Moore v R

1. [1]

   BASTEN JA: Dennis Burns died on 30 October 2012 as a result of injuries inflicted on him two days earlier, when he was set upon by three assailants outside the house in which he lived in Coffs Harbour. The applicant, James Kevin Moore, was charged with murder, of which he was convicted by a jury on 27 November 2014. On 13 March 2015 he was sentenced to a non-parole period of 18 years imprisonment with an additional term of 6 years, giving a total period of 24 years imprisonment.

2. [2]

   On 16 February 2016, the applicant applied for an extension of time within which to lodge an application for leave to appeal, seeking to challenge both his conviction and his sentence. He had earlier given notice of his intention to appeal and, the application being lodged only one day after the last extension of time expired, a further extension should be granted.

(a) background circumstances

1. [3]

   Although the jury heard detailed accounts of communications between the applicant and the deceased over the day of the assaults, and several accounts of the altercation, which occurred in a public street in broad daylight, most of this material can be succinctly summarised for the purposes of the appeal. That is because the two grounds of appeal were directed to the manner in which the trial judge, Garling J, directed the jury in relation to questions of self-defence and provocation.

2. [4]

   The applicant and the deceased were both users of marijuana. It appears that the applicant was intending to purchase some marijuana from a dealer for his own use and offered to obtain a few ounces for the deceased. The applicant described the disagreement that then arose between them in an electronically recorded record of interview in the following terms: [1]

3. [5]

   It appears that a discussion occurred shortly after 10 in the morning when the applicant was driven by a friend to the house occupied by the deceased. The deceased objected to the extra charge, and said that he believed that the last lot had been “underweight”. [2] The deceased got more irate over the ensuing hours about the demands of the applicant. The deceased was drinking and there was an unedifying exchange of text messages. Some of them were read by the applicant’s partner, Cassie Little. In summing up, the trial judge read to the jury Ms Little’s summary, in the following terms: [3]

4. [6]

   The applicant did thereafter contact his mother, Michelle Moore, who sent a text message to the deceased at about 14:57, saying, “You got a problem with James, you got a problem with his kin …”. At the same time, the applicant sent a text to the deceased saying, “One more bad call or text cunt, this is your warning, pull up”. At about 3:30pm there was an aggressive text message from the deceased to the applicant, “Fuck you, I’m waiting. You got. Fuck you. Waiting for you.” The summing up continued: [4]

5. [7]

   At about 4:00pm, Michelle Moore and her partner, Brendan Price, arrived at the applicant’s house. The summing up continued: [5]

6. [8]

   The prevarication appears not to have lasted long: the applicant obtained a mattock, removed the head and took the handle; Ms Moore was armed with a hammer and a long cardboard tube, while Mr Price had grabbed a fishing rod.

7. [9]

   The three took Ms Moore’s car and stopped near the deceased’s home. The deceased came out of his home armed with two knives and was confronted by the applicant, his mother and Mr Price, in the street. Although there were several witnesses to at least parts of the fight which followed, the only evidence as to how the deceased came to meet them in the street came from the applicant’s interview with police. (He did not give evidence.) That explanation was as follows: [6]

8. [10]

   In the fight which followed, the evidence confirmed that the deceased had two knives. The deceased had bruising to his chest and the back of his chest, rib fractures, a fracture of the left forearm and bruising and a fracture of the right hand. It was not in dispute that the applicant hit him on one arm with the mattock handle, dislodging one of the knives. Nor was it in dispute that Ms Moore hit him on the head with the hammer, causing a laceration. There was also a “midline laceration to the top of the skull and associated fractures.” The medical evidence was that the larger laceration was the cause of death and was consistent with the deceased being struck with a mattock handle.

9. [11]

   Although at the start of the trial the prosecution had relied upon the three individuals being engaged in a joint criminal enterprise, before the matter was left to the jury, the prosecutor limited the case against the applicant to one alleging direct responsibility for the blow causing death.

(b) directions to jury

1. [12]

   The trial judge gave the jury a set of written directions, setting out the elements of the offence of murder and the principles of self-defence; manslaughter based on excessive self-defence and provocation, and manslaughter based on the commission of an unlawful and dangerous act causing death. Towards the end of his summing up, the judge also left the jury with copies of a document entitled “Possible question trail”, setting out a course of five questions (two with two internal questions).

2. [13]

   The written directions with respect to murder involved six elements and read as follows:

3. [14]

   The case was left to the jury on the basis that none of (i)-(iv) was seriously in dispute. Clearly the jury was satisfied beyond reasonable doubt in respect of each of those elements and no issue arises on the appeal with respect to them.

4. [15]

   In relation to element (v), self-defence, the following written direction was given:

5. [16]

   Part C of the directions dealt with excessive self-defence and need not be set out in full: there is no objection to the formal content of the direction. The fourth section involved provocation and was as follows:

6. [17]

   The fifth part of the written directions, concerning unlawful and dangerous acts, need not be repeated; again, there was no challenge to the adequacy of the direction.

7. [18]

   The terms in which the “question trail” document dealt with these issues will be addressed in dealing with the grounds of appeal.

8. [19]

   In his summary of the submissions of counsel, the judge said that the prosecution denied that self-defence could arise, because the applicant, his mother and Mr Price went to the victim’s house “with an offensive intent.” [7] The judge continued: [8]

9. [20]

   After referring to the eyewitness accounts and the position of the blood stains, the judge continued:

10. [21]

    In summing up the submissions for the accused, the judge stated:

(c) grounds of appeal

1. [22]

   The grounds of appeal against conviction were as follows:

2. [23]

   At the heart of the challenge was a formulation of the questions to be addressed in determining whether the prosecution had negatived the possible excuses of self-defence (and provocation). To assess this ground, it is necessary to set out the impugned passages in the “question trail” document and the directions given by the trial judge with respect to the use of the question trail. This evidence must be assessed in two stages. First, it is necessary to understand the nature of the complaint about the content of the document. Secondly, it is necessary to consider the content in the context of the whole of the summing up to the jury in order to understand whether it may have been the source of a miscarriage of justice.

3. [24]

   As noted above, there were said to be six elements for the prosecution to establish beyond reasonable doubt, for a conviction of murder. The first, the death of the deceased, was not the subject of a question. In respect of the next three elements, three simple questions were asked according to a formula, namely (a) “has the Crown satisfied you, beyond reasonable doubt, that the accused …” delivered a blow or blows to the deceased which caused his death; (b) … that such conduct was deliberate, and (c) … that the accused intended to cause the deceased grievous bodily harm. No issue is taken with the formulation of those questions, nor with the requirement of each that, if answered “yes”, the jury should proceed to the next question and if answered no, return a verdict of not guilty, except in respect of the third, which allowed the possibility of an alternative verdict of manslaughter by unlawful and dangerous act.

