Cliff v R

1. [1]

   KIRK JA: Bryce Cliff was charged with murdering a 16-year-old boy, James Cleghorn, on the evening of 7 June 2016 in Wagga Wagga. At his trial in that town, in the Supreme Court before a jury, the Crown case was that Mr Cliff murdered the deceased by stabbing him with the specific intent of doing him grievous bodily harm. It was not in dispute that Mr Cliff killed Mr Cleghorn. He pleaded guilty to manslaughter, but the Crown did not accept that plea as an answer to the indictment.

2. [2]

   The principal issue in the trial was whether Mr Cliff possessed the requisite intent in light of evidence of his intoxication at the time of the act causing death. He gave evidence that he had ingested methylamphetamine and ketamine, that he was intoxicated when he stabbed the deceased, and that he was “confused”. Mr Cliff also raised the partial defence of extreme provocation. He claimed that he had had a violent altercation with the deceased in which the deceased had hit him from behind.

3. [3]

   The jury convicted him of murder on 26 February 2018. The trial judge sentenced Mr Cliff on 4 May 2018 to imprisonment for a term of 30 years with a non-parole period of 22 years. Mr Cliff seeks leave to appeal against that conviction on the basis of the trial judge’s directions to the jury. He has only one ground of appeal, namely that the directions on intoxication undermined the onus and standard of proof such that there was a miscarriage of justice. The trial judge gave extensive directions both orally and in writing. The complaint is mainly directed to parts of the oral directions.

4. [4]

   Leave is required because the senior counsel representing Mr Cliff at the trial did not object to the impugned jury directions nor seek any redirection: Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15. An extension of time to appeal is also required because the appeal was filed out of time: Criminal Appeal Act 1912 (NSW), s 10; Supreme Court (Criminal Appeal) Rules 2021, rr 3.1, 3.5. The notice of appeal was filed nearly 3 years after Mr Cliff’s notice of intention to appeal had expired. An affidavit from Mr Cliff’s current solicitor was provided which offers an explanation for some, but not most, of the delay. Nevertheless, the ground on which the Crown opposed an extension of time was that the application for leave to appeal lacked merit. As shall be seen, Mr Cliff has raised a point that is arguable. In all the circumstances it is appropriate to allow Mr Cliff an extension of time to apply for leave to appeal pursuant to rule 3.5(5).

5. [5]

   However, having regard to the entirety of the directions issued by the trial judge, and the overall effect of those directions, Mr Cliff did not lose a real chance of acquittal. More generally, no miscarriage of justice has been established. Leave to appeal should be refused.

6. [6]

   In this judgment, I first identify the relevant legal principles, then set out the impugned directions in their context, before considering whether these suffice to support a grant of leave. Given that Mr Cliff’s appeal focuses solely on those directions, it is not necessary to consider the evidence below in any detail. The Crown relies on the proviso in s 6 of the Criminal Appeal Act but, given the determination of the matter, it is not necessary to consider that issue further.

Legal principles

1. [7]

   Rule 4.15 of the Supreme Court (Criminal Appeal) Rules, which is almost identical to its predecessor in r 4 of the Criminal Appeal Rules 1952 (NSW), provides as follows:

2. [8]

   The requirements of r 4.15 do “not constitute some mere technicality which may simply be brushed aside”: R v Germakian (2007) 70 NSWLR 467; [2007] NSWCCA 373 at [10]. The absence of any objection to directions to the jury on the part of trial defence counsel can be taken into account as an indication that there was no injustice to the accused in the atmosphere of the trial: ARS v R [2011] NSWCCA 266 at [148], and cases there cited; Beattie v R [2021] NSWCCA 291 at [23]; GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40 at [25]. It is accepted that the discretion to grant leave will be exercised in the applicant’s favour where there has been a miscarriage of justice such that they have lost a real chance of acquittal: ARS v R at [147]-[148]; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [24] per Bathurst CJ, Leeming JA, R A Hulme, Hamill and N Adams JJ agreeing at, respectively, [291], [336], [470] and [474].

