Self Defence

Howie J

1. The accused has been indicted for murder and is currently standing trial before a jury. The deceased was shot by the accused following a number of altercations between them in a hotel in Liverpool in the early hours of the morning of 6 April 2001. There is ample evidence before the jury that the accused was intoxicated as a result of his voluntary consumption of alcohol at the time of the shooting. There is no issue that the accused committed the act which caused the death of the deceased although, it will be a matter for the jury to determine whether the act causing death was voluntary and whether the accused at the time of firing the gun had the necessary mental state for the offence of murder.

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4. The evidence in this trial would appear to give rise to a consideration by the jury of whether the accused was acting in self-defence under s 418(2); that is whether there is a reasonable possibility that he believed his conduct in firing the hand gun three times toward the deceased was necessary to defend himself and, whether such conduct was “a reasonable response in the circumstances as he [ ] perceived them”. Depending upon what decision the jury comes to on that issue, it may be open for it to find the accused guilty of manslaughter under the excessive force provision in s 421.

5. At the close of the Crown case I raised with counsel the interpretation of s 418(2) and in particular whether the accused’s intoxication was a relevant matter to a determination of the reasonableness of his response to what he perceived to be the threat to him presented by the deceased at the time that he fired the hand gun, a bullet from which passed through the deceased’s heart. To understand the point it is necessary to refer briefly to the most recent history of the law of self-defence in this State.

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22. The question now posed for the jury, where there is evidence raising self-defence, is not the same as it was at common law after Zecevic v DPP and as it was considered in Conlon. The questions to be asked by the jury under s 418 are: (i) is there is a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself; and, (2) if there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them.

23. The first issue is determined from a completely subjective point of view considering all the personal characteristics of the accused at the time he or she carried out the conduct. The second issue is determined by an entirely objective assessment of the proportionality of the accused’s response to the situation the accused subjectively believed he or she faced. The Crown will negative self-defence if it proves beyond reasonable doubt either (i) that the accused did not genuinely believe that it was necessary to act as he or she did in his or her own defence or (ii) that what the accused did was not a reasonable response to the danger, as he or she perceived it to be.

24. The issue as to the reasonableness of the accused’s response is objective in so far as the jury is not concerned with what the accused believed was necessary to respond to the circumstances as he or she perceived them to be. The current provision is not concerned with whether the accused’s belief as to what was the necessary response was a reasonable one or whether he or she had reasonable grounds for that belief. This is where the current provisions are in contrast to the position at common law: the accused need not have reasonable grounds for his or her belief that it was necessary to act in the way he or she did in order to defend himself or herself. It is sufficient if the accused genuinely holds that belief.

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26. But in my opinion one matter that must be irrelevant to an assessment of the reasonableness of the accused’s response is his or her state of sobriety. As was pointed out in McCullough, it is logically incongruous “to contemplate the proposition that a person's exercise of judgment might be unreasonable if he was sober, but reasonable because he was drunk”. Apart from Conlon, I am not aware of any other decision that has held that intoxication is a matter relevant to an evaluation of the reasonableness of the conduct or belief of a person. It is not relevant at common law to an evaluation of the accused’s response to provocation or the belief of a reasonable person as to the dangerousness of the accused’s actions for the offence of manslaughter.

Handley JA

1. I agree with Hodgson JA.

Hodgson JA

2. On 28 July 2004, each of the appellants was convicted by Mr. C. Longley, Magistrate, upon a charge of affray under s.93C of the Crimes Act 1900; and each of them was fined $1,500.00.

3. The appellants appealed to the Supreme Court pursuant to s.52(1) of the Crimes (Local Courts Appeal & Review) Act 2001, which provides for appeals as of right on grounds involving questions of law. On 25 August 2005, Johnson J dismissed their appeal.

4. The appellants then applied for leave to appeal to the Court of Appeal, and their application was heard on the basis that, if leave was granted, the appeal would be determined without further argument. At the conclusion of oral argument, the Court granted leave to appeal.

