. [DEFENCE COUNSEL] Q. But it was sometime after they came back together that you saw Trent swinging the knife? A. Yes. Q. I think you said that your recollection is that his hand, when he swung the knife, was below his shoulder, below Trent's shoulder? A. Yes, well that's what I thought." (T304.41-306.32)
In order to understand the competing submissions, it is necessary to set out part of the directions given by the trial judge, both in writing and orally. A document described as "SU 1" was placed before the jury. That document was as follows: "QUESTIONS TO BE ANSWERED IN ORDER TO ARRIVE AT A VERDICT 1. Are you satisfied beyond reasonable doubt that John Frail died on 20 July 2013 at Gilgandra in the State of New South Wales? • If yes, go to question 2. • If no, find the accused not guilty. 2. Are you satisfied beyond reasonable doubt that the accused inflicted upon John Frail a knife wound which penetrated through John Frail's neck from the lower right side and across into the left lung and directly resulted in John Frail's death? • If yes, go to question 3. • If no, find the accused not guilty. 3. Is there a reasonable possibility that the accused believed at the time of inflicting the fatal wound that it was necessary for him to inflict a wound or wounds upon John Frail in order to defend himself against John Frail? • If no, go to question 5. • If yes, go to question 4. 4. Is there a reasonable possibility that the accused's conduct in inflicting the knife wound to John Frail's neck was a reasonable response to the circumstances which the accused perceived as necessitating that he defend himself? • If no, find the accused not guilty of murder but guilty of manslaughter. • If yes, find the accused not guilty. 5. Are you satisfied beyond reasonable doubt that the accused inflicted the knife wound to John Frail's neck with either (a) an intent to kill John Frail or (b) an intent to cause grievous bodily harm to John Frail? • If yes to either (a) or (b), go to question 6. • If no to both (a) and (b), find the accused not guilty of murder but guilty of manslaughter. 6. Are you satisfied beyond reasonable doubt (a) that the accused's act of inflicting the knife wound to John Frail's neck was not the result of a loss of self-control induced by conduct of John Frail towards or affecting the accused OR (b) that the conduct of John Frail towards or affecting the accused was not such as could have induced an ordinary person in the accused's position to have so far lost control as to have formed an intent to kill, or to inflict grievous bodily harm upon, John Frail? • If yes to either (a) or (b), find the accused guilty. • If no to both (a) and (b), find the accused not guilty of murder but guilty of manslaughter. NOTE: A. • The jury must arrive at a unanimous verdict, either guilty or not guilty, on the count of murder before delivering any verdict. • A verdict, either guilty or not guilty, in respect of manslaughter cannot be given unless the jury are first unanimous as to a verdict of not guilty on the count of murder. B. Provided that all jurors reach the same verdict, that verdict may be given notwithstanding that individual jurors may have arrived at it by different routes through the above sequence of questions."
A further document entitled "SU 2" was also placed before the jury. The relevant parts of that document are: "2. The trial judge is the authority on the law. • Written directions are given about the elements of the offence, each of which has to be proved beyond reasonable doubt if a verdict of guilty is to be returned. • The directions are given in the form of a series of questions, the answers to which (yes or no) will be the jury's findings as to whether the elements, respectively, have been proved. • The questions are to be taken as authoritative. • If counsel have made any reference to the law during opening or final addresses and if any difference is perceived, the trial judge's directions are to be followed. … 10. The Crown's burden of proof: • The onus is on the Crown throughout the trial to prove beyond reasonable doubt all the elements of the offence. The elements of the offence in this case are the subjects respectively of the several questions in the separate "Questions To Be Answered" document. • Another way of putting this is to say that there is a presumption of innocence in favour of the accused. The accused is not guilty unless the Crown has proved guilt by establishing each element beyond reasonable doubt. • The "Questions To Be Answered" document is framed to require you to apply the standard of beyond reasonable doubt to each element. • This does not require that every event described in the Crown case, being the numerous facts subordinate to the elements of the charge, must be proved beyond reasonable doubt. It is each of the elements which must be so proved, being the matters the subject of the respective "Questions To Be Answered". … 14. Different paths of reasoning on factual issues • Individual jurors may reach their conclusions on subordinate issues of fact and on their responses to the "Questions To Be Answered" in reliance upon pieces of evidence and by paths of reasoning which may differ from one juror to the next."
The trial judge's summing up comprised 80 pages. The following extracts from the summing up are relevant to the appeal: "HIS HONOUR: I have settled a set of questions - six questions, which you will need to work through and each of you individually answer for yourselves in order to arrive at a verdict. The manner in which your answers to these questions will dictate what verdict you come to is indicated in the series of questions. MFI #SU1 SET OF QUESTIONS They have been marked for identification SU1 meaning Summing-up 1 and there will be a copy distributed to each of you now. Now, ladies and gentlemen, this may seem very old fashioned to you that I give you a full set of questions like that and then I am going to go through them and read them and I am going to elaborate them. You might think it would be more efficient to just take them away and dwell on them but it is very important that I ensure that you have read them and understood them so I am going to read them over with you. It is important that the record that is kept of the proceedings shows that you have heard them read over and that you have had an opportunity to understand them with me elaborating them. As I elaborate them, I do not mean to depart from exactly what is printed on here. So if you think that in my giving you an explanation of how these questions work and what they mean that I have said something that qualifies or changes what is here, well, you are guided by this document. If it causes you any trouble, you prepare a note about it as to what you think I have said that has given you a contradiction and send it to me and I will iron it out for you. The traditional way of summing-up to a jury always was that the judge would list out what the elements are of the offence so for murder it is a death, number (1), (2) caused by the accused, (3) with intention either to cause death or to inflict grievous bodily harm. The judge would give the jury those three elements and say now here is the evidence, you find whether it is satisfied or not. But the concept of putting it down in questions like this is that these questions are tailored to the specifics of this case. Rather than tell you in general terms as a lecture to law students what the elements are of the offence of murder, these questions are designed to say how each element is said to have arisen in the facts of this particular case, how it is said to have done so by the Crown, and put to you a question, are you satisfied beyond reasonable doubt that that element did arise in that particular way that is alleged here against this accused in this trial." (SU 1-2) "If you are satisfied beyond reasonable doubt that he inflicted that wound, that particular wound, that resulted in John Frail's death then you have found the second element of the charge of murder made out and you go on to item 3. Now, items 3 and 4 you may consider as related to each other. They both have to be, or they may both have to be, considered, we'll see. But they are both concerned with the defence of self-defence. It is necessary for me to leave these questions to you to be answered in this case because there is some evidence, which you have to consider as to what effect you give it, that when on the roadway of Federation Street John Frail came back towards the accused. There is evidence about how John Frail postured in that situation. I will come to consider that in more detail a little later in the summing-up. But because that evidence is there and because the defence has sought to make something of that and argue to you a case in self-defence, these questions are left to you. The first one, 