3. [9]

   In this case, no objection was taken at the trial to the impugned directions in either their written or oral form.

4. [10]

   A trial judge is obliged to give oral directions to the jury: Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104 at [65]. The trial judge may also give directions of law in writing if “the judge … considers that it is appropriate to do so”: Jury Act 1977 (NSW), s 55B. The practice of providing written directions to assist a jury in a criminal trial is also permitted at common law: Trevascus at [52].

5. [11]

   In determining whether there has been a misdirection sufficient to amount to a miscarriage of justice, the directions must be viewed in totality. In Green v The Queen (1971) 126 CLR 28 at 34; [1971] HCA 55 the High Court referred to reading the summing up “as a whole”. In Hadchiti v R (2016) 93 NSWLR 671; [2016] NSWCCA 63 at [68] this Court, in a joint judgment of Leeming JA, Hall and Bellew JJ, quoted with approval the following summary by the Tasmanian Court of Criminal Appeal in Lin v State of Tasmania (2015) 252 A Crim R 64; [2015] TASCCA 13 at [108]:

6. [12]

   Similarly, in Beattie at [26], this Court said:

7. [13]

   As regards the relationship between the oral and written directions, in Hadchiti the Court stated:

8. [14]

   This type of point has been reiterated subsequently: Obeid at [86]; Morrison v R [2022] NSWCCA 158 at [36]. Hadchiti was a case in which the directions challenged most forcefully by the appellant were those in the written document, rather than those given orally. But the force of these observations does not depend on which variant is criticised.

9. [15]

   Mr Cliff submitted that such statements had to be understood in light of this Court’s recent decision in Trevascus. In that case, Bellew J stated at [67] (with Hoeben CJ at CL and Hidden AJ agreeing):

10. [16]

    The relevant nub of the decision in Trevascus was that “s 55B does not permit a trial judge, having reduced directions of law to writing, to provide them to the jury, have the jury read them for themselves, and then say nothing more about them”: at [65]. In that case the trial judge was seen to have done just that, thereby acting inconsistently with the principle that “a necessary ingredient of a fair trial is that proper directions be given as to the elements of the offence”: at [71]. This holding has been approved and applied subsequently by this Court: see eg Cook (a pseudonym) v R [2022] NSWCCA 282 at [57]-[58]. Adamson J stated there that written directions “are designed to augment oral directions and not be a substitute for them” (at [57]).

11. [17]

    These statements are not inconsistent with the points made in Hadchiti and related cases. It would be surprising if they were, given that Bellew J was also a member of the Court in Hadchiti. A trial judge is obliged to direct the jury orally, and the provision solely of written directions does not fulfil this duty. But that does not mean that on appeal the written directions are to be ignored when assessing whether an applicant has lost a real chance of acquittal or there has otherwise been a miscarriage of justice. Those issues must be considered in all of the circumstances of the particular case.

12. [18]

    The core point made in Hadchiti and related cases is that written directions are important and are likely to be relied upon by the jury. The very reason for providing them is the utility of having a document that can be reviewed and re-reviewed in the jury room. They must therefore be considered as a significant part of the context when examining whether the jury may have been led astray. In some cases, errors or infelicities in a lengthy oral address may not provide sufficient grounds to make out an appeal when viewed against what is contained in the written directions, or vice versa. Whether that is so depends upon the circumstances of the particular case. As this Court indicated in Beattie at [26], the effect of the summing up must be determined by considering the written and oral directions taken as a whole and in the context of the conduct of the trial.

13. [19]

    Pursuant to s 428C(1) of the Crimes Act 1900 (NSW), evidence of intoxication may be taken into account for offences of specific intent (of which murder is one) in determining whether the person had the intention to cause the specific result necessary for the offence. There are some exceptions to this rule, none of which is relevant here. Where the section applies, the intoxication of a defendant may form part of the factual context in which the issue of specific intent is to be evaluated; general principle puts the onus on the Crown to prove that intent beyond a reasonable doubt.