CIRCUMSTANCES

5. In the early hours of Monday 18 November 2002, the three appellants, who are brothers, together with a Mr. Bensley and three women, attended the Lagoon Bar at the Star City Casino. The charges on which the appellants were convicted arose out of an incident on that occasion involving security officers of the casino, in particular Messrs. Wood, Webb, Bannister, Bracamonte, Heaney and Ogston. The prosecution case was based on oral evidence from a number of witnesses, including the security officers, and a compilation video of the incident. The appellants did not give evidence.

6. The prosecution evidence was to the following effect. Mr. Webb assessed one of the appellants as being intoxicated, and directed him to leave the premises. The two other appellants objected to this, and they screamed at him and racially abused him. Mr. Webb then directed them all to leave, and two of the appellants then further abused him and invited him outside to fight. As the appellants were moving towards the door, one of them said to Mr. Bracamonte “ well move me”, and Mr. Bracamonte pushed him towards the door. Mr. Bracamonte was then pushed hard from behind by another of the appellants, punches were then thrown at him, he was tackled from behind into some tables and chairs, put in a headlock and bitten in the back of the head, and punched and kicked to the head. He was left with bruising of the face, a fractured jaw leading to the removal of two wisdom teeth, scarring on the inside and outside of his mouth, a bite injury to the back of his head and a laceration over his left eye. There was a general fracas involving the three appellants and security officers that lasted about one and a half minutes. Mr. Ogston observed Mr. Bracamonte and one of the appellants hitting a table and land on a stage, with the man landing on top of Mr. Bracamonte. Mr. Ogston tried to pull the person off, but as he did so, he was himself grabbed from behind around his throat. He was not able to breathe and started to lose consciousness. He received scratches around his neck and a black eye. There was also evidence of injuries to Mr. Bannister and Mr. Heaney.

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9 The appeal to the Supreme Court raised a number of grounds, including the ground that the Magistrate erred in law when imposing an onus on the appellants in his consideration of the issue of self-defence…

GROUNDS OF APPEAL

10 The appellants appeal to this Court on the following grounds:

1. His Honour erred in law in finding and holding that the evidence did not raise self-defence on the part of the Appellants within the meaning of ss.418-419 Crimes Act 1900 (NSW).

2. His Honour erred in law in finding and holding that the Appellants were unable to raise self-defence in the circumstances of the case.

At [19]

In my opinion, the following principles are applicable in this case.

(1)         By reason of the onus of proof provided by s.419, all that is needed to raise self-defence is evidence capable of supporting a reasonable doubt in the mind of the tribunal of fact as to whether the prosecution has excluded self-defence. Thus, in relation to s.418(1)(a), there needs to be evidence capable of indicating a reasonable possibility of a belief by the accused that the conduct constituting the offence was necessary to defend himself or herself or others, and of a perception of circumstances such that the accused’s response was reasonable. However, the evidence must be capable of doing this as a matter of legitimate reasoning and not mere speculation: to that extent, I agree with R v. Imadonmwonyi [2004] VSC 361 at [21] and R v. Mekic [2004] SASC 44 at [5].

(2)         It is not essential that there be evidence from the accused as to the accused’s beliefs and perceptions: evidence of circumstances from which inferences may be drawn as to the accused’s relevant beliefs and perceptions may be sufficient. However, if the accused does not give evidence of his or her beliefs and perceptions, then generally, in the absence of other evidence suggesting the contrary, inferences have to be drawn on the basis of what beliefs and perceptions a person in the position of the accused could reasonably hold in the circumstances.

(3) The defence may succeed even though the conduct to which the accused responds is lawful (s.422); but if this conduct is lawful, then this is relevant to whether the accused could have believed it was conduct in respect of which defence was necessary, or which threatened an unlawful deprivation of liberty; and relevant also to whether the accused’s conduct could have been a reasonable response in the circumstances as the accused perceived them.

(4) A finding that an accused “wanted to fight” does not of itself exclude self-defence; but is relevant to whether the accused could have believed his or her conduct to be necessary for defence or to prevent unlawful deprivation of liberty. Furthermore, if a person believes that any risk of harm can be dealt with by withdrawing, then generally that belief would be inconsistent with a belief that conduct of the nature of an assault was necessary for defence. The following discussion by Wilson, Dawson and Toohey JJ in Zecevic at 663-4 is relevant:

Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it. Indeed, even in circumstances in which the accused was not the original aggressor, retreat in the face of a threat of violence before resort to force may be relevant to the belief of the accused or the reasonableness of the grounds upon which the accused based his belief. There is, however, no longer any rule that the accused must have retreated as far as possible before attempting to defend himself. It is a circumstance to be considered with all the others in determining whether the accused believed upon reasonable grounds that what he did was necessary in self-defence: Reg. v. Howe, per Dixon C.J. (1958) 100 CLR at 462-4; Viro v The Queen, per Gibbs J. (1978) 141 CLR at 115-6.