3, concerning self-defence is this: "Is there a reasonable possibility that the accused believed at the time of inflicting the fatal wound that it was necessary for him to inflict a wound or wounds upon John Frail in order to defend himself against John Frail?" You will notice that this question is asked in a different form from the first two. The first two read: "Are you satisfied beyond reasonable doubt of" and an affirmative question is asked of you. But here, because self-defence is raised, if the Crown is to make out this charge of murder, it must disprove that the accused believed it was necessary for him to defend himself. The Crown must disprove that. The Crown must positively show that he didn't believe that. The opposite of proving something beyond reasonable doubt is that a reasonable possibility to the contrary remains. If a reasonable possibility to the contrary remains then it has not been proved beyond reasonable doubt. And in relation to this question of self-defence it is found more meaningful, a better form of expression, to put to you a question about whether you find that a reasonable possibility remains. If you thought there was a reasonable possibility that he believed, that is the accused believed, that it was necessary for him to inflict with the knife a wound or wounds on John Frail in order to defend himself, if you thought there was a reasonable possibility of that, it would mean that the Crown had not excluded that. And if the Crown had not excluded that then what follows? Well, first of all, if the Crown had not excluded that, that is if a reasonable possibility remains, the answer is yes, there is a reasonable possibility of this. Then you have got to go on to consider question 4 which is a question about whether what the accused actually did, apprehending that he needed to defend himself, was reasonable and proportionate. Because that is the second part of the defence of self-defence. But if the answer is no, if you conclude no, there is no reasonable possibility, no reasonable possibility on this evidence that the accused thought he needed to defend himself against John Frail then you do not even go to question 4. In that case you are not concerned with the question as to the second part, about proportionate response, proportionate means of self-defending. If there is no reasonable possibility of him having thought that he needed to defend himself then forget about self-defence, it is gone and you move on to question 5 which is about intention and which I will come to in a moment. But now if you did go on to question 4 because you thought there was such a reasonable possibility that he apprehended that he needed to defend himself by wielding this knife then the next question is, was what he did a reasonable response. So question 4 reads "Is there a reasonable possibility that the accused's conduct in inflicting the knife wound to John Frail's neck was a reasonable response to the circumstances which the accused perceived as necessitating that he defend himself?" If you find no, that it was not a reasonable response you would find him not guilty of murder but guilty of manslaughter. That would be manslaughter on the basis of self-defence but excessive self-defence. But bear in mind that you will only be answering this question 4 if you have first found under question 3 that there is a reasonable possibility that he perceived a need to defend himself. The second part of the answer to question 4 is if you found yes, that his response in driving the knife into John Frail's neck as the evidence indicates, that there is a reasonable possibility that that was a proportionate and reasonable response then you would acquit him, that would be a complete defence to the charge. So what is implicit in these two questions 3 and 4 is that the defence of self-defence has two parts. It may, depending on which parts you find reasonable possibilities remaining, may have one of two outcomes." (SU 3.7-6.3)
It should be noted that in his closing address, counsel for the applicant had effectively conceded that if the jury were satisfied as to the first element of self-defence, they would find that the response by the applicant was disproportionate. This was pointed out in the summing up by his Honour at SU 7.5.
His Honour dealt with question 5 of SU 1 as follows: "So if you had answered that question which is number 3 no, there was no reasonable possibility of a perception of a need to defend himself, you would have gone straight through to question 5. So let's look at 5. "Are you satisfied beyond reasonable doubt that the accused inflicted the knife wound to John Frail's neck with either (a) an intent to kill John Frail or (b) an intent to cause grievous bodily harm to John Frail?" You have heard it said by the Crown when he opened the case and again at the beginning of his closing address that this is the third element of the offence of murder, the intent. I have listed it for your consideration after your consideration of whether self-defence arises, whether the Crown has failed to exclude self-defence, because it is more convenient to follow through the trail of questions, which cascade from one to the other according to how you answer, more convenient to have that dealt with at 3 and 4 in sequence before intention. So on this question if you get to this question of 5, "are you satisfied beyond reasonable doubt", we are back to expressing the burden of proof in that manner. You answer whether he had one or other of these intents. If yes to either (a) or (b), if he had either of those intents - to kill or to cause grievous bodily harm - you go on to question 6 which is about provocation. But if the answer was no to both (a) and (b), in other words he had neither an intent to kill nor an intent to cause grievous bodily harm, then you would find him not guilty of murder. But the alternative verdict of guilty of manslaughter would follow because in that case, having regard to the first two elements 1 and 2, and we are only down to this point if you have answered questions 1 and 2 affirmatively, if you have answered them affirmatively - that a man died and that the accused caused the wound - well it has undoubtedly occurred here as a result of an unlawful and dangerous act the wielding of this knife. And the result would be a verdict of guilty of manslaughter." (SU 7.9-8.9)
It should be noted that in his closing address, counsel for the applicant effectively conceded an intention on the part of the applicant to inflict grievous bodily harm when he said: "I think it is common sense really that if someone uses a large knife and swings it at the body or close to the body of somebody else, then one would infer there's likely to be an expectation that very serious injury will be caused. Perhaps you won't have too much difficulty with accepting that there was an intention on the part of Mr Towney when he finally made the decision to swing the knife with it in his right hand, in whichever way he was holding it, to seriously hurt John Frail." (T505.28)
His Honour made reference to the document SU 2 for the first time as follows: "In the next phase of my summing-up to you I am going to hand out to you another document, a longer one, with a series of directions and instructions in it which concern how you are permitted to reason, how you may go about drawing an inference from circumstances. And that document will address questions of what you do with witnesses whom you think are partly accurate and partly not." (SU 11.8)
In the course of explaining provocation, his Honour said: "Now why is that? Well the Crown, as you have heard, has the burden of proof on everything and has the burden of proving everything that arises in the case towards the verdict that it is seeking, the burden of proving it beyond reasonable doubt. A very high standard of proof. … then the Crown bears the burden of proving beyond reasonable doubt that the requirements of a defence of provocation are not there. (SU 13.1, 13.4) … Now the Crown therefore, first of all, if it can satisfy you beyond reasonable doubt that either or both of these things was not the case then the defence of provocation does not run. … (SU 13.6) That is a question of fact and it is another one like that question of intention that we looked at in 5. How do you know whether he lost control? If he does not say and you cannot read his mind well you infer it from what he did. You look at all the circumstances and you say, do they, has the Crown proved beyond reasonable doubt that he had not lost control, because that is what the Crown has to prove." (SU 14.1)