4. [25]

   In opening his final address, counsel for the accused identified various matters which were not in issue and continued: [9]

5. [26]

   Consistently with that statement, the focus of the appeal was on the directions with respect to self-defence. Since 22 February 2002, self-defence has been identified in the Crimes Act 1900 (NSW) in general terms, relevantly as follows: [10]

6. [27]

   Self-defence was addressed in question 4, which followed the statutory separation of the subjective (the person believes) and objective (the conduct is a reasonable response) elements in s 418(2):

7. [28]

   The general question with which this passage started was not challenged. As senior counsel for the applicant acknowledged, it was a fair reflection of the well-understood principle as to the burden of negating self-defence, as established in Viro v The Queen [11] and now found in s 419 of the Crimes Act. Although the general law has been replaced by the statutory formulation, it is helpful to be reminded of the propositions put forward in that case. Barwick CJ stated: [12]

8. [29]

   In Viro, the High Court reinstated the principle that a verdict of manslaughter was available if the jury concluded that the accused had killed in self-defence, but had used excessive force, not an issue of immediate relevance. What is significant is that the statement of principle as to the burden of proof equated negativing “the reasonable possibility that the fatal act was done in self-defence” with removal of “any reasonable doubt that the fatal act was not done in self-defence.”

9. [30]

   The administration of justice would be much improved if the following proposition from Palmer v The Queen [14] accurately described the legal principles at stake:

10. [31]

    The judgment of Mason J in Viro set out a number of propositions which were said to state the law, at least where there was a threat of death or grievous bodily harm to the accused. [15] In some respects the principles have been reformulated over the decades, so that it is not helpful to set them out. [16] However, the statements reveal both that directions can be given appropriately without circumlocution, but, in some respects, involving double negatives (as discussed below). On the other hand, there is an awkwardness in the use of double negatives which has led, as in the question 4, to an attempt to state the obverse, by reference to a positive proposition. That, as will be seen shortly, constitutes the major concern identified by the applicant.

11. [32]

    Although the applicant took objection to the second sentence in the question (that there were “two separate parts” to be considered) the objection was not developed and can be put to one side: it followed closely the structure of s 418 and is not legally flawed. The substance of the objection was to be found in the formulation of each part as a separate question, commencing with the words “[i]s there a reasonable possibility that …”. The first part of the objection is common to both questions; a second part is better considered separately with respect to each.

12. [33]

    The first part of the objection focused on the opening words set out above. Properly formulated, bearing in mind the party on whom the onus of proof lay (the prosecutor) and the standard of proof (beyond reasonable doubt), the question was whether the jury was satisfied beyond reasonable doubt that the accused did not genuinely believe that his conduct (which caused the death of the victim) was necessary to defend himself or another person. To formulate the question in the passive form, it was submitted, was to distract attention from the fact that the absence of a genuine belief must be demonstrated by the prosecution. Secondly, to remove the qualifier “reasonable” from the opinion formed by the jury to the factual circumstance being considered is apt to distract the jury from the heavy burden imposed on the prosecution. Thus, the language “is there a reasonable possibility”, if answered “no”, involves a rejection of the excuse of self-defence, without regard to the need to consider whether the prosecution satisfied its burden of proof, and did so beyond reasonable doubt.

13. [34]

    There was a second and conceptually separate objection raised to the formulation of the questions. This objection accepted that the existence of a reasonable doubt was the mirror (in negative form) of the positive assertion that there existed a reasonable possibility. However, as a matter of logic, the applicant argued, rejection of proposition ‘A’ did not necessarily entail acceptance of ‘not-A’. Put in slightly different terms, satisfaction of A and satisfaction of not-A did not constitute the universe of possible outcomes. If one is in doubt, one will not be satisfied of either ‘A’ or ‘not-A’. Yet the formulation of question 4(a), the submission proceeded, ignored this possibility. In doing so it distracted attention from the burden of proof on the prosecution to prove not-A.

14. [35]

    Counsel appearing for the Director was inclined to accept this analysis, although he said he had no instructions to concede error. He 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.

15. [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.

16. [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.

17. [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.

18. [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: [17]

19. [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, [18] O’Connor J stated:

20. [41]

    In Martin v Osborne [19] 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”. [20] Evatt J undertook the most expansive consideration in the following terms: [21]

21. [42]

    In Plomp v The Queen [22] 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.”

22. [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.

23. [44]

    The second part of the question was in the same form as the first, raising an issue as to whether there was a “reasonable possibility” inconsistent with the prosecution case, but the formula was unnecessary (there could be no concern about a double negative) and was awkward because it used the qualifier “reasonable” in two different contexts, namely whether there was “a reasonable possibility” that the conduct was “a reasonable response”.

24. [45]

    In this situation, the jury was not being asked to consider what the accused believed, but to form an objective assessment as to whether an ordinary person in the circumstances of the accused would consider the response to be proportionate to the threat. To the extent that the reasonableness of the response is an essential element of self-defence, it too must be negated by the prosecution. Accordingly, the formulation with respect to “a reasonable possibility” is to be analysed in the same way as set out above: if there is a reasonable possibility, the prosecution has failed to establish the absence of that element beyond reasonable doubt.

25. [46]

    When a majority of the High Court reformulated the Viro principles in Zecevic, they accepted the observation of the Privy Council in Palmer “that an explanation of the law of self-defence requires no set words or formula” and that “[t]he question to be asked in the end is quite simple.” [23] They then identified the question in the following terms:

26. [47]

    Now that s 148(2) of the Crimes Act separates the subjective belief from the question of reasonableness of the conduct, it is obviously appropriate, if not necessary, to identify the two elements as separate questions. Differentiating between the two elements also allows the jury readily to consider the alternative verdict of manslaughter in the event that it was unable to reject the reasonable possibility that the accused believed his conduct was necessary, but concluded that the response was excessive.

27. [48]

    It follows that, although the structure of the question identified as the second limb of the test in respect of self-defence involved a different exercise from the first limb, the formulation in question 4(b) did not involve a misdirection.

(d) other directions

1. [49]

   On the assumption that the question trail involved one or more elements of misdirection, diverting the jury’s attention from the burden and standard of proof imposed on the prosecution, a separate issue arose as to whether the Court would be satisfied that the trial miscarried in circumstances where the correct principles were stated in both the written directions which were before the jury, and the oral directions where they were repeated, relentlessly. In the absence of error in the question trail document it is unnecessary to address that issue; but the submissions should be noted in case a different view were taken of the question trail document. Further, such an exercise will provide the context within which a specific challenge was brought to the oral directions, as noted below.

