Buck v Tasmania

[2022] TASCCA 6

[2022] TASCCA 6

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	Buck v Tasmania [2022] TASCCA 6
PARTIES:	BUCK, Luke David
v
STATE OF TASMANIA
FILE NO:	CCA 2350/2020
DELIVERED ON:	28 April 2022
DELIVERED AT:	Hobart
HEARING DATE:	28 April 2022
JUDGMENT OF:	Estcourt J, Pearce J, Geason J
CATCHWORDS:

Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances not amounting to miscarriage – Misdirection or non-direction –Evidence of witnesses to an assault at odds with the accused's own evidence – A form of Liberato direction given – Further direction given in terms requested by defence counsel – Argued on appeal that the direction was incomplete and inadequate – Overwhelming evidence against the accused as to the single primary fact in issue – No material irregularity in the trial nor significant possibility that the asserted error may have affected the outcome of the trial – Direction to be considered within context of entire summing up – Liberato direction not required as a matter of law – Direction did not result in miscarriage of justice – Relevance of the "proviso" – Appeal dismissed by majority.

Liberato v The Queen (1985) 159 CLR 507; De Silva v The Queen [2019] HCA 48, 268 CLR 57; CAJ v Forsyth [2018] TASSC 17; Douglas v The Queen [2012] HCA 34, 290 ALR 699; Hofer v The Queen [2021] HCA 36, 95 ALJR 937; Tomlinson v The Queen [2022] NSWCCA 16 ; Handlen v The Queen [2011] HCA 51, 245 CLR 282;Weiss v The Queen [2005] 224 CLR 300; Cooper v The Queen [2012] 87 ALJR 32;Orreal v The Queen [2021] HCA 44, 395 ALR 630, referred to.

Aust Dig Criminal Law [3470]

REPRESENTATION:

Counsel:

Appellant:	F Cangelosi
Respondent:	D Coates SC

Solicitors:

Appellant:	Logan & Partners
Respondent:	Director of Public Prosecutions

Judgment Number:	[2022] TASCCA 6
Number of paragraphs:	63

Serial No 6/2022

File No CCA 2350/2020

LUKE DAVID BUCK v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL ESTCOURT J PEARCE J GEASON J (Dissenting in part) 28 April 2022
Orders of the Court:
Appeal dismissed.

Serial No 6/2022

File No CCA 2350/2020

LUKE DAVID BUCK v STATE OF TASMANIA

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL ESTCOURT J 28 April 2022
The appeal

1             The appellant Luke David Buck, was convicted on 22 November 2019, following a trial on a charge of aggravated assault contrary to s 183 of the Criminal Code 1924 and s 115 the Firearms Act 1996.

2             Following amendments to the notice of appeal made at the commencement and conclusion of the hearing of the appeal the appellant appealed against his conviction on a miscarriage of justice basis on the following grounds:

"1 The trial of the appellant miscarried in that the learned trial judge erred in law in failing to direct the jury in accordance with Liberato v The Queen (1985) 159 CLR 507, in that the jury was not told that:

(a) there was a clear conflict between the evidence of witnesses called by the State and the evidence of the Appellant;

(b) it was not necessary for the jury to accept the Appellant's evidence in order to

find him not guilty;

(c) the jury's duty was to acquit the Appellant if it considered that his evidence gave rise to a reasonable doubt;

(d) it was the jury's duty to acquit the Appellant even if it preferred the evidence of the witnesses called by the State to the evidence of the Appellant;

(e) even if the jury did not think that the Appellant was telling the truth but was unsure of where the truth lay, its duty was to acquit the Appellant;

(f) even if the jury was convinced that the Appellant's evidence was not true, it was not the case that they must return verdicts of 'guilty', and in such circumstances the jury was simply to put the Appellant's evidence to one side and consider whether the State had proven guilty beyond reasonable doubt on any of the evidence that it did accept."

3            Ground 1(d) is incomplete and as it stands is not a correct statement of principle. Ground 1(e) is a restatement of ground 1(c). Grounds 1(a) and (f) were not pursued at the hearing of the appeal.

4            At the conclusion of that hearing the Court made an order dismissing the appeal. These are my reasons for joining in the making of that order.

The evidence

5            The evidence on the trial is abstracted, fully and accurately in my view, in the written submissions of counsel for the appellant, Mr Cangelosi, as follows:

"5	The evidence at trial on the State's case was:
(a)	the complainant was residing at Bligh Street, Warrane, with his mother.

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(b) on the afternoon of 20 February 2019 Dean Smith had attended the complainant's address to fix a motorcycle.

(c) the complainant and Dean Smith had been outside on Bligh Street, with the motorcycle, at approximately 4 pm.

(d)	a car had 'come up behind' the complainant 'on the other side of the street'.
(e)	the car was red or maroon.

(f) the complainant recognised the driver of the car was the Appellant, whereas Mr Smith was not 'paying any attention'.

(g)	the complainant tried to 'calm down' the Appellant.
(h)	Christopher Curry observed the driver of a faded maroon vehicle 'talking to a

guy across the road'.

(i) according to the complainant both he and Mr Smith attempted to calm down the Appellant: 28.1-4; whereas Mr Smith said that he and not 'gone near the car'.

(j) the complainant first saw a gun on the Appellant's lap, which the Appellant then 'pulled out' and said 'you want me to shoot you'.

(k) Mr Curry saw a 'sawn off shotgun poked up over the driver's side window'.

(l) Jennifer Plunkett, present in Mr Curry's vehicle, saw 'the person in the car lean over towards the passenger side and then I saw a gun come out of the window'.

(m) the complainant 'backed off' and 'walked off' having been threatened.

(n) the complainant believed that the firearm was a 'just a sawn off 22 with… black handle, black metal, whatever it was, and a pine handle or whatever it was.'

(o) Mr Curry described it as 'wasn't a small bore', 'it was a big black hole sort of

thing', 'it must have been a sawn off one because he couldn't have held a full barrel
shotgun', 'it was dark black with a big black hole'.

(p) Mrs Plunkett described it as 'like some sort of shotgun because it had a long barrel', 'it was a dark colour'.