Still on the issue of provocation, his Honour said: "If you are going to deal with this on question A, if you are going to take up what the Crown said there, if you are persuaded by that you have got to bear in mind that you would have to be persuaded of that beyond reasonable doubt. There is no reasonable possibility, to put it back again the other way, no reasonable possibility that he was pushed out of control by anything John Frail did." (SU 14.5) "There are quite a lot of concepts that hold together in applying that test and again of course because of the pervasive burden of proof on the Crown to this very high standard the question is framed as one of whether you are satisfied beyond reasonable doubt that the conduct of John Frail could not cause an ordinary person in his position so to react, lose control." (SU 16.9) "Both these questions are framed that way. It is a very awkward language I know, it looks like double negatives but you appreciate that it is because of the onus always falling on the Crown to exclude, to dismiss beyond reasonable doubt, anything that might provide a defence for the accused." (SU 17.1)
His Honour made specific reference to the written directions generally in his summing up as follows: "These questions all implicitly contain all the matters of law. And I know you will not but do not second guess these questions, these are authoritative, they are instructions from me to you about what questions you have to answer which will result in you properly applying the law to the facts so you must take these as authoritative. Now I emphasise that if you are in doubt about what they mean or if you think that something else that I am saying is qualifying or contradicting them and you are puzzled by it and need help with it you raise a question." (SU 18.9, 19.1)
In distinguishing between subordinate facts and the elements of the offences, his Honour again stressed the relevant standard of proof: "Exactly what blows were struck that is what I would term a subordinate fact, it is subordinate to the elements. The elements are the things upon which everyone has got to be satisfied beyond reasonable doubt but you do not have to be satisfied beyond reasonable doubt of every subordinate fact and you do not have to be unanimous about every subordinate fact, …" (SU 20.2)
After his Honour distributed the written directions in SU 2, his Honour said: "This is prescriptive. This is to be adhered to. There are some very important directions in here, matters of law about how you cannot use some evidence and so on. This is not just like the leaflet that you get with some new gadgets you buy that when everything else fails you read the instructions. This one you must adhere to." (SU 20.9-21.1) "… the trial judge is the authority on the law. First point, written directions are given about the elements of the offence each of which has to be proved beyond reasonable doubt and a verdict of guilty is to be returned. Point 2, the directions are given in the form of a series of questions, that is SU1, the answers to which yes or no will be the jury's findings as to whether the elements respectively have been proved." (SU 21.8)
His Honour returned to the standard of proof with particular reference to SU 2 as follows: "I have pointed out that this point about excluding any other rational hypothesis is equally applicable to questions 3 and 6(a), which again are matters of state of mind of the accused, which has got to be inferred. Ten, the Crown burden of proof. The onus is on the Crown throughout the trial to prove beyond reasonable doubt all the elements of the offence. The elements of the offence in this case are the subjects respectively of the several questions in the separate Questions To Be Answered document, SU1. The other way of putting this is to say there is a presumption of innocence in favour of the accused. The accused is not guilty unless the Crown has proved guilt by establishing each element beyond reasonable doubt. Third point, the Questions To Be Answered document is framed to require you to apply the standard beyond reasonable doubt to each element. Now the last point here is most important. This does not require that every event described in the Crown case, being the numerous facts subordinate to the elements of the charge, must be proved beyond reasonable doubt. It is each of the elements which must be so proved being the matters the subject of the questions." (SU 31.9-32.7)
His Honour referred to the standard of proof in the context of the applicant's right to silence as follows: "I am sure you will understand that ladies and gentlemen as inevitably following from the fact that a charge like this and any charge has to be proved by the Crown beyond reasonable doubt. The accused has the right of silence and the presumption of innocence, he is not obliged to speak in his own defence." (SU 33.9)
When dealing with provocation much later in the summing up, his Honour referred to the standard of proof: "So I turn really to the last one that I need to mention to you and on which I need to remind you about arguments. And that is 6(a), the question whether you are satisfied beyond reasonable doubt that the accused did not act from a loss of self-control." (SU 67.3) THE APPEAL Ground 1 - The trial judge's directions in relation to self-defence were contrary to law, and contravened principles by which juries must be directed as to the legal onus upon the Crown.
The applicant submitted that the directions by his Honour were erroneous because they required the jury to positively find a reasonable possibility of each of the elements of self-defence but failed to direct the jury that the Crown had to negative any such finding beyond reasonable doubt.
The applicant submitted that this error was compounded by an oral direction in relation to question 3 of SU 1 which sought to explain "beyond reasonable doubt" (SU 4.7). The direction to which the applicant referred was (with emphases added): "The opposite of proving something beyond reasonable doubt is that a reasonable possibility to the contrary remains. If a reasonable possibility to the contrary remains then it has not been proved beyond reasonable doubt. And in relation to this question of self-defence it is found more meaningful, a better form of expression, to put to you a question about whether you find that a reasonable possibility remains. If you thought there was a reasonable possibility … it would mean that the Crown had not excluded that. And if the Crown had not excluded that then what follows? Well, first of all, if the Crown had not excluded that, that is if a reasonable possibility remains, the answer is yes, there is a reasonable possibility of this. Then you have got to go on to consider question 4 which is a question about whether what the accused actually did, apprehending that he needed to defend himself, was reasonable and proportionate. Because that is the second part of the defence of self-defence." (This direction can be seen in its context at [43] hereof.)
The applicant submitted that the Crown's onus to disprove self-defence needed to be made very clear to a jury. He submitted that the issue to be decided is whether the Crown has established beyond reasonable doubt that an accused was not acting in self-defence. That is required by s 419 of the Crimes Act 1900 (NSW). The applicant submitted that Questions 3 and 4 of SU 1 failed to direct the jury that the Crown bore the onus to negative any reasonable possibility that the applicant acted in self-defence.
The applicant submitted that his Honour did not give a clear direction, either in writing or orally, as to the Crown's onus to disprove self-defence in particular. The applicant accepted that his Honour did, in general terms, correctly address the jury on the onus and standard of proof during his oral directions but submitted that none of those directions were given in clear connection with self-defence and that they were not sufficient to correct the omission in Questions 3 and 4 of SU 1.
The applicant submitted that in Hadchiti v R [2016] NSWCCA 63; 93 NSWLR 671 the trial judge had used a form of written directions that was similar to that used in this case, to direct the jury on the elements of self-defence. The Court (Leeming JA, Hall and Bellew JJ) found that the trial judge's formulation of the question of self-defence being "is there a reasonable possibility that stabbing … was a reasonable response to the circumstances as the accused perceived them?" implied that "the existence of a reasonable possibility was the converse of the Crown establishing beyond reasonable doubt" that the act was not done in self-defence (at [36]). The applicant submitted that having discharged the evidentiary onus as to a reasonable possibility of self-defence, the question in Hadchiti v R became whether the jury believed and accepted Mr Hadchiti's account. The applicant submitted that the effect of Hadchiti v R was 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 and it was important that the written directions made that clear (at [105]-[106]).