2. [50]

   The materiality of the question trail (and hence the materiality of any misdirection it contained) was founded upon two separate propositions. The first proposition denied the possibility of disregarding an error contained in a document of which each juror had a copy in the jury room when deliberating. A similar issue arose in Justins v The Queen, [24] a trial involving an early form of “question trail”, though not identified as such. [25] In the course of considering the omission of a critical issue from written directions described as having the capacity to operate as a checklist, [26] Simpson J gave the following assessment of the significance of written directions: [27]

3. [51]

   That was said in a context where the oral directions only corrected the omission by an oblique reference in circumstances where, in the view of Simpson J, “it would take a very astute juror to make that connection.” [28] In those circumstances, it was understandable that directions in the form of a checklist which contained a critical omission would result in the conclusion that the trial miscarried. That assessment will depend upon the particular error (whether by way of misdirection or omission), the scope and coverage of the oral directions on the point and other written material which may have been before the jury.

4. [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]

5. [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.

6. [54]

   Apart from relying upon these propositions as a sufficient foundation in themselves to support a miscarriage in the event that any error were to be identified in the written document, the applicant also relied upon the manner in which the document was left with the jury. On one view, the summing up revealed a level of ambivalence in this regard. At the outset, the judge stated: [31]

7. [55]

   After a lengthy and careful explanation of the burden of proof, the legal principles to be applied and important aspects of the evidence, with only a brief outline of the submissions of counsel to follow, the judge returned to the “question trail”. When the document was handed to the jury he said: [32]

8. [56]

   The document itself contained no direction as to how it was to be used; it was headed “Possible question trail”.

9. [57]

   Whilst generally adopting the approach that the document would “swamp” any oral directions, counsel for the applicant relied upon the oral direction that the jurors could be “certain” of covering “each of the alternatives” if they followed the question trail as a strong indication that they should do so, which direction they would have followed, rather than directions that they might choose to ignore it and that it was not intended to derogate from the (unimpeached) written directions.

10. [58]

    It is not possible to reach a conclusion as to whether the trial would have miscarried had there been error in the formulation of one or more questions in the question trail document, without knowing the precise nature of the error. That will usually be an important, if not critical, element in the assessment.

11. [59]

    Other circumstances will also be important. For example, this was not a case in which the jury was taken through the question trail in the course of the oral summing up: the document was given to them only at the end of that exercise, during which they had the unimpeached written directions in front of them, on which they could no doubt make notes or to which they could have reference while following the oral directions. It would also be significant that in all respects, except the subdividing of questions 4 and 5, the question trail document was itself unimpeached. It would also be relevant that the jury had other material in the jury room, including a transcript of all the evidence and all of the exhibits.

12. [60]

    Finally, in considering whether there had been a miscarriage of justice, it would be necessary to give some weight to the fact that no objection was taken to the form of the question trail document by counsel for the accused and no redirection was sought at any stage.

(e) “the boy with the peashooter”

1. [61]

   As noted above, there was one specific respect in which an issue was raised with respect to the oral directions. That involved an hypothetical example given by the judge in seeking to explain when a response may be disproportionate to a threat. The judge said: [33]

2. [62]

   The applicant submitted that the use of extreme examples was apt to suggest an air of incredulity in relation to the submission that the accused may have acted in self-defence. However, there was a further aspect to the challenge.

3. [63]

   The trial judge returned to his example much later in the summing up, when, again considering the concept of an excessive or unreasonable response, he said: [34]

4. [64]

   The written submissions asserted that the reference back to the use of the shotgun would have confused the jury in considering the “first limb of self-defence”, namely whether the actual belief of the accused was that what he did was necessary to defend himself or another.

5. [65]

   It is sometimes possible that an extreme example, intended to be remote from the facts, can introduce a false point of emphasis, or even a distraction. That is not to say that concrete examples may not be valuable in explaining somewhat abstract statements of legal principle; context is critical.

6. [66]

   The complaint about the hypothetical example must be rejected. The whole of the passage relied on in the later direction when there is a reference back to the boy with the peashooter, was directed, not to the first limb of the test (actual belief) but to the second (the reasonableness of the response).

7. [67]

   With respect to the first passage, it was correct to submit that the judge was considering the first limb, namely the beliefs or perceptions of the accused. However, there was no error in suggesting that in making such an assessment, the jury could take account of all the circumstances. Thus, when the accused had not given evidence and had not, in his recorded interview with police, addressed his state of mind at the precise point at which the fatal blow was inflicted, it was undoubtedly a matter for the jury to infer from the circumstantial material available to them whether they were satisfied beyond reasonable doubt that he did not harbour a belief that his conduct was necessary. If the objective circumstances were simply inconsistent with any rational inference that the accused could hold such a belief, the jury were entitled to take that into account. It was the same exercise as asking, in the absence of direct evidence, whether there were any plausible hypothesis consistent with an innocent belief.

(f) “genuinely believed”

1. [68]

   By way of further complaint, the applicant submitted that an earlier direction with respect to the first limb of the test included the following: “a person who genuinely thought he was in danger, or that another was in danger, even if he were wrong about that perception, may still be regarded as having acted lawfully in self-defence”. [35] That articulation was said to be misleading because it inserted the word “genuinely”.

2. [69]

   The last objection is without substance. The jury can have been in no doubt that they were required to consider the actual belief of the accused: indeed, question 4(a) in the question trail referred to the possibility that the accused “genuinely believed” that his conduct was necessary. No complaint was made of such language in that context. In other places, the judge spoke of whether the accused “personally believed” that his conduct was necessary. [36] The descriptive language had the effect of emphasising the subjectivity of the first limb. These are not the kind of complaints that could possibly succeed in the absence of any suggested redirection at trial. (None was sought.)

(g) conclusions on conviction appeal

1. [70]

   The grounds of appeal being arguable and the conviction of murder being for a most serious offence, the applicant should have leave to appeal against his conviction. The challenges to the content of the question trail document having been rejected, and the additional objections to the oral directions being rejected, the appeal against conviction must be dismissed.

Sentence appeal

1. [71]

   The applicant also sought leave to appeal against the sentence imposed on 13 March 2015 for the offence of murder. [37] The judge imposed a sentence of 24 years imprisonment, with a non-parole period of 18 years and an additional term of 6 years. Three specific grounds were identified, namely that the sentencing judge erred:

   1. (1)

      in finding that the offence was aggravated because it was part of a planned criminal activity;

   2. (2)

      in failing to take into account provocation in assessing the objective seriousness of the offence, and

   3. (3)

      in failing to take into account the applicant’s intention in his assessment of the objective seriousness of the offence.