(q) the Appellant had been 'just pointing it at us, both of us, asking what our names were, when he knows full well who we are'.

(r)	the complainant was 10 metres away when the firearm was first pointed at him.
(s)	the firearm was pointed at the complainant for approximately 1 minute.

(t) Mr Smith had resumed working on his bike when the complainant had 'took

off around the front of the bike', had 'got up', and heard the complainant say, 'he's got a
gun, pulled a gun on me the fucking dog'.

(u) when the complainant walked off the Appellant drove away.

(v)         the complainant contacted police and told his mother that 'Bucky' had pulled a

gun on him.

(w) Mr Smith saw the complainant return to the front of the house saying, 'oh the fucking dog's pulled a gun on me', at which point he car drove off.

(x) Christine Wade, the complainant's mother, claimed to have left her house upon

beyond told that the Appellant had a gun, and had seen 'he is going like that with his
gun', pointing it at Simon.

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(y) Ms Wade saw the car 'jerk back a bit' as 'they were still shouting at each other'

before it drove off.

(z) Cst Whelan had been flagged down by the complainant and had said that 'Luke had come in a maroon car and pointed a sawn off shotgun at him'.

(aa) Cst Whelan had subsequently seen a maroon vehicle outside 10 Shackleton Street, Warrane and located the Appellant where he had given a false name, Shane Smith.

(bb) the Appellant was then found in possession of keys to the maroon car, and a 410 gauge shotgun cartridge.

(cc) a backpack was found near the Appellant with a knife inside and 3 other 410

cartridges.

(dd)	no firearm was located despite a search.
6	On the State's case in cross-examination:
(a)	the complainant rejected the proposition that the Appellant had point a wooden

object at him.

(b) the complainant rejected the proposition that the Appellant had never said

words to the effect that he intended to shoot the complainant but accepted that he had
not included such a statement in his statutory declaration made on 20 February 2019.

(c) the complainant accepted that he did not understand the difference between a

rifle and a shotgun, and did not know what he was saying when he described the
firearm.

(d) Mr Smith agreed that he had had nothing to do with the driver of the car, and

had kept to himself.

(e) Mrs Wade maintained that it was a gun that she had seen, and rejected the proposition that she had never come outside her house at all during the episode.

(f) Mr Curry accepted that soon after the incident he was having difficulty recalling what had occurred.

(g) Mr Curry accepted that his opportunity to observe the object being pointed in the car was not more than 5 seconds and could have been as low as 2 seconds.

(h) Mr Curry made concessions relative to the proposition that he was tired at the time of making his observations.

(i) Mr Curry rejected the proposition that he had seen a wooden object, whilst recalling that he had only seen one man in the car and one man on the street.

(j) Mrs Plunkett accepted that she had had the opportunity of discussing her observations with Mr Curry.

(k) Mrs Plunkett accepted that what she had seen was a 'brown object pointed out of the car', with the qualification that she 'ought it was a black colour'.

(l) Mrs Plunkett accepted that she may have made an assumption that the object

was a firearm.

7 The Appellant gave evidence, but did not otherwise adduce evidence on the defence case. His evidence was:

(a) he commenced the day at Penna chopping wood and finished at approximately

1.30-2.00 pm.

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(b) he drove to Clarendon Vale, showered, and changed his clothing, before receiving a call from a cousin named Jason Buck about 'some couple of rough looking blokes riding past his house on a Harley backwards and forwards and scaring the kids'.

(c)	he left Clarendon Vale at 3.45-3.50 pm in the maroon car depicted in P1.
(d)	there was a broken blockbuster handle in the car.
(e)	he was going to 159 Bligh Street, Warrane, to see a man about the purchase of
wood.

(f) he saw 'some blokes on a Harley beside the Road', which he regarded as "a bit bizarre" because of what his cousin had told him.

(g) he questioned the men, and had an exchange with one of them.

(h) he was looking at complainant 'firm' before deciding to grab the blockbuster

handle, 'just to let them know, "it won't want to be youse, because youse are scaring
kids, and just leave it at that'".

(i)          he pulled the blockbuster handle inside the car when another vehicle drove

past.

(j) following the interaction with the men, he had seen his intended appointment about the purchase of wood, before evading police because he was a disqualified driver.

(k) he drove to a friend's house in Shackleton Street, gathering a few belongings from the car including a backpack.

(l) he gave a false name and address, and shells in his pocket from shooting under

supervision earlier that day.
(Appeal Book references omitted.)"

The relevant principles

1. In Liberato v The Queen (1985) 159 CLR 507 at [11] Brennan J (as he then was), with whom

   Dean J agreed said:

   "When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue."

7            Brennan J was in the minority in Liberato, but his statement of principle was cited with approval by the plurality in Douglas v The Queen [2012] HCA 34, 290 ALR 699, which stated at [13]:

"Even if the judge was not persuaded by the appellant's evidence, he could not convict

unless satisfied that it was not reasonably possibly true."

The trial judge's directions

8            The learned trial judge gave the jury the following directions that potentially bear on an assessment of the appeal grounds:

5   No 6/2022

"It's a matter for you to make some assessment of the witnesses who have given evidence and of the degree of reliability of – of the different things that they've said. You're entitled to give particular things said by particular witnesses as much weight or as little weight as you think fit, or no weight at all if you think that's appropriate. So as I think I said yesterday, it's not an all or nothing thing, a witness can tell the truth about one point and be – and lie about another, a witness can be correct about one point but mistaken or confused or vague or just plain wrong about another. So you should consider the whole of the evidence and where appropriate compare what one witness has said with what another witness has said…

Mr Wade says he saw a gun, so do three other people. That's an example of a situation where you might, so it's up to you what conclusions you reach, but you – you might consider that there's some support for a particular piece of evidence that you might otherwise consider to be unreliable…

