Citation:Forrester v The King

[2024] NTCCA 15

.CITATION:Forrester v The King [2024] NTCCA 15

PARTIES:FORRESTER, Jerome Kennedy

v

THE KING

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:CA 15 of 2023 (22111022)

DELIVERED:  20 December 2024

HEARING DATE:  28 November 2024

JUDGMENT OF:  Kelly, Brownhill & Huntingford JJ

CATCHWORDS:

CRIMINAL LAW – Appeal against conviction – Violent act causing death – Whether the trial judge erred in rejecting an application to discharge the jury – Whether trial judge erred in permitting the Crown to reopen its case – Circumstances were foreseeable and not exceptional – Rejecting application to discharge the jury resulted in a substantial miscarriage of justice – Whether the trial judge erred in summing up – Real prospect that the appellant would have been acquitted on the basis that he was acting in self-defence if the established errors had not been made – Appeal allowed – Conviction set aside – Retrial ordered.

Criminal Code 1983 (NT), s 43BD, s 161A (1), s 411 (3), s 413
Evidence (National Uniform Legislation) Act 2011, s 32, s 38 (1)

Alford v Magee [1952] 25 ALJR 753; Azzopardi v The Queen (2001) 205 CLR 50; BD v The Queen (No 2) [2017] NTCCA 8; Crofts v The Queen (1996) 186 CLR 427; Killick v The Queen (1981) 147 CLR 565; Lawrence v The Queen (1981) 38 ALR 1; Liberato v The Queen (1985) 159 CLR 507; MLW v The Queen [2022] NTCCA 2; Murray v The Queen (2002) 211 CLR 193; R v Soma (2003) 212 CLR 299; Shaw v The Queen (1952) 85 CLR 363; The King v Wasaga (No 2) [2024] NTSC 98; The Queen v Chin (1985) 157 CLR 671; Tully v The Queen [2006] 230 CLR 234; Zecevic v DPP (Vic) (1987) 162 CLR 645

REPRESENTATION:

Counsel:

Appellant:T Game SC with T Moses

Respondent:  L Babb SC with L Auld

Solicitors:

Appellant:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  59

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Forrester v The King [2024] NTCCA 15

No. CA 15 of 2023 (22111022)

BETWEEN:

JEROME KENNEDY FORRESTER

Appellant

AND:

THE KING

Respondent

CORAM:    KELLY, BROWNHILL & HUNTINGFORD JJ

REASONS FOR JUDGMENT

(Delivered 20 December 2024)

Introduction

1. This is an appeal against conviction on a single charge of engaging in a violent act causing death contrary to s 161A(1) of the Criminal Code following a trial by jury which took place between 28 November 2022 and 5 December 2022. There are two grounds of appeal:

   Ground 1: The trial judge erred in rejecting the appellant’s application to discharge the jury on 1 December 2022 after the Crown prosecutor’s closing address and instead permitting the Crown to re-open its case, to recall and cross-examine two Crown witnesses and then to make a further closing address. In particular:

   a.    the trial judge applied the wrong test to the question, or failed to consider at all, whether or not the Crown should be permitted leave to re-open its case;

   b.   the trial judge failed to adequately consider the unfair prejudice and forensic disadvantage to the appellant occasioned by the course proposed to be taken.

   Ground 2: The trial judge erred in his summing up by directing the jury that on the question of self-defence it was a question of whether or not the jury accepted or rejected the appellant’s out of court statements that he was head-butted by the deceased and that, if they rejected them, that was “the end of the matter”.

   The Trial

2. The charge of engaging in a violent act causing death arose out of an altercation which occurred on the veranda at House 15, Knuckeys Lagoon Camp at approximately 11 am on 2 April 2021. The appellant struck Ronald Weetra (the deceased), who fell back and hit his head, causing injuries which led to his death.

3. The main issue at trial was whether or not the appellant was acting in self-defence. The defence case was that the deceased had head-butted the appellant, and the appellant was defending himself when he struck the deceased.

   The Crown opening

4. The Crown opened its case on 28 November 2022. During the opening, the prosecutor described what the Crown said occurred leading up to the altercation on the veranda and the fatal punch. Regarding the crucial point of time, the prosecutor said:

   At that point it looks like all those who could have had some stay or say in what happened next, left the veranda and left that area and left that space to [the appellant] and to [the deceased]. Nobody sees what happened next other than there was a chest off, face to face, noses almost touching, two people right into each other’s grill. Out on the veranda outside the house, there was shouting and raised voices. Nobody saw what happened next.

   …

   So we can rely on only the things that other people who were there tell us and part of that is about the observations of what [the deceased] was doing immediately in the lead up to and immediately at the time after the hit, that nobody saw, but somebody heard.

   Now it may be that Maxine did see what happened, but she’s going to tell you that she didn’t see a thing. Geneva is going to tell you that she came outside and there were people, Shane, Shane’s nephew, who’s the accused, her auntie, who is Maxine and Troy, Shane’s brother, around [the deceased] who was lying on the ground still breathing but with blood coming from his face. And she heard them say to the accused, “You shouldn’t have hit him”. And he said back, “He was looking for that punch”. We know what that means, it means he was asking for it, he deserved it.[1]

5. The prosecutor made reference in the opening to a 000 call made after the deceased had been punched and was lying on the veranda of the house. He said:

   Then there’s a phone call to 000, because it’s serious. You will hear that phone call in full and you're going to hear who we say is the accused in the background, carrying on, being restrained and saying, we say you’ll be able to hear, “I shouldn’t have hit him. For fuck’s sake”.[2]

6. The prosecutor also talked about the fact that the veranda had been cleaned up, saying:

   [The deceased] was taken away and the prognosis was pretty dire. Once he was received into the hospital they made a very quick assessment and believed that his next of kin ought to be notified, [the deceased] wasn’t going to make it. That information was relayed back to police as soon as it could be and police realised that there was a very serious incident here that needed further investigation. Police returned back to the scene once again to ensure that the crime scene was established.

   In that time that – between their first attendance – these are the two first responders – and the time that they returned, around about 2 o'clock, so a break of about three hours, both the ladies had been taken home to wherever they’d come from; the veranda had been hosed down; and things that had been left had been placed in a bin, essentially the scene had been tidied up.[3]

7. The prosecutor also made some very general remarks about loyalty in the context of assessing the evidence. He said:

   One thing that his Honour has already told you about, you need to be mindful about is the things that you feel are intrinsic to your experience as human beings, how people relate to one another, how people tell their stories, how they tell you the things that they saw and felt around them at the time that it was happening.

   You also know that people make choices about the things they say they saw and the things that they didn’t say they saw. You know as well as anybody that there are loyalties that you maintain, that there are things that you choose to say because it may protect somebody else or it might protect yourself. Because in this morning, this one time, [the deceased] didn’t truly have a single family member at House 15. The accused had three. One of those ladies was a young person, a child who was 15. Another was her auntie, a lady that she listened to and that she followed.

   When we put all these things together, finding a line that you accept and understand to be the reality of what transpired, what actually happened and how it happened, you’ll be applying common sense to the facts that fall from the evidence that you’ll hear from those witnesses that were there or had some involvement when that happened on that day on 2 April 2021.[4]

8. During the opening, the prosecutor stated that the accused could be heard in the background of the 000 call, saying the words, “Shouldn’t have punched him, fuck sake.”[5] Though not explicitly labelled as such in the opening, this would clearly have been relied on as an admission.

9. The prosecutor also said that the first time the accused mentioned being head-butted, and claimed he was acting in self-defence, was two days later at the police station.[6]

10. It should be noted that:

    a.    the Crown specifically opened on the basis that none of the witnesses had seen what occurred at the crucial point of time; “Nobody saw what happened next;”

    b.   although the prosecutor made some generalized remarks about loyalty and the fact that the witnesses were related to the accused, not the deceased, he did not state that the Crown alleged there had been a cover-up, or that the witnesses had seen what had happened; and

    c.    no sinister motive was ascribed to the cleaning up of the veranda; it was not said to be part of a cover up.

    The evidence

11. The evidence was then heard over three days on 28, 29 and 30 November 2022. The Crown called five witnesses to the events leading to the death. None of those witnesses gave evidence that they saw the physical altercation leading to the death. The Crown did not suggest otherwise to any of the witnesses other than, obliquely, Maxine Gumbula. It was not put to Maxine Gumbula that she did see what happened, but in cross-examination by the prosecutor pursuant to s 38 of the Evidence (National Uniform Legislation) Act 2011 (NT) (‘Uniform Evidence Act’), this exchange occurred:

    Okay. Now, the reasons why you didn’t want to say these things to the police was because you did not want to get involved in this family situation between [the accused] and [the deceased] and his brothers, didn’t you?---Yes.

    Yes. Maxine, you’re under oath here and you’re asked to tell the truth: did you see [the accused] hit [the deceased]?---No, I didn’t see [the accused] hit [the deceased].

