De Wet v The State of Western Australia - [2021] WASCA 83

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DE WET -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 83
CORAM:   QUINLAN CJ
MAZZA JA
BEECH JA

HEARD:   14 APRIL 2021
DELIVERED          :   14 MAY 2021
FILE NO/S:   CACR 81 of 2020
BETWEEN:   DEAN ROBERT DE WET
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BURROWS DCJ
File Number            :   IND 2259 of 2017

Catchwords:

Criminal law - Defences - Self-defence - Whether the trial judge's direction gave rise to a real risk that the jury would have been misled or confused as to the onus of proof

Legislation:

Criminal Code (WA), s 248

Result:

Leave to appeal on grounds 1 and 2 granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	S Vandongen SC
Respondent	:	B M Murray

Solicitors:

Appellant	:	The Defence Lawyers
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Cooper v The State of Western Australia [2010] WASCA 190.
DKA v The State of Western Australia [2019] WASCA 123.
Liberato v The Queen (1985) 159 CLR 507.
NPK v The State of Western Australia [2020] WASCA 50.

JUDGMENT OF THE COURT:

Introduction

The appellant appeals his conviction of an offence of doing an act, with intent to harm, the result of which endangered, or was likely to endanger the life, health or safety of the complainant, contrary to s 304(2) of the Criminal Code (WA).
The appellant's two grounds of appeal contend that the trial judge misdirected the jury as to the defence of self‑defence, under s 248 of the Code. He accepts that the trial judge correctly identified the components of the defence under s 248 in the circumstances of the case. The appellant's central complaint is directed to the onus of proof. He contends that the effect of the direction was that:
(a) only if the jury accepted the appellant's evidence concerning the issue raised by each of s 248(4)(a) and (b) of the Code would the jury then move to consider further issues concerning self‑defence, when the proper question was whether the prosecution had discharged its onus of proof beyond reasonable doubt; or
(b) there was a perceptible risk that the jury would reason in that manner.
In response, the respondent points to a number of passages of the judge's direction, and to the written direction provided to the jury by way of a question trail, which correctly stated that the onus was on the prosecution to disprove self‑defence beyond reasonable doubt.
The critical question is whether, when the summing up is considered as a whole, as a jury listening to it might understand it, there is a real risk that what was said by the trial judge would convey to the jury a false basis for determining whether the State had proved its case.
For the reasons that follow, in our opinion no such risk has been established, so the appeal must be dismissed.

The parties' cases at trial

Given the focus of the appeal grounds on the sufficiency of the judge's direction, it is sufficient to provide only a very broad overview of the parties' cases at trial.
The appellant and the complainant were in a relationship. The State case, in a nutshell, was that after an evening of drinking, the appellant came home and confronted the complainant, who was in bed, and an argument ensued. In the course of the argument the appellant smashed a wooden stool in the bedroom. He subsequently picked up a piece of wood that was broken from the stool and struck the complainant on her arms, legs and body while she was lying on their bed and while she was on the ground.
On the State case, while the appellant was assaulting the complainant, she used a small pen knife that she had armed herself with after the argument ensued, to stab the appellant.
The State led evidence of the history of the relationship, alleging that the evidence established a number of instances of earlier violence on the part of the appellant in the course of the relationship.
The appellant's case at trial, supported by his evidence, was that the complainant lay in wait for him and, when he arrived home, assaulted him with a knife. The assault by him was done in self‑defence in response to that attack with the knife.
The appellant also denied that he acted with the intent to harm required by s 304(2) of the Code.
In the course of his closing address to the jury, the prosecutor accepted, in effect, that on the appellant's version of events, the defence of self‑defence would apply and the verdict would be one of acquittal.[1]
[1] ts 437.
In that light, it might be thought that there was room for the case to be left to the jury in simple terms, along the following lines, and without a need for detailed directions as to self‑defence. In summary, the jury might have been directed that:
(a)they should convict the appellant if and only if they were satisfied beyond reasonable doubt as to the honesty and reliability of the complainant's account of events; and
(b)if they accepted the appellant's account, or found that there was a reasonable possibility that it was true, the verdict was one of not guilty.
However, the parties did not suggest that the judge direct the jury in this manner, and the judge did not do so. Consequently, whether the judge's direction concerning self‑defence revealed a wrong decision on a question of law, or gave rise to a miscarriage of justice, must be considered in the context of the judge's direction as a whole.