Now the starting point, as I said yesterday, is the presumption of innocence. Mr Buck is presumed to be innocent unless and until a jury finds him guilty. If you're not satisfied that he's guilty then the presumption of innocence remains, he's not guilty and your verdict has to be not guilty. You have to decide whether guilt has been proven, that's because we start with a presumption of innocence. So it follows that the Crown have to try to prove guilt. They allege guilt they've got to try to prove it. And if you turn that around that means that an accused person doesn't have to try to prove his or her innocence. And accused person doesn't have to have a lawyer, ask questions, give evidence, call witnesses, or any of those things…

He didn't have to; he doesn't have to prove his innocence. Now, as I said yesterday the Crown bears the burden of proving guilt beyond reasonable doubt. The one – or the fundamental question for you today is, am I satisfied beyond reasonable doubt that Mr Buck is guilty of this charge of aggravated assault. If you are satisfied beyond reasonable doubt that he's guilty of that charge then your verdict has to be guilty however hard it might be for you to declare another citizen guilty of a crime. If you're not satisfied beyond reasonable doubt that he's guilty then it's your duty to find him not guilty. You may see that as giving him the benefit of a reasonable doubt, but it's not a question of whether you think he's probably guilty, or more likely than not to be guilty, or anything like that.

The central question is, am I satisfied beyond reasonable doubt that he's guilty? A verdict of not guilty isn't a verdict that anybody lied or that anybody made up false evidence. A verdict of not guilty means just one thing; that you're not satisfied beyond reasonable doubt of the guilt of the accused man. Now, in this case there are four witnesses who say that – that they saw Mr Buck with a gun. And there's only one of him saying that – that he didn't have a gun. It's not a question of which version of events you believe is more likely to be correct. It's not a question of who you like more and who you dislike. It's not a question of numbers, not necessarily a question of numbers. The question is, am I satisfied beyond reasonable doubt that – that guilt has been proven…

Well, there are a number of possibilities if you're not satisfied beyond a reasonable doubt that it was a firearm. Even if you think it might have been a firearm but you're not satisfied beyond reasonable doubt you'd I think have to accept that Mr Buck was carrying an object. So it depends on what evidence you accept and what evidence – what weight you're prepared to give to different bits of evidence.

But it's open to you to conclude that you're not satisfied beyond reasonable doubt that it was a gun, but that he made a threatening gesture intentionally towards Mr Wade that caused Mr Wade to believe, on reasonable grounds, that Mr Buck had the ability to harm him with whatever object it was. That could lead to a verdict of guilty of assault. So it's on that basis that there are those three possible verdicts: guilty of aggravated assault, or not guilty of aggravated assault but guilty of assault, or not guilty full stop…

Now, obviously the most – well, it's matter for you what's important, but I'd suggest that the most important pieces of evidence here are the things that four people have said about seeing a gun: Mr Wade, Mrs Wade, Mr Curry and Ms Plunkett. And they're not

6   No 6/2022

consistent, but each one of them says that they saw Mr Buck in the car with a firearm, and a couple of them at different times have described it as a shotgun. As well as the evidence of people – of witnesses of what they say they saw, there are evidence of reports made very soon after, or reports or assertions made very soon after the event…

Now, I need – also I have to say a little about the fact that Mr Buck gave evidence. He didn't have to, as I said earlier. An accused person has the right to remain silent and to leave it to the prosecution to try to prove guilt. Now, when you're assessing his evidence you should assess it in the same way as you assess the evidence of any other witness. I mean by that that you shouldn't treat his evidence somehow as being second rate evidence as a result of him having been brought here charged with a crime.

When you consider the – when a jury considers the evidence given by an accused person in the witness box it's wrong to treat that person as having some sort of handicap as a result of him being on trial for a crime and the other witnesses not being accused of crimes. So you should assess the reliability and trustworthiness, or lack thereof, of his evidence in the same way as you would the evidence of any other witness…

Mr Scott argued that the witnesses who said they saw a firearm were mistaken, and that you should have – well of course, it's not a question of whether they were mistaken; it's a question of whether you've got a reasonable doubt. And if you think that the possibility that they were mistaken leads you to entertain a reasonable doubt, then the Crown hasn't proved guilty beyond reasonable doubt then the verdict has to be not guilty." (Italics added)

9            At the conclusion of the learned trial judge's summing up the following exchange occurred between his Honour and counsel:

"MR SCOTT: Yes, I just – I don't recall if your Honour gave a Liberato direction.

HIS HONOUR: Well, I told them that they needed to be satisfied beyond reasonable doubt, and it wasn't a question of which version of events they regarded as more likely than not. Do you – is there anything else you think I should say to them, or – ?

MR SCOTT: That they – a possibility they can put the accused's account to one side if they didn't accept it, and they still need to assess the Crown case and whether it's –

HIS HONOUR: Yes, well that's true. Even if you happen to reject Mr Buck's version of events that's not the end of the matter. You should consider the evidence of the Crown witnesses and consider whether on the basis of their evidence you're satisfied beyond reasonable doubt of guilt. Any submissions about that, Ms Shand?

MS SHAND: No, thank you, your Honour." (Italics added)

Discussion

10           The amended notice of appeal asserts in essence that the learned trial judge erred in failing to tell the jury firstly that it was not necessary for the jury to accept the appellant's evidence in order to find him not guilty and secondly that the jury's duty was to acquit the appellant if it considered that his evidence gave rise to a reasonable doubt.

11           In my view the summing up taken as a whole and in particular the added direction given at its conclusion after the enquiry made by the defence counsel, makes it tolerably clear that his Honour explained the gravamen of that first part of the principle in Liberato that requires the jury to be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. However, whether the summing up satisfied the second requirement of Liberato is, to my mind, less than clear.

12           That second requirement is that the jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if

7   No 6/2022

that evidence gives rise to a reasonable doubt as to that issue. Or, as it was expressed in Douglas v The Queen (above) " [e]ven if the judge was not persuaded by the appellant's evidence, he could not convict unless satisfied that it was not reasonably possibly true."