The applicant submitted that the explanation of the written directions in SU 1 and the directions themselves contravened the principle that trial judges are not to attempt to explain the meaning of the words "beyond reasonable doubt". The applicant noted that in Hadchiti v R it was said that an explanation of the expression "beyond reasonable doubt" should not be given unless there are unusual circumstances (at [78]-[79]). The applicant relied upon Green v R [1971] HCA 55; 126 CLR 28 at [32] where the Court said: "12 Those quotations are but some of many admonitions to judges presiding over criminal trials to adhere to and not to attempt needless explanations of the classical statement of the nature of the onus of proof resting on the Crown."
The applicant submitted that any attempt to explain what is meant by reasonable "not only may prove unhelpful but may obscure the vital point that the accused must be given the benefit of any doubt which the jury considers reasonable" (Thomas v The Queen [1960] HCA 2;102 CLR 584 at 595 per Kitto J). The applicant submitted that the possibility of error was realised in this case by his Honour's explicit oral direction that the "opposite" of proving something beyond reasonable doubt is that a reasonable possibility remains and vice versa and that it was a more meaningful or better form of expression to put a question as to whether the jury found a reasonable possibility remained. The applicant submitted that describing the criminal standard of proof as the "opposite" suggests that one counterbalances the other. The applicant submitted that notions of this kind might unbalance the fundamental principles that underlie self-defence in an accusatorial system in which an accused need only discharge an evidentiary onus on the one hand and the Crown must discharge its much heavier legal onus to the criminal standard on the other. The applicant submitted that such an approach encourages inappropriate paths of reasoning.
The applicant submitted that this case differed from Moore v R [2016] NSWCCA 185 in which an objection on similar grounds to that in these proceedings was raised but dismissed. The applicant submitted that in Moore v R there was no positive direction by the trial judge that one proposition was the "opposite" of the other.
The applicant submitted that the jury should have been directed to ask themselves in response to each of Questions 3 and 4 of SU 1 first, whether there was a reasonable possibility that the applicant believed his action was necessary and whether there were reasonable grounds for forming any such belief. They then should have been directed that if they considered that there was a reasonable possibility of either of those alternatives, they had to ask whether the Crown had eliminated, beyond reasonable doubt, that the applicant did not so believe and that there were no reasonable grounds for such a belief.
The applicant submitted that the error in his Honour's directions was exacerbated by the fact that the error was contained in the written directions. The applicant submitted that his Honour stressed to the jury that if there were any conflict between his oral directions and the written directions, the written directions were to prevail. The applicant relied on those directions by his Honour to the effect that the jury were to be "guided" by the written directions, that they were not to second guess those directions and that they were authoritative. The applicant submitted that the directions as to burden of proof in SU 2 were subordinated to the matters raised by the questions in SU 1. This was clear from the contents of paragraph 2 in SU 2. The applicant submitted that written directions had a force beyond oral directions in that the jury would have available to them in the jury room the written directions whereas the content and effect of the oral directions might be forgotten (Justins v The Queen [2010] NSWCCA 242; 79 NSWLR 544 at [24] per Simpson J). Consideration
When considering the trial judge's directions, it needs to be remembered that this was a relatively straightforward trial where no positive case was put forward on behalf of the defence. The only matters of substance raised were self-defence and provocation. The question for the jury in respect of self-defence was whether the Crown had proved beyond reasonable doubt that the applicant did not believe that his actions were necessary to defend himself. On the undisputed facts, without there being any evidence from the applicant, this was a relatively simple task for the Crown.
It is trite to observe that when considering a complaint in respect of a jury direction, the Court must have regard to the overall impression that the summing up will have created in the minds of the jury (Hadchiti v R at [68]). As was emphasised in Moore v R, particular written directions are to be read in the context of all of the written and oral directions that were provided to the jury. Accordingly, the directions as to the questions to be asked in SU 1, must be considered with the general directions in SU 2, as well as the explanation in the oral directions.
It is a fundamental premise of the applicant's submissions that, by expressing Questions 3 and 4 of SU 1 in terms of whether there was a "reasonable possibility", there was a reversal of the onus of proof so that the directions were wrong in law. That fundamental proposition is contrary to the judgment of the majority (Basten JA and R A Hulme J) in Moore v R. It is not without significance that special leave to appeal to the High Court was refused in Moore v R [2016] HCASL 323. For the reasons which I will elaborate, the trial judge's written directions in respect of self-defence in this case, while not identical to those in Moore v R, were much closer to those directions than what occurred in Hadchiti v R. In both Moore v R and this case, the written directions to the jury in the form of a question trail required the jury to consider "is there a reasonable possibility" that the accused genuinely believed that his conduct was necessary to defend himself (Moore v R at [27]). The difference in Moore v R is that these questions were prefaced by a requirement that they be decided "beyond reasonable doubt".
The ratio in Moore v R is as follows: (Basten JA:) "35 Counsel appearing for the Director … 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. 36 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. 37 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. 38 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. 39 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: "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." 40 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, 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." 41 In Martin v Osborne 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". Evatt J undertook the most expansive consideration in the following terms: "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." 42 In Plomp v The Queen 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." 43 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." (R A Hulme J:) "125 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. 126 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. 127 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."
In reaching his conclusion in Moore v R, R A Hulme J set out a number of decisions of this Court and the High Court in which the existence of a reasonable possibility of an exculpatory matter has been expressed as being the corollary of the Crown not having proved guilt beyond reasonable doubt, i.e. Velevski v R [2002] HCA 4; 187 ALR 233 at [5], [92], [127] and [129]; McKinney v The Queen; Judge v The Queen [1991] HCA 6; 171 CLR 468 at 475-476; Murray v The Queen [2002] HCA 26; 211 CLR 193 at [23]; Ward v R [2013] NSWCCA 46; Kanaan & Ors v R [2006] NSWCCA 109 and R v Katarzynski [2002] NSWSC 613.