The trial judge's summing up

At the outset, the judge told the jury that they were bound to follow all of her directions as to the law.[2]
[2] ts 452.
At a very early stage of the judge's summing up, her Honour gave a general direction, in conventional terms, concerning the burden and standard of proof. Her Honour said as follows:[3]
Now, remember at the beginning of the trial I told you about the three fundamental rules that were so important and I was going to repeat them at the end. Well, that is what I am going to do now.
In every criminal trial in Australia and in this state there are three fundamental principles that apply. They are essential to the administration of criminal justice in this state and in this country.
The first rule is that the State bears the burden of proof. It is the State that alleges that [the appellant] committed the offence with which he has been charged. The State is obliged to prove guilt if it can.
The obligation rests on the State from the beginning to the end. It never ever shifts to [the appellant]. The second fundamental principle relates to the standard of proof. And the standard is beyond reasonable doubt.
You cannot convict [the appellant] unless the State has satisfied you beyond a reasonable doubt that he is guilty of the charge that it has presented. (emphasis added)
[3] ts 455 ‑ 456.
In this passage, it may be seen that the judge referred to what she had said at the beginning of the trial as to the three fundamental rules that were so important that they should be repeated. In her opening remarks to the jury, the judge had outlined the principles concerning the burden and standard of proof in similar terms.[4]
[4] ts 127 ‑ 128.
A little later, the judge gave a conventional Liberato[5] direction:[6]
The fact that [the appellant] chose to give evidence doesn't in any way detract from the important principle that I've just told you about, that the onus is on the State to prove the charge that it presents against him and he is presumed to be innocent until the charge against him is proved beyond reasonable doubt.
It may be that you believe what [the appellant] said to you yesterday in his evidence. If you believe what he said, then you would acquit him. Even if you were not to believe his evidence you cannot find an issue against [the appellant] contrary to his evidence if his evidence or any other evidence, for that matter, has given rise to a reasonable doubt on the issue.
It's ‑ you might prefer the evidence for the prosecution but you can't deliver a verdict of guilty unless you are satisfied beyond reasonable doubt as to the truth of that evidence.
It's very important for you to remember that the question for you to consider is whether on all of the evidence before you the State has proved the charge against [the appellant] beyond reasonable doubt.
And if his evidence or any evidence has given rise to a reasonable doubt then you cannot convict him on the count on which the reasonable doubt has arisen. So if you were not to accept what he said and to reject that evidence it wouldn't follow automatically that your verdict is guilty.
If you do not believe what he said, then you put his evidence to one side. He doesn't have to prove anything. The question remains has the State, on the basis of the evidence that you accept, proved the accused's guilt beyond reasonable doubt?
So if you don't accept what he says, have a doubt about it, put it to one side. You still need to be satisfied beyond reasonable doubt based on the State ‑ the evidence that you do accept on the State case. (emphasis added)
[5] Liberato v The Queen(1985) 159 CLR 507.
[6] ts 459.
The judge outlined the elements of the offence. The element of unlawfulness involved attention to the question of self‑defence. Bearing in mind the need to read the direction as a whole, and in light of the parties' competing contentions, we will set out the judge's remarks concerning self‑defence in full. In doing so, we will break up the remarks by reference to the various topics addressed by her Honour. In the extracts that follow, the passages upon which the appellant relies are underlined and other passages of some significance are italicised.
The judge began with an overview of self‑defence as involving three components. First, that the person believes the act is necessary to defend themselves from a harmful act of another. Secondly, the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be. Thirdly, that there are reasonable grounds for the person to believe those things.[7]
[7] ts 470.
The judge then said as follows:[8]
Where self‑defence is raised, it's not for the accused person to prove that they did an act in self‑defence. It is for the prosecution to prove that they did not. So that goes back to the onus never shifting to the accused. So the prosecution have to establish beyond reasonable doubt that the accused did not act in self‑defence before you can convict.
So if having considered all of the evidence you're left with a reasonable doubt that the accused was not acting in self‑defence, you would be obliged to find him not guilty. Or to put it another way, if you thought there was a reasonable possibility that he was acting in self‑defence, you'd find him not guilty. (emphasis added)
[8] ts 470 ‑ 471.
The judge then provided the jury with copies of the question trail relating to self‑defence, which was in the following terms:[9]
[9] AB 36.
Are you satisfied that the State has proved at least one of the following beyond reasonable doubt?
1.[The appellant] did not believe that assaulting [the complainant] was necessary to defend himself from [the complainant's] harmful act including a harmful act that was not imminent; or
2.Assaulting [the complainant] was not a reasonable response to the circumstances as [the appellant] believed them to be; or
3.There were not reasonable grounds for:
(a)[The appellant's] belief that assaulting [the complainant] was necessary to defend himself from [the complainant's] harmful act including a harmful act that was not imminent; or
(b) [The appellant's] belief as to the circumstances.
If YES ‑ self‑defence is excluded
If NO - self‑defence is not excluded and the verdict is not guilty on all counts
The judge then said as follows:[10]
All right. Ladies and gentlemen, have you all got that? So that's the questions you need to ask yourself:
Are you satisfied that the State has proved at least one of the following?
So they only have to prove one and then self‑defence is gone, all right? So only one of those things. I'll go through each of the questions.
[10] ts 471.
Her Honour then made the following general observations:[11]
But when we're talking about ‑ when you start determining the accused's ‑ or [the appellant's] beliefs, it requires an examination of his state of mind at the time of the act in question.
The reasonableness of those beliefs, and the reasonableness of his response are objective matters to be judged by the standard of a reasonable person of the same age, background and level of intellectual functioning as [the appellant], and familiar with all the circumstances that were known to him at the relevant time.
In considering these matters, you need to take into account that a person defending himself cannot always weigh precisely the exact action which he should take in order to defend himself from harm.
You should approach your task in a broad and practical way, giving proper weight to the situation in which [the appellant] found himself with little opportunity for calm deliberation or detached reflection. You must consider the whole of the circumstances at the time of his action.
[11] ts 471.
The judge then turned to question 1 on the question trail:[12]
[12] ts 471 ‑ 473.
So let's look at (1):