13           As to that requirement, the learned trial judge's direction that there were a number of possibilities if the jury was not satisfied beyond a reasonable doubt that what the appellant wielded was a firearm and that depended on what evidence the jury accepted and what weight the jury was prepared to give "to different bits of evidence", might arguably come close to an explication, but in my view, even taken with the balance of the summing up it did not fully convey the requirement. I do not accept the submissions to the contrary made by the learned Director of Public Prosecutions, Mr Coates SC, in his written contentions. Whilst the learned trial judge was under no obligation to give a Liberato direction, having agreed to do so and having embarked upon the giving of such a direction, his Honour ought, with respect, to have given the full direction.

14          As the appeal was ultimately pursued, his Honour's failure to give the full direction could only result in the appeal being upheld if it resulted in a miscarriage of justice.

15          In Hofer v The Queen [2021] HCA 36, 95 ALJR 937, Gageler J, agreeing with the plurality that the appeal should be dismissed, said at [116]:

"116 In the application of the miscarriage of justice ground, there is no principled reason for treating "an error in strict law" differently from another error or irregularity in the conduct of a trial. The miscarriage of justice in a particular case might arise from a singular error or irregularity, or it might arise from a cumulation of errors or irregularities some or all of which might or might not be connected and some or all of which might or might not be capable of being characterised as errors of law. Whether or not some or all of them might be characterised as errors of law, the consideration required to be given to their individual or cumulative consequence remains the same. An inconsequential error, including an inconsequential error of law, is not a miscarriage." (Endnotes omitted)

16           In my view there has been no miscarriage of justice in the present case. It must be remembered that the only primary fact in issue on the trial was whether the appellant was holding a firearm at the relevant time or was holding a broken blockbuster handle. On that issue the evidence against the appellant was overwhelming in that the complainant's claim, and that of his mother, that the appellant wielded a gun, was corroborated by the evidence of two independent eyewitnesses and supplemented by the appellant's possession of shotgun cartridges which was never satisfactorily explained.

17           The jury's verdict established that it was satisfied of "the fact necessary to establish guilt". Importantly, the jury was clearly told by the learned trial judge that if it thought that the possibility that witnesses were mistaken as to that fact led it to entertain a reasonable doubt, "then the Crown hasn't proved guilt beyond reasonable doubt [and] the verdict has to be not guilty." The jury obviously did not think the prosecution witnesses, particularly the independent witnesses, were reasonably possibly mistaken. It may be safely inferred that the jury regarded any differences in the witnesses' description of the firearm as unimportant minor inconsistencies.

18           It follows to my mind that it would have made no difference to the outcome of this single issue trial had the jury been directed that it could not find an issue against the accused contrary to his evidence if that evidence gave rise to a reasonable doubt as to that issue. Or alternatively, had been told that it could not find the accused guilty unless it was satisfied that his evidence was not "reasonably possibly true". The misdirection was an "inconsequential error of law" and did not amount to a miscarriage of justice. It cannot, in my view, be said that there was a material irregularity in the trial or that there was a significant possibility that the identified error may have affected the outcome of the trial.

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19           The foregoing analysis might arguably be more so given that if the jury thought the inconsistencies were significant and that the object might possibly have been a blockbuster handle, it had the option of finding the appellant guilty of the alternate crime left to it, namely that of assault by a threatening gesture. Not to have done so in such circumstances would had to have involved a finding of fact that the appellant's use of a block buster handle was not a threatening gesture. Such a finding was not open on the evidence, in particular the independent evidence.

20 If I am mistaken as to my view as to the absence of any miscarriage of justice then I would nonetheless have applied the proviso contained in s 402(2) of the Code. Section 402(2) reads as follows:

"(2) The Court may, notwithstanding that it is of the opinion that the point raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

21          I would have done so on the basis that for the same reasons as I have just given as to why there was no miscarriage of justice, there can have been no substantial miscarriage of justice.

22           In Handlen v The Queen [2011] HCA 51, 245 CLR 282, the accused's trial was conducted upon the common, mistaken, assumption that liability would be established on proof that each was a party to a joint criminal enterprise to import a commercial quantity of border-controlled drugs. At the date of the trial, however, the general principles of criminal responsibility for offences against Commonwealth law made no provision for liability as a participant in a joint criminal enterprise. It was held that the intermediate appellate court erred in dismissing the accused's appeals against their convictions under the proviso. The holding took into account that the trial had been conducted on a basis for which the law did not allow, on evidence which should not have been adduced, and the verdicts did not establish that the jury must have been satisfied of the facts necessary to establish guilt.

23   However, at [57] the majority pointed out:

"[57] A misdirection upon a matter of law is always contrary to law, and it is always a departure from the requirements of a fair trial according to law. But sometimes a misdirection on a matter of law will prevent the application of the proviso; and sometimes it will not... The question is always whether there has been a substantial miscarriage of justice, and the resolution of that question depends on the particular misdirection and the context in which it occurred."

24   In Orreal v The Queen [2021] HCA 44, 395 ALR 630, Kiefel CJ and Keane J said at [20]:

"An appellate court must be persuaded that evidence properly admitted at trial establishes guilt to the requisite standard before it can conclude that no substantial miscarriage of justice has actually occurred. It must consider the whole of the record of the trial and the nature and effect of the error which gives rise to the miscarriage of justice in the particular case. As explained in Kalbasi v Western Australia this is because some errors will prevent the appellate court from being able to assess whether guilt was proved beyond reasonable doubt. The examples there given include cases which turn on issues of contested credibility or cases where there has been a wrong direction on an element of liability in issue. What they have in common is that the appellate court cannot be satisfied that guilt has been proved."

25           This is not such a case. The "single issue" nature of the trial, the existence of the independent eye witness evidence and the appellant's possession of shotgun cartridges distinguishes this case from cases such as Orreal, and the nature of the misdirection and the context in which it occurred in the present case is not, in my view, such as to prevent the application of the proviso. I am persuaded that evidence properly admitted at the trial established the appellant's guilt to the requisite standard and taking the entirety of the directions given by the learned trial judge, it cannot to my mind be said that the error, such as it was, prevents this Court from being able to assess whether guilt was proved beyond reasonable doubt.

