Towney v R

HOEBEN CJ at CL:

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:

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:

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:

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:

In cross-examination Ms Smith said:

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:

Mr Mackenzie demonstrated that motion, which was described by his Honour, as follows:

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:

Under cross-examination Ms Williams gave the following evidence:

After the conclusion of cross-examination, Ms Williams was asked some questions by his Honour.

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:

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:

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:

Under cross-examination Karah Towney gave the following evidence:

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:

A further document entitled “SU 2” was also placed before the jury. The relevant parts of that document are:

The trial judge’s summing up comprised 80 pages. The following extracts from the summing up are relevant to the appeal:

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:

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:

His Honour made reference to the document SU 2 for the first time as follows:

In the course of explaining provocation, his Honour said:

Still on the issue of provocation, his Honour said:

His Honour made specific reference to the written directions generally in his summing up as follows:

In distinguishing between subordinate facts and the elements of the offences, his Honour again stressed the relevant standard of proof:

After his Honour distributed the written directions in SU 2, his Honour said:

His Honour returned to the standard of proof with particular reference to SU 2 as follows:

His Honour referred to the standard of proof in the context of the applicant’s right to silence as follows:

When dealing with provocation much later in the summing up, his Honour referred to the standard of proof:

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 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:

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).

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:

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:

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:

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:

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:

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:

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:

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:

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:

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:

In Filippou v The Queen [2015] HCA 29; 256 CLR 47 the plurality (French CJ, Bell, Keane and Nettle JJ) said:

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:

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.

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:

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.

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:

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]):

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:

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.