[The appellant] did not believe that assaulting [the complainant] was necessary to defend himself from [the complainant's] harmful act, including a harmful act that was not imminent.
So that's question 1. So that goes to that first condition that I was talking about. [The appellant] must believe that the act is necessary to defend himself from a harmful act, including a harmful act that was not imminent.
Now, you'll see in the question trail there's negatives, 'did not'. And that's because, of course, it's for the State to prove it. It seems a bit complicated but when you look at it, you'll understand it.
So the threat doesn't have to be an immediate threat. It might be a threat sometime in the future. But they have to believe ‑ subjectively believe that the force they use is necessary to defend themselves from a harmful act. So the question is:
Did [the appellant] believe that the steps which he took in the house of assaulting [the complainant] with the piece of wood were necessary to defend himself from a harmful act?
And that harmful act is the - being stabbed by [the complainant] with a knife.
So you'll need to consider the evidence as to what [the appellant] actually believed. One of the factors, as pointed out to you by [defence counsel], will be the past relationship between the pair of them and the ‑ this is when the fridge ‑ the throwing of the can in the fridge. That's a factor that plays into [the appellant's] belief, the throwing of the can at [the appellant] and hitting the fridge that [the complainant] accepted she did.
So you need to draw your own conclusions regarding his actual state of mind based on all of the evidence, including the evidence as to his belief that he gave to the police and that he gave to you yesterday. His case is that he believed it was necessary to defend himself against an imminent attack from [the complainant] with the knife.
He said yesterday that she stabbed him in the kitchen. He went into the bedroom, she got on top of him on the bed and was trying to cut him up with the knife. He grabbed the piece of wood, which was the first object he could find, and struck her with it to disarm her of the knife. And he believed it was necessary to defend himself. He said he was in fear of his life when he gave evidence yesterday.
The State's case is that he did not believe it was necessary for him to assault [the complainant] in order to defend himself. They say his account to you yesterday and his account of what occurred in the record of interview is a fabrication.
That [the appellant] was the aggressor, that he assaulted [the complainant] because he was angry at her and she was defending herself with the knife when she stabbed him in the manner that [the complainant] described.
Therefore, he had no actual belief that he needed to defend himself. So if you accept that, then you would be satisfied that the State has proved 1. If you accepted what [the appellant] said, then you would move on to question 2.
Next, the judge said as follows as to question 2 of the question trail:[13]
Now, the next element gets a little bit complicated because always with the law it gets complicated. But there's objective and subjective elements in question 2 or the next element. So question 1 is solely the subjective belief, what was in [the appellant's] head.
Question 2 has an objective factual component but it's based on the subjective beliefs of [the appellant]. So the question is, was the response of [the appellant] reasonable based on the circumstances as he believed them to be. So it's an objective inquiry viewed from the perspective of [the appellant], [the appellant's] actual or subjective belief as to the circumstances.
Now, obviously in all of this, you're going to have to determine the facts as you find them to be in the first place. You would have to determine whether you accept what [the appellant] is telling you. If you accept what [the complainant] is telling you, then self‑defence doesn't arise.
So you'd have to make your factual finding. So when I explain this to you, I'm relying on [what the appellant] said yesterday in evidence as to what occurred. So 'reasonable' in this context means consistent with reason, moderately, fairly, not extravagant or excessively. It imports a degree of proportionality between the perceived threat and the response.
In those circumstances, the State's case is that assaulting [the complainant] by repeatedly hitting her with a piece of wood to the extent that her leg was broken was excessive, it wasn't moderate and it wasn't a reasonable response.
And [the appellant's] position is that his act was a proportionate response to the threat being perceived that he thought was occurring. He was faced with a person wielding a knife, and he feared for his life and the response was reasonable in disarming and attempting to disarm her of the knife if you accept that's what was occurring.
So the question is, what did [the appellant] believe the circumstances to be and what did he think [the complainant] was going to do, and then in the context, was his response reasonable? So that's the question.
[13] ts 473 ‑ 474.
The judge then concluded her discussion of question 2 and turned to question 3, as follows:[14]
If you accept that the response was not a reasonable response in the circumstances, that would be the end of it and self‑defence would be excluded.
If you think it was a reasonable response, then you move on to question 3, there were not reasonable grounds for (a) [the appellant's] belief that assaulting [the complainant] was necessary to defend himself from her harmful act, the stabbing, including a harmful act that was not imminent or that there were not reasonable grounds for his belief.
That's an objective inquiry. You'll need to bear in mind your finding as to what [the appellant's] actual belief as to the circumstances surrounding his act was. It's a matter on which you can bring to bear your common sense and your life experience. You'll need to look at all the evidence and the circumstances of the case.
You would need to consider the circumstances as you find them to be. What were the facts confronting or the circumstances confronting [the appellant] known to him on the day in question? The assessment is judged from the standard of a reasonable person the same age, background and level of intellectual functioning as [the appellant].
So if you were to accept that [the appellant] truly thought that [the complainant] was going to stab him but it was unreasonable for him to believe that based on the circumstances that you find existed or if you conclude that he believed it was necessary to hit [the complainant] to defend himself, no reasonable person would have thought that, you would find that self‑defence wasn't available here, so you'd exclude that.
Now, the law regards a reasonable person as a sober one. The fact that [the appellant] may have been drinking may have led him to honestly believe something, but whether or not that was reasonable is to be tested against the standard of a sober person, not a person under the influence of alcohol.
All right. So you need to approach your task in a practical way, giving proper weigh to the situation in which [the appellant] found himself and the extent for which there was any opportunity for calm deliberation or detached reflection. If someone acted honestly and instinctively in a moment of unexpected attack, you'd reasonably take that into account.
Whether that was so in this case, whether you're left in doubt in that respect is a matter for you, he of course being given the benefit of any reasonable doubt that you may have in that regard. If the answer to the question is, 'No', you are satisfied beyond a reasonable doubt that there were not reasonable grounds, then that's the end of the defence. So that's the way you work through it. All right? (emphasis by italics and by underlining added)
[14] ts 474 ‑ 475.