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10   No 6/2022

File No CCA 2350/2020

LUKE DAVID BUCK v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
28 April 2022

26           On 5 August 2020, following a trial conducted before Blow CJ, the appellant was found guilty by a jury of aggravated assault. It was the prosecution case that on 20 February 2019, from a car parked on the roadway outside the home in Bligh Street, Warrane in which Simon Wade then lived with his mother, the appellant threatened Mr Wade by pointing a firearm at him. At trial there was no issue that the appellant was the person in the car, and that he pointed something at Mr Wade. The appellant's case was that the object he was holding was not a firearm, but the wooden handle of a blockbuster.

27           The single ground of appeal is that the trial miscarried because the learned trial judge "failed to direct the jury in accordance with Liberato v The Queen (1985) 159 CLR 507". The ground includes sub-paragraphs which state a number of propositions which the appellant says the jury should have been told but was not. I will return to those propositions later in these reasons.

28           These are my reasons for joining in the order to dismiss the appeal. In my respectful opinion there was no error or irregularity in the conduct of a trial and no occasion to resort to application of the proviso.

The issues and evidence at trial

29           Assault is defined in the Criminal Code 1924, s 182. At trial, the case against the appellant was that he assaulted Mr Wade by intentionally threatening to apply force to him, and causing Mr Wade to believe on reasonable grounds that the he had the means to do so. Whether the appellant was guilty of aggravated assault depended on proof that he used a firearm, threatened to use a firearm, or that he was carrying a firearm: Firearms Act 1996, s 115.

30           Mr Wade and his mother Christine Wade were both at home during the afternoon of 20 February 2019. At some point Mr Wade's friend, Dean Smith, arrived on his motor bike. Mr Wade lent Mr Smith a spanner to fix a mechanical problem with the bike. The two men were together on the side of the road outside Mr Wade's home when a car being driven by the appellant arrived. He was alone in the car. Mr Wade told the jury that the appellant seemed agitated and confused and asked Mr Wade who he was, although they had known each other for a long time. Mr Wade said that he tried to calm the appellant down and walked towards the car, at which time he saw a .22 sawn off firearm with a wooden handle on the appellant's lap. Mr Wade's evidence was that the appellant then "just pulled it out and 'You want me to shoot you?'" When asked by counsel for the prosecution to describe what the appellant did with the firearm he answered:

"Oh, he was just pointing it at us, both of us, asking what our names were, when he
knows full well who we are…"

31           Mr Wade told the jury that he was concerned that the appellant may shoot him. To diffuse the situation he walked away. Mr Wade told his mother that "Luke had just pulled a gun on me…". A recording of a "000" call made by Mr Wade was played to the jury. During the call Mr Wade stated that Mr Buck had pointed a .22 sawn-off firearm at him.

32           It was suggested to Mr Wade in cross-examination that what had been pointed at him was a "wooden object". Mr Wade maintained that what was pointed at him was a small sawn-off gun, and that he knew the difference between a gun and a piece of wood.

11   No 6/2022

33           Christine Wade gave evidence that after hearing a car, and shouting and arguing, her son ran into the house and said "Luke Buck's got a gun, ring the police", before going straight back outside again. She went outside and saw the appellant in the car parked on the roadway. Her evidence was that she "looked up and there he is going like that with his gun." She said that he was "holding the gun at Simon", that it looked like "one of those guns you see on TV" and she was scared because she "thought he may shoot someone." Under cross-examination she agreed that she had not seen a gun before and that she was standing about ten metres away. However she rejected the suggestion that it was a blockbuster handle and not a gun that she had seen.

34           Dean Smith gave evidence that he was working on his motor cycle when he became aware of the car arriving. He heard Mr Wade and the male occupant of the vehicle "having a heated discussion" but he did not pay much attention, did not hear what was said, did not go near the car and did not see a gun. However his unchallenged evidence was that Mr Wade, after returning from inside his house, told him that Mrs Wade had called the police and that "Oh, the fucking dog's pulled a gun on me."

35           The prosecution called evidence from two independent witnesses, Christopher Curry and Jennifer Plunkett. Mr Curry and Ms Plunkett were in a relationship. Ms Plunkett was driving home, having just picked Mr Curry up from his work as a graphic designer. Mr Curry's evidence was that he saw a car with one male occupant oddly parked in the middle of Bligh Street, partially blocking the road. He was unsure of what was happening and Ms Plunkett slowed down. He saw the man in the car talking to "a guy across the road." Mr Curry gave evidence that "then, all of a sudden, just saw – what I would have said to be a sawn off shot gun poked up over the driver's side window." He said that "I know enough about guns that it wasn't a small bore, it was a big black hole sort of thing". He said he had "seen enough shotguns that that would've highly likely been a, you know, a shotgun." He told the jury that the car in which he was a passenger was "just going slow when we were going past, and seeing the gun come out is the thing that made us stop." He also called "000" during which he said to the operator "Oh hi. Ah look I've just, coming home from work in Bligh Street, just going past a car and a guy pulled a gun on another guy on a motorbike half way along the street." Under cross-examination Mr Curry rejected the proposition that what he had seen was not a gun but the handle of a blockbuster.

36           Jennifer Plunkett told the jury that "I saw the person in the car lean over towards the passenger side and then I saw a gun come out the window." She said that "… it looked to me like some sort of shotgun because it had a long barrel", and that it was "dark in colour." Under cross-examination she did not accept that she was mistaken and said that "…we both saw a gun" and that she was close to it and "very frightened."

37           The prosecution also led some circumstantial evidence which was capable of being probative of guilt. The appellant evaded a police intercept and, when apprehended, gave the police a false name and date of birth. A .410 shotgun cartridge was found in his pocket during a search of the address at which he was arrested, and three more shotgun cartridges were found in his backpack.

38           The appellant gave evidence in his defence. His account was that during that afternoon he was told by his cousin that there were a "couple of rough looking blokes riding past his house on a Harley backwards and forwards scaring the kids." He said that when he drove down Shackleton Street and saw "a couple of blokes on a Harley beside the road" he pulled over to ask if they were the people his cousin was talking about. When he thought there may be trouble, he grabbed the blockbuster handle which he was carrying in the passenger side floor of his car. When interviewed following his arrest, the appellant told the police that he evaded them because he was a disqualified driver, and gave false details because he was worried about his driving conduct.