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The whole of the surrounding circumstances are to be taken into account and where an accused person has created the situation in which force might lawfully be applied to apprehend him or cause him to desist - where, e.g., he is engaged in criminal behaviour of a violent kind - then the only reasonable view of his resistance to that force will be that he is acting, not in self-defence, but as an aggressor in pursuit of his original design. A person may not create a continuing situation of emergency and provoke a lawful attack upon himself and yet claim upon reasonable grounds the right to defend himself against that attack.

This discussion was directed to self-defence at common law, not under s.418; but similar reasoning applies in relation to s.418.

(5) However, in this case, because of the identification problems, if self-defence is raised in relation to any one of the appellants, it is raised in relation to all of them; and if self-defence is not excluded beyond reasonable doubt in relation to any one of the appellants, it is not excluded in relation to all of them.

Ipp JA

27. I agree with Hodgson JA.

McClellan CJ at CL

1. I agree with Simpson J

Simpson J

2. On 20 January 2004 the appellant was arraigned on an indictment that charged him with a single count of malicious wounding with intent to do grievous bodily harm, and an alternative charge of malicious wounding. Following a jury trial, he was convicted on the principal count. He was sentenced to imprisonment with a non-parole period of four and a half years with a balance of term of eighteen months, making a total term of six years. He now appeals against the conviction, but makes no complaint about the sentence.

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8. He said he thought he was going to die then, he was in danger, he was frightened, and he thought he was going to be killed. He therefore showed Mr Younan the gun. He did this for his own protection.

9. The appellant admitted that he then pointed the gun at Mr Younan, in the area of the stomach, told him to stay away from the Elias house, and then lowered the gun. He acknowledged that he then twice discharged the gun, for the purpose (he said) only of frightening Mr Younan. He claimed that the gun was never in such a position that the bullets could have struck any part of Mr Younan’s body. He said that he then immediately left the area in his car, and that as he reversed the car, he could see Mr Younan in a standing position.

10. Notwithstanding this evidence of the appellant, the trial was conducted on the basis that the only issue for the jury was whether the Crown had negatived self-defence. It was tacitly accepted that the bullets fired by the appellant had in fact struck Mr Younan. Mr Younan suffered an injury to the left thigh, which was treated, but which was likely to result in long-term functional deficit.

11. It is the issue of self-defence, and the trial judge’s rejection of evidence said to be relevant to this issue, that gives rise to the two grounds of appeal pleaded.

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22. The questions for determination raised by s418 were stated by Howie J in R v Katarzynski [2002] NSWSC 613 as follows:

“(i) is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself? and

(ii) if there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them?”

23. Each of the questions raised involves an assessment of the state of mind of the person accused. In the first case, the question goes directly to the belief of that person; in the second it goes to the reasonableness of the conduct in the light of the circumstances as that person perceived them to be. The s418 issues do not involve a determination of the reasonableness of any belief held by the person accused; the first question is entirely subjective. The second question does pose a test which is, in one respect, an objective test – the reasonableness of the accused’s response – but that is to be determined by reference to his or her perception of the relevant circumstances.

24. As I have mentioned, the only facts truly in issue in the trial were those raised by the application of s418. Those facts were:

• the appellant’s belief (or otherwise) that, in order to defend himself, it was necessary that he produce and fire the gun;

• the reasonableness of his conduct (in producing and firing the gun) in the light of the circumstances as he perceived them.

25. The fact (if it could be established) that Mr Younan had, in the past, carried, used, threatened to use, or had possession of a firearm or firearms could not rationally affect the probability of the existence of either of these facts, unless it were proposed also to prove that the appellant was aware of that fact or those facts. That was not proposed.

Rothman J

33. I have had the advantage of reading in draft the reasons for judgment of her Honour Simpson J. I agree with the reasons of her Honour and the orders that she proposes.