14. [20]

    In Viro v The Queen (1978) 141 CLR 88; [1978] HCA 9, Gibbs J identified the necessity of drawing to the jury’s attention the intoxication of the accused for the purposes of determining if the Crown had discharged its onus in that regard. In that case, the appellant was “high on heroin” when he murdered the deceased, and the impugned directions were found erroneously to have implied that the drugs that had been taken were irrelevant to the question of intent. Gibbs J stated at 112:

15. [21]

    Whether a defendant is intoxicated and, if so, whether any intoxication was so extensive as to affect the formation of the relevant intent, may be in dispute on the evidence. As Gibbs J said, there must be enough evidence “fit to be considered by a jury”. But that is not a demanding standard; there may still be substantial doubts on those issues, including reasonable doubts. The jury thus may need to consider whether and to what extent the defendant was intoxicated.

16. [22]

    That potential necessity, along with the need to explain the potential relevance of intoxication, is reflected in the suggested intoxication directions for an offence of specific intent in the NSW Judicial Commission’s Criminal Trial Courts Bench Book:

17. [23]

    The first paragraph of these suggested directions were quoted to this Court by the Crown. They were not criticised by Mr Cliff. That being said, there is room for refinement of the second quoted sentence, as I address below at [56].

The impugned directions in context

1. [24]

   Of the trial judge’s directions on intoxication impugned by Mr Cliffe, all except one were made orally. He submits that the trial judge’s directions impermissibly introduced a “staged approach”, which conveyed to the jury that, as a preliminary step, they first had to make a positive finding about Mr Cliff’s intoxication before they could address the question of intent. He accepts that the primary judge directed the jury correctly on the onus and standard of proof at various points, both orally and in writing.

2. [25]

   The written directions, in their final form, were labelled MFI-24. They had been reviewed by counsel for both sides and neither side raised any concerns with the final version. The directions were just over 14 pages long, containing 51 paragraphs. The oral summing up of the trial judge commenced shortly after lunch on Thursday 22 February 2018 and finished in substance on Friday afternoon, with a few additional remarks being made on the Monday morning. The judge took regular breaks in the course of his remarks for the benefit of the jury, doing so mid-afternoon on the Thursday, twice on the Friday morning, then taking lunch. At each break, his Honour asked counsel, in the absence of the jury, if anything of concern had arisen from what he had said. No relevant concern was raised by either side at any time.

3. [26]

   The trial judge told the jury near the beginning of his summing up that “I am proposing to base the rest of my directions on the document and I will be asking you to follow the document as I go through them”. The summing up followed that course.

4. [27]

   In the various extracts from the written and oral directions that follow, any emphasis by italics was in the original, the emphasis by underlining is mine, and the parts in bold are those portions criticised by Mr Cliff.

5. [28]

   The trial judge stated as follows at [3] and [6] of the written directions, under the heading “General matters”:

6. [29]

   These statements were reiterated and somewhat expanded upon orally. Thus, from near the beginning of his summing up, the trial judge explained the issue of onus and standard of proof very clearly.

7. [30]

   Paragraphs 7-9 of the written direction explained aspects of the murder charge, and in so doing stated “[y]ou must acquit Mr Cliff … unless you are actually satisfied beyond reasonable doubt that when he stabbed Mr Cleghorn … he acted with the actual specific intent of either killing him or causing him really serious bodily injury, not acting under extreme provocation”. When explaining this to the jury orally, his Honour said this:

8. [31]

   The point about onus was made again in the next relevant portion of the written directions, under the heading “Inferential reasoning”:

9. [32]

   No criticism was made by Mr Cliff of those paragraphs. However, some criticism was made by him of the trial judge’s oral elaboration of these statements:

10. [33]

    Mr Cliff complains that the bolded portions of the directions suggest that a staged approach should be taken, that is, that the jury had to decide questions of intoxication – whether he was intoxicated, to what extent and with what effect upon his mental state – before determining whether the Crown had proved intent to inflict grievous bodily harm beyond reasonable doubt. His Honour came back to address intoxication in more detail. However, it is pertinent to note that the impugned words were said immediately after a very clear reiteration, and reiteration again, of the onus and standard of proof.