Grounds of appeal

The appellant's two grounds of appeal are in the following terms:
1.The learned trial Judge made a wrong decision on a question of law by erroneously directing the jury, by reference to a written Question Trail that set out the elements of self‑defence that were derived from s 248(4) of the Criminal Code, that:
a.if the jury accepted the appellant's evidence concerning the issue raised by s 248(4)(a) of the Criminal Code, it would then move on to consider the issue raised by s 248(4)(b); and
b.if the jury accepted that the appellant's response was reasonable, which concerned the issue raised by s 248(4)(b) of the Criminal Code, it would then move on to consider the issues raised by s 248(4)(c);
in circumstances in which the proper resolution of those issues depended only on whether the prosecution had discharged its onus of proof.
2.The learned trial Judge's oral directions to the jury about self‑defence occasioned a miscarriage of justice because the directions, when read as a whole, gave rise to a substantial (as distinct from a remote) risk, that the jury may have misunderstood how they were to properly decide, by reference to a Question Trail, whether the prosecution had proved that the appellant had not acted in self‑defence.
Particulars
a.The oral directions, when read as [a] whole, included express instructions that wrongly suggested that:
i.if the jury accepted the appellant's evidence concerning the issue raised by s 248(4)(a) of the Criminal Code, it would then move on to consider the issue raised by s 248(4)(b); and
ii.if the jury accepted that the appellant's response was reasonable, which concerned the issue raised by s 248(4)(b) of the Criminal Code, it would then move on to consider the issues raised by s 248(4)(c),
in circumstances in which the proper resolution of those issues depended only on whether the prosecution had discharged its onus of proof beyond reasonable doubt.
b.The oral directions concerning [s] 248(4)(c) of the of the [sic] Criminal Code were confusing, because they:
i.failed to differentiate (or clearly differentiate), by reference to the evidence, between the issues raised by questions [3(a) and 3(b)] in the Question Trail; and
ii.suggested that the issues raised by questions [3(a) and 3(b)] needed to be considered if the jury 'accepted' or 'believed' the appellant.

