Haile v R - [2022] NSWCCA 71

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Haile v R [2022] NSWCCA 71
Hearing dates: 16 March 2022
Date of orders: 29 April 2022
Decision date: 29 April 2022
Before: Bell CJ at [1]
Bellew J at [4]
Ierace J [259]
Decision: (1) The time for filing the notice of appeal is extended to 13 August 2021.
(2) The appeal against conviction is allowed.
(3) The appellant’s conviction and sentence are quashed.
(4) The matter is remitted to the arraignments Judge on 6 May 2022 to set a new trial date.
Catchwords:
CRIMINAL LAW – Practice and procedure – Summing-up of trial judge – Where appellant was convicted by a jury of murder – Where principal Crown witness gave an account of the shooting of the deceased – Where that account was contradicted by the sworn evidence of the appellant – Where the trial judge gave directions in terms of the jury having to “choose” or “decide” between the two accounts – No direction given to the jury regarding fact that the appellant had given evidence – No direction given to the jury as to how the appellant’s evidence should be assessed in circumstances where the Crown had the onus of proof – Where the trial judge refused an application for a Liberato direction – Directions of trial judge erroneous – Refusal