11. [34]

    The written directions then had a heading of “Deciding Intent”, and included the following:

12. [35]

    The bolded parenthetical statement at paragraph 20(g) is the one portion of the written summing up criticised by Mr Cliff. The point also arose in the oral directions:

13. [36]

    Mr Cliff submits that the impugned language used by his Honour in paragraph 20(g) and its oral restatement suggested that it was necessary for the jury to make positive findings about Mr Cliff’s intoxication as a preliminary step, separate from the question of intent.

14. [37]

    The written directions then addressed the topic of “Intent and intoxication”, including as follows:

15. [38]

    Mr Cliff made some criticism of the bolded sentence at paragraph 23, suggesting that it was “unorthodox” and “perhaps a direction which does work some unfair prejudice to an accused in a case in which there can only be a conclusion that it is a spontaneous act of passion”. This criticism was not put as a separate ground of appeal, and it is difficult to see what it adds to the complaint about the trial judge’s directions on intoxication.

16. [39]

    Mr Cliff also made a criticism in passing of the language of “real possibility” employed in the first sentence of paragraph 24 of the written directions, suggesting that it was “using an intermediate standard of real possibility which doesn’t apply in any respect in a criminal trial in relation to the question of the Crown’s onus of proof and the standard of proof”. Again, however, this was not put as a separate appeal point but only as a matter of context. Indeed, he submitted that “it is an error perhaps in isolation which may not be of great significance”. Again, it adds little if anything to his complaint. As noted below at [51], Mr Cliff made no criticism of speaking of “reasonable possibility”, and, if there is any difference between that and “real possibility”, it is slight. It is also notable that Mr Cliff accepted that the last sentence of the paragraph was a correct direction on onus.

17. [40]

    The points made at paragraphs 21-25 of the written directions were restated in the trial judge’s oral directions. Mr Cliff complains about two aspects of these directions:

18. [41]

    Those points were made near the end of the day on the Thursday. The trial judge returned to the topic on the next morning, including as follows:

19. [42]

    It is notable that this statement – which reflects paragraph 21 of the written direction – was not criticised by Mr Cliff.

20. [43]

    The judge went on to address paragraphs 23-24 of the written document:

21. [44]

    A short break was then taken, immediately after which his Honour said the following:

22. [45]

    His Honour then went on to summarise the evidence relevant to whether or not Mr Cliff was intoxicated and to what extent, and then said the following:

23. [46]

    In respect of these bolded portions, Mr Cliff complains that posing a series of questions and issues in this manner is to suggest taking an erroneous two-stage approach, whereby the jury needed to make a finding on intoxication preliminary to and separate from the issue of determining whether the requisite intent had been proved beyond reasonable doubt.

24. [47]

    Mr Cliff also complains about an aspect of how the trial judge orally directed the jury as to the issue of extreme provocation:

25. [48]

    This statement must be understood in the context of what had been said very shortly beforehand by his Honour (which I have not underlined, as all of it is significant):

26. [49]

    The Crown submits that with respect to extreme provocation, the question of intoxication was not relevant because of s 23(5) of the Crimes Act, which provides that “evidence of self-induced intoxication of the accused … cannot be taken into account”. It is not necessary to consider that point further.

Determination

1. [50]

   Mr Cliff puts his complaint about the claimed staged approach in terms relating to the onus and standard of proof. As regards the onus, he submits that the effect of the directions as a whole was to mislead the jury into thinking that it was for Mr Cliff, not the Crown, to establish matters relating to intoxication. Mr Cliff submits that the trial judge, by posing a series of questions, gave directions that reversed the onus of proof.