12. The evidence of the five witnesses was to the following effect:

    (a)Devina Murrungun gave evidence that she was asleep inside House 15 when the altercation occurred. She woke to shouting outside.[7] She went outside and saw the deceased “laying down and everyone standing around her (sic)”.[8] The appellant “was trying to help” the deceased. She recalled hearing Maxine Gumbula ask the appellant why he hit the deceased and she heard the appellant answer: “He need (sic) the punch”, or alternatively he was looking, or asking, for the punch.[9] She recalled that the appellant said that the deceased started it.[10] She said the appellant was initially “talking shit” when she came outside but then became worried about the deceased. She denied seeing what occurred and the prosecutor clarified that he was not suggesting that she saw any physical altercation between the appellant and the deceased.[11]

    (b)Maxine Gumbula initially gave evidence that she was asleep inside House 15 when the altercation occurred.[12] She woke up to the appellant shouting for help. She said that she remained inside. The Crown was given leave under s 38(1) of the Uniform Evidence Act to cross-examine Maxine Gumbula describing her evidence that she remained inside the house as “diametrically opposed to the Crown case”. In cross-examination by the Crown, the witness adhered to her evidence that she did not go outside, and that she did not see what had occurred. She agreed with a series of leading propositions that she told the appellant that he shouldn’t have hit the deceased and that he told her that the deceased was asking, or looking, for the hit.[13]

    (c)Troy Forrester gave evidence that he saw the deceased and the appellant arguing on the veranda outside House 15. He told them to stop arguing and once he felt that the intensity of the argument had dropped, he went back inside.[14] A minute or two later he heard the argument resume.[15] When he went back outside, the deceased was already on the ground.[16] The appellant was nearby. He immediately moved to help the deceased.[17] He said he was “in shock, trying to help” his friend and did not recall what anyone else was doing.[18] He said that the deceased had an underlying heart condition. It was not suggested to Troy Forrester that he saw any physical altercation between the deceased and the appellant. He was not asked about any discussion concerning what happened between the appellant and the deceased and he indicated that he did not talk to the appellant about what happened.[19] After the deceased left by ambulance and police had attended and left, Troy said that he and Shane Forrester cleaned up.[20]

    (d)Shane Forrester gave evidence that he saw the deceased and the appellant standing facing one another on the veranda outside House 15 with their heads close together almost touching, but not quite.[21] They weren’t arguing but the situation was “strange” and he ran over to place himself between and separate them.[22] When he moved between them, they moved around him. He said he told the deceased and the appellant words to the effect of “come on now” and “now leave it”. They separated but did not respond verbally.[23] As he went back inside, Shane Forrester said he heard a “sudden thud”.[24] When he went back outside, the deceased was laying on the ground with the appellant nearby.[25] No one else was present. Tristram Forrester then came outside and later, Troy Forrester came out after he woke up.[26] Shane Forrester recalled the appellant was quiet,[27] “probably a bit of shock”.[28] He said he asked the appellant what had happened but couldn’t recall the response. He was permitted under s 32 of the Uniform Evidence Act to refresh his memory from a prior statement made to police.³² It was then put to him by the prosecutor and he agreed that the appellant had said something like, “The Lord has something in store for me.”[29] It was not put to him that he saw any physical altercation between the deceased and the appellant. He was not cross-examined.

    (e)Tristram Forrester gave evidence that he was inside House 15 making a coffee or tea. He saw the appellant and the deceased “having words” and looking at each other in a “serious” way.[30] After the appellant and the deceased moved out of his line of vision, he heard two whacks.[31] Shane Forrester told him to call the police and when he went outside, he saw the deceased laying down on the veranda.[32] He didn’t initially notice the appellant but later recalled that the appellant said, “Please Ronald, get up.”[33] He described the appellant as “angry sad”. Tristram Forrester was permitted under s 32 of the Uniform Evidence Act to refresh his memory from a prior statement made to police. He was also cross-examined by the prosecutor by leave given under s 38 of the Uniform Evidence Act. Under cross-examination by the prosecutor, Tristram Forrester agreed that the appellant said, “Now I’m going to go to gaol”, or words to that effect, while the deceased was on the ground waiting for the ambulance.[34]

13. The Crown closed its case on 30 November 2022.

14. The defence did not go into evidence. In this appeal, the appellant said that at the trial the defence had relied on evidence led by the Crown of the appellant’s version of events: that the deceased head-butted him in the face, and he was acting in self-defence. Further, the defence was also content to rely on the surrounding contextual evidence to the effect that immediately before the altercation, the deceased and the appellant were standing close together arguing or in silent conflict; the deceased was intoxicated; and he had removed his shirt at some point. There was also evidence that, during the previous night, the deceased had been involved in two aggressive arguments. During one argument with Troy Forrester, the deceased broke a chair. Further, the appellant noted that it had not been suggested by the Crown that the appellant struck the deceased more than once or that the strike itself (rather than the fall) caused the deceased’s death.

    The Crown closing address

15. On Thursday, 1 December 2022, the prosecutor gave his closing address to the jury. In the closing address, the prosecutor made the following comments:[35]

    And it will not be lost on you that [the deceased] did not have a single family member in that group that were there at House 15 on that particular morning.

    You know that Troy and Shane are direct blood brothers. You know that Troy and Shane are the direct uncles of the accused. Troy and Shane are cousins to Tristram. The accused is a distant or a second cousin to Tristram. They are all related by blood.

    …

    The further away you get from the accused, the more obvious it is that there is something – there is an agenda. There is an issue to protect; that the information that they’re providing to you is guarded by other allegiances and other loyalties and other factors, other than necessarily giving you the absolute truth.

    Because we’re relying on people who had connections to the accused, you’ve got to be careful and think about what it is that they’re telling you and why they’re telling you. You have to think about the information that they’re passing on when they were firsthand there; when they were right in the mix; when they’re telling you bits and pieces about things and then omitting to tell you other things.

    You know how the world works. You know that if there is something going on which is intense, is flaring up, is leading to a confrontation, you don’t walk away. You don’t turn away. You don’t go and decide to do something that you hadn’t done previously that morning. You’re watching. If you’re not intervening, you’re making sure you’ve got eyes on what’s happening.

    So, if we’re putting all that in the mix and working out that some things aren’t necessarily being told to you as they actually happened, what can you rely on? What are the things that you can knock down and say, this happened this way? This is what was happening at this point in time, okay?

    …

    The back of the head connecting with the ground is the fatal injury. It caused the brain injury that was the loss of life. We know that. All right. Nobody, at this point, you are led to believe on the evidence that’s provided, not one single person saw that hit. Not one, all right?

    So, now, you’ve got to go to information where you can qualify or colour or take a lens to that particular piece of information that you’re being asked to believe, and that is the 000 call. Now, the 000 call, it has revealed a number of things that wasn’t readily apparent.

    …

    There are most clearly three distinct voices in the background, putting aside Tristram who was on the phone to the caller – or the operator, okay. He’s referred to most often as “the caller” in the transcript that you’ve got. Now, Tristram is the only one in that group who is attending to [the deceased], doing what he can to make sure that he’s getting the best treatment that he can provide.

    Now, you will note that at one point he says, “Can somebody help here?” So, something is going on around him where they’re not focusing on the deceased.

    I can tell you that what we say you will hear is someone shouting in a very, very anguished, angry voice, “Why the fuck you gotta fucken do that for? What’s wrong with you?” Now, we say that that is either Troy or Shane, I think it’s more likely Troy, because you’ll be able to compare him to the voices, if you hear him respond.

    There is somebody saying something to one of those men, “Why did you do that? Why did you have to do that? What is wrong with you?” Someone says that when you did something without of good reason, without any reason. …. you hear this, and I say that it’s Shane speaking to one of the other men there, and he said – and it’s much softer. There has been some shouting, and some calling and there has been some backwards and forwards already, saying, “Bro, you shouldn’t have hit him. It’s a fucking sick man.”

    …

    And then closely thereafter, at about 6:42 on the counter, you are hearing for the first time there the accused saying, “I think the fucker head-butted me, head-butted me,” and he says it maybe twice. [That is how these words are punctuated in the transcript, but it maybe that here the prosecutor was saying, … you are hearing for the first time the accused saying, I think, “The fucker head-butted me, head-butted me.”] And then a little bit later, there’s a little bit of inaudible, a little bit of shouting, “All right, is he on his side?” And then there’s, “He was looking for it. He was looking for that punch. He was looking for that.” Okay. Now, that response at that point, that’s four minutes of gestation between the time that one of those men said to him, “What’s wrong with you? Why did you do that?” And he has come up, “He’s head-butted me.” He’s giving explanation. “He was – he was looking for it”. Like, that’s what it was. That’s when the justification first arises.

    What that interplay and that interchange between them all there, what is happening is, you’ve got a clue as to whether or not Shane and Troy actually saw what happened. Interestingly, through the course of the evidence, you’ve had three of those men, Tristram, Shane and Troy, give you differing accounts of who was out on the veranda at the material time. …

1. He then referred to the fact the house was small and open and to the ‘mud map’ of it drawn by one of the police witnesses.

   Yes, there might be a Rastafarian flag there acting as a curtain on some occasions, but it’s not there then.

   All right. There is an explanation for why that curtain might not have been there when that was filmed, and I will get to that also, because there’s a flow-on effect from my submission to you that Troy and Shane knew exactly what had happened outside, and Maxine, to an extent, too.

   …

   She might have seen something as well, because even on Troy’s account, even if he wasn’t outside, look at his map, mud map that he drew. He has got a chair sitting right in the middle of the lounge room.

   So you can see, and spatially connect that to the video, that he has got a beeline through that doorway, that’s where he’s sitting and seeing. Okay. We know where the stains were outside. We know where the body was in terms of where he was being treated, and that’s all from the mud map that was drawn by the scene of crime officer who spatially calculated and distanced all the places that make sense for this particular examination. So you’ve got all of these things militating against the idea that nobody heard or saw anything. Shane, in particular, wanted you to believe that the sound had been sucked out of the universe. You couldn’t even hear the birds singing.

   So whatever confrontation that Tristram had heard or that Troy saw unfolding, was actually a silent battle between two minds. It was mute. There was no noise whatsoever. Well, you know that’s patently ridiculous, and not – and not clear, because somebody is making a decision to obfuscate, that is, to cloud and dissemble about the true circumstances of the events, because there’s big bikkies at stake here. Someone is going to get in trouble for what happened to [the deceased], and that person is going to be the accused. So you might think that a cover up starts, that they start to make up an idea about what might happen next, because police are going to be there, because the ambulance is going to be there, because someone has been hurt and a report has been made.

   So let’s talk about the fact that we’ve got the continuation of the cover up there at the scene. Pretty much as soon as [the deceased] is being loaded onto the gurney to go into the ambo – by the way, Shane is telling you that he was talking, so he was okay. You know, it wasn’t so serious, it wasn’t so bad. And then Officer Harvey made it very clear that he was just mumbling and making sound, that this man was not talking, was not regaining consciousness, was not recovering in any way, shape or form. You can be pretty confident that everybody there thought the worst for [the deceased] and that things were going to end badly.