McClellan CJ at CL

1. The appellant was convicted following a trial by jury of the murder of his wife Nevine Youseff. He was sentenced to a non-parole period of 20 years with a balance of term of 6 years and 8 months. He appeals his conviction and seeks leave to appeal the sentence which was imposed.

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28. His Honour was sceptical whether any issue of self-defence could legitimately be raised. His Honour also expressed his doubts that a reasonable reaction to having your finger bitten was to hit the biter on the head five times with a full bottle of Bourbon.

“The question I am raising is whether beating on the head five times with a full bottle of Coke is capable of being a response to having the finger bitten.

KLARICA: Yes, and the response. There can be an inference drawn --

HIS HONOUR: But, do you wish to respond to what the Crown says that is the approach I should take, telling the jury simply that what was required was a proof by the Crown that however she died, it was not accidental, and that it was necessarily accompanied by an intent of a specific kind on the part of your client?

KLARICA: I am not comfortable with that your Honour. Sorry, could your Honour ...

HIS HONOUR: Yes. First of all, whatever the act or acts of the accused which caused the death of the deceased, assuming they come to a conclusion as to what caused the death, that it was a deliberate act, in a sense that it was not accidental and, secondly, that whatever those acts or act, were they had to be accompanied at the time with an intention, harboured by your client, either to kill or to cause grievous bodily harm.

KLARCIA: If it was a deliberate act.

HIS HONOUR: Yes if they come to the view that it was an accident, they do not even get to the next question.

KLARICA: Yes, I am comfortable with that.”

29. The discussion concluded with the Crown Prosecutor submitting that self-defence was not available in this case because “the act causing death is not something (which) was done in self-defence, on any construction.” This was of course a reference again to the Crown case in which it was contended that death was caused by asphyxiation. If the jury found this to be the case, or found it to be a substantial cause of death, the suggestion of self-defence as an explanation for hitting the deceased was irrelevant. And, although it was not mentioned until this appeal, so also was any suggestion of provocation.

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41. The appellant submitted to this Court that the trial judge had erred by failing to adequately or fairly put the defence case to the jury, giving rise to a miscarriage of justice. The following issues were formally raised:

(a) His Honour did not take the jury to the content of any of the evidence of the appellant and thereby failed to identify for the jury those aspects of the appellant’s evidence which supported the defence case;

(b) His Honour misunderstood the evidence of Professor Hilton and misstated it to the jury in summarising the defence case;

(c) His Honour failed to leave or explain the relevance of self-defence;

(d) His Honour failed to properly direct the jury in relation to accident;

(e) His Honour failed to identify the particular act or acts which, on the defence case, might have caused the death of the deceased and explain the appellant’s defence in respect of those acts, namely self-defence and accident.

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49. Counsel sought to deflect the jury from a finding that the appellant intended to kill Ms Youseff by reminding the jury that the altercation was the product of a dysfunctional domestic relationship, a tragic set of circumstances where Ms Youseff was accidentally injured. It was in this context that counsel raised the issue of self-defence. Rather than suggesting that the killing of Ms Youseff was justified because of the threat which the appellant perceived, which on any view the evidence could not sustain, it was suggested that he responded to the biting of his finger and it was in order to free his finger that he attacked Ms Youseff. During the course of this struggle, and by accident, Ms Youseff died. The relevant passage from counsel’s address is included above at [21] and [22].

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The “Pemble” submission

60. It is apparent from the authorities that there may be a tension between the adversarial nature of a criminal trial, which accepts that it is for the parties identify for themselves the issues to be tried and seek to advance the evidence relevant to those issues, and the obligation of the trial judge to ensure that the trial is fair. Counsel may, for perfectly acceptable forensic reasons, elect not to argue that the jury should make a particular finding or reason to a particular conclusion. However, the trial judge may nevertheless be required to raise that matter for the jury’s consideration.

61. The issue of provocation will sometimes present this dilemma as will self-defence. In a murder trial both issues depend upon a finding that an accused person committed the relevant act which may be denied by the accused. However, if the evidence could support such a finding and there is evidence the accused may have acted in self-defence or in response to provocation those issues must be dealt with in the judge’s directions, irrespective of the position taken by defence counsel. The problem can arise when counsel are incompetent (see Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301). However, it may also arise when counsel has made a deliberate forensic decision to eschew a particular course.