2. [51]

   As regards the standard of proof, Mr Cliff submits that “the jury did not need to ‘find’ or ‘be satisfied of’ any intermediate facts concerning intoxication in order to take the evidence of intoxication into account in determining whether there was a reasonable doubt about the applicant’s guilt”. He made clear that he did not complain about the trial judge telling the jury that the issue only arose if there was a reasonable possibility that he was intoxicated. But “if it is suggested that more than a reasonable possibility, that is a positive conclusion or a positive state of satisfaction needs to be established”, then that would be inconsistent with the necessity for the Crown to establish the relevant intent beyond reasonable doubt. The arguments about onus and standard can be seen as two sides of the same coin.

3. [52]

   Mr Cliff accepted that his complaint was essentially encapsulated in the words highlighted in paragraph 20(g) of the written directions: “Mr Cliff’s level of intoxication (if you find he was intoxicated) may be relevant”. This statement was said to contain the implication that, if the jury were not satisfied he was intoxicated, then intoxication would be irrelevant. In other words, the complaint was that the jury may have understood that it needed to make a preliminary determination that Mr Cliff was intoxicated, and to some relevant degree, before considering whether the Crown had made out the requisite intent in light of the evidence of intoxication.

4. [53]

   The same type of point was made about that portion of the trial judge’s remarks quoted above at [32] that “you have got to decide that on the evidence you have heard, that he was intoxicated is a reasonable possibility” and “then you have to decide well, on the evidence that we have heard and that we accept, is it a reasonable possibility that because of that circumstance, he did not turn his mind to the consequences”.

5. [54]

   The criticism was particularly illustrated by the trial judge explaining the issue in a series of questions (as quoted above at [43], with variants in [44] and [45]):

6. [55]

   There is room for criticism of the impugned remarks. It was not necessary for the jury to find – in the sense of positively conclude – that Mr Cliff was intoxicated and to such an extent as to affect his capacity to form an intent to cause grievous bodily harm. It was enough for an acquittal that the evidence, including as to intoxication, raised a reasonable doubt as to his intent. Yet the impugned remarks, in isolation, might be understood as suggesting that it was necessary for the jury to reach some positive, preliminary conclusion on whether and to what extent Mr Cliff was intoxicated. It would have been better if they had been expressed differently. But the remarks must be understood in their context.

7. [56]

   The jury was the trier of fact. The Crown had not conceded that Mr Cliff was intoxicated, let alone to a degree sufficient to affect his forming the requisite intent. The jury was thus required to consider the evidence on this point, and the judge needed to tell them this. I have noted above at [22] that the Bench Book suggests that the judge should tell the jury, in this regard, that “[w]hether [the accused] was affected by [alcohol/drugs] at the relevant time and the degree of that intoxication are issues for you to decide” (my emphasis). The impugned remarks of the trial judge echo this notion of the jury needing to decide those issues. The import of the sentence is to indicate to the jury that these are matters for it to consider as the trier of fact. However, the word “decide” arguably carries with it the whiff of a suggestion that intoxication positively needs to be found by the jury in order for it to be relevant to considering intent. That is not so. In my view it would be better if the word “decide” in that sentence were replaced by a word such as “consider”, consistently (if repetitively) with the usage in the sentence that precedes it.

8. [57]

   That being said, the differences between these types of formulation are subtle. At [41] above, I set out a remark by his Honour that was not criticised by Mr Cliff: “if the accused was intoxicated, that circumstance may be taken into account when determining whether he had the necessary intent”. The use of the word “if” reflects the fact that, in circumstances where the Crown had not admitted intoxication, there was a need for the jury to consider whether and to what extent the accused was intoxicated. A purist critic might suggest that even this formulation might be taken to hint at there being some kind of onus on the defendant. But there are limits to the ways in which the issue can be expressed.

9. [58]

   The jury, as the trier of fact, did have to consider the extent to which Mr Cliff was intoxicated, if any. Moreover, it needed to be told that it had to consider that issue. As this Court said in Beattie at [39], by reference to a direction criticised in that case: “The phrase ‘any intoxication that you find existed’ is the kind of language used in a summing up out of caution, to avoid any suggestion of interference by the judge in the jury’s fact-finding role”.

10. [59]

    The impugned remarks of the trial judge here convey that the jury needed to consider these issues. Indeed, the series of questions quoted above at [43] end with the statement that “[t]hese are all things as judges of the fact, you have to consider”. That point had also been made in the sentence immediately preceding those questions.