   …

   Knowing that, knowing that set up, it has to flavour the way that they behave or the way they relate to each other. It must have been something that was preying on everybody’s minds about what was going to happen next. But what did Troy and Shane do. Started cleaning up the house. They got out the hose and they started washing it away. Collected bottles and cans and started putting that in the bin. Making sure that the place was tidy.

   I said why did you do that to Troy??? and he said, “Nobody told me not to.” Pretty good answer I suppose. But the fact that they were doing it so immediately after what happened to [the deceased] when they were such in shock and so traumatised by what happened, begs the question.

   Then everybody is there saying didn’t see it.

2. The “case theory” being put to the jury by the prosecutor was that at least Troy, Shane and Tristram (and possibly Maxine) did see what happened and were lying about it, and that they engaged in a ‘cover up’ to protect the appellant, which included their actions in cleaning up the veranda. Without saying so expressly, or supporting the theory by reference to any of the evidence given by those witnesses, the prosecutor was plainly implying that, not only did these witnesses see what had happened, but that what they saw was not consistent with the accused acting in self-defence.

   The Defence application for the jury to be discharged

3. Following the Crown closing address, the appellant applied for the jury to be discharged on the basis that the Crown had addressed the jury in the way just described, which was “speculative”, had not been proved in evidence or put to the various witnesses, and was contrary to the way the Crown case had been framed in the opening and, indeed, in the entirety of its case right up until the closing address.[36]

4. During the hearing and determination of that application, the trial judge pressed the defence to specify what precisely the defence would have done differently if given prior notice of the “cover up” case theory. Defence counsel responded that that was not something that could be done on the run without notice, but did articulate some areas of prejudice that arose from the running of such a case without notice. He said that the defence would have spoken to family members and friends and investigated the relationships with a view to at least testing the “cover-up” theory. They may well also have conducted the cross-examination of the witnesses differently and cross-examined more extensively. Further, defence counsel contended that the defence ought to have had the opportunity to make considered forensic decisions about whether to go into evidence and about what, if any, evidence it should adduce with notice of the case ultimately to be run by the Crown.

5. One of the building blocks of the “cover-up” case theory was the submission by the prosecutor in closing that the accused and the witnesses must have known that the deceased was very seriously injured and likely to die. He said:

   You can be pretty confident that everybody there thought the worst for Ronnie and that things were going to end badly.

   That was contrary to what was put in opening where the prosecutor talked about the police returning to the house several hours after their first visit at which time:

   The accused was no longer there and he certainly wasn’t at House 14. He’d actually got a lift by Shane who was driving into town to go and check on [the deceased] to see how he was faring. Wasn’t a little bit later until it was received that [the deceased] was going to pass away and it was going to be a far more serious outcome than everyone had feared.

6. In relation to that aspect of the change of case theory, defence counsel protested that there was simply no evidence on which the prosecutor could legitimately ask the jury to infer that everybody there thought the worst for the deceased and that things were going to end badly. Further, it was submitted that, had the defence been put on notice that that was going to be said in support of the cover-up theory, the defence would have explored the basis for it in cross-examination of the ambulance officers who attended the scene. In response to that argument, the prosecutor agreed to withdraw that submission.

7. On 2 December 2022 the trial judge refused the application to discharge the jury and instead gave the Crown leave to re-open its case, put further questions to Troy Forrester and Shane Forrester by way of cross-examination pursuant to s 38 of the Uniform Evidence Act, and then to address the jury a second time in closing.[37] The jury was told the Court had granted the Crown leave to recall the witnesses.

   The Crown case re-opened

8. Troy Forrester was recalled[38] and, when cross-examined by the Crown, said he could not recall where he was standing in relation to Tristram when Tristram was making the 000 call or what, if anything, he and Shane Forrester said to each other or to the accused. The 000 call was played to him and he agreed that he could hear the accused shouting quite loudly at times, in an aggressive way, and that he (Troy) may have said, “Why the fuck you got to fucking do that for, what’s wrong with you?” or it may have been Shane.

9. He again denied that he saw what had happened between the accused and the deceased. He said, “I thought he might have done it, but I didn’t see it. I did not see what happened.” He said the accused was the only one there, so he “assumed he done it, he must have hit him or done something.”

10. Troy Forrester agreed that he was seated inside the lounge room, in the chair, near the doorway, but did not agree that he could see the deceased and the accused through that space, either through the window or the door.

11. He agreed that he was in a really tough position because he was there giving evidence about his really good friend the deceased who died, but did not agree that he was trying to protect his nephew, the accused. He said, “No. I’m not protecting my nephew.”

12. Troy Forrester said he and Shane did not talk about what they might have to discuss if the police arrived. He said, “No we did not talk about covering up for [the accused]. … I would never do that to my friend. He’s my friend.”

13. Asked about hosing down the veranda as soon as the deceased had been placed on the gurney and into the ambulance, he said, “Yes, I was tidying up my house.” He agreed that he was getting rid of the blood at the position where the deceased hit the ground and started bleeding, and said, “Yes, but I wasn’t told not to clean up from the police.” He denied that he knew the police were coming back.

14. He also said, “I thought my friend was going to be okay, because he was talking back to the ambulance people,” but then agreed that the deceased was just mumbling and snoring, and that he himself was confused. He agreed that that snoring was really representative of the deceased being completely unconscious and non-responsive.

15. It was put to him that he didn’t want to see his nephew go to gaol and he said, “Yes, that’s the – [the deceased] has to get justice for what happened to him. If he goes to gaol, he has to go to gaol.”

16. Shane Forrester was recalled.[39] In cross-examination by the Crown, the 000 call was played to him and he agreed that he might have said, “Bro you shouldn’t have hit him, it’s a fucking sick old man,” but he did not agree that that implied that he saw what happened. He said, “No, I didn’t see what happened … because I had my back to everything. … I didn’t see no head. If God is my witness, I didn’t see anything, I was walking back into the house, and that – that was behind me.”

17. Then this exchange occurred:

    [The deceased] didn’t do anything, did he?---As far as I’m concerned, no, he didn’t do anything.

    Because you were there, right there on the spot?---Yeah, I was there, but I didn’t see what happened directly.

    Mr Forrester, you don’t like being in this situation, do you?---No, no, because I haven’t apologised to the family. I’m under duress. It – it has been on my mind, I just never apologised to the family, because I’m a man of dignity, morals and values. That’s the way I am. And, you know, that hurts me.

    He explained: “I was walking back into the house and I heard something, and then I – and then we had come back out, I had come back out, I turned around, [the deceased] was on the ground. It happened that quick.”

18. He denied being part of a cover-up. Asked, “Is this because you don’t want to say that thing that you know that will get your nephew, your blood relative, the man who is alive in that box, into trouble?” Shane Forrester said, “It’s not about him being – he got a – justice, I want justice for the family.”

19. Asked, “Did you discuss protecting your nephew with Troy and other members of the family?” he said, “No. There was nothing about protection or anything. It’s about justice and it’s about what’s right.”

20. Asked about hosing down the veranda, he said, “Well, do you know what, the police, when they was there, they shouldn’t have went, come back, we didn’t want that there. We was traumatised. We didn’t want it – that there on the ground. My brother decided, no, no, I’m going to get rid of that. He was – a lot of things were going through our heads.”

21. He said that the deceased and his welfare was their main concern and he said he was not interested in the welfare of the accused.

22. Finally this exchange occurred:

    Are you saying that there really wasn’t an agreement at that point, when you were trying to work out exactly how to deal with everything, that if the police turned up, everybody should just say you were sleeping inside and didn’t see anything?---We wasn’t really trying to think about dealing with things. We were just in a moment of anger, respect, and everything else that happened that morning, you know, I can’t believe I’m here, having to say this in court, but anyway.

    Well, last question then, Mr Forrester, last question. You were angry?---Very angry.

    Because Jerome hit [the deceased] for no good reason?---That’s what it boils down to.

    The further Crown closing address

23. After Troy Forrester and Shane Forrester were recalled the Crown closed and addressed the jury for a second time on 2 December 2022.[40] During that second closing address, the prosecutor said, in relation to the “cover-up” theory:

    Clearly we have recalled Troy Forrester and Shane Forrester. Those witnesses are important witnesses. You must all agree. They are people that are front and centre involved, at some point, with the confrontation between [the deceased] and [the accused], okay, whether it’s at the table out on the veranda as it’s moving along in the doorway at various points, they’re actually in the mix. Now, what I neglected to do, and what I failed to do properly, was to give them the opportunity to provide answers about, most importantly, the idea that there was some sort of cover up, all right. So that wouldn’t be lost on you as something that was front and centre in the course of proceedings this morning.

    …

    Now, as to who saw what, and who saw the things that I say were transpiring that must have been able to be seen, have now had answers from the two key witnesses that were in a position to best do so.

    ….

    Okay, so about this cover up that I’ve suggested that was present for you to be able to factor into your considerations. Now, I’ve referred to the fact that there was the prospect and undeniable prospect that these witnesses were in a position to see what I say would have clearly been able to be seen.

    You may reach that conclusion yourself. It may – it’s a matter for you. The determination of fact is entirely your preserve. This is up to you to make these conclusions, based on the evidence that you’ve heard. Of course, nothing that I’m trying to tell you is to change that basic premise. It’s the facts that you find. I’m suggesting ways of looking at it. Now, in terms of what I suggested about whether or not those boys clearly saw what was happening, they’ve all denied it, both Troy and Shane deny they saw it happen in front of their eyes. They give explanations for why. Now, I had said to you, phrases such as, “You’ve got two clues there that might make it seem very clear that they knew exactly what happened and what had been done.” That’s a matter for you to determine, whether the words that they say were referable to that view.

    Their evidence today has been they did not see it, and that’s not why they said those things. Troy more so than Shane. All right. I also said that they knew exactly what happened. And that’s me saying that that was an inference that you could have drawn from that – from their absence of information and where you would expect it. That’s an inaccuracy that you’re not permitted to do. It’s up to you to work out precisely what they did and didn’t see. All right. I can’t confirm exactly that they saw it. That’s not a fact that I can present to you to make your decision about. Whether they saw or heard anything, they have now very clearly [said] what they did see and what they didn’t see.