It was essential that the jury understood the fundamental basis of a criminal trial - that the Crown bore the onus of proving the guilt of the accused beyond reasonable doubt. Issues in this case were whether the Crown had proved to that standard that the applicant was not acting in self-defence and not acting under provocation. As in Moore v R, his Honour made this abundantly clear. He stressed both in the written directions and in his oral directions that this was the fundamental task of the jury. In SU 1, the "beyond reasonable doubt" standard was specifically applied to Questions 1, 2, 5 and 6. When explaining why he had used a different formulation of the standard in questions 3 and 4, his Honour again stressed the onus borne by the Crown when he said: "The first one, 3, concerning self-defence is this: "Is there a reasonable possibility that the accused believed at the time of inflicting the fatal wound that it was necessary for him to inflict a wound or wounds upon John Frail in order to defend himself against John Frail?" You will notice that this question is asked in a different form from the first two. The first two read: "Are you satisfied beyond reasonable doubt of" and an affirmative question is asked of you. But here, because self-defence is raised, if the Crown is to make out this charge of murder, it must disprove that the accused believed it was necessary for him to defend himself. The Crown must disprove that. The Crown must positively show that he didn't believe that." (SU 4.3)
As can be seen from the reasoning of R A Hulme J in Moore v R, the trial judge in this case was not attempting an explanation or a reformulation of the "beyond reasonable doubt" standard, but was just restating it. In Moore v R, R A Hulme J said: "108 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." 109 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."
Contrary to the submissions of the applicant, there is no "principle" that it is an error of law for a judge to attempt to explain the meaning of "beyond reasonable doubt". The current state of the law is that the High Court has issued a clear warning that there is a risk in a trial judge doing so because the judge may add a gloss or qualification to that explanation which would reduce the high standard required by "beyond reasonable doubt". There have, however, been a number of cases where such an explanation has been given and has been found by courts of high authority, including the High Court, not to involve an error of law. A recent example of this is The Queen v Dookheea [2017] HCA 36; 91 ALJR 960 (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ) where the distinction drawn by a trial judge between a doubt which is reasonable and one which is not, was held not to involve error of law. The High Court did, however, restate with some qualifications the advisability of a trial judge not seeking to explain the "beyond reasonable doubt" standard (at [23]-[28], [37]). In this case even if it be found that what his Honour did was to seek to explain what "beyond reasonable doubt" means rather than restating the test in a different way, the explanation which he gave was in accordance with the conclusions of Basten JA and R A Hulme in Moore v R.
The problem identified in Hadchiti v R was not so much the form of a particular direction but that the question trail in that case expressed all of the questions in the "reasonable possibility" form with barely a reference to the "beyond reasonable doubt" standard. That is a significant point of distinction between Hadchiti and this case. That distinction was elaborated by R A Hulme J in Moore v R as follows: "113 … 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 [a reference to Hadchiti 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." 114 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."
The same observation can be made in relation to this matter. There is not a similar repetition of the impugned phrase. Rather, there is a consistent reference to the conventional standard of "beyond reasonable doubt" and a stressing on more than one occasion that the obligation remained at all times upon the Crown to prove the elements of the offence to that standard. Apart from the nine references in the written directions, there are 26 references to the "beyond reasonable doubt" standard in the oral directions. There could have been no doubt in the jury's mind as to what the applicable standard of proof was.
There was nothing subtle in his Honour's repetition of the "beyond reasonable doubt" standard in his directions, both oral and written. This was the fundamental test which his Honour simply restated in Questions 3 and 4 of SU 1. That is to be contrasted with Hadchiti v R where every single element of the offence, even intent, was dealt with by using the "reasonable possibility" standard.
Another issue is that identified by Basten JA in Moore v R when his Honour said: "52 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." 53 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."
In this case, the impugned parts of SU 1 were significantly qualified by the robust statement of the beyond reasonable doubt standard in paragraph 10 of SU 2 and by his Honour's explanation at SU 4.3. Factually, however, there was a significant difference between this case and Hadchiti v R. In this case, the jury's consideration lasted less than an hour and a half. It could not be said that in those circumstances the written direction was repeatedly read or that it had greater persuasive power than the oral directions which the jury had received the day before. In the circumstances of this case, the fact that the impugned direction was in writing is largely irrelevant.
There is a further important distinction between this case and that of Hadchiti v R and Moore v R which has already been mentioned. In both of those cases there was a positive defence case. It could be argued therefore that in such cases there was a risk that some members of the jury might reverse the onus of proof. In this case where there was no positive defence case and where the language of reasonable possibility was clearly placed in context within the overarching notion of beyond reasonable doubt, such a risk was substantially eliminated.
It should also be noted that in oral directions, as well as making clear when dealing with Questions 3 and 4 of SU 1, that the Crown must positively show that the applicant did not believe that it was necessary to defend himself, his Honour restated that proposition when moving on to Question 5 when he said: "I have listed it for your consideration after your consideration of whether self-defence arises, whether the Crown has failed to exclude self-defence, because it is more convenient to follow through the trail of questions, which cascade from one to the other according to how you answer, more convenient to have that dealt with at 3 and 4 in sequence before intention. So on this question if you get to this question of 5, "are you satisfied beyond reasonable doubt", we are back to expressing the burden of proof in that manner." (SU 8.4)
When one looks at the directions as a whole, it is apparent that this case is very much of the type considered by the Court in Moore v R rather than in Hadchiti v R. The jury could not have been in doubt as to what standard they were to apply when considering the elements of the offences under consideration. As the High Court said in the The Queen v Dookheea: "37 Admittedly, it has been said that to invite a jury to consider the distinction between reasonable doubt and any doubt risks obfuscating the jury's understanding of their task. Consequently, as the authority of this Court stands, it is generally speaking undesirable for a trial judge to contrast reasonable doubt with any doubt. But, for the reasons already given, in point of principle it is not wrong to notice the distinction; and, therefore, as a matter of authority, it is not necessarily determinative of an appeal against conviction that a trial judge may for one reason or another happen to do so. When and if a trial judge does mention the distinction, the question is whether the words spoken in terms of the record of the summing up are such that the jury would have derived a false perception of the basis for deciding whether the Crown has proved its case. And as was held in Green and stressed in La Fontaine, that is a question to be decided by taking the summing up as a whole and as a jury listening to it might understand it, not upon some subtle examination of its transcript record or by undue prominence being given to any of its parts. Moreover, where, as here, the accused has been represented at trial by competent counsel, the reaction of defence counsel on hearing the impugned portion of the summing up is a cogent consideration."
Applying that principle, it is clear that this case is of the kind that this Court had under consideration in Moore v R and the summing up, both orally and in writing, did not contain the defect which was regarded as decisive in Hadchiti v R. Accordingly, I am of the opinion that the directions, both oral and in writing, have not resulted in a miscarriage of justice. This ground of appeal has not been made out.
Because no objection was taken to the summing up at trial, this is a matter where leave under rule 4 is required for the ground to be considered. The decisions in Hadchiti v R and Moore v R were handed down after this trial had concluded and the issue which has been raised in this ground had not previously been considered by this Court. Accordingly, no criticism could be directed at counsel for not raising it at trial. In those circumstances, I would grant leave to the applicant to rely upon this ground of appeal but I would dismiss the ground.