Appellant's submissions

The parties' submissions deal with the two grounds of appeal, which are both concerned with aspects of the oral directions about the elements of self‑defence, together. We will do the same.
The appellant acknowledges the correctness of the judge's general directions as to onus of proof, the Liberato direction, the introductory part of the direction concerning self‑defence and the question trail. Nevertheless, the appellant submits that notwithstanding those directions, the oral directions that were given while explaining the question trail were erroneous, or gave rise to a real and substantial risk that the jury might have misapprehended the issues they were required to determine in resolving whether the prosecution had proved that the appellant had not acted in self‑defence.
In support of this contention, the appellant points to the various underlined passages in [25] ‑ [27] above.
The appellant submits that the underlined passages of the direction as to questions 1 and 2 were liable to give the jury the incorrect impression that the question for them was whether the appellant believed that the steps he took were necessary or whether his response to the circumstances as he believed them to be was reasonable. He further submits that the inconsistency between, on the one hand, those passages and, on the other hand, the question trail and other parts of the oral direction correctly stating the onus of proof, was liable to cause confusion, giving rise to a real risk that the jury might seek to reconcile the inconsistency in a manner that involves impermissible reasoning.[15]
[15] Appeal ts 4.
The appellant also submits that the judge's oral direction was liable to give the jury the impression that:[16]
(1)they would only move from question 1 to question 2 if they accepted what the appellant said; and
(2)they would only move from question 2 to question 3 if they were satisfied that the appellant's response was reasonable.
In this regard, the appellant points (respectively) to the last underlined passage in the extract in [25] above and to the first underlined passage in the extract in [27] above.
[16] Appeal ts 19 ‑ 21, 25.
The appellant also contends, by particular (b) of ground 2, that the judge's direction was deficient in failing to give any clear directions about the issue raised by question 3(b) in the question trail. He submits that the directions given explained question 3(a) without specifically dealing with the separate question 3(b) of whether there were reasonable grounds for the appellant's belief about the circumstances referred to in the second question.

Respondent's submissions

The respondent submits that when the oral and written directions are considered as a whole, the jury were directed in clear terms that the appellant was entitled to a verdict of acquittal unless the prosecution proved beyond reasonable doubt that he did not act in self‑defence, which the prosecution would do by proving beyond reasonable doubt one or more of the four components of self‑defence. In support of its submissions, the respondent points to the terms of the written question trail, the judge's general directions as to onus and standard of proof, the Liberato direction and the introductory directions on the topic of self‑defence, submitting that the combination of these made it abundantly clear to the jury that there was no onus on the appellant to prove that he acted in self‑defence. The respondent also points to the fact that, at trial, defence counsel made no application for any redirection.