    The idea that there was some obfuscation or there was some cover up that they were actively engaged in, that they were doing, that they acknowledged was part of their conduct and their behaviour, you have now heard that they have denied it, clearly.

    The prosecutor then referred to some of the evidence given when the witnesses were recalled.

24. Defence counsel protested that it should not have been put to Troy Forrester that the deceased was “in dire straits” when the ambulance officers attended because there had been an agreement that the Crown was going to withdraw that submission. The trial judge warned the prosecutor that he would “just need to be careful about that,” and said to defence counsel, “Yes, it’s noted, [defence counsel]. It’s on the transcript. And [the prosecutor] is going to withdraw it, when the Crown finalises its address.”

25. As it happened, in the second address, the prosecutor did not explicitly withdraw the submission that the witnesses knew the deceased was in a very bad way when he was taken away by ambulance but said instead, essentially, that it was a matter for them as to what they make of that issue. His actual words were:

    So firstly, though – and I want to correct what I addressed to you about in terms of the belief that [the deceased] was in dire straits. Now, the fact of his situation, that he was unconscious but still breathing, mumbling and making sounds. And you heard the snoring as a breathing pattern, and to whether or not they were making an assessment as to how dire that was, that’s a matter for you as to whether they thought that that was the case or not. I presented an argument or submission that they all believed that he was in significant danger, and peril, and in dire straits. That’s not anything that I could point to you and say, “That was an absolute held belief.” But there might be evidence that you see there that might give you that reason to believe so, but my submission to you was inaccurate in that regard.

26. Defence counsel protested again and when the jury returned, after he had addressed them for the second time, the prosecutor said:

    “One last thing, ladies and gentlemen, before my learned friend gives you his closing address. And that is, in my first closing address to you, I said the following: ‘You can be pretty confident that everybody there thought the worst for [the deceased] and that things were going to end badly.’ I withdraw that as a submission. It is not pressed. You need to disregard it.”

27. That brought it to the jury’s attention for the third time – the fourth if one counts the insinuations in the questioning of Troy Forrester when he was recalled – and the retraction was not linked to the cover up submission. Specifically, the jury were not told that the withdrawn submission had been an important plank in the Crown’s cover up theory.

    The end of the trial

28. On 5 December 2022, the judge summed up, the jury retired to consider their verdict and, later that day, returned a verdict of guilty.

29. The appellant has appealed against the conviction.

    The appellant’s contentions on Ground 1

30. The appellant contends that there are a number of problems with the prosecution being permitted to close in this manner; and being permitted to reopen its case after the close of both the Crown and the defence case, and after the prosecutor had addressed the jury.

31. The first problem was that the picture being painted by the prosecutor in the closing address was very different from the opening, in which the prosecutor said that the witnesses did not see what happened. The prosecutor did not open on the basis that the witnesses were lying or that there had been a cover up. The Crown specifically opened on the basis that none of the witnesses had seen what occurred at the crucial point of time. The closest the prosecutor had come was a vague, general reference to the witnesses being related to the accused.

32. The second problem was that this position was maintained throughout the trial until the prosecutor's first closing address to the jury. It was not put by the Crown to any witnesses that they saw what occurred. Immediately prior to the Crown’s closing address the prosecutor relied on this in support of a Weissensteiner direction, arguing that the appellant was the only person who knew what had gone on. This was the case the appellant had prepared to meet. It was fundamentally a case about the inferences that might be drawn from the surrounding context observed by the witnesses and from the appellant’s own conduct. This meant that the defence was taken completely by surprise and had no opportunity to meet the case being put.

1. The third problem was that there was no evidence to support this case theory. Each of the witnesses had said in evidence that they were not on the veranda when the fatal punch occurred, and it was not suggested to them by the prosecution that they were. The evidence which it seems the prosecutor had relied upon was the remarks made by two of the witnesses in the background of the 000 call to the effect of, “Why the fuck you gotta fucken do that for? What’s wrong with you?” and “Bro, you shouldn’t have hit him. It’s a fucking sick man.” This evidence does not support a conclusion that the witnesses must have seen the punch, or that what they saw was inconsistent with self-defence. It is entirely consistent with the evidence given by the witnesses that there had been a verbal altercation between the two men on the veranda; that they did not see the punch; and that they went onto the veranda afterwards and saw the accused standing up and the deceased lying on the ground bleeding profusely from his head. Of course they could tell that the accused had hit the deceased from those observations alone and the questions were entirely natural in those circumstances.

2. The fourth problem was that the cover up theory was not put to any of the witnesses accused of the cover up to give them an opportunity to meet the accusation before the Crown closing address. The accusation that they had engaged in a cover up to protect the accused was a serious one – a criminal conspiracy to pervert the course of justice. The prosecutor should not have addressed the jury in this fashion without the accusation having been put to the witnesses. Nor should such an accusation have been made without a proper basis and the appellant contended that there was no such basis; there was no evidence of a cover up.

3. The final problem was that changing the basis of the Crown case in this fashion “weaponized” the deficiencies in the evidence adduced in the Crown case as evidence of a cover up to protect the appellant and therefore as evidence of guilt.

4. The appellant contended that the correct course for the trial judge to have taken in the circumstances was not to permit the Crown to re-open its case, but instead, to discharge the jury. The trial judge’s decision to permit the recall of Troy and Shane Forrester was based on Anderson v The Queen[41] in which Gleeson CJ said that “it was unfair to allow the Crown to promote [a speculative case theory] without the Crown being put in the position of recalling [the relevant witness] and re-opening his evidence in chief:”. The appellant contended that trial judge appears to have treated this remark as delineating the options available to the Court following the first prosecution address: either the Crown case must be confined to exclude a case theory unsupported by the evidence, or the witnesses must be recalled, with the Crown then permitted to rely on its new case theory.

5. The appellant argued that reliance on Anderson was misplaced because the facts and issues in Anderson were materially different to those in this case. In Anderson, at the close of the Crown case the prosecutor asked defence counsel whether or not he required the relevant witness to be recalled for further cross-examination. Defence counsel declined the opportunity. What was being rejected in Anderson was any argument that the Crown was permitted to proceed based on the election. The issue as to whether or not the recall of a witness at some later point in time after the Crown had closed its case did not arise. Equally, after the Crown closed to the jury on the basis of allegations not put to the witness, the trial judge in Anderson asked whether the accused wished to apply for a discharge of the jury. The accused declined that opportunity. The appellant contends, therefore, that Anderson is not an authority concerning the appropriate resolution of an application by the defence to discharge the jury.

   Leave to re-open

6. The appellant argued that the Crown required leave to re-open its case and that, in suggesting and then granting leave, the trial judge did not have regard to or engage with any of the authorities which govern that question.

7. The appellant relied on the principles in the following authorities.

   (a)The occasion must be very special or exceptional to permit the Crown to re-open its case after closing. Typically, leave should be refused unless the Crown could not have foreseen the issue to which the evidence goes: Shaw v The Queen (1952) 85 CLR 363 at 380.[42]

   (b)Leave must be refused if a consequence of its grant would be to prejudice the accused: Killick v The Queen (1981) 147 CLR 565 at 568.[43]

   (c)Part of the reason for constraining the Crown from re-opening is that “[e]vidence tendered by the Crown after the defence has closed its case may assume an inflated importance in the eyes of the jury”: Killick v The Queen (1981) 147 CLR 565 at 569. That is, the assessment of prejudice must look to both the content of the evidence and the manner in which it will be presented to the jury.

   (d)There is no fixed rule as to when leave should be granted but the touchstone is fairness to the accused: R v Soma (2003) 212 CLR 299 at [29].[44]

8. The explanation given by the Crown in this case is that leave to re-open was required because the prosecutor had neglected, ahead of the trial, to listen sufficiently carefully to the 000 call in order to make sense of the background commentary captured on that recorded evidence. Having listened to that evidence over the course of the trial, the Crown took a different view of the evidence. The appellant contended that this mea culpa fell well short of the standard of “most exceptional” or “very special” circumstances formulated in Shaw v The Queen (1952) 85 CLR 363 at 380.

9. As to the question of unfair prejudice and forensic disadvantage to the accused, the appellant made the following submissions.

   (a)The course taken by the trial judge unfairly promoted the cover up theory. Two witnesses were recalled after all the other evidence had been heard and the Crown had addressed the jury. The jury were told that the Court had granted leave to the Crown to recall those witnesses after hearing argument. The jury heard from those witnesses and then the Crown was given a second opportunity to address on the new case theory. The thrust of that address was confirming that the cover up theory was a matter for the jury. The course taken could only have caused the jury to conclude that the cover up theory was sufficiently important to justify an exceptional course being taken, thereby favouring its acceptance. This perception must have been reinforced by the trial judge’s focus on the cover up evidence in his summing up, in which the trial judge made explicit the logic which had been only hinted at by the prosecutor in his closing addresses.[45] The course taken allowed the Crown to isolate and refine this aspect of its case.

   (b)The course taken by the trial judge forced the appellant mid-trial (importantly, after the evidence was closed and the Crown had made its closing address) to answer a very different case to the one which had been prosecuted up to that point. To do so properly, necessitated a different approach to the whole of the evidence, both what was adduced and what was not. It required reconsideration of the exercise of forensic judgements made in advance of, and during, the trial. The appellant did not have any opportunity to question police or other witnesses in relation to the Crown’s new theory. The appellant had previously asked no questions of Constable Harvey and only limited questions of Senior Constable Odgard. These were two of the police who attended the incident. Neither officers’ partner for that shift gave evidence or was required by the appellant. Consequently, none of the police witnesses was asked questions about why the veranda was not initially treated as a crime scene or secured for later examination — presumably because there was no forensic value identified in doing so. This may have answered the allegation that cleaning the veranda after police left was part of a cover up to protect the appellant. None of the lay witnesses was questioned in relation to the usual state of cleanliness of the veranda. This also may have gone some way towards answering the suggestion that cleaning the veranda was part of a cover up.