If I am incorrect in my conclusion as to Ground 1, it is necessary to consider the application of the proviso. Section 6 of the Criminal Appeal Act 1912 (NSW) provides in effect that the Court of Criminal Appeal should allow an appeal against conviction if: 1. The verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or 2. Where the judgment of the court of trial is wrong by reason of wrong decision of a question of law; or 3. For any other ground there has been a miscarriage of justice, provided that the Court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
Before considering that matter further, it is useful to set out briefly the evidence which was said to give rise to a possible finding by the jury of manslaughter by way of excessive self-defence. There was no issue that there had been a dispute between the applicant and the victim which had resulted in an apparent exchange of punches on the front area of the applicant's house. Upon the cessation of that incident the applicant entered the house, went to the kitchen, removed a 30cm carving knife and taking that with him, left the house. In the meantime, the deceased stepped over a guardrail and commenced to walk along Federation Street towards town. As he walked past a car driven by Ms Smith, he was heard to say loudly words to the effect "Tell Trent I'll come back tomorrow for a fair go". The only evidence concerning that statement made it clear that it could not have been heard by the applicant, who was either in the house or just leaving the house, at that time. The words used make it clear that it was not directed to the applicant.
The applicant followed the deceased into Federation Street and at some point, the deceased turned and faced the applicant. This is consistent with evidence to that effect and with the defensive wounds inflicted to his arms. The fact that there was a stab wound in his back is also suggestive of the fact that he may have been stabbed in the back before he turned around. That is also consistent with the autopsy results and the observations of some witnesses.
The high point of the evidence as to self-defence (which was contrary to the evidence of Ms Smith, Mr Mackenzie and Ms Williams) was that of Karah Towney to the effect that when the applicant had almost caught up with the deceased, the deceased turned around and "they both just went at each other". When Ms Towney was asked to explain what she meant by the words "went at each other", she gave the following explanation: "Q. Can you describe in any more detail what you saw of the two men going at each other? A. Not really, just that they just went towards each other. John wouldn't leave, and he wouldn't turn his back, that they both, like they were going to start fighting again. … Q. And other than them going towards each other, do you recall anything that John did, apart from moving towards Trent, that made you think that they were going to start fighting or going at each other again? A. Well just because they were going towards each other, just that's what I thought. I don't know." (T306.3)
There was no evidence that other than turning and moving towards the applicant, the deceased did anything which could be interpreted as an aggressive act. Even that evidence was contrary to other evidence and did not explain the stab wound to the deceased's back. There was no evidence of the deceased raising an arm or anything of that kind. Most particularly, he was unarmed at the time. The second confrontation occurred solely as a result of the applicant's conduct. The deceased had left the house and no longer presented a threat to the applicant.
There was simply no evidence of any threat posed by the deceased to anyone. He left the applicant's house in circumstances where the applicant armed himself, followed him and stabbed him. On all the evidence, it mattered not whether the stabbing movement by the applicant was an over the head motion or a direct stab to the neck. That issue was a complete red herring. Similarly, it mattered not where the bloodstains were found nor whether the deceased took one pace or more than one pace towards the applicant. In the absence of something else, such a movement could not amount to a threat. The accounts given by the applicant in the telephone intercepts and notes were self-serving and contradictory and in any event did not raise self-defence.
The only explanation for the applicant being allowed to raise self-defence was that the Crown and his Honour took a conservative approach and at the time self-defence was raised, they would not have been aware of the extent of the evidence available on the issue. On the evidence at trial, the conviction of the applicant for murder was inevitable. There was no evidence of self-defence to go to the jury and it was open to his Honour to have taken that matter away from the jury had he so determined.
It is against that evidentiary background that one needs to have regard to the application of the proviso in s 6(1) of the Criminal Appeal Act.
This is to be contrasted with the factual issues in Hadchiti v R where the evidence was complex, a positive case had been put forward by the defence, including evidence by Mr Hadchiti as to the circumstances in which he had stabbed the deceased. That evidence, if believed, would certainly have made out a defence of manslaughter by excessive self-defence. That, of course, was one of the reasons why the court in Hadchiti v R declined to apply the proviso.
The following guidance has been provided by the High Court concerning the application of the proviso. In Weiss v The Queen [2005] HCA 81; 224 CLR 300 the Court (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ) held that an appellate court must review the whole of the record of the trial and make its own independent assessment of the evidence and determine whether, making due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. The Court went on to observe that even recognising that there would be cases where the proviso did not apply, it would still not exonerate an appellate court from examining the record for itself.
In Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92 the plurality (French CJ, Gummow, Hayne and Crennan JJ) said: "28 First, the significance to be given to the fact that the jury has returned a guilty verdict must be assessed paying proper regard to what were the issues that the jury were directed to determine in order to arrive at a verdict of guilt. … 29 The second point to make about determining the application of the proviso is that the Court held, in Weiss, that the proviso cannot be engaged "unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty". That is a negative proposition. It states a necessary but not sufficient condition for applying the proviso. As this Court's decision in AK v Western Australia shows, demonstration that a chain of reasoning can be articulated that would require the verdict reached at trial does not always permit, let alone require, the conclusion that no substantial miscarriage of justice actually occurred. … 30 As has been explained, consideration of the application of the proviso begins from identifying the error that was made at trial. In this Court, as in the Court of Appeal, the error was sometimes described as a failure to put one of Baiada's two "defences" to the jury. … But the point which Baiada made was in substance a denial that a necessary element of the offence had been established. … 31 It may well be right to observe that the proviso could seldom be applied in a case where, as here, the jury were not sufficiently directed of the need to be satisfied to the requisite standard of an element of the offence being considered. And it may also be right to observe that the proviso could seldom be applied if "[t]he inadequacy of the judge's direction denied Baiada the benefit of the jury's consideration of one of its two principal defences". But it is important to emphasise the fundamental point made in Weiss: that the imposition of some taxonomy for the application of the proviso according to expressions - even judicially determined expressions - different from the relevant statutory expression invites error."