(a) “planned criminal activity”

1. [72]

   In considering factors which tended to aggravate the objective seriousness of the offence, the judge had regard to the checklist to be found in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”). He dealt first with the offender’s record of previous convictions which, he concluded, pointed to the need “to give weight to personal deterrence and the protection of society.” [38] He also took into account that the offence was committed in company. [39]

2. [73]

   The judge then stated: [40]

3. [74]

   The gravamen of the applicant’s complaint was that the degree of planning did not fall within the scope of the factor identified in s 21A(2)(n), namely that the offence “was part of a planned or organised criminal activity”. This Court has noted on a number of occasions that the ordinary meaning of par (n) is not satisfied by some degree of planning, but requires a more extensive criminal undertaking. [41] Paragraph (n) does not say that “the offence was planned”, but rather that the offence was “part of a … criminal activity”, the criminal activity being that which was planned or organised.

4. [75]

   The submissions for the applicant should be accepted in so far as the sentencing judge was in error in identifying the aggravating factor by reference to s 21A(2)(n). However, as also appears from RL, [42] planning may nevertheless constitute a factor affecting the relative seriousness of the offence, for the purposes of s 21A(1)(c). Whether an offence is “planned” will involve matters of degree; the comparison is between a level of premeditation of criminal conduct and a response which is spontaneous, ill-considered or opportunistic. In this sense, there was a level of planning; the sentencing judge was satisfied that the attack was not simply a response to an unforeseen confrontation. Thus, although the judge was wrong to identify the statutory basis for his finding of aggravation, what he took into account were the matters set out in the passage quoted above. There was no error in treating those matters as aggravating; the incorrect statutory classification cannot be said to have affected the sentence imposed. The error was immaterial.

(b) “provocation”

1. [76]

   It is a potential mitigating factor that an offender was “provoked by the victim”. [43] As Simpson J noted in Fahda, [44] the fact that the jury had, in convicting of murder, rejected a defence of provocation under s 23 of the Crimes Act, “did not preclude a finding of provocation as a mitigating factor for the purposes of s 21A(3)(c) of the Sentencing Procedure Act.”

2. [77]

   The applicant submitted that there were a number of aspects of the evidence which demonstrated that the deceased had in fact provoked the attack in ways which mitigated the seriousness of the offending. In written submissions counsel for the applicant stated: [45]

3. [78]

   As the internal references show, each of these matters was the subject of a finding, expressly set out in the reasons given by the sentencing judge. The complaint is, in substance, not that the sentencing judge failed to take these matters into account, but that he failed to specify that each constituted a “mitigating factor” within the terms of s 21A(3)(c).

4. [79]

   The manner in which the sentencing judge took these factors into account is clear from a reading of the whole of his judgment on sentence. They formed part of the history and explained in part why the confrontation occurred. They did little to reduce the moral responsibility of the offender for what the judge described as “a vicious, brutal and unremitting assault.” [46]

5. [80]

   In his concluding assessment, the judge stated:

6. [81]

   It may be seen from this assessment that, in one sense, it was as much the malevolent response of his mother towards the deceased as the deceased’s own conduct which may have limited the sentence imposed. In any event, all the circumstances having been recounted and relevant findings made, no error warranting the intervention of this Court has been demonstrated in respect of the element of provocation.

(c) applicant’s intention

1. [82]

   The applicant submitted that this was a case in which the observations of Hamill J in Versluys v R [47] were engaged. Hamill J stated:

2. [83]

   The judge’s finding as to intention prior to the confrontation was set out at [50], in the passage quoted at [73**] above. In short, there was an intention to inflict physical injury, but not to kill. Further, the judge dealt with the evidence that, during the melee the applicant was heard to say on three occasions, “I’ll kill you”. The judge found that the words were to be treated as a threat, but were not meant literally. [48] Nevertheless, the judge was satisfied that “the accused perpetrated the assault intending to cause grievous bodily harm to the deceased.” [49]

3. [84]

   The ultimate complaint was that the judge did not explain how the findings as to the applicant’s intention affected his assessment of the objective seriousness of the offence. It was true that the judge did not make an express statement in those terms. However, the assessment of factors in the sentencing process inevitably involves a synthesis of many different elements. It is not, and has never been, the law that a sentencing judge is required to identify with precision how each element affected the final conclusion. Such an exercise would not promote transparency, but would tend to reduce the reasoning process to an artificial structure which did not truly reflect reality. The ground should be rejected.

(d) manifest excess

1. [85]

   The final complaint was that the sentence, although involving “a brutal assault over a trivial matter”, did not warrant a sentence of 24 years imprisonment.

2. [86]

   In support of that proposition, the applicant’s counsel set out a number of factors which warranted a degree of leniency. These included that (a) the offence was not premeditated or planned; (b) the intention was to cause grievous bodily harm, not to kill; (c) there was a degree of provocation on the part of the deceased; (d) the offence immediately followed threats by the deceased towards the applicant’s mother; (e) the applicant demonstrated remorse, and (f) the applicant conducted the trial in an efficient manner which facilitated the administration of justice.

3. [87]

   The applicant also accepted that it was (a) a brutal assault, (b) committed in company with two other adults, (c) committed by a person with an extensive criminal history, including for matters of violence and (d) the offender was on a bond (for a driving offence) at the time of the murder.

4. [88]

   All of these factors were taken into account and weighed by the sentencing judge. He assessed the objective seriousness of the offending as “serious” and “slightly above the mid-range of seriousness of objective criminality.” [50] It would have been possible to take a more lenient view of the offending, for the reasons noted by the applicant, but it cannot be said that the judge’s assessment was outside the permissible range. The general reluctance of this Court to entertain challenges to the assessment of objective seriousness has particular force in circumstances where the sentencing judge has conducted a contested trial.

5. [89]

   As amply explained in his judgment on sentence, the judge gave careful consideration to all the relevant factors and to the assessment of both the objective seriousness of the offending and the personal circumstances of the offender. This Court should not disregard the fact that the non-parole period, though lengthy, is less than the “standard non-parole period” of 20 years provided in the Sentencing Procedure Act, Pt 4, Div 1A.

6. [90]

   In all the circumstances, it has not been established that the sentence was manifestly excessive.

Conclusions

1. [91]

   The applicant has failed to make good the specific grounds, and the general ground, upon which he seeks to challenge his sentence. The applicant should have leave to appeal, but the appeal must be dismissed.

2. [92]

   The Court should make the following orders:

   1. (1)

      Grant the applicant leave to appeal against his conviction for the murder of Dennis Burns.