   (c)Generally, the way the appellant had treated the Crown witnesses in cross-examination poorly positioned the appellant to deal with the cover up theory. The appellant took the approach of asking as few questions as possible, did not explore the close relationships between the witnesses and the deceased, and did not confront any of the witnesses on differences in their evidence. This played into the theory that these witnesses were supporting the appellant. A different forensic choice may have been made if the Crown had opened on or developed the cover up theory before the closing address. By way of example, if the theory that Shane Forrester saw the physical confrontation was taken seriously, the appellant may have wanted to further explore the connection between his description of the deceased and appellant standing with their heads close together and the appellant’s complaint that he was head-butted. The appellant may have wanted to put to the witness that he saw the head-butt and, if the proposition was denied, offered an alternative that the witness was protecting the reputation of the deceased by staying silent. This course was less readily open where the appellant had declined to cross-examine the witness earlier, and had not developed through each witness the close relationship between Shane Forrester and the deceased.

   (d)Because of its late emergence, the appellant was poorly prepared to meet the cover up theory. The cover up theory fixated on comments by Troy Forrester and/or Shane Forrester to the effect of, “Why the fuck you gotta fucking do that for; what's wrong with you?” being inconsistent with not having seen the incident. That is, the cover up theory dismissed the prospect of assumption or conjecture informing those comments. At least one difficulty with the theory was the recording of the appellant explaining to Troy and/or Shane “He head-butted me .... He was looking for it,” and none of the witnesses disputing that narrative. This issue was not developed in the defence case. It would have been difficult to do so without an agreed transcript of the 000 call attributing comments to particular persons and evidence from all relevant witnesses about who was present or heard those things said. This could not easily be done through Troy Forrester and Shane Forrester alone. It posed an unfair forensic disadvantage for the appellant to embark on an exploration of this issue at the end of the trial without knowing what the witness might say.

10. The appellant contended that, even after the Crown recalled Troy Forrester and Shane Forrester, the cover up theory remained entirely speculative and should not have been left to the jury in the manner in which it was. The language of a “cover up” suggested a conspiracy to pervert the course of justice. It introduced a serious allegation. This risked diverting the jury from the proper inquiry of the appellant’s guilt to a proxy issue — whether Troy Forrester and Shane Forrester were protecting the appellant. Its timing risked unduly elevating the significance of this proxy issue. The path of reasoning was based on:

    (a)the actions of Shane Forrester and Troy Forrester cleaning the veranda being seen as an attempt to remove evidence incriminating the appellant in circumstances where there was no evidence that any incriminating evidence or apparently incriminating evidence was cleaned up, and the witnesses denied they were covering up by doing so;

    (b)an allegation that Tristram Forrester was the only person helping the deceased during the 000 call which ultimately had to be corrected and was abandoned by the prosecutor since it was contrary to all of the evidence;

    (c)attributing meaning to comments in the 000 call in circumstances where the witnesses responsible for the comments, when recalled, denied that meaning, and gave a reasonable alternative explanation that was open;

    (d)requiring the jury to prefer the Crown’s interpretation over the witnesses’ own as to why the witnesses could be heard in the 000 call castigating the appellant, and further requiring the jury to be satisfied that the dishonest witnesses’ observations informing their comments could be relied on as reliable accounts of what occurred in circumstances where the witnesses denied having seen anything.

11. This contention amounts to a submission by the appellant that there was no basis for the serious allegation that the witnesses had engaged in a cover up in order to protect the accused – essentially a conspiracy to pervert the course of justice. The respondent contended that there was a basis for the cover up allegations, namely that when police first arrived at the scene, the witnesses said not just that they had not seen what happened, but that they did not know what had happened, when they plainly did, as evidenced by their comments to the accused captured in the background to the 000 call. The respondent also relied on evidence that the accused lied to police saying he did not know what had happened and was not contradicted by the witnesses who were presumably within earshot and knew that the accused had hit the deceased.

12. In our view, while it cannot be said that the allegation of a cover up was made entirely without basis, that basis was not articulated by the prosecution at the trial and, in any case, was tenuous at best given the following.

    (a)The remarks made to the accused by Troy Forrester and Shane Forrester in the background of the 000 call are equally consistent with their “knowing” (ie, assuming) that the accused hit the deceased because the accused and the deceased were the only ones on the veranda and had been arguing. There is no need to explain those remarks by supposing that the witnesses all lied when they said they did not see the blow struck.

    (b)The cleaning up of the veranda took place after police had been, not before, and the prosecutor could point to no relevant evidence that had been destroyed or made unavailable.

    (c)During at least part of the time when the Crown suggested the witnesses had colluded with each other and agreed to protect the accused, they were being recorded in the background of the 000 call, presumably unknown to them, and their conversation was not concerned with agreeing to cover things up for the benefit of the accused but rather berating the accused.

    (d)There may be many reasons why a group of Aboriginal men who had just been through the traumatic experience of having a guest hit by another guest, knocked unconscious and bleeding on their veranda, and taken away by ambulance, may initially have been reluctant to be very forthcoming with police.

    (e)Part of the theory as articulated by the prosecutor at the trial seems to have been based on an assertion that only Tristram Forrester was assisting the deceased – an assertion that was withdrawn as it was contrary to the evidence.

    (f)Another part of the theory as advanced by the prosecution at the trial was that the witnesses all knew when the ambulance arrived that the deceased was in a bad way and suspected that things would end badly – a submission which was also withdrawn.

13. The appellant contended that the appellant's trial miscarried. The error was significant and radically altered the course of the trial. Had the trial judge refused the Crown leave to re-open, the Crown would have had to abandon the cover up theory, Troy Forrester and Shane Forrester would not have been recalled, and the Crown would not have been permitted two jury addresses. The outcome was unfair to the appellant such that he has lost the possibility of an acquittal.

The respondent’s contentions as to Ground 1

1. In addition to the contentions of the respondent referred to already, the respondent disputed the relevance of the authorities relied upon by the appellant, contending that these were authorities on the question of whether the Crown should be permitted to re-open its case to call rebuttal evidence after the accused had given evidence and were not relevant to the question of whether the trial judge was wrong to allow the Crown to recall the witnesses in the present case, in particular as in this case the appellant did not give evidence at the trial.[46] The respondent contended that the trial Judge was correct to look at this as a Browne v Dunn issue and that the method of dealing with the potential unfairness to the defence adopted by the trial judge was the appropriate one in the circumstances and in fact had the desired effect.

2. The respondent contended that the trial did not miscarry, pointing out that the result of allowing the Crown to re-open its case and recall the witnesses Troy Forrester and Shane Forrester, was to elicit evidence favourable to the defence. Both of the recalled witnesses strongly rejected the suggestion that they were trying to protect the accused, or that they had been involved in a cover up and continued to strongly deny that they had seen what happened.

Consideration as to Ground 1

1. The test for whether an appeal should be allowed on the ground that the trial judge should have dismissed a jury is set out in Crofts v The Queen (1996) 186 CLR 427,[47] recently applied by Brownhill J in The King v Wasaga (No 2) [2024] NTSC 98. In an appeal on the ground that the trial Judge’s refusal to discharge the jury was a substantial miscarriage of justice, the High Court stated that the question is whether, in the circumstances, there was such a high degree of necessity for the jury’s discharge that the failure to have ordered it has resulted in a mistrial and added:

   No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues, the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. ... Much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from a reading of the transcript.

2. However, in this case, the only practical alternative to discharging the jury as requested by the defence at the time was the one adopted by the trial judge – permitting the Crown to re-open its case after the appellant had closed his case and after the Crown’s closing address, in order to give those witnesses the opportunity to answer the allegations. That being the case, the authorities on when it is appropriate to permit the Crown to re-open its case relied upon by the appellant fall to be applied and a review of those authorities does not support the limitation sought to be placed on them by the respondent.

3. Shaw was, as the respondent submitted, a case concerned with the question of whether the Crown should have been permitted to call rebuttal evidence after the accused had given evidence. The accused, who was charged with murdering his partner, gave no doubt unexpected evidence that he did say to police who attended the scene: “Stop sitting round here and go and find the bastard that throttled Sylvia.”[48] When asked why he used the word “throttled” (given that there was apparently no indication at that stage that such was the cause of death) the accused said he had heard the police talking saying she had been throttled or strangled. The trial judge allowed the Crown to reopen its case to recall seven police witnesses to contradict the evidence of the accused. The High Court held that the prosecution’s application to reopen the Crown case to call evidence in rebuttal should have been refused. In doing so, the High Court expressed the principles to be applied in general terms:[49]

   Clearly the principle is that the prosecution must present its case completely before the prisoner’s answer is made. There are issues the proof of which do not lie upon the prosecution and in such cases it may have a rebutting case, as when the defence is insanity. When the prisoner seeks to prove good character evidence may be allowed in reply. But the prosecution may not split its case on any issue. The Court possesses a power to allow further evidence to be called, but it must be exercised according to rule and the rule is against reopening the Crown case unless the circumstances are most exceptional. We are not disposed to lay down the rule in the terms adopted from Tindal C.J. in R. v. Frost (1839) 4 St Tr (NS), at p 386. It is a matter of practice and procedure, and in such matters, even where the procedure is criminal and is directed to safeguarding the position of the accused, there is less reason for closely following English authority than where the development of the substantive law is involved. It is, for example, difficult to apply the rule where the jury ask for the recall of a witness or further proof or disproof of a fact. It seems to us unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise at a criminal trial. It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence. The argument that ss. 430, 431 and 448 of the Crimes Act 1928 (Vict.) combine to make it impossible for the prosecution to call further evidence after the prisoner has entered upon his defence, or at all events concluded it, is, we think, unsound. But the policy of these provisions strengthens the principle which makes a departure from the rule allowable only in exceptional circumstances. Further, although we have not thought it proper to adopt the formula of Sir Nicholas Tindal, the English cases make it plain enough that generally speaking an occasion will not suffice for allowing an exceptional course if it ought reasonably to have been foreseen. Again, it may be pointed out that even an unexpected occasion may be of such a nature that it would have been covered, had the Crown case been fully and strictly proved. (at p380) [emphasis added]