In Filippou v The Queen [2015] HCA 29; 256 CLR 47 the plurality (French CJ, Bell, Keane and Nettle JJ) said: "10 In Fleming, the Court left open the question of whether the Court of Criminal Appeal should intervene under the first or third limb of s 6(1) only if it appears that there is no evidence to support a finding of guilt or the evidence is all the one way or where there has been a misdirection leading to a miscarriage of justice. For the purposes of this appeal, it is necessary to answer that question. … 12 Authority makes plain that a jury's finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. … the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. … 13 Turning to the second limb of s 6(1) of the Criminal Appeal Act, it will be seen that to some extent it overlaps the first. A "wrong decision of any question of law" includes misdirections on matters of substantive law as well as misdirections on matters of adjectival law. And, as with the first limb, the question under the second limb will be whether the error constitutes a miscarriage of justice in the sense of a departure from trial according to law. 14 The third limb covers cases where, by reason of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial. 14 That leaves the proviso, which in terms is applicable to all three limbs of s 6(1). It directs that, even where error of the kind identified in any of the three limbs is established and amounts to a miscarriage of justice, the Court of Criminal Appeal may dismiss the appeal if it is satisfied that the error has not been productive of a substantial miscarriage of justice. By "substantial miscarriage of justice" what is meant is that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her or that there was some other departure from a trial according to law that warrants that description. Consequently, if the Court of Criminal Appeal is persuaded that the first limb applies, it will follow that it has concluded that there has been a substantial miscarriage of justice. In contrast, where the second limb applies, the circumstances in some cases may be such that, despite the judge making "the wrong decision of [a] question of law", the Court of Criminal Appeal is persuaded that the error could not have deprived the appellant of a chance of acquittal that was fairly open to him or her. In that case the proviso will operate. Where the third limb is engaged, if the Court of Criminal Appeal has concluded that the appellant has not received a fair trial it will follow that it has concluded that there has been a substantial miscarriage of justice. But where, despite some other identified irregularity, the Court of Criminal Appeal is satisfied that the appellant has received a fair trial according to law and not otherwise been deprived of a chance of acquittal that was fairly open to him or her, once again the proviso will operate. It is also to be borne in mind, as was explained in Baiada Poultry Pty Ltd v The Queen and more recently noticed in Lindsay v The Queen, that, although the proviso is expressed in permissive terms, "if the condition (the conclusion that no substantial injustice has actually occurred) is satisfied" the proviso must be applied."
The most recent decision on the proviso, which was referred to the Court after the hearing of the appeal, is the decision of the High Court in Kalbasi v The State of Western Australia [2018] HCA 7. There, the Court was dealing with the Western Australian equivalent to s 6(1) of the Criminal Appeal Act. The Court considered that the difference in terminology was not material.
In that case, the Crown conceded that a direction by the trial judge concerning proof of intention in an offence of attempted possession with the intention of selling a large quantity of a prohibited drug, was wrong. Nevertheless, the Western Australian Court of Appeal had determined that there was not a substantial miscarriage of justice. In the High Court the plurality (Kiefel CJ, Bell, Keane and Gordon JJ) said: "15 Contrary to the appellant's submission, Weiss requires the appellate court to consider the nature and effect of the error in every case. This is because some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. These may include, but are not limited to, cases which turn on issues of contested credibility, cases in which there has been a failure to leave a defence or partial defence for the jury's consideration and cases in which there has been a wrong direction on an element of liability in issue or on a defence or partial defence. In such cases Weiss does not disavow the utility of the concepts of the lost chance of acquittal or inevitability of conviction: regardless of the apparent strength of the prosecution case, the appellate court cannot be satisfied that guilt has been proved. Assessing the application of the proviso by reference to considerations of "process" and "outcome" may or may not be helpful provided always that the former takes into account the capacity of the error to deprive the appellate court of the ability to justly assess the latter. 16 The appellant's invitation to elaborate on the categories of case in which satisfaction of the negative condition will not suffice to enliven the proviso is to be resisted. It is not possible to describe the metes and bounds of those wrong decisions of law or failures of trial process that will occasion a substantial miscarriage of justice notwithstanding the cogency of proof of the accused's guilt. As was established in Weiss, the fundamental question remains whether there has been a substantial miscarriage of justice. That question is not answered by trying to identify some classes of case in which the proviso can be or cannot be applied. Classifications of that kind are distracting and apt to mislead."
All those cases support the proposition that in a case such as this, it does not matter if a wrong direction on excessive self-defence was given because there was no or insufficient evidence to establish that defence. Accordingly, even if this were an incorrect direction on self-defence, it could not constitute a fundamental defect so as to establish that the applicant had not had a trial according to law or to put it another way, a fair trial. What is clear is that regardless of the direction on self-defence, the applicant has not been denied a fair chance of acquittal. As indicated above, it is not so much that the evidence against self-defence was overwhelming but rather there was no evidence of self-defence even to a prima facie standard.
In those circumstances, even if it be the case that his Honour's direction as to self-defence was wrong in law, I would apply the proviso in respect of this ground of appeal and dismiss it. Ground 2 - The trial judge erred in directing the jury to first determine whether self-defence was established, before determining whether the Crown had proved that the applicant had the necessary intent for murder.
The applicant submitted that his Honour had erred when he directed that the jury first had to deal with self-defence and then consider whether the applicant had the requisite intent for murder. He submitted that this reversed the order in which the jury should have been directed to deal with intention and self-defence. As a consequence, the jury would have had to bypass any satisfaction beyond reasonable doubt of an element of the offence before turning to consider self-defence. The applicant submitted that self-defence should only have been considered once the jury was directed as to all the elements of murder. The applicant submitted that this followed from the terms of s 18 when read together with s 418 of the Crimes Act.
The applicant submitted that "intention" or mens rea (reckless indifference, intent to kill or inflict grievous bodily harm) was a necessary component of the offence of murder as defined in s 18(1)(a). Section 418(1) was only invoked where a person had committed an "offence" - which includes in relation to murder - the intention or mens rea for that offence. The applicant submitted that the establishment of an "offence" of murder, which includes a relevant intention, was a necessary prerequisite to s 418(1) operating. The applicant submitted that this construction was consistent with fundamental notions of the accusatorial system on which a criminal trial is founded, i.e. that the Crown must make out all the elements of the offence alleged before the defence is called upon to respond.
In support of these submissions, the applicant relied upon the observation by R A Hulme J (Hoeben CJ at CL and Rothman J agreeing) in Budrodeen v R [2014] NSWCCA 332 at [24] to the effect that a sequential process of reasoning in written directions requires care in the identification of the elements of the offence. The applicant submitted that while it is apparent from the transcript of the proceedings that his Honour gave careful thought to how the questions ought to be sequenced, the sequence upon which he settled was misconceived.
The applicant also relied upon the observations of McClellan CJ at CL (with whom James and Fullerton JJ agreed) in Mencarious v R [2008] NSWCCA 237 at [78] where his Honour said: "78 Although a struggle took place the nature and extent of the deceased's injuries was wholly disproportionate to any injury to the appellant's finger. If the appellant contended that he acted in self-defence and accordingly was not guilty he would have had to confront two significant problems. Firstly, before self-defence could become an issue he would have to accept that he had intended the physical acts which caused her death and had intended to kill or inflict grievous bodily harm in so doing. This was in direct conflict with any suggestion that her death was an accident. Furthermore he would have had to confront the issue as to whether his response leading to the deceased's death was a reasonable response to the injury to his finger." (Emphasis added by the applicant) The applicant submitted that this statement of principle was consistent with the issue raised in Ground 2.