62 In Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 McHugh and Hayne JJ said:

“It is true that criminal proceedings are not wholly adversarial in nature. One important exception to the adversarial nature of criminal proceedings is that a trial judge has a duty to direct the jury on any matter that could result in the acquittal of the accused even though the accused deliberately refuses to argue the point” (p 124).

63. The issue was considered in Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107. In that case Barwick CJ said, after referring to Mancini v DPP [1942] AC 1 and Kwaku Mensah v The King [1946] AC 83, that where the obligation on the trial judge to direct on provocation was identified even though it had not been raised by the defence, there was a duty on the trial judge to put to the jury “any matters on which the jury, upon the evidence, could find for the accused.” (p 118; see also Windeyer J at 139, Owen J at 141)

It may be necessary to leave provocation with the jury even though it has not been raised by the defence and even though the accused has not given evidence of actual loss of self control: Parker v The Queen [1964] UKPCHCA 1; (1964) 111 CLR 665 at 681-682. When deciding whether to leave the issue to the jury the court should adopt a view of the facts most favourable to the accused Holmes v DPP (1946) AC 588 at 597.

65. However, Pemble does not oblige a trial judge to give a direction in relation to any issue unless it is raised by the evidence. The duty of the trial judge is to ensure that the jury have sufficient understanding of the issues which arise on the evidence to determine the case according to law (see Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 (at 561); R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371 at [30]. Furthermore, a trial judge is not bound to direct the jury in relation to an hypothesis unless it is reasonable having regard to the evidence: R v Park [2003] NSWCCA 203, referred to in R v Gulliford [2004] NSWCCA 338; (2004) 148 A Crim R 558 at [136] (see also the discussion in R v B, MA [2007] SASC 384; (2007) 99 SASR 384; Fingleton v R; Douglass v R [2005] NSWCCA 419.

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68. For the reasons I discuss below in my opinion there was no obligation in the circumstances of the present case for the trial judge to have left either self-defence or provocation with the jury.

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90. As mentioned above, [[72]] the issue of self-defence was discussed at the trial but ultimately not pursued. This was for good reason. As I have already indicated it required the appellant to accept a finding that he intended to cause the deceased’s death but in so doing was acting to defend himself. The threat to the deceased was the biting of his finger. There was simply no basis to suggest, and it was not suggested, that he reasonably believed that it was necessary in order to defend himself to inflict serious injuries on the deceased, ultimately asphyxiating her.

Leeming JA, Hall and Bellew J

1. In October and early November 2013, Mr Michael Hadchiti was tried before the primary judge and a jury of 12 and convicted of murdering Mr Billy Mack on 30 October 2011. Following a sentencing hearing on 21 February 2014, he was sentenced to a term of imprisonment of 29 years, with a non-parole period of 21 years, 9 months commencing on 14 October 2013: R v Hadchiti (No 3) [2014] NSWSC 257.

2. Mr Hadchiti seeks leave to appeal from both his conviction and the sentence imposed by the Court. For the reasons which follow, we have concluded that his appeal against conviction must be allowed, and that there must be a retrial.

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15. It was common ground at trial that the appellant had inflicted the wound to the deceased’s neck from which he died. The issues were his intention at the time, self-defence and provocation. The defence case was that the deceased had attacked Sonia with a knife, that the appellant had gone to her aid, struggled with the deceased and killed him while struggling for control of the knife.

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Ground 1 – the directions to the jury

26. The first ground of appeal in the conviction appeal was that “[t]he directions to the jury reversed the onus and standard of proof”. Some parts of the appellant’s written and oral submissions extended beyond that ground. This occurred without any objection from the Crown, who responsibly took the view that it was appropriate to address the totality of the complaints about the directions to the jury on their merits.

The written direction

27. The written direction occupied seven pages. It is reproduced in its entirety as an annexure to this judgment. The first page, accurately and, it might be said, conventionally, directed the jury that they would find that the crime of murder had been committed by the accused if they concluded that the Crown had established beyond reasonable doubt each of the following four elements:

“(i) that the accused deliberately stabbed Billy Mack in the neck, causing his death; and

(ii) that the stabbing was done with an intention to kill Billy Mack or to inflict grievous bodily harm upon him (grievous bodily harm means really serious physical injury); and

(iii) that the stabbing was not carried out in self-defence; and

(iv) that the accused was not acting under provocation.”