12   No 6/2022

The directions given by the trial judge

39           After conclusion of the evidence, counsel for the appellant sought a Liberato direction on the basis that "clearly this accused gives a version of events that's at … odds with the Crown case and the jury need a proper direction that it's not a case of balancing which do you prefer."

40           The trial judge expressed agreement and stated that he would instruct the jury that "it's proof beyond reasonable doubt, not which … do you prefer." In the course of his summing up to the jury the trial judge gave directions to the jury about the burden and standard of proof to be applied in a criminal trial. It is convenient to set out part of what his Honour said in full:

"Now the starting point, as I said yesterday, is the presumption of innocence. Mr Buck is presumed to be innocent unless and until a jury finds him guilty. If you're not satisfied that he's guilty then the presumption of innocence remains, he's not guilty and your verdict has to be not guilty. You have to decide whether guilt has been proven, that's because we start with a presumption of innocence. So it follows that the Crown have to try to prove guilt. They allege guilt they've got to try to prove it. And if you turn that around that means that an accused person doesn't have to try to prove his or her innocence...

Now, as I said yesterday the Crown bears the burden of proving guilt beyond reasonable doubt. The one – or the fundamental question for you today is, am I satisfied beyond reasonable doubt that Mr Buck is guilty of this charge of aggravated assault. If you are satisfied beyond reasonable doubt that he's guilty of that charge then your verdict has to be guilty however hard it might be for you to declare another citizen guilty of a crime. If you're not satisfied beyond reasonable doubt that he's guilty then it's your duty to find him not guilty. You may see that as giving him the benefit of a reasonable doubt, but it's not a question of whether you think he's probably guilty, or more likely than not to be guilty, or anything like that.

The central question is, am I satisfied beyond reasonable doubt that he's guilty? A verdict of not guilty isn't a verdict that anybody lied or that anybody made up false evidence. A verdict of not guilty means just one thing; that you're not satisfied beyond reasonable doubt of the guilt of the accused man. Now, in this case there are four witnesses who say that – that they saw Mr Buck with a gun. And there's only one of him saying that – that he didn't have a gun. It's not a question of which version of events you believe is more likely to be correct. It's not a question of who you like more and who you dislike. It's not a question of numbers, not necessarily a question of numbers. The question is, am I satisfied beyond reasonable doubt that – that guilt has been proven.

41           In addition to those general directions, the trial judge explained in detail all of the elements of the crime of aggravated assault, including the requirement that the jury be satisfied beyond reasonable doubt that the object the appellant was holding was a firearm. The trial judge also advised the jury that it was open to them to return an alternative verdict of guilty of assault if satisfied that the appellant threatened the application of force with something which was not a firearm. His Honour reminded the jury of the appellant's evidence that he did not have a gun and was holding a blockbuster handle. His Honour explained that the direction about the possible alternative verdict was to be considered because that "it may be that you are not satisfied beyond reasonable doubt that Mr Buck had a gun." A little later his Honour stated, when addressing the possible alternative verdict:

"Well, there are a number of possibilities if you're not satisfied beyond reasonable doubt it was a firearm. Even if you think it might have been a firearm but you're not satisfied beyond reasonable doubt you'd I think have to accept that Mr Buck was carrying an object."

42          At the conclusion of his Honour's summing up, immediately before the jury retired, he invited further submissions from counsel. The following exchange then occurred in the presence of the jury:

13   No 6/2022

"MR SCOTT: Yes, I just – I don't recall if your Honour gave a Liberato direction.

HIS HONOUR: Well, I told them that they needed to be satisfied beyond reasonable doubt, and it wasn't a question of which version of events they regarded as more likely than not. Do you – is there anything else you think I should say to them, or - ?

MR SCOTT: That they – a possibility they can put the accused's account to one side if they didn't accept it, and they still need to assess the Crown case and whether it's –

HIS HONOUR: Yes, well that's true. Even if you happen to reject Mr Buck's version of events that's not the end of the matter. You should consider the evidence of the Crown witnesses and consider whether on the basis of their evidence you're satisfied beyond reasonable doubt of guilt."

The appeal ground - Liberato.

43   The appellant contends that the trial judge should have, but did not, direct the jury that:

• it was not necessary for the jury to accept the appellant's evidence in order to find him not guilty;

• it was the duty of the jury to acquit if it considered that the appellant's evidence gave rise to a reasonable doubt of his guilt;

• it was the duty of the jury to acquit even if it preferred the prosecution evidence to the appellant's evidence;

• even if the jury did not think that the appellant was telling the truth, but was unsure of where the truth lay, its duty was to acquit the appellant.

44           As originally drawn, the sole ground of appeal asserted that the failure to give a Liberato direction which, the appellant argued, required directions in the terms just stated, was an error of law. The argument was advanced in this way. Counsel for the appellant submitted that the conflict between the evidence of the prosecution witnesses and the appellant's evidence about whether the appellant was holding a firearm, "naturally draws the jury's mind towards the question of which broad category of evidence does it accept." Further, that in every case in which an accused gives evidence and there is a "possibility that the jury may turn its mind to the fact that there is a conflict between those witnesses … and there is a possibility that the jury may not bring general directions on the burden and standard of proof directly to bear on that forensic reality a Liberato direction must be given." When asked whether, if the submission were to be correct, such a direction would be required in every case in which an accused person gave or adduced evidence, the submission was qualified. The appellant submitted that, in the circumstances of this case it was "essential that the jury be told that there was the conflict on the evidence, and that the general directions necessitated the giving of a direction which contextualised the general directions in the context of the forensic clash." The asserted error was identified as the failure to give the direction in the terms claimed because of the "risk that the jury would not apply the general directions in the way they should be applied in the context of that forensic clash."