In summary, the applicant submitted that the effect of the issue raised by Ground 2 was that the jury were directed to consider the reasonableness of his intention in the context of self-defence before having turned their minds to the threshold question which was necessary to establish the offence of murder, i.e. whether the Crown had established the necessary intent or not. The applicant submitted that dealing with matters in that order and in that way was likely to have confused the jury. He submitted that as a result a miscarriage of justice had occurred. Consideration
By way of clarification, his Honour did not in terms "direct" the jury as to the order in which they should deal with the issues raised in SU 1. The terminology which he used in relation to questions 3 and 5 was that it was "more convenient to follow through the trail of questions" in the order which he proposed, i.e. consider the issue of self-defence before the "intent" element of murder. That having been said, it was implicit from the order in which his Honour set out the questions, that he was strongly recommending to the jury that they consider the questions in that order. Even so, it could not be said that his Honour breached the principle that "jurors are free to organise their individual processes of reasoning, or their discussions as a group, in whatever manner appears to them to be convenient" (Stanton v The Queen [2003] HCA 29; 77 ALJR 1151 (Gleeson CJ, McHugh and Hayne JJ).
What his Honour did make clear to the jury was that although they could deal with matters in whatever order they chose, they had to deliver their verdict in a particular order: "The jury must arrive at a unanimous verdict either guilty or not guilty on the count of murder before delivering any verdict. So the charge is murder. You have to work through these questions just following the if yes go to question Z if no do such and such. You have to work through all of that and each of you individually has to come to your decision on these questions and how you go onto the next one and so on. But of course you do not just each sit in a corner of the room and do that on your own, you discuss it in your deliberations in whatever manner you find most orderly and efficient. But at the end of the day individually you have just got to decide the path through these questions. But you cannot deliver any verdict until you have got to a point of determining one way or the other on murder. You cannot just skip over that and go to manslaughter. You have to all 11 of you be unanimous that he is either guilty of murder or not guilty of murder before you come in with a verdict. And if you follow these questions through you will find that that just follows and does not create any extra exercise for you." (SU 17.3) "Well you do not all have to 11 out of 11 unanimous about any aspect of that in order to move on. Exactly what blows were struck that is what I would term a subordinate fact, it is subordinate to the elements. The elements are the things upon which everyone has got to be satisfied beyond reasonable doubt but you do not have to be satisfied beyond reasonable doubt of every subordinate fact and you do not have to be unanimous about every subordinate fact, every detail of what went on because just as with the path through this set of questions so also in the process of reasoning about the evidence and what conclusions it leads to as to what took place. You can follow your own paths individually. It is the results at the end about which you have to be satisfied beyond reasonable doubt and unanimously." (SU 20.1)
It can be accepted as relatively uncontroversial that in some cases suggesting to a jury that they follow a question trail, which deals with self-defence before the elements of murder have been fully set out, could cause confusion. That was not a risk which arose in this case. As can be seen from the extract from defence counsel's closing address at [46] hereof, the element of intent in the offence of murder was effectively not in issue. In circumstances where the applicant's counsel had in his final address stated that he did not want to dwell on the issue of intent, and had accepted that it was "common sense" that if a person brandished a large knife close to the body of another, one would infer the likelihood of serious injury being caused, it was open to his Honour to conclude that it was "more convenient" for the jury to consider self-defence at an early point in their deliberations.
Contrary to the applicant's submission, the order of questions in SU 1 was not contrary to the accusatorial system. The elimination of self-defence and the proving of intent were both issues which the Crown had to establish beyond reasonable doubt. In no respect was the defence required to respond to an issue before the Crown had made out to the necessary standard, all of the elements of the offence.
Mencarious v R does not assist in making out this ground of appeal. That decision did not concern the question of what order issues should be put to the jury. Mencarious v R concerned whether the trial judge should have left the issue of self-defence to the jury in circumstances where such a direction had not been sought by defence counsel at trial. The Court rejected that ground of appeal on the basis that to raise self-defence in the circumstances of that case would have been in direct conflict with the defence of accident which was relied upon by the defendant.
Importantly in this matter, the applicant's counsel at trial did not object to the order in which the questions were set out in SU 1. In discussions with his Honour, he said that his "initial impression" was that the issue of intent should come before that of self-defence. In those discussions, he acknowledged that he "could understand why your Honour has done it in that way". The applicant's counsel then agreed with his Honour's proposal about the order of questions. In those circumstances, r 4 of the Criminal Appeal Rules applies and leave is required to rely upon this ground.
The lack of objection by defence counsel at trial is important in a ground of appeal such as this which asserts that the jury would have been confused by a trial judge's direction. The lack of objection by trial counsel allows a strong inference that in the atmosphere of the trial, he saw no disadvantage to the applicant and no injustice in what was being proposed (R v ARS [2011] NSWCCA 266 at [48] per Bathurst CJ (with whom James and Johnson JJ agreed); Greenhalgh v R [2017] NSWCCA 94 at [20] per Basten JA (with whom Button and N Adams JJ agreed). That consideration substantially weakens the applicant's submission that the order in which intent and self-defence were addressed in SU 1 resulted in a miscarriage of justice.
In those circumstances, it is necessary to consider whether leave pursuant to r 4 should be granted. Guidance on that issue is provided by Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 where McHugh J said (at [72]): "72 There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. Where the evidence was admissible, but the trial judge had a discretion to limit its use, the burden on the appellant is greater: the appeal can succeed only if the Court of Criminal Appeal is satisfied that the discretion would have been exercised in favour of the appellant and that, if it had, it is more likely than not that the appellant would have been acquitted. Any other view would mean that there was always a miscarriage of justice when the trial judge might have exercised a discretion in favour of the appellant."
It follows that for the reasons given, the order in which questions were set out for the jury did not give rise to a miscarriage of justice. No other appropriate reason been identified as to why leave should be granted to rely upon this ground of appeal. I would refuse leave under r 4.
If I am incorrect in the above conclusion, for the reasons already set out in respect of Ground 1, this is a matter to which the proviso should apply. In particular, it could not be said in respect of this ground, particularly given the concession as to intent made by counsel for the applicant in his final address, that the applicant has lost a fair chance of acquittal.
The orders which I propose are: 1. In respect of Ground of Appeal 1, leave to appeal is granted but the appeal is dismissed. 2. In respect of Ground of Appeal 2, I refuse leave to raise this ground pursuant to r 4 of the Criminal Appeal Rules.
JOHNSON J: I agree with the reasons of Hoeben CJ at CL and the orders proposed by his Honour.
N ADAMS J: I have had the considerable advantage of reading in draft the judgment of Hoeben CJ at CL. I agree with the orders proposed for the reasons provided by his Honour.

[2016] HCASL 323

Towney v R

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