   2. (2)

      Dismiss the appeal against conviction.

   3. (3)

      Grant the applicant leave to appeal from the sentence imposed on him for the said murder.

   4. (4)

      Dismiss the appeal against sentence.

3. [93]

   R A HULME J: I have had the benefit of reading in draft the judgments of Basten JA and Adamson J and note their different reasons and conclusions as to the disposition of Ground 1 of the appeal against conviction.

4. [94]

   I agree with the conclusions reached by Basten JA as to each of the grounds of appeal against both conviction and sentence and the orders he proposes. I generally agree with his Honour's reasons but wish to say more about Grounds 1 and 2 of the appeal against conviction.

Ground 1- distortion of the burden and standard of proof

1. [95]

   It would have been clear to the jury throughout the course of the trial, from the opening address of senior counsel then appearing for the applicant to his closing address and during the judge's summing up, that the sole issue the applicant raised was that he was acting in self-defence. (He claimed to have been acting in defence of both himself and of his mother but "self-defence" is a convenient term for the sake of brevity.) The trial judge also considered it necessary to leave provocation to the jury. (Not "extreme provocation" which came into force on 13 June 2014: see Crimes Amendment (Provocation) Act 2014 (NSW).)

2. [96]

   It was, of course, essential that the jury understood the fundamental aspect of a criminal trial that the Crown bore the onus of proving the guilt of the accused beyond reasonable doubt. Critical in this case was whether the Crown proved to that standard that the appellant was not acting in self-defence (and not acting under provocation).

3. [97]

   As is apparent from the judgments of the other members of the Court, the critical issue is whether it was erroneous to pose questions in the form of "Is there a reasonable possibility …" when the matter the subject of the question was one the Crown was required to disprove beyond reasonable doubt.

4. [98]

   It is convenient to confine attention to the question in 4a (1st limb of self-defence) of the "possible question trail" because the same logic and reasoning can be applied to those in 4b (2nd limb of self-defence) as well as 5a and 5b (the two limbs of provocation). Question 4a has been quoted in the other judgments but for convenience I will repeat it:

5. [99]

   In directing a jury generally about the onus and standard of proof and specifically about the essential matters the Crown is required to prove beyond reasonable doubt there is nothing wrong with giving a direction about "a reasonable possibility" of there being some exculpatory matter. A theme that clearly emerges in the case law, and a matter that the appellant in this case does not challenge, is that a jury should be directed in terms that it is a matter for the Crown to "eliminate any reasonable possibility" of there being such exculpatory matter.

6. [100]

   Thus in R v Dziduch (1990) 47 A Crim R 378 where there was an issue of self-defence, Hunt J (Enderby and Sharpe JJ agreeing) said (at 381):

7. [101]

   See, similarly, R v Youssef (1990) 50 A Crim R 1 at 1, 4; R v Reeves (1992) 29 NSWLR 109 at 117; and R v Jones (1995) 38 NSWLR 652 at 659.

8. [102]

   In R v Abusafiah (1991) 24 NSWLR 531 at 542, Hunt J (Gleeson CJ and Mahoney JA agreeing) said that in a case in which duress was raised it would be unobjectionable to direct a jury that the Crown must "establish that there is no reasonable possibility" (that the objective limb was made out).

9. [103]

   A defence submission to a jury that there was a reasonable possibility that someone other than the accused may have committed the crime in question was said in R v Ayoub [2004] NSWCCA 209 at [4] (in additional remarks by Howie J; Grove J agreeing) to be not only permissible but "merely a different formulation of the standard direction that the jury cannot convict the accused unless they were satisfied of the offence beyond reasonable doubt". Howie J referred to cases where other exculpatory issues are raised to explain how inviting a jury to consider "whether there is any reasonable possibility" can be helpful and not erroneous:

10. [104]

    In Kanaan & Ors v R [2006] NSWCCA 109, Hunt AJA, Buddin and Hoeben JJ (as the latter then was) said (at [144]) that an appropriate direction to be given where there is an issue as to whether some other person may have committed the crime "would be that the Crown must remove or eliminate any such possibility". But it was not mandatory to direct a jury in such terms "provided that the judge makes it clear to the jury that there cannot be proof beyond reasonable doubt if there remains a reasonable possibility that the accused is not guilty: Regina v Ayoub at [9]" (at [146]).

11. [105]

    The latter, in my view, endorses the appropriateness of a jury considering whether there is a reasonable possibility of the matter of exculpation in issue (which must, of course, be in the context of the jury being correctly directed in terms of the onus and standard of proof).

12. [106]

    Asking a jury to consider "is there any reasonable possibility" of the exculpatory matter was not thought to be erroneous in Ward v R [2013] NSWCCA 46. That matter involved a murder trial in which the Crown case was that the accused had deliberately driven a car at the deceased. The defence case was that after a passenger pulled at the steering wheel she accidentally hit the accelerator and was unable to stop the vehicle. The impugned directions given by Howie J included:

13. [107]

    The above is only part of what was a somewhat unconventional and longer than usual direction on the onus and standard of proof. Various arguments were raised under a ground alleging that there was misdirection as to the standard of proof. None of the arguments questioned the legitimacy of asking the jury whether "there is a reasonable possibility" that the appellant's exculpatory version could be true. McClellan CJ at CL (Latham and Adamson JJ agreeing) noted (at [51]) that the judge had emphasised that the Crown must prove its case beyond reasonable doubt and (at [56]) found no misdescription of the standard of proof.

14. [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]:

15. [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.

16. [110]

    A matter raised in H v R [2016] NSWCCA 63 at [41] was that the Criminal Trial Courts Bench Book published by the Judicial Commission of New South Wales had contained the following model direction since at least 2007:

17. [111]

    For at least nine years, no-one thought to suggest that the concluding sentence was erroneous until the point was taken in H v R (and the sentence has since been removed). In that case the trial judge's directions on the onus and standard of proof had included:

18. [112]

    It seems to me that what the trial judge had said in those two sentences was to the same effect as saying that, if the Crown had failed to eliminate a reasonable possibility that the accused was not guilty, then it had not succeeded in proving the charges beyond reasonable doubt which, based on the cases I have referred to, would be unexceptional.

19. [113]

    Nevertheless, the Court in H v R noted at [39] that Mr Game SC described what the judge had said as "a serious misdirection". 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, 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):

20. [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.

21. [115]

    There are statements in judgments of the High Court of Australia to the effect that the existence of a reasonable possibility of some exculpatory matter is the corollary of the Crown not having proved the guilt of the accused beyond reasonable doubt.