1. In Shaw, Fullagar J, who delivered a separate judgment said:[50]

   ... [I]t remains true and important that the Crown should be permitted to adduce evidence after the close of the case for the defence only in exceptional circumstances and when it is reasonably clear that the accused will not be unfairly prejudiced by the admission of the evidence. A wide discretion must be conceded to the judge presiding at the trial, but it should be regarded as limited in that way, and it is to be remembered that the practical effect of evidence on the minds of a jury may differ according ?? as the evidence is adduced in chief or by way of replication. But the discretion ought not to be regarded as further limited or as governed by any rigid rule or formula. [emphasis added]

2. In R v Chin,[51] the accused was charged, together with a co-accused, with importing prohibited drugs into Australia. The co-accused had been apprehended at Sydney Airport with 3.126 kilograms of heroin in a suitcase. At trial, both accused gave evidence that they had no previous relationship with each other. The Crown was on notice that a defence of that nature was likely to be run because of a statement made to police by the accused following his arrest. The Crown had in its possession separate application forms signed by both of the co-accused for the purpose of obtaining visas to enter Australia. Both forms listed the same phone number for the applicant. Although it would have assisted the Crown’s case to establish a connection between the two co-accused, the Crown did not rely on these forms in evidence in chief.

3. When the accused gave evidence, he denied previously knowing the co-accused. He was questioned briefly about the application form but was not asked about the telephone number. The co-accused also gave evidence. He was cross-examined on the application for the visa including the telephone number. The two accused applied to discharge the jury on the ground that they had been unfairly prejudiced by the evidence regarding the telephone number. The application was rejected and the trial judge allowed the Crown to tender the forms in a case in reply.

4. The NSW Court of Criminal Appeal held that the trial had miscarried. The High Court agreed. Gibbs CJ and Wilson J said:[52]

   The evidence that Choo had used the respondent’s telephone number in his application form was so material that fairness dictated that the prosecution should have given notice to the respondent of its intention to adduce the application forms in evidence. ... if such notice had been given, it is possible that neither the respondent nor Choo would have entered the witness box. Moreover, the evidence was elicited, not by the cross-examination of the respondent, but, after his case had closed, in the cross-examination of Choo. Had the respondent been asked whether Choo had used his telephone number, and if so why he had done so, he would have had an opportunity to furnish his explanation during the ordinary course of cross-examination and re- examination. As it was, he had to return to the witness box to give his explanation, thus fixing the jury’s attention on what was undoubtedly damaging evidence, and giving it an emphasis that it would not have had if the trial had taken its regular course.

5. As the respondent submitted, Chin was likewise a case concerning whether the Crown should have been permitted to re-open its case to call rebuttal evidence after the accused had given evidence, but, as in Shaw, the principles were expressed in general terms.[53]

   The principles that govern the exercise of the discretion of a trial judge to call evidence after the close of the case for the defence have been discussed in this Court in Shaw v. The Queen (1952) 85 CLR 365, at pp 378-380, 383-384, Killick v. The Queen [1981] HCA 63; (1981) 147 CLR 565, at pp 568-571, 575-576 and Lawrence v. The Queen (1981) 38 ALR 1, at pp 3, 7, 22-23. The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen. The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time by the defence; if the rebutting evidence was itself relevant to prove the prosecution case (unless, perhaps, it was no more than marginally, minimally or doubtfully relevant: Reg. v. Levy and Tait (1966) 50 Cr App R 198, at p 202) and the need to give it could have been foreseen it will, generally speaking, be rejected. The principle would not prevent the prosecution from giving in reply evidence directed to an issue the proof of which did not lie on the prosecution, such as insanity, or from rebutting evidence of the accused's good character, provided that the prosecution had not anticipated the raising of an issue of this kind and led evidence with regard to it, for the prosecution must not split its case on any issue. Also, it has been held that evidence may be given in reply to prove some purely formal matter the proof of which was overlooked in chief. [emphasis added]

6. The principles articulated in Shaw by the plurality and by Fullagar J, were quoted in the joint judgment of Gibbs C.J., Murphy and Aickin JJ in Killick v R.[54] In that case, the question was whether the trial judge was wrong to permit the Crown to adduce evidence after the close of the case for the defence to rebut an alibi sworn to by the accused in the course of his evidence, and not previously the subject of evidence at the trial, but which the Crown ought reasonably to have foreseen would be raised by the accused at the trial, because it had been put forward by him in earlier proceedings. Again, it was a case concerning rebuttal evidence called after the accused had given evidence, but the general principles set out in Shaw were applied. The plurality added:[55]

   The general rule that all available evidence on which the prosecution intends to rely in proof of the guilt of the accused should be presented before the close of the case for the Crown is not merely a technical rule, but an important rule of fairness. Evidence tendered by the Crown after the defence has closed its case may assume an inflated importance in the eyes of the jury. The very fact that the last piece of evidence which the jury hears is given in contradiction of evidence already given by or on behalf of the accused tends to tilt the scales in favour of the prosecution. [emphasis added]

7. The respondent contended that in each of the decisions relied on by the appellant, the purported unfairness arose in circumstances where the accused person had given evidence in the defence case, following which the prosecution was allowed to re-open its case. In other words, the Crown was permitted to adduce “rebuttal” evidence and the unfairness was obvious. The accused persons may not have gone into evidence had they known the full extent of the prosecution case against them. Furthermore, the rebuttal evidence adduced by the prosecution was particularly damaging to the credibility of the accused persons’ testimonial accounts or gave particular emphasis to features of the positive defence case which were adverse to the accused persons. The rebuttal evidence adduced was often damning to the accused person’s credibility and/or generated admission evidence upon which the Crown could rely in establishing guilt, which was given particular prominence in the sense of being the last evidence that the jury would receive. The respondent contended that, by contrast, in the present case the appellant called no evidence, and the decision to permit the Crown to re-open its case had no bearing on the appellant’s decision about whether to give evidence and did not carry the risk of undermining testimony that he had presented to the jury. As a result, the kind of unfairness that a trial judge must protect against in considering whether to permit the Crown to re-open did not arise.

8. That contention cannot be accepted. The potential unfairness in allowing the Crown to reopen its case after the close of the defence case does not lie only in the potential for rebuttal evidence to be damning to the accused person’s credibility, and the rule is not restricted to cases in which the accused has given evidence. As explained in Shaw, the principle that such a course should be permitted in exceptional circumstances only is an application of the general principle that the prosecution must offer all its proofs during the progress of the Crown case and before the accused is called upon for his defence. The defence is entitled to know the whole of the Crown case before making a forensic decision whether or not to call evidence.

9. In holding that the trial judge ought not to have allowed evidence in rebuttal after the close of the defence case, the plurality in Killick made the following observation:[56]

   In our opinion, the circumstances in which the evidence of Mr. and Mrs. Eyles was tendered in rebuttal were not very special or exceptional. It was foreseeable that the applicant would set up the alibi at the trial. Full details of the alleged visits to Mrs. Eyles had been given at the extradition proceedings. The Crown took none of the steps that were open to it to ascertain whether the applicant would persist in relying on the alibi. The evidence of Mr. and Mrs. Eyles, when given after the case for the applicant had closed, dealt a fatal blow to the applicant’s case - a blow which unfairly gained force from the time when it was delivered. [emphasis added]

10. The relevance of timing and the question of giving undue prominence to an issue when the prosecution is permitted to reopen its case was also adverted to by Fullagar J in Shaw:[57]

    When, however, a whole series of witnesses was called with a view to excluding or minimising the possibility of the truth of the accused’s explanation, there was danger that, in the eyes of the jury, a comparatively unimportant issue might be magnified out of all proportion and that altogether undue weight might be attached to evidence which, on any view, ought to have been scanned with caution. [emphasis added]

11. In our view, similar considerations arise here. Allowing the Crown to re-open and to recall the witnesses gave undue prominence to the cover-up theory which unfairly gained force from its timing, despite the fact that the evidence adduced from the recalled witnesses did not support that theory. The jury heard the cover up theory from the prosecution in its first closing address; then heard it reinforced in the suggestions put strongly to the two witnesses, Troy Forrester and Shane Forrester after they were recalled, and reiterated by the prosecutor in the Crown’s second closing address. It was given further prominence in the trial judge’s summing up in which the trial judge made explicit the reasoning only obliquely referred to by the prosecutor:[58]

    Now, I am going to go next to what is said by the two uncles; to Troy Forrester and to Shane Forrester, their statements that were made during the 000 call and while they were endeavouring to assist the deceased. Troy made this statement, shouting at the accused: “Why the fuck you gotta fucken do that for? What’s wrong with you?” During that period Shane Forrester made the following statement: “Bro’ you shouldn’t have hit him. It’s a fucken sick man.”

    Now, implicit in those statements is what they have seen is the accused do something to the deceased, not the deceased do anything to the accused. Now those statements can be a result of what they actually saw. And the Crown position is it is pretty clear that they are speaking about what they actually saw. And they did not see any head-butt at that point in time.

    ….

    The Crown says if you take all of those circumstances into account plus the statement, they must have seen what was going on and there is no suggestion in terms of any statements they made that they saw the deceased head-butt the accused. [emphasis added]

12. In our view, the trial judge ought not to have permitted the Crown to reopen its case to recall Troy Forrester and Shane Forrester and put to them its “cover-up” case theory after the close of the defence case. The circumstances – namely that the prosecutor had belatedly realised what was in the background conversations in the 000 call and had neglected to put these matters to the witnesses in the Crown case, were not exceptional and were foreseeable.