11. [60]

    The jury also needed to be told that Mr Cliff bore no onus in this regard, and that it was necessary for the Crown to prove that Mr Cliff had the requisite intent despite any possibility of being intoxicated. These points were made repeatedly by the trial judge. So much is illustrated by the extensive passages I have underlined in the quotations set out above. Those explanations of the onus and standard of proof surrounded and coloured the impugned remarks.

12. [61]

    Most clearly, the impugned remark quoted above at [43] was that “[t]he real thing you have to weigh and consider if you think he was intoxicated is this …”. Yet the immediately following sentence stated that “[i]f you find that this is such a case, there being no onus on Mr Cliff in this regard …”. Similarly, the two impugned sentences quoted above at [32] do talk about deciding something, but what they say is to be decided is merely whether “he was intoxicated is a reasonable possibility”, which is consistent with the Crown bearing the burden to the relevant standard.

13. [62]

    More generally, despite the length of the extracts that I have quoted above, I have not included all of the trial judge’s references to the need for the Crown to prove its case beyond reasonable doubt, including in particular as regards the question of whether Mr Cliff had the intent to inflict grievous bodily harm on Mr Cleghorn. That was the regular drumbeat throughout his Honour’s oral and written directions. Thus, in the extract from the oral remarks quoted above at [30], after referring again to the need to be satisfied beyond reasonable doubt, his Honour said, a little apologetically, “I am repeating it so you, hopefully, get it ingrained in your thinking”. And later in the summing up, for example, his Honour said the following when addressing the issue of whether or not Mr Cliff had told some lies after being detained:

14. [63]

    Only one parenthetical statement in the written directions was subject to direct attack by Mr Cliff in relation to the intoxication issue. As explained above at [12]-[18], the content of the written directions is a matter of importance. The impugned statement in paragraph 24(g) was under the heading “Deciding intent”, which undermines the argument that the statements about intoxication were decoupled from the need for the Crown to prove the requisite intent. And that statement was made in a short paragraph foreshadowing that the issue was to be addressed at more length in what followed, where the following discussion under the heading “Intent and intoxication” was not criticised in any material way.

15. [64]

    In sum, there were small portions of the directions which are capable of criticism when viewed in isolation. However, when viewed in the broader context of the written and oral directions, there is no real possibility that the jury could have considered that any intermediate fact needed to be established with respect to intoxication or intent, or that Mr Cliff bore any onus in that regard, or that it was unnecessary for the Crown to prove his intent beyond reasonable doubt, taking account of the possibility of intoxication.

16. [65]

    As noted above at [8], in the context of applying r 4.15, the absence of any objection to directions to the jury on the part of defence counsel at trial can be taken into account as an indication that there was no injustice to the accused in the atmosphere of the trial. Here, senior counsel appearing for Mr Cliff below had numerous opportunities to raise a question about the effect of what the trial judge had said. That fact that he did not do so tends to confirm that, viewed in the context of the whole trial, the impugned remarks did not have the effect of conveying what Mr Cliff now claims.

17. [66]

    Mr Cliff has not shown that he has lost a real chance at acquittal, nor that there is any other basis to exercise the discretion in rule 4.15, nor more generally that there was any miscarriage of justice. Put another way, such infelicities as there were in the directions could not have affected the result: note Edwards v The Queen [2021] HCA 28 at [74]-[75]; Hofer v The Queen [2022] HCA 36 at [41]-[47], [114]-[123] and [130]; Saunders v R [2022] NSWCCA 273 at [87]-[93] and authority there cited.

18. [67]

    The orders of the Court should be as follows:

    1. (1)

       Time for filing the application for leave to appeal is extended to permit the application to be made.

    2. (2)

       Leave to appeal is refused.

19. [68]

    HARRISON J: I agree with Kirk JA.

20. [69]

    WRIGHT J: I agree with the orders proposed by Kirk JA for the reasons that his Honour has given.