Disposition

The principles relevant to the issues in this appeal were recently summarised by Buss P and Mazza JA in DKA v The State of Western Australia in the following terms:[17]
It is trite that an impugned passage in a trial judge's summing up cannot be read in isolation, but must be evaluated in the context of the summing up as a whole. … The critical issue is whether the words spoken by the trial judge in his or her summing up are such that the jury would have derived an erroneous perception in relation to a material matter of fact or law. An appellate court must decide that issue by taking the summing up as a whole and as a jury listening to it might understand it. The issue is not to be decided upon a subtle examination of the transcript of the summing up or by giving undue prominence to any part of the summing up. (references and citations omitted)
[17] DKA v The State of Western Australia [2019] WASCA 123 [43], cited with approval in NPK v The State of Western Australia [2020] WASCA 50 [35].
The need to consider the summing up as a whole has been emphasised in many cases.[18]
[18] See, for example, Cooper v The State of Western Australia [2010] WASCA 190 [23], [54]; NPK [36].
The critical question is not whether, on the balance of probabilities, any erroneous aspects of the direction would have led the jury into error. Rather, the question is whether, in the context of the summing up as a whole, there is a real (as distinct from fanciful) risk that those erroneous aspect(s) could have led the jury to decide the case on an erroneous basis.[19]
[19] Cooper [53]; DKA [48], [182]; NPK [37].
We accept that some passages of the judge's summing up, if read in isolation, are liable to give the impression that the question was whether the jury were affirmatively satisfied that the components of self‑defence had been established. However, when the direction is, as it must be, understood as a whole as a jury listening to it might understand it, we do not think there is any real or perceptible risk that the jury would have so understood the questions for their determination. In our opinion, the combined effect of the following eight features of the judge's direction meant that the jury would have been left in no doubt that the onus was on the State to exclude self‑defence by proving beyond reasonable doubt at least one of the matters set out in the question trail.
First, in the course of her Honour's general direction concerning the burden and standard of proof, the judge told the jury that the burden was on the State from beginning to end and 'never ever' shifts to the appellant. As will be seen, the judge returned to the notion that the onus of proof never shifts to the appellant.
Secondly, in the course of the Liberato direction, the judge reiterated that the onus to prove the charge beyond reasonable doubt was on the State. Her Honour told the jury that they could not find an issue against the appellant contrary to his evidence if his evidence or any other evidence had given rise to a reasonable doubt on the issue. Her Honour added that even though the jury might prefer the evidence for the prosecution, they could not deliver a verdict of guilty unless they were satisfied beyond reasonable doubt as to that evidence.
Thirdly, at the outset of the self‑defence direction, after identifying the three components of self‑defence, the judge told the jury that the onus of proof as to self‑defence was on the prosecution. Her Honour said as follows:[20]
Where self‑defence is raised, it's not for the accused person to prove that they did an act in self‑defence. It is for the prosecution to prove that they did not. So that goes back to the onus never shifting to the accused. So the prosecution have to establish beyond reasonable doubt that the accused did not act in self‑defence before you can convict.
The categorical nature of the statement, reiterated by the judge, that the onus never shifts to the accused is significant. Her Honour added that if the jury thought there was a reasonable possibility that the appellant was acting in self‑defence, they would find him not guilty.
[20] ts 470 ‑ 471.
Fourthly, the question trail was framed by reference to the onus being on the State. It identified, with unmistakable clarity, that the question for the jury was whether the State had proved beyond reasonable doubt at least one of the matters set out in the question trail. It stated that if the answer were yes, self‑defence was excluded; and if the answer were no, self‑defence was not excluded and the verdict was not guilty.
Fifthly, having provided the jury with copies of the question trail, the judge repeated the critical question: 'are you satisfied that the State has proved at least one of the following?' The judge added that the State only had to prove one of those matters and then self‑defence 'is gone'. In our view, this clear and simple statement of the critical question, orally and in the question trail, provides the framework in which the jury would have understood the issues for their determination.
Sixthly, the balance of the judge's oral direction concerning self‑defence is expressed by reference to, and in the framework of, the question trail.
Seventhly, question 1 of the question trail, set out above, was expressed in terms reflecting the State's onus to exclude self‑defence. The judge read question 1 in its terms to the jury. The judge then said that question 1 'goes to that first condition that I was talking about. [The appellant] must believe that the act is necessary to defend himself from a harmful act'. The reference to the first condition was evidently a reference to the judge's earlier identification of the three components of self‑defence, summarised in [20] above. The judge's statement as to what the appellant must believe was, and would have been taken by the jury as, an explication of the subject‑matter of question 1. Contrary to the appellant's submission,[21] it was not apt to mislead or confuse the jury as to the onus of proof. Moreover, any risk of confusion was removed by the judge's next comment to the jury, as explained in [47] below.
[21] Appeal ts 15.
Eighthly, the judge then pointed out to the jury that in the question trail, 'there's negatives', in other words, that the questions were expressed in the negative, with this question 1 expressed as '[the appellant] did not'. The judge explained that this was 'because, of course, it [is] for the State to prove it.' The judge's use of the phrase 'of course' served to convey to the jury that the onus being on the State was ‑ given what her Honour had already said ‑ a matter that was clear and undoubted.
In this manner, the judge: (i) directed the jury's attention to the contrast between her Honour's introductory explanation of what question 1 was about ‑ expressed in the positive ‑ and the terms in which question 1 was expressed ‑ namely in the negative; and (ii) explained that the questions in the question trail were framed in the negative because the onus was on the State to exclude self‑defence.
Those observations provide important context for the further directions her Honour then gave as to question 1. In our view those further directions would have been understood by the jury as a further explanation of what question 1 was about.