45           It is well established that a Liberato direction is not required as a matter of law: De Silva v The Queen [2019] HCA 48, 268 CLR 57 at [4], and the authorities there cited. In the course of argument, confronted by that authority, the appellant applied for and was granted leave to amend his ground of appeal to assert that the trial miscarried by reason of the failure of the learned trial judge to give the directions the appellant claimed ought to have been given. In terms of the appeal provision in the Code, s 402, the appellant must establish a miscarriage of justice. As was recently restated by Kiefel CJ, Keane and Gleeson JJ in Hofer v The Queen [2021] HCA 36, 95 ALJR 937 at [41] in the context of the analogous New South Wales appeal provision:

14   No 6/2022

"A miscarriage of justice to which s 6(1) of the Criminal Appeal Act refers includes any departure from a trial according to law to the prejudice of the accused: Weiss v The Queen [2005] HCA 81; 224 CLR 300 at 308 [18]. This accords with the long tradition of criminal law that a person is entitled to a trial where rules of procedure and evidence are strictly followed: Mraz v The Queen (1955) 93 CLR 493 at 514; Kalbasi v Western Australia [2018] HCA 7; 264 CLR 62 at 69 [12]. (Footnote citations incorporated in the text).

46           In this case it is not necessary to further investigate any complexity which may attach to the miscarriage of justice ground analysed by Gageler J in Hofer and by N Adams J in Tomlinson v The Queen [2022] NSWCCA 16 at [121]-[132], because no departure at trial from any rule of procedure or evidence or irregularity in the conduct of the trial, not amounting to a wrong decision on a question of law, has been demonstrated.

47           The terms of a Liberato direction are derived from the dissenting reasons of Brennan J in that case. In De Silva, at [12], after reference to authority, the plurality refined the terms of the direction and suggested a direction along the following lines:

"(i) if you believe the accused's evidence (if you believe the accused's account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused's evidence (if you do not believe the accused's account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?"

48           The circumstances of Liberato which gave rise to the suggested direction were explained by the plurality in De Silva. In Liberato, five accused were jointly tried for rape of the complainant. Each admitted sexual intercourse but claimed to have believed that the complainant was consenting. The summing-up included misdirections about the onus of proof and comments by the trial judge identifying the issue for the jury as "who do you believe". At 515, Brennan J commented that when a case "turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question 'who is to be believed.'" His Honour's reference to both the prosecution witness and defence witness in the singular is to be noted. That is so because the risk that a jury may ask itself "who is to be believed" is heightened when the prosecution case depends on acceptance of the evidence of a single witness. Deane J, at 519-520, agreed with Brennan J that there was a risk that the directions given by the trial judge left the jury with the impression that its task was "essentially one of making a choice between the differing prosecution and defence accounts". Deane J also suggested, however, that references to a "choice" between witnesses were "sometimes unavoidable and commonly unobjectionable" and presented no difficulty provided that the reference was accompanied by clear and unequivocal directions about the onus and standard of proof.

49           De Silva was also a case in which the prosecution case, on two counts of rape, was dependant on acceptance of the complainant's evidence. The plurality concluded at [10] that the direction is necessary to avoid a miscarriage of justice when a trial judge perceives a real risk that "the jury may be left with the impression that the evidence on which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt." In such a case, the direction "serves to clarify and reinforce directions on the onus and standard of proof." It is a direction which explains to the jury the task required of it, having regard to the presumption of innocence and the burden of proof. As was correctly explained by Brett J in CAJ v Forsyth [2018] TASSC 17, the direction does nothing more than properly explain the application of the presumption of innocence and the burden of proof to a case in which the accused has given evidence and where the jury decision is likely to turn upon its consideration of competing versions of the relevant events.

15   No 6/2022

50          This is not a case in which a Liberato direction was required to avoid a perceptible risk of a miscarriage of justice. In De Silva, the plurality added the following observation at [13]:

"Whether a Liberato direction is required will depend upon the issues and the conduct of the trial. At a trial where there has been no suggestion, whether express or implied, that the jury's determination turns on which of conflicting prosecution and defence versions is to be believed, there may be no need to expand on conventional directions as to the onus and standard of proof. As Wheeler JA also observed in Johnson v The State of Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531 [14], the expression 'reasonable doubt' is apt to convey that a juror who is left in a state of uncertainty as to the evidence should not convict." (Footnote citation added to text)

51           The case against the appellant did not depend on acceptance of the evidence of Mr Wade. There was no other reason to conclude that there was a risk that the jury may engage in the type of reasoning which may have attracted the need for a direction. Nothing was said by either counsel or the trial judge which suggested that the jury was to choose between the prosecution witnesses and the appellant as to who was to be believed. The contrary is true. Standard directions on the onus and standard of proof were sufficient. Nothing said by the trial judge to trial counsel for the appellant about making a Liberato direction, either prior to or at the conclusion of the summing up, led to a miscarriage. His Honour agreed to give the particular direction that was asked for by counsel for the appellant by saying that he would instruct the jury that "it's proof beyond reasonable doubt, not which … do you prefer." As I have attempted to make clear, there was no real risk that the jury would engage in that incorrect process of reasoning and no need for a Liberato direction in any form. However, his Honour gave the further direction in the terms which were requested.

52           Nothing said in Liberato or in De Silva requires slavish adherence to a rigid or formulaic set of words. When a Liberato direction is required it may be most unwise for a trial judge to substantially depart from the terms of the direction approved by the High Court. However, there is no rule of law which requires use of precise terms. A trial judge must say in substance what is required, such that what is said or not said to the jury does not result in a miscarriage of justice. A trial judge may sum up in a manner which is tailored to the issues and conduct of the trial. In cases, as here, in which a Liberato direction is not required, it is nevertheless permissible for a trial judge to direct the jury about all or some of the matters raised by the direction, provided what is said does not mislead or divert the jury from its proper task. In this case his Honour gave clear conventional directions about the onus and standard of proof. He pointed out the conflict between the prosecution evidence and the appellant's evidence and summarised the evidence for the jury in clear terms. The conflict could not have been more obvious. The requirement for proof beyond reasonable doubt of all of the elements of the crime were clearly and repeatedly stated. His Honour specifically instructed the jury:

"It's not a question of which version of events you believe is more likely to be correct. It's not a question of who you like more and who you dislike. It's not a question of numbers, not necessarily a question of numbers. The question is, am I satisfied beyond reasonable doubt that – that guilt has been proven."