28. The first page then identified the elements of manslaughter in a similar fashion.

29. Allowing for the inclusion of the defence of provocation which was left to the jury, the first page of the document substantially corresponds with the model written direction appended to this Court’s decision in R v Jones (1995) 38 NSWLR 652 at 663 which Hunt CJ at CL considered would greatly assist the jury to follow the summing up.

30. The following six pages identified five issues and asked eight questions over 42 numbered paragraphs. They amount to what has been described as a “question trail”. It was these pages to which the submissions on appeal were principally directed.

31. As originally formulated on page 1, the issues were framed in terms of whether the Crown had established a matter beyond reasonable doubt. However, the questions relating to the elements of murder posed on the following pages did not – save for two exceptions – refer to beyond reasonable doubt at all. This was the principal objection to the directions advanced by Mr Game SC, who appeared for the appellant, although not at trial.

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98. In assessing the significance of the written directions in MFI 19, it is necessary to consider the legal onus upon the Crown in the particular framework and evidence in this case. By way of example, in R v Youssef (1990) 50 A Crim R 1, the appellant was convicted of manslaughter after a motor vehicle that he was driving struck and killed a pedestrian. His defence was that as part of the collision he suffered an epileptic seizure causing automatism. The ground of appeal was that the judge was wrong in excluding sane automatism as being available to the appellant.

99. Hunt J observed that the Crown must remove any reasonable possibility that the act of the accused was accidental or that it was involuntary as a result of a state of automatism or as a result of duress.

100. His Honour observed that the Crown must bring evidence to meet every such “defence” which could possibly arise in relation to the offence charged. In every case, however, his Honour observed that the accused bears an evidentiary onus to point to or produce evidence (or material in an unsworn statement) from which it could be inferred that there is at least a reasonable possibility that, for example, the act of the accused was accidental, or that it was provoked or done in self-defence (at 3).

101. His Honour continued:

“The authorities make it clear that such a reasonable possibility must be shown by admissible evidence. ... [M]ost Australian authority, are ... more in accordance with principle and logic, when they say that there must be evidence from which it could be inferred that there is the reasonable possibility that the act of the accused was of such a nature” (at 3, emphasis in original).

102. His Honour referred to The Queen v Howe [1958] HCA 38; (1958) 100 CLR 448 at 459 in which Dixon CJ said that the legal onus was placed upon the Crown to remove any reasonable doubt in relation to any issue “once a ground is disclosed by the evidence upon which a plea of self-defence may arise”.

103. Returning to the facts underlying this appeal, the appellant’s account to police was that in the initial stage of events he was attacked by the deceased which then led to a violent struggle between the two men.

104. The Crown had the legal onus to prove the elements of the offence of murder beyond reasonable doubt. The appellant had an evidentiary onus to point to or produce evidence from which there is at least a reasonable possibility that the act of stabbing by him was carried out by him in self-defence: R v Youssef (1990) 50 A Crim R 1 at 3. This he initially did by making a statement to police and later giving evidence at the trial. In these circumstances the onus fell upon the Crown to remove any reasonable doubt in relation to the “reasonable possibility” raised by the defence, ie, the ground of self-defence disclosed by the evidence: Howe at 459.

105. The accused in this case discharged the evidentiary onus as to a reasonable possibility of self-defence (and an attack by the deceased). In those circumstances the question at trial became whether the jury believed and accepted his account.

106. But the central point is 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. It was important that the directions in MFI 19 made that clear.

Basten JA

1. 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. 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.

Appeal against conviction

(a) background circumstances

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.

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(b) directions to jury

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).

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

“B. Self defence

In order to prove the accused guilty of murder, the Crown must in addition to the matters (i) to (iv) in paragraph A, also prove that the accused was not acting in self-defence:

(i) The accused acted in self-defence if:

(a) he personally believed that his conduct (ie his delivery of the blow or blows which caused the death of Dennis Burns) was necessary to defend himself or another person; and

(b) that his conduct was a reasonable response in the circumstances as he saw them at the time.