22. [116]

    In Velevski v R [2002] HCA 4; 187 ALR 233 the Crown case was that the appellant killed his wife and three children whilst the defence case was that the wife had killed the children and then herself. Gleeson CJ and Hayne J said (at 235 [5]) that "the central question in this court is whether it was open to the jury to conclude, as it did, that the prosecution had proved beyond reasonable doubt that the appellant had murdered his wife and children or was there a reasonable possibility that Mrs Velevska [sic] had killed her children and then herself". This mode of analysis is frequently encountered when appellate courts are dealing with a ground of appeal asserting that a verdict of guilty is unreasonable or cannot be supported.

23. [117]

    Gaudron J referred to a defence argument as to the facts which supported the "murder-suicide theory" and said (at 255 [92]) "the question for the jury was whether it was or was not a reasonable possibility". Her Honour later (at 262 [127]) made the observation that the case was circumstantial but involved "true alternatives":

24. [118]

    She identified a potential problem in the competing expert opinion evidence in the case being that it was presented in terms of probabilities; there was a danger that the jury might have rejected the defence case as improbable and then reasoned that the appellant must be guilty. Reference was made to the trial judge having given unremarkable directions about the standard of proof. Gaudron J continued:

25. [119]

    In short, her Honour endorsed a question being posed to a jury in terms of "is there a reasonable possibility". (Gaudron J was in dissent as to the outcome in this case but that has no bearing upon the above.)

26. [120]

    In dealing with a confession alleged to have been made to police, Mason CJ, Deane, Gaudron and McHugh JJ in McKinney v The Queen; Judge v The Queen [1991] HCA 6; 171 CLR 468 said (at 475-6):

27. [121]

    Finally, and similar to the cases I have referred to earlier (beginning with R v Dziduch), in Murray v The Queen [2002] HCA 26; 211 CLR 193, Gaudron J (at 201-2 [23]) referred to directions concerning the onus of the Crown to prove guilt beyond reasonable doubt in a case where the deceased died of gunshot wounds from a gun held by the appellant who had admitted pointing the gun at the deceased but denied having deliberately pulled the trigger. Her Honour said:

28. [122]

    The origin of the questions posed in the present case in relation to self-defence may well have been R v Katarzynski [2002] NSWSC 613. The statutory provisions dealing with self-defence were inserted into the Crimes Act 1900 (NSW) by the Crimes Amendment (Self-defence) Act 2001 (NSW) and took effect on 22 February 2002. Some months later, Howie J was called upon to decide how to direct a jury in a case in which self-defence was raised as an issue. His analysis of the new provisions indicated that the law had changed. He resolved that:

29. [123]

    I note that McClellan CJ at CL directed himself specifically in terms of the two questions posed in the above extract in a judge-alone trial: R v Jacobs [2009] NSWSC 235 at [9].

30. [124]

    I am unaware of any case in which anything that was said in R v Katarzynski has been called into question. It has been referred to in this Court a number of times without any adverse comment (for example in Crawford v R [2008] NSWCCA 166 at [22]; B v R [2015] NSWCCA 103 at [77]; and Oblach v R [2005] NSWCCA 440; 65 NSWLR 75 at [50]ff) although, it must be said, more as to the meaning of the statutory self-defence provisions without specific attention to the suggested jury "questions". Mr Katarzynski was found guilty of murder and appealed: R v Katarzynski [2005] NSWCCA 72. There were various grounds of appeal challenging the correctness of the trial judge's directions to the jury but no challenge to what were described as "questions to be asked by the jury" in the above extract.

31. [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.

32. [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.

33. [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.

34. [128]

    Part of the appellant's argument in relation to Ground 1 was to the effect that the question "is there a reasonable possibility" is not amenable only to answers of "Yes" or "No"; there is a middle-ground, a potential answer of "Not sure". Reference was made to the observation by Callinan J in Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at 441 [101]:

35. [129]

    This issue may be dealt with briefly. The question is directed to whether there is a possibility that something exists, not whether something in fact exists. That is not a difficult concept for a jury to understand. The word possibility is “an ordinary English word of perfectly clear meaning”: Aubrey v R [2015] NSWCCA 323 at [84]. There is either a possibility of something or there is not. If one is unsure about it, the answer cannot be "no"; it must be "yes". This is far from being the "variety of choice" that Callinan J was speaking about (between murder and acquittal on the one hand and murder, manslaughter or acquittal on the other).

Ground 2 - directions regarding the first limb of self-defence contradictory and, in part, wrong

1. [130]

   It was submitted that in directing the jury as to the first, subjective, limb of self-defence, "it was not made clear that this issue only required the jury to consider the personal belief of the accused without regard to the reasonableness of that belief". It was contended that his Honour "gave the impression that the jury was entitled or required to assess the accused's belief objectively". Reference was made to the judge telling the jury to consider the accused's belief or perception by reference to "the location and circumstances in which he found himself" and that it must be considered "in a real life setting". The jury were told that they could consider who made the threat, how serious it was and whether the response was disproportionate to the threat". The example of the boy with the peashooter indicated that an accused whose response was disproportionate would not, except in extraordinary circumstances, believe that what he did was necessary to defend himself.

2. [131]

   I do not believe that the jury could have been under any misapprehension about the subjective nature of the first limb of self-defence.

3. [132]

   In the written directions the judge included:

4. [133]

   The references to the "personal belief" of the accused conveyed that the first limb of self-defence involved a subjective element. The judge amplified these directions orally and made the point abundantly clear. He repeated the words "personally believed" (or similar) quite a number of times. He also said:

5. [134]

   A little later he said:

6. [135]

   None of the matters identified by the appellant lead me to conclude that the jury might have been led to think that there was some objective element to the first limb of self-defence. The judge was simply directing the jury to look at all of the potentially relevant circumstances in order to assess whether the accused himself, personally, believed that it was necessary to do what he did. There is nothing wrong with reference being included to the proportionality of the response. A response that is grossly disproportionate to a threat is clearly relevant to the question whether a person did in fact hold the belief that it was necessary to do what they did (which was clearly the intended point of the boy with the peashooter example). I do not see that including reference to this might have influenced the jury to do other than what the law requires in its assessment of the first limb.

Conclusion

1. [136]

   As I indicated earlier, I agree with the orders proposed by Basten JA.

2. [137]

   ADAMSON J: I have had the advantage of reading Basten JA’s reasons in draft and gratefully adopt his Honour’s summary of the trial, the evidence and the directions given by the trial judge. I agree with his Honour’s reasons with respect to the application for leave to appeal against sentence. I also agree that leave ought be granted to the applicant under rule 4 of the Criminal Appeal Rules to appeal against his conviction. I have also had the benefit of reading the reasons of R A Hulme J in draft and considering the authorities to which his Honour has referred.