53   Before the jury retired, when the matter was raised by counsel for the accused, his Honour

added:

"Even if you happen to reject Mr Buck's version of events that's not the end of the matter. You should consider the evidence of the Crown witnesses and consider whether on the basis of their evidence you're satisfied beyond reasonable doubt of guilt."

54           The clear directions to the jury that it was not for them to consider which version was more likely to be correct, and the requirement for satisfaction of guilt beyond reasonable doubt, necessarily carried the message that if the appellant's evidence gave rise to a reasonable doubt, they must acquit. That message was supplemented by the direction requiring the jury, even if it rejected the appellant's evidence, to determine whether on the evidence they accepted they were satisfied beyond reasonable

16   No 6/2022

doubt of the appellant's guilt. The trial judge said everything which was required in the circumstances of this case to direct the jury about the onus and standard of proof and to ensure that the appellant's trial was fair and conducted in accordance with the law. Nothing was said which was wrong or misleading or which invited improper reasoning. There was no departure from proper procedure. When the summing-up is considered as a whole, there was no misdirection. There was no miscarriage of justice. For those reasons I joined in an order dismissing the appeal.

17   No 6/2022

File No CCA 2350/2020

LUKE DAVID BUCK v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GEASON J (Dissenting in part)
28 April 2022

55          I have had the benefit of reading the draft judgment of Estcourt J. His Honour has set out the material facts and I adopt them for the purposes of these reasons.

Liberato Direction

56           The need for a Liberato[1] direction arises in circumstances when a case turns on a conflict between the evidence of Crown witnesses, and a defence witness or the accused's own account of the circumstances giving rise to the charge upon which he or she is tried. The need for the direction emerges because in such cases, a jury might approach its task of determining whether the State has proved its case beyond reasonable doubt, by asking itself "who is to be believed": Brennan J in Liberato at 515.

[1] Liberato v The Queen (1985) 159 CLR 507

57           Whilst there is no legal obligation to give a "Liberato direction", it will frequently be appropriate in the interests of ensuring a fair trial. Such a direction does no more than explain to the jury the practical operation of the onus of proof in a criminal trial. A legalistic approach to the question of whether such direction was required ignores the practical utility of assisting the jury to apply a cornerstone principle of our justice system. Such a direction was appropriate here.

58           I agree with Estcourt J that having determined a direction in accordance with Liberato was required, it was necessary that the direction to the jury include both aspects: first, that a preference for the prosecution evidence is not enough to convict the accused; the jury must not convict unless satisfied beyond reasonable doubt of the truth of that evidence. Second, that even if the jury does not positively believe the evidence relied upon by the accused, it must not convict if that evidence gives rise to a reasonable doubt about guilt. Because both elements of the direction were not given by the trial judge in this case, error is established.

The proviso

59 That being so, the powers vested in the Court pursuant to s 402 of the Criminal Code are engaged. Section 404(2) articulates a "proviso" empowering the court to dismiss an appeal if it considers that no substantial miscarriage of justice has occurred, notwithstanding the legal error:

"The Court may, notwithstanding that it is of the opinion that the point raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

60           The question of whether there has been a "substantial miscarriage of justice" requires each judge of an appellate court to examine the whole of the record Weiss v The Queen [2005] 224 CLR 300; Cooper v The Queen [2012] 87 ALJR 32 at 43 [61], sited by Gageler J in Hofer v The Queen [2021] HCA 36, 1995 ALJR 937 at [90]. The proviso must not be applied unless the evidence on the trial proves the appellant's guilt beyond reasonable doubt. Conversely, if the error could not have affected the outcome of the trial the proviso should be applied.

61          Not every case is susceptible to a judgment of the issue upon the record of the trial. In Kalbasi v Western Australia [2018] 264 CLR 62 at [61], Kiefel CJ, Bell Keane and Gordon JJ explain:

18   No 6/2022

" … Weiss requires the appellate court to consider the nature and effect of the error in every case. This is because some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. These may include, but are not limited to, cases which turn on issues of contested credibility, cases in which there has been a failure to leave a defence or partial defence for the jury's consideration and cases in which there has been a wrong direction on an element of liability in issue or on a defence or partial defence. In such cases Weiss does not disavow the utility of the concepts of the lost chance of acquittal or inevitability of conviction. Regardless of the apparent strength of the prosecution case, the appellate court cannot be satisfied that guilt has been proved. Assessing the application of the proviso by reference to considerations of 'process' and 'outcome' may or may not be helpful provided always that the former takes into account the capacity of the error to deprive the appellate court of the ability to justly assess the latter." (My emphasis)

62           I have undertaken a review of the record of the trial. The State's case was a strong one. The appellant was probably guilty. But as juries are always told "probably guilty" is not sufficient to discharge the onus of proof. As Gordon J put in Hofer (above) at [140], "the issue is not about probabilities". The onus on the State was to prove guilt beyond reasonable doubt. The fundamental difficulty I have in applying the proviso is based upon my judgment that this case turns not just on the answers given by the witnesses (which I can read), but upon their credit. The importance of matters of credit, evidenced by the demeanour of the witnesses was emphasised at the trial. In submissions to the trial judge in the absence of the jury, counsel for the appellant emphasised the need for a direction with respect to the demeanour of those witnesses, noting that one of them engaged in threatening language towards the appellant on his departure from court. This included (according to counsel for the appellant) a threat to the accused by words to the effect "you wait till you get out". My conclusion is that the motivation of witnesses is material to the question before me; that issues of credit are central to the veracity of the evidence given by these witnesses on the single issue which dominated the trial. It is well understood that an appellate court is at a significant disadvantage in cases which require judgments to be made about such matters, and allowance must be made for that in the review of the evidence: Weiss (above) at [41]; Hofer (above) at [91]. There is a proper basis for hesitating to apply the proviso in this case. I consider it falls within the category of cases referred to in Kalbasi (above) in the passage quoted at [61]. Accordingly I decline to apply the proviso.

63   I would uphold the appeal.