Next, the judge explained that the threat did not have to be immediate and said that the person claiming self‑defence had to subjectively believe that the force they used was necessary to defend themselves from a harmful act. Her Honour then said as follows, in a passage impugned by the appellant:
So the question is:
Did [the appellant] believe that the steps which he took in the house of assaulting [the complainant] with the piece of wood were necessary to defend himself from a harmful act?
And that harmful act is the ‑ being stabbed by [the complainant] with a knife.
In this passage, the judge was explaining what question 1 was about, by framing it with more specific reference to the factual circumstances of the case. In our view, the jury would have so understood it. In the context of what her Honour had just said, as outlined and explained in [47] and [48] above, we do not think that there is a real risk that the jury would have taken the reformulation as detracting from the earlier clear statements that the onus of excluding self‑defence, by proving one of the matters set out in the question trail, was on the State. Further, we are not persuaded that there is a real risk that the reformulation would have given rise to any confusion in the mind of the jury. Nor do we consider that there is a real risk that the jury would have applied the reformulated version of question 1 without regard to the State's onus of proving beyond reasonable doubt that self‑defence was excluded.
In the next part of the summing up, the judge proceeded to explain further the subject matter of question 1, telling the jury that they would need to: (i) 'consider the evidence as to what [the appellant] actually believed'; and (ii) 'draw [their] own conclusions regarding [the appellant's] actual state of mind'. Contrary to the appellant's submission,[22] the jury would not have taken this to suggest that they should focus on whether the appellant had proved that he had the necessary belief. Rather, the jury would have understood these remarks as explaining (correctly) that question 1 focused on the appellant's subjective ‑ that is, his 'actual' ‑ belief. Thereafter, and by contrast, the judge explained that question 2 had both subjective and objective elements.
[22] Appeal ts 19.
The judge then outlined the parties' competing cases as to question 1, beginning with the appellant's case. After summarising the State case, the judge concluded as follows:
Therefore, he had no actual belief that he needed to defend himself. So if you accept that, then you would be satisfied that the State has proved 1. If you accepted what [the appellant] said, then you would move on to question 2.
The appellant submits that the last sentence of this passage would have been understood by the jury to mean that they would move to question 2 only if they accepted what the appellant said. In other words, the appellant submits, the jury would or may have understood the words '[i]f you accepted' as meaning in effect 'only if you accepted'.[23]
[23] Appeal ts 21.
For the reasons that follow, we are satisfied that there is no real risk that the jury may have so understood what the judge said.
The judge told the jury that if they accepted the State case ‑ that the appellant had no actual belief that he needed to defend himself ‑ then they would be satisfied that the State had established an affirmative answer to question 1 of the question trail. That expression of the position reinforced what the jury had been repeatedly told earlier in the summing up: the onus was on the State to exclude self‑defence by proving one or more of the matters set out in the question trail.
The judge's statement that if the jury accepted what the appellant said, they would move to question 2 was correct, as far as it went. That statement was incomplete, insofar as the jury was also required to move to question 2 if there was a reasonable possibility that what the appellant said in relation to his actual belief was true. However, this aspect of the judge's direction did not purport to be comprehensive ‑ it was expressed to apply 'if'. It was not, as the appellant contends, 'if, and only if' the jury accepted what the appellant said, that they would move to question 2.
For the jury to have taken 'if' to have meant 'only if' would have required them to act entirely inconsistently with the terms of the written direction and with the judge's oral direction, both of which stated that the question was whether they were satisfied that the State had proved beyond reasonable doubt at least one of the matters in the question trail.
In particular, according to the appellant's hypothesis, the jury would have acted in the erroneous manner alleged in circumstances in which they were: (a) not satisfied that the State had proved an affirmative answer to question 1; and (b) where they were not satisfied that the appellant had proved an answer favourable to him on question 1. The effect of the written direction and the earlier oral direction was that because the State had not proved an affirmative answer to question 1, it could not be said that self‑defence was excluded, unless the State were to prove affirmative answers to one of the other questions. For the jury to decline, in those circumstances, to proceed to question 2 and to somehow find that self‑defence was excluded would thus be entirely contrary to the clear framework for their analysis of self‑defence stated in the question trail and in the earlier oral directions.
The appellant's complaints as to the judge's direction concerning question 2 mirror his complaints as to the direction concerning question 1 and so may be dealt with more briefly.
The appellant points to the judge's expression of the question concerning question 2 as:[24]
(1)'was the response of [the appellant] reasonable based on the circumstances as he believed them to be'; and
(2)'what did [the appellant] believe the circumstances to be and what did he think [the complainant] was going to do, and then in the context, was his response reasonable?'
[24] Appeal ts 22, 24.
He submits that these statements created the impression that the question for the jury was whether the reasonableness of the appellant's response was affirmatively established. Understood in their context, and bearing in mind the features of the written and oral direction to which we have referred, we do not think there is any real risk that these statements would have created any such impression. The statements were made in the course of the judge's explanation of the subject matter and focus of question 2 and the jury would have so understood them. In the context of all that her Honour had already said, including what is outlined and explained in [47] and [48] above, there is no real risk that the jury would have taken these statements as detracting from the clear and unambiguous directions that the State had the onus of excluding self‑defence by proving beyond reasonable doubt one of the matters set out in the question trail. We do not think there is any real risk that the statements would have given rise to any confusion in the mind of the jurors. Nor do we consider there is any risk that the jury would have applied the statements in a manner inconsistent with the earlier clear oral directions and statements in the question trail as to the onus of proof on the State.