13. It was unfair to the appellant to do so for the reasons submitted by the appellant and set out at [49] above in particular. It follows that, given the radical departure from the Crown opening in the prosecutor’s closing address; the failure to put the cover up allegations to the witnesses during the Crown case; the tenuous basis for the cover-up theory; and the potential for prejudice to the defence from reopening the Crown case, the trial Judge ought to have acceded to the defence application to discharge the jury.

14. In our view, these matters combined compel the conclusion that there was such a high degree of necessity for the jury’s discharge that the failure to have ordered it has resulted in a substantial miscarriage of justice.

15. This ground is made out and the appeal will be allowed.

    Ground 2:

16. In the second ground of appeal, the appellant contended that the trial judge erred in his summing up by directing the jury that, on the question of self-defence, it was a question of whether or not the jury accepted or rejected the appellant’s out of court statements that he was head-butted by the deceased and that, if they rejected them, that was “the end of the matter”.

17. The direction complained of was as follows:⁶⁵

    You may also think that the main questions involve the following subsidiary issues. Do you accept or reject the accused’s statements which constitute his evidence that he was head-butted. You are able to accept or reject his statement as to whether, in fact, what he said occurred did occur, and that needs to be considered by you.

    The second subsidiary matter is do you accept or reject the accused’s statements in the watch house which constitute his evidence that he was acting in self-defence. If you reject the accused’s evidence that he was head-butted, that is the end of the matter for your considerations. If you reject his evidence that he was head-butted, that is the end of the issue of self-defence in this case. In that case the defence of self-defence ceases to be raised in this trial.

18. The essence of the complaint is that the impugned direction has the effect of reversing the onus of proof. The appellant contended that the direction created a false dichotomy between acceptance or rejection of the appellant’s account that he was defending himself after being head-butted. In Liberato v The Queen (1985) 159 CLR 507 at 515 Brennan J said:

    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.

19. His Honour went on:

    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 the evidence gives rise to a reasonable doubt as to that issue. His Honour did not make that clear to the jury.

20. The appellant contended that that same criticism applies here. The trial judge’s direction left no allowance for the jury to be undecided as to whether or not the appellant was defending himself from a head-butt, and so left with a reasonable doubt. It did not allow the jury to not accept the appellant’s evidence but consider that it might be true, and so acquit.

21. The respondent contended that the principle enunciated in Liberato is less applicable in this case since here, unlike Liberato, or the kinds of sexual offence cases in which Liberato directions are commonly given, the case did not involve two different accounts; there was no occasion for the kind of “preferential” reasoning warned against in Liberato.

22. The respondent also contended that the trial judge’s remark (“that is the end of the matter”) must be seen in the context in which it was made; following full and proper directions given by the trial judge in relation to the issue of self-defence. The respondent contended that the appellant’s complaint focuses inappropriately on what the trial judge said briefly during a long charge to the jury in relation to evidence in support of the proposition that the appellant had been acting in self-defence and how the jury might go about considering that evidence.

23. The respondent’s contention cannot be accepted. It is true that the trial judge did give the standard directions in relation to the onus of proof generally and specifically to self-defence. However, it is not sufficient for a trial judge to give those directions in a general or generic way. They should be related to the issues and the evidence in the trial. In Alford v Magee,[59] the High Court (Dixon, Williams, Webb, Fullagar and Kitto JJ) said:

    We are in complete agreement with what was said by Owen J in Commissioner for Road Transport v Prerauer (1950) 500 SR (NSW) 271 at 277. And it may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept the responsibility of deciding (1) what are the real issues in the particular case, and (2) of telling the jury, in light of the law, what those issues are.

24. This passage has been cited with approval in many subsequent cases including Azzopardi v The Queen,[60] Murray v The Queen,[61] and Tully v The Queen.[62] In Tully, Hayne J said:[63]

    Because the criminal law has become as complex as it now is, “bench books” of standard forms of instructions to the jury are readily available for the assistance of trial judges. Properly used, such books are invaluable. But there is a risk that the prescription of common forms of instruction, which must necessarily be framed without reference to specific facts, and thus in abstract terms, will be used without relating them to the issues that the jury has to decide. The proper use of standard forms of jury instructions requires the judge first to identify what are the real issues in the case, then to identify the relevant instructions that are to be given to the jury and then, and most importantly, to instruct the jury by relating the standard form of instruction to the real issues in the case. The bare recitation to a jury of the relevant sections of a bench book of standard instructions, unrelated to the real issues in the case, does not fulfil the trial judge's task.

25. On the topic of self-defence, the trial judge first gave generic directions, and then followed those with a consideration of the evidence on the issue. In our view, it was in this consideration of the evidence, which was the most important part of the summing up on self-defence, that the trial judge fell into error. In relation to self defence, his Honour said:

    As to engaging in self-defence, if we go over onto the next page [of the aide memoir] what is set out there is that self-defence is justified.

    1.    A person who causes the death of another person in self-defence is not criminally responsible for the death of the other person. A person engages in self-defence only if the person believes that the conduct is necessary to defend himself and;

    2.    The conduct is a reasonable response in the circumstance as the person reasonably perceives them to be.

    3.    Where an accused person engages in self-defence he is entitled to use force that is intended to cause death to another person provided the accused’s conduct is a reasonable response in the circumstances as the accused reasonably perceived them to be.

    Now, that is not an issue in this case but it does show you the breadth of the notion of self-defence. It applies in that circumstance which many of you may think is a fairly extreme circumstance where someone has actually intended to kill the other person but that is not this case. It is just simply to demonstrate the breadth of the justification of self-defence.

    As a matter of common sense, you should also note that a person defending himself cannot weigh precisely the exact measure of conduct that is necessary to defend himself. A person who has to react instantly to imminent danger cannot be expected to weigh precisely the exact measure of conduct that is required to defend himself.

    There is no requirement that the accused must have retreated before engaging in self-defence. There is no requirement that an accused must be physically attacked before engaging in self-defence. The burden of proof as to self-defence - that is it not coming into operation, is on the Crown. Once the evidence that is before you, the jury, raises a reasonable possibility that the accused punched the deceased in the head because he was engaging in self-defence, the Crown must prove beyond reasonable doubt that the accused was not engaging in self-defence. So that burden in this case is also on the Crown.

    Before you can find the accused guilty of the crime charged on the indictment you must be satisfied that the Crown has proven each and every one of elements 1, 2, 3 and 4 above, beyond reasonable doubt. To prove the accused was not engaging in self-defence the Crown must prove either;

    a)   The accused did not believe that the conduct was necessary to defend himself or;

    b)   The conduct was not a reasonable response in the circumstances as the accused reasonably perceived them.

    So, only one or other of those need be proven by the Crown. The Crown does not have to prove both.

    If the Crown has not done so you must find the accused not guilty. If the Crown has done so you must find the accused guilty.

    Now, it is a matter for you because you are the judges of the facts in this case but you may think the main question for you to consider is whether the Crown has proven that the accused was not engaging in self-defence because in effect the defence accepts that there is really no dispute about the other elements that go to make up the offence charged on the indictment.

    You may also think that the main questions involve the following subsidiary issues. Do you accept or reject the accused’s statements which constitute his evidence that he was head-butted. You are able to accept or reject his statement as to whether, in fact, what he said occurred did occur, and that needs to be considered by you.

    The second subsidiary matter is do you accept or reject the accused’s statements in the watchhouse which constitute his evidence that he was acting in self-defence. If you reject the accused’s evidence that he was head-butted, that is the end of the matter for your considerations. If you reject his evidence that he was head-butted, that is the end of the issue of self-defence in this case. In that case the defence of self-defence ceases to be raised in this trial.

    The accused is entitled to rest on the statements that he has made outside of the courtroom in relation to being head-butted and in relation to acting in self-defence, that is evidence before you. He is not required to give evidence before you in this courtroom. You cannot use the fact - and you must not use the fact - that the accused did not give evidence to draw any adverse inferences against him.

    You cannot and must not do that.

    However, you are entitled to thoroughly examine whether you accept or reject his evidence. You are entitled to thoroughly examine what he said outside of the courtroom and determine what weight you are prepared to give to that evidence and you must do so in the context of the whole of the evidence that has been presented to you during the course of this trial.

    The Crown says that you may find the following matters of relevance in considering whether to accept or reject the accused’s evidence that he was head-butted and in effect the Crown says you should reject that evidence.

    Firstly, the lies told to officer Shannon Harvey.

    Secondly, the lack of detail, gaps and vagueness of the statements made by the accused about that matter.

    Thirdly, the inconsistent statements made by the accused and finally, the statements of the three uncles about what they said to him during the course of the attendance that was on him prior to the ambulance arriving - and I will come to these matters in some detail.

    If you accept his evidence that he was head-butted, the following questions then arise and in particular, has the Crown proven that he was not acting in self-defence in specific detail.

    Just pausing there, the defence, on the other hand, says he made clear statements about what happened. He said at the beginning he was head-butted. So that statement emerges during the attendance upon him pretty quickly after the incident itself and he then goes on to adhere to that statement when he speaks to the police.

    The defence also says that the deceased was potentially more violent than anyone has given evidence about.

    The circumstances of his potential behaviour are that the deceased was involved in two arguments the night before not just one. He continued to be drunk in the morning and he may have been volatile in those circumstances. The defence says it is pretty apparent from the evidence of Troy Forrester, Tristram Forrester and Shane Forrester that they did not see the whole of the incident from where they were and obviously what is of significant importance is what occurred at the time these blows were struck. So they are the questions that you may think are of particular relevance in assessing what weight you are prepared to give to the statements made by the accused outside of this courtroom.

1. The appellant contended that the underlined portions of the trial judge’s summing up on the issue of self-defence tended to suggest to the jury that the onus was on the defence to prove that the accused was acting in self-defence. We agree. The trial judge effectively told the jury that they did not get to consider self-defence unless they accepted the accused’s evidence that he was head-butted.

2. In particular, the summing up unnecessarily mixed up two questions: the issue of whether self-defence had been raised, and the issue of whether the Crown had proved beyond reasonable doubt that the accused was not acting in self-defence.