(ii) If the Crown has proved, beyond reasonable doubt, that the accused did not personally believe that his conduct was necessary in order to defend himself, then the Crown has proved that the accused was not acting in self-defence. In those circumstances, you would not need to consider the issue of self-defence any further.

(iii) If, on the other hand, you are not satisfied that the Crown has proved beyond reasonable doubt that the accused did not personally believe that his conduct was necessary in order to defend himself, then you must find the accused not guilty of murder because the Crown would not in those circumstances eliminated self-defence from the case.”

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(c) grounds of appeal

22. The grounds of appeal against conviction were as follows:

“1. His Honour’s directions to the jury, including the question trail, distorted the burden and standard of proof.

2. His Honour’s directions to the jury regarding the first limb of self-defence were contradictory and, in part, wrong.”

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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):

“4. Has the Crown satisfied you, beyond reasonable doubt, that James Moore was not acting in self-defence when he delivered the blow or blows which caused the death of Dennis Burns?

There are two separate parts to be considered in order to answer this question:

1. 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?

• If the answer is yes, then proceed to consider question 4b.

• If the answer is no, then proceed to consider question 5.

1. Is there a reasonable possibility that the conduct of James Moore in delivering the blow or blows which caused the death of Dennis Burns was a reasonable response to the circumstances as he, James Moore, perceived them to be?

• If the answer is yes, you must return to Court with the verdict of Not Guilty.

• If the answer is no, then you must return to Court with a verdict of Not Guilty of Murder, but Guilty of Manslaughter.”

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 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:

“Although it is common enough to speak of the ‘defence’ of self-defence, since Woolmington v Director of Public Prosecutions, where the proven facts give rise to the reasonable possibility that the fatal act was done in self-defence and the accused raises the question ..., the onus rests upon the Crown to negative that possibility, i.e. to remove any reasonable doubt that the fatal act was not done in self-defence.”

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.

RA Hulme J

93. 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.

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.

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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.

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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.

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125. From all of this it is clear, in my view, that it is not erroneous when directing a jury about the Crown's obligation to prove the guilt of an accused beyond reasonable doubt to direct that if there is a reasonable possibility of some exculpatory factor existing then the jury should find in favour of the accused; the Crown will have failed to eliminate (negative) the existence of that reasonable possibility which it must do in order to prove the matter beyond reasonable doubt. The converse is also true; that if the asserted reasonable possibility has been eliminated (negatived), then the Crown has proved the matter beyond reasonable doubt. I am satisfied that, when seen in the context of the entirety of the oral and written directions, the jury in the present case would have well-understood that this was so.

126. In any event, once it is accepted, as the appellant does, that it is unobjectionable to direct a jury that the Crown must eliminate any reasonable possibility of whatever exculpatory matter is in issue, that by logical necessity requires a jury to ask itself, "is there a reasonable possibility?" To be specific, if a judge directed a jury that it was necessary for the Crown to eliminate any reasonable possibility that the accused believed that it was necessary to do what he did in order to defend himself, it would only be natural for the jury to ask itself whether such a possibility existed.

127. Posing the questions in 4a and 4b in relation to self-defence, and 5a and 5b in relation to provocation, did not distort the onus and standard of proof when they are seen in the context of the entirety of the summing up. I accept that the "possible question trail" document might well have been used by the jury to guide their deliberations, but I cannot conceive that they would have put aside or forgotten the repeated ("relentless" as Basten JA has described them) references to the Crown bearing the onus of proof beyond reasonable doubt. Moreover, both questions 4 and 5 were prefaced with yet another reminder.

Question not amenable to only a "yes" or "no" answer

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]:

"It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered, particularly when, as here, a particular choice was not the only or inevitable choice.

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).

Adamson J

137. 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.

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.

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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] HCA 55; (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.

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.

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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.

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.

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).

Whether there is a third alternative, or whether the question must be answered “yes” or “no”

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.

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.

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Conclusion and proposed orders

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

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

(1) Grant leave to appeal against conviction.

(2) Allow the appeal against conviction.

(3) Quash the conviction.

(4) Order that the appellant be retried according to law.

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.