3. [138]

   In summary, my views do not accord with the majority in two significant respects. First, I am not persuaded that the question whether there is a reasonable possibility necessarily admits of a “yes” or “no” answer, since it is possible not to be sure whether there is or is not a “reasonable possibility”. Secondly, I consider that to ask the question of a jury whether there is a reasonable possibility is not the same as asking whether the jury is satisfied that there is no reasonable possibility since the former tends to reverse the onus of proof whereas the latter formulation accords with the fundamental principle that the onus is on the Crown. My reasons for coming to a different view from that of the majority with respect to the first ground of appeal against conviction are as follows.

Ground 1: alleged distortion of the burden and standard of proof

1. [139]

   There are two aspects to the challenge to the question trail provided by the trial judge to the jury: the first is the use of the term “reasonable possibility” and the second is the form of the questions that commence, Is there a reasonable possibility. Although these aspects overlap in some respects I propose to address them in turn before turning to the overall effect of the summing up, including the question trail.

2. [140]

   Mr Game SC, who appeared with Ms O’Neil for the applicant, contended that the substitution of the term “reasonable possibility” for “reasonable doubt” was problematic in the present case. He contended that the word “possibility” had at least two distinct meanings: first, a hypothesis; and secondly, a chance, although these two uses may overlap. He submitted that the expression could appropriately be used in the context of a circumstantial case (using the first meaning) but that it ought not be used in a case such as the present to paraphrase the words “beyond reasonable doubt”.

3. [141]

   The expression “reasonable possibility” is used in the context of a circumstantial case where the Crown must exclude all reasonable (in the sense of not being fanciful or far-fetched) hypotheses (or possibilities) consistent with innocence. The language of reasonable, or real, possibility is also used in the context of an unreasonable verdict. For example, in The Queen v Hillier [2007] HCA 13; 228 CLR 618, the plurality (Gummow, Hayne and Crennan JJ) said at [39]:

4. [142]

   Their Honours said at [46]:

5. [143]

   The reasonable possibility that the Crown must exclude may be external (as in The Queen v Hillier where the issue was the identity of the killer) or internal. In Knight v The Queen (1992) 175 CLR 495 (where the reasonable possibility was that the second shot was fired recklessly), the High Court considered the test for determining whether a verdict was unsafe and unsatisfactory in circumstances where the appellant’s intention was the relevant issue. The plurality (Mason CJ, Dawson and Toohey JJ) said, at 504-505:

6. [144]

   Another example of the term “reasonable possibility” being used in the context of the requisite mental element of an accused charged with murder appears from the following passage in R v Youssef (1990) 50 A Crim R 1 at 2-3:

7. [145]

   What was said in R v Youssef also echoes what Barwick CJ said in Viro v The Queen (1978) 141 CLR 88 at 95:

8. [146]

   It can be seen that the term “reasonable possibility” is one that is used by appellate courts in the context of appeals against jury verdicts on the basis that they are, depending on the wording of the relevant statute, unreasonable, or unsafe and unsatisfactory.

9. [147]

   The authorities that concern the directions to be given to juries about the onus and standard of proof are redolent with warnings against the paraphrasing of the expression “beyond reasonable doubt”: see, for example, Green v The Queen (1971) 126 CLR 28 at 31-32. Although there is a strong judicial preference against directing the jury in terms other than the conventional “beyond reasonable doubt”, I do not read the authorities as prohibiting any reference in such directions to “reasonable possibility” as long as the term is used correctly and not in such a way as to reverse the onus. For example, a direction which paraphrased what Hunt J said in the passage from R v Youssef set out above would not be erroneous. After all, the purpose of a direction is to provide instruction as to the law which the jury requires in order to fulfil its functions as the tribunal of fact.

10. [148]

    Thus, a jury could properly be asked whether it was satisfied that there was no reasonable possibility that the act of the accused was done in self-defence. If the jury was not satisfied of that matter (either because they thought there was a reasonable possibility that the accused was acting in self-defence or because they were unsure), the accused would be entitled to be acquitted. It would, however, be preferable to tell the jury that it was required to be satisfied beyond reasonable doubt that the accused’s act which resulted in the death of the deceased was not done in self-defence.

11. [149]

    There are considerable differences between the approach taken by the trial judge in the present case and that of the trial judge in H v R [2016] NSWCCA 63, in which this Court quashed a conviction on the basis of her Honour’s directions to the jury; and a question trail which repeatedly asked whether there was a reasonable possibility of certain matters. Nonetheless passages from H v R are relevant to the resolution of the present appeal, because of the Court’s consideration of the words “reasonable possibility” in the context of a question trail. Neither party sought to argue that H v R was wrongly decided or was not relevant to the present appeal. Indeed, Mr Game submitted that this Court would not be entitled to find that the directions in the present case were correct unless it concluded that H v R was wrongly decided.

12. [150]

    The Court in H v R Court considered the following question posed by the trial judge in a question trail (which was marked MFI 19):

13. [151]

    The Court said:

14. [152]

    In my view, this passage from the Court’s judgment in H v R indicates that the Court accepted that the use of the term “reasonable possibility” is permissible as long as it does not distort the onus or standard of proof.

15. [153]

    The appellant also challenged the form of the questions, which included the following in Q 4:

16. [154]

    Mr Game relied on the following passage from Callinan J’s reasons in Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at [101]:

17. [155]

    In the present case, since the charge was murder, the Crown was obliged to prove that the applicant’s act that killed the deceased was not carried out in self-defence. The Crown must prove that matter beyond reasonable doubt. The orthodox direction to the jury is in those terms; the words “beyond reasonable doubt” are not explained further.

18. [156]

    An alternative formulation, which has nonetheless been approved, is that the Crown must exclude the possibility that the act that killed the deceased was carried out in self-defence. The word “reasonable” as a qualification to “possibility” has also been approved on the basis that the Crown can discharge the onus by removing all possibilities that are not far-fetched or fanciful.

19. [157]

    Question 4 as posed by the trial judge in the question trail asked the correct question in conventional terms in the prefatory words in the question. However, the next question was posited in the reverse: Is there a reasonable possibility that James Moore genuinely believed that his conduct in delivering the blow or blows which caused the death of Dennis Burns was necessary in order to defend himself or another person? When the reverse question is posited, the form of the question tends to reverse the onus since it tends to imply that it is for the appellant to establish the existence of a reasonable possibility. This implication is contrary to principle. In my view, there is an inconsistency between a direction that the Crown establish each element of the offence beyond reasonable doubt, which is plainly correct, and an invitation to the jury to determine whether there is a reasonable possibility of a matter which the Crown bears the onus of disproving (for example, that the accused was acting in self-defence).