Contrary to the appellant's submission, the judge's statement, that the jury would have to determine whether they accept what the appellant was telling them (and that if they accepted what the complainant said self‑defence did not arise), was not apt to confuse or mislead the jury. The judge was explaining to the jury, correctly, that the first step in answering question 2 required attention to identifying the circumstances as the appellant believed them to be.
The appellant submits that the second paragraph of the passage extracted at [27] above was apt to give the jury the impression that only if they were affirmatively satisfied that the appellant's response was reasonable would they move to question 3.[25] Immediately before the impugned passage, the judge said that if the jury accepted that the appellant's response was not a reasonable response in the circumstances, self‑defence would thereby be excluded. No complaint is or could be made as to that statement. The judge then said, in the impugned passage, that if the jury thought the appellant's response was a reasonable response, they would move to question three. Again, the appellant submits that the jury would or may have understood 'if' in this context to mean 'only if.'
[25] Appeal ts 25.
For the reasons in [56] ‑ [59] above, there is no real risk that the jury would have so understood what the judge said.
In our opinion, for the reasons we have given, the risk that the jury would have been misled or confused as to the onus on the State to disprove self‑defence, by proving one or more of the matters set out in the question trail, does not rise above the level of remote.
That brings us to the appellant's complaint about the judge's direction concerning question 3, in particular question 3(b). He complains that in the passage extracted at [27] above, the judge explained only question 3(a) and failed to explain question 3(b). In oral submissions, the appellant fixed on the following passage of the judge's direction:[26]
So if you were to accept that [the appellant] truly thought that [the complainant] was going to stab him but it was unreasonable for him to believe that based on the circumstances that you find existed or if you conclude that he believed it was necessary to hit [the complainant] to defend himself, no reasonable person would have thought that, you would find that self‑defence wasn't available here, so you'd exclude that.
He submits that both scenarios identified by the judge relate, or may have been taken by the jury to relate, to question 3(a), with the result that the judge failed to explain question 3(b).
[26] Appeal ts 27 ‑ 30.
We accept that the judge's explanation of question 3 was directed to question 3(a), not question 3(b) and that this is true of the passage extracted at [67] above. However, we are far from persuaded that any miscarriage of justice arose from the absence of an explanation specifically directed to question 3(b). It is important to bear in mind the framework of the jury's analysis, as required by the question trail and the judge's direction. Each limb of the question trail was a matter which, if proved beyond reasonable doubt by the State, would exclude self‑defence. In that context, while the absence of an explanation specifically directed to question 3(b) may have disadvantaged the prosecution, there is no perceptible risk that it could have operated to the detriment of the appellant. By way of example, as the appellant ultimately accepted,[27] if the jury were misled into thinking that what the judge said in the extract at [67] above covered both questions 3(a) and 3(b), that could not prejudice the appellant.
[27] Appeal ts 30, 49.

Conclusion

For the above reasons, we would grant leave to appeal on both grounds and would dismiss the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Associate to the Honourable Justice Beech
14 MAY 2021