3. The question of whether self-defence had been raised – ie should be left to the jury - was a question for the trial judge, and in this case there was no dispute that self-defence had been raised by the accused’s statements that he had been head-butted. Once that issue had been determined, and the issue of self-defence was left to the jury, the sole question for the jury was whether the Crown had proved beyond reasonable doubt either that the accused did not believe it was necessary to do what he did in order to defend himself or that his response was not a reasonable one in the circumstances as he perceived them. The jury was not concerned with the issue posed by the trial judge in the impugned direction: “If you reject the accused’s evidence that he was head-butted, that is the end of the matter for your considerations. If you reject his evidence that he was head-butted, that is the end of the issue of self-defence in this case. In that case the defence of self-defence ceases to be raised in this trial.”

4. The issue of self-defence had been raised; it had been left to the jury by the trial judge. It was not for the jury to decide afresh whether self-defence had been raised and putting the issue the way it was put by the trial judge had the potential to lead the jury away from their proper task which was only to consider whether the Crown had proved beyond reasonable doubt that the accused was not acting in self-defence, as defined in s 43BD of the Criminal Code. In that regard, we note:

   Although self-defence is still commonly referred to as a defence, the ultimate onus of proof with respect to self-defence does not rest on the accused. Since Woolmington v. Director of Public Prosecutions [1935] UKHL 1; (1935) AC 462, it has been clearly established that once the evidence discloses the possibility that the fatal act was done in self-defence, a burden falls upon the prosecution to disprove that fact, that is to say, to prove beyond reasonable doubt that the fatal act was not done in self-defence. The jury must be instructed accordingly whether or not the plea is actually raised by the accused: Director of Public Prosecutions v. Walker (1974) 1 WLR 1090, at p 1094.[64] [emphasis added]

5. The trial judge’s directions to the jury should simply have instructed them in practical terms what the Crown had to prove in order to prove that the appellant had not acted in self-defence.[65]

6. A further difficulty is that the impugned directions suggested to the jury that their task was to ask, “Do I believe the accused’s statements to police that the deceased head-butted him?” instead of the correct question for their determination, “Is there a reasonable possibility that the deceased head-butted the accused and that the accused believed it was necessary to do what he did to defend himself?”

7. Immediately after the directions on self-defence, the trial judge gave the following direction in relation to the onus and burden of proof:

   Next, if I may go to the burden of proof. As I said at the beginning of the trial, the accused man comes into this court with the presumption of innocence in his favour. The law regards an accused person as innocent until the Crown proves his guilt beyond reasonable doubt to the satisfaction of you, the members of the jury.

   The burden of proving the charge against the accused lies wholly on the Crown. The accused does not have to prove anything.

   Now, the fact that he does not have to prove anything does not mean that you are not entitled to carefully examine what he has said outside of this courtroom and determine whether you accept or reject what he said outside of this courtroom. You are perfectly entitled to do that and you should do so as part of your deliberations as to whether the Crown has proven this matter or not.

   Nothing short of proof beyond reasonable doubt will do. It is not enough for the Crown to show a mere suspicion of guilt or even to show that the accused is probably guilty. You are to find the accused not guilty of the charge on the indictment unless his guilt has been proven to your satisfaction beyond reasonable doubt.

   As I said at the beginning of the trial, the words “beyond reasonable doubt” are ordinary English words. The words mean what they say. “Reasonable” means reasonable and “doubt” means doubt. If you think the evidence is incomplete or unreliable or otherwise inadequate and without more you think there is a reasonable possibility that the accused may have been engaging in self-defence then in those circumstances you must give the accused the benefit of the doubt and find him not guilty.

   On the other hand, if you are satisfied beyond reasonable doubt that the accused did commit the offence charged on the indictment then in that circumstance of course you must do your duty and find him guilty of the charge on the indictment.

8. The respondent emphasised the underlined words in this direction as a correct statement of the burden of proof on the issue of self-defence and contended that, on the whole, the trial judge correctly directed the jury that their task was to consider the evidence and to determine whether the Crown had proved beyond reasonable doubt that the accused was not acting in self-defence. That contention cannot be accepted. The general or generic directions on both self-defence and onus of proof were unexceptional. However, in the vital part of the summing up where the trial judge related those directions to the issues and evidence in the case, in our view the trial judge fell into error and misled the jury as to the nature of their task in the manner outlined above and this caused a substantial miscarriage of justice.

9. Ground 2 is made out. The appeal will be allowed on this ground as well.

   Acquittal or retrial

10. By s 411(3) of the Criminal Code, if the Court allows an appeal against a finding of guilt, the Court must quash the finding of guilt and direct a judgment and verdict of acquittal to be entered.

11. By s 413 of the Criminal Code, the Court may order a new trial if the Court considers that a miscarriage of justice has occurred and, having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order that the Court is empowered to make.

12. On the evidence, and if the established errors had not been made, there was a real prospect that the jury would not have been satisfied, beyond reasonable doubt, that the accused did not believe it was necessary to do what he did in order to defend himself and that his response was not a reasonable one in the circumstances as he perceived them. In other words, there is a real prospect that the appellant would have been acquitted on the basis that he was acting in self-defence.  As set out above, on the evidence at the trial, the witnesses present said they did not see what happened; the appellant said he was head-butted by the deceased; and the evidence was not sufficient to prove that each of those witnesses were lying, that they did see what happened, and they saw the accused punch the deceased but did not see the deceased head-butt the appellant.

13. However, it cannot be said that there was no evidence that might conceivably sustain a conviction, and in those circumstances, the appropriate remedy is to order a re-trial.[66]   To order an acquittal would constitute a judicial determination of the proceedings against the appellant otherwise than on trial by jury in circumstances where it has not been held that the evidence adduced at trial required the jury to acquit the appellant.  That would usurp the function of both the jury and the prosecutorial authorities. 

14. The authorities make it plain that, where the Court orders a retrial, it is nevertheless open to the Director of Public Prosecutions to determine not to proceed with a retrial having regard to the strength of the Crown case and other relevant factors. It will be a matter for the Director of Public Prosecutions whether or not to proceed with a further prosecution.

    Disposition

15. Both grounds 1 and 2 are made out, the appeal is allowed, the appellant’s conviction is set aside, and a retrial is ordered.

_______________________

[1]Transcript 28/11/2022 p4-5; AB43-44.

[2]T5; AB44.

[3]T5; AB44.

[4]T7; AB46.

[5]T5; AB44.

[6]T6; AB45.

[7]Transcript 28/11//2022 T43.

[8]T44.

[9]T52, 54.

[10]T52.

[11]T49.

[12]T61.

[13]T78.

[14]T92-93.

[15]T93.

[16]T94.

[17]T98.

[18]T99-100.

[19]T110-111.

[20]T101.

[21]T129-130, T155.

[22]T132-133.

[23]T133-134, T156.

[24]T135.

[25]T135.

[26]T135-140.

[27]T136.

[28]T157.

[29]T157.

[30]T164, T186.

[31]T164-165, T187.

[32]T165.

[33]T166.

[34]T193.

[35]T255-265.

[36]Another basis for the discharge application was reference that the Crown prosecutor had made to the second reading speech during the course of his closing address to the jury. However, the trial judge directed the jury to put any reference made to the second reading speech to one side explaining why it was "totally irrelevant for your purposes today”, and this ground does not appear to be relied on by the appellant for the purposes of this appeal.

[37]In granting leave to recall these witnesses, at T303, the trial judge foreshadowed giving a direction to the jury in these terms: “And having seen the evidence, subject to disbelieving it, but they’ll also – they would also be directed, along the lines of, if you don’t accept their evidence, all you do is reject it, but it doesn’t convert it into a positive yes they did see what happen.” However, it does not appear that such a direction was in fact given.

[38]Transcript 02/12/2022 T322-327.

[39]Transcript 02/12/2022 T328-336.

[40]Transcript 02/12/2022 T2 – 5, AB369-372.

[41](1991) 53 A Crim R 421 (Anderson) at 439.

[42]See also The Queen v Chin (1985) 157 CLR 671.

[43]approving Shaw v The Queen (1952) 85 CLR 363 at 383-384 (Fullager J).

[44]See also Lawrence v The Queen (1981) 38 ALR 1 at 3 (Gibbs CJ).

[45]T (3.12.22) 381-387.

[46]In R v Soma [2003] HCA 13; 212 CLR 299; 196 ALR 421; 77 ALJR 849 at [34], Gleeson CJ, Gummow, Kirby and Hayne JJ referred to Niven v The Queen [1968] HCA 67; (1968) 118 CLR 513, in which the High Court held that a reference to “evidence in rebuttal” in the Tasmanian Criminal Code should be understood as applying to all evidence sought to be adduced by the prosecution after the accused's defence was complete.

[47]Crofts v The Queen (1996) 186 CLR 427 at 440 per Toohey, Gaudron, Gummow and Kirby JJ and at 432 per Dawson J (in dissent, but not as to the principle). See also MLW v The Queen [2022] NTCCA 2 at [22] per Grant CJ, Southwood and Brownhill JJ.

[48]There was contradictory evidence from police officers as to whether the accused had said “who throttled Sylvia” or “who did Sylvia”.

[49]at [13].

[50]At 383-384.

[51]R v Chin (1985) 157 CLR 671.

[52]at 679.

[53]at 676-677.

[54][1981] HCA 63; (1981) 147 CLR 565.

[55]at 569.

[56]at 572.

[57]at [5].

[58]at AB390.

[59][1952] 25 ALJR 753 at 761.

[60](2001) 205 CLR 50 at 69.

[61](2002) 211 CLR 193 at 205.

[62][2006] 230 CLR 234 at 248-249 and 261.

[63]at [93] p261.

[64]Zecevic v DPP (Vic) (1987) 162 CLR 645 at [9].

[65]See observations by Wilson, Dawson and Toohey JJ in Zecevic at [18].

[66]See BD v The Queen (No 2) [2017] NTCCA 8 at [10] – [17] and the authorities cited therein.