20. [158]

    Because the question is posed in a positive way (“Is there a reasonable possibility of x?”) and does not provide for the option of a “don’t know” or “not sure” answer, the question implies both that the question admits of only two answers, yes or no; and that any uncertainty about the existence of such a possibility ought be resolved against the appellant.

21. [159]

    The affirmative (satisfaction of existence of a reasonable possibility) and the negative (lack of satisfaction that there is a reasonable possibility) do not cover the field. In my view, there is a third possibility: that the jury is unsure whether there is, or is not, a possibility. The Crown accepted in the present appeal that if this Court considered there to be a “middle ground”, the appeal ought be allowed. For the following reasons my reading of this Court’s decision in H v R is that it decided that there was such a middle ground.

22. [160]

    The Court said at [109]:

23. [161]

    I regard the Court in H v R as accepting, in [109], the existence of a middle ground between the affirmative and negative answers. This proposition can be tested in the following way by reference to the trial judge’s question 4, which is extracted above. If the jury was unsure about whether there was a reasonable possibility of the matter in 4a, the jury would reject “yes” as an answer. The jury might select “no” as the only remaining alternative. In that event, the applicant might lose the chance of being acquitted altogether (of both murder and manslaughter) on the ground that the Crown had not excluded self-defence. A similar scenario would apply if the jury answered “yes” to question 4a but was unsure about the existence of a reasonable possibility in 4b.

24. [162]

    I do not consider that this argument can be answered by postulating that, if a jury is unsure, it could always ask a further question. This suggestion ignores the practical reality that the way a question is formulated can have a real bearing on the answer and on the assumptions, if any, made by the person required to answer it, as recognised in the passage from Callinan J’s judgment in Gilbert v The Queen set out above.

25. [163]

    Whether an error in a direction to the jury ought lead to a conviction being quashed is to be determined by reference to the overall impression of the summing up in the minds of the jury: H v R at [68]. Accordingly, it is necessary to decide whether the written directions (which were accepted to be correct) and the oral directions in the summing up were sufficient to remove any misapprehension about the onus which might have been created by the question trail.

26. [164]

    When his Honour provided the question trail document to the jury in the course of the summing up his Honour said:

27. [165]

    In my view, the trial judge made it clear to the jury that they could fulfil their task as the tribunal of fact if they followed the process set out in the question trail. In these circumstances, I do not consider that any error in the question trail ought be taken as being remedied by a statement of the correct principle in the written directions or in the summing up. Whether the jury, or any of its members, detected any inconsistency; whether the jury followed the question trail or followed the written directions; or how the jury deliberated, cannot be determined. It is sufficient that it was possible that the jury accepted the trial judge’s invitation to comply with his Honour’s directions and arrive at their verdicts by following the path set out in the question trail. The assumption that the jury faithfully applies the trial judge’s directions is fundamental: Demirok v The Queen (1977) 137 CLR 20 at 22 per Barwick CJ.

28. [166]

    In my view, for the reasons given above, there was a fundamental error in the question trail. Because of the way question 4 was expressed in the question trail, I consider that the appellant did not have a trial at which directions according to law were given. Accordingly, the verdict must be quashed, it being accepted by the Crown that the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) would not apply in the present case, since it could not be said that, if error was established, there was no substantial miscarriage of justice.

29. [167]

    The authorities referred to by R A Hulme J in the present appeal do not, in my view, detract from what was said in H v R. Indeed, in my view, they support the proposition that, if the question is to be asked in terms of “reasonable possibility”, care ought be taken in the formulation of the question. Thus, in R v Dziduch the question set out in the passage extracted in R A Hulme J’s reasons above from [381] was, correctly, posed in terms of whether the Crown had “eliminated any reasonable possibility”. Similarly, in R v Abusafiah at [542], this Court gave its imprimatur to the direction that the Crown must “establish that there is no reasonable possibility” (that the objective limb was made out).

30. [168]

    The cases referred to by R A Hulme J largely deal with the standard of proof and only peripherally with the burden, or onus, of proof. A reference to “reasonable possibility” in the context of standard of proof does not deal with the onus question, which is, relevantly: has the Crown eliminated any reasonable possibility?

31. [169]

    The danger of asking the question in a positive way was adverted to by Howie J in R v Ayoub in the passage taken from [6] set out above by R A Hulme J: namely, that it might suggest that the onus falls on the accused. The directions considered by this Court in R v Ward, which are set out in R A Hulme J’s reasons above, were put in the negative and therefore do not provide support for the asking of the question whether there is a reasonable possibility in a positive way.

32. [170]

    In Velevski v The Queen Gaudron J said, at [129] (in the passage quoted by R A Hulme J set out above), that it would have been preferable for the jury to be instructed that, if there was a reasonable possibility that the mother killed her children and then committed suicide, they should acquit and, conversely, they could only convict if that was not a reasonable possibility. I do not regard her Honour as addressing, much less answering, the question of whether there was a middle ground between the existence and non-existence of a reasonable possibility. Rather, I consider her Honour was saying no more than that if the jury considered there to be a reasonable possibility that a person other than the accused killed the children they should acquit but that if they were satisfied that there was no reasonable possibility, they must convict.

33. [171]

    Moreover, the authorities to which R A Hulme J has referred concerned directions which were given by trial judges as part of a narrative rather than the form of a question trail. Where directions are given in the course of a narrative, it is a matter of judgment whether, even if the question “Is there a reasonable possibility?” is put in a positive way, there is any overall distortion of the onus of proof. The reason for this is that, if the trial judge asks such a question in the midst of a narrative which emphasises that the onus is on the Crown to prove the negative beyond reasonable doubt, any concern that the jury has been misled is likely to be ameliorated by the context. By contrast, where a question trail is offered to a jury as a means of complying with the trial judge’s directions, and the question trail poses the question in a positive way, the distortion of the onus of proof that the formulation tends to create remains, for the reasons given above, unremedied.

34. [172]

    By reason of my view on the first ground, it is not necessary to consider the second ground of appeal against conviction.

35. [173]

    For the reasons set out above, I propose the following orders:

    1. (1)

       Grant leave to appeal against conviction.

    2. (2)

       Allow the appeal against conviction.

    3. (3)

       Quash the conviction.

    4. (4)

       Order that the appellant be retried according to law.

36. [174]

    My view on the conviction appeal is a minority one. In these circumstances, I record my concurrence with the orders proposed by Basten JA with respect to the application for leave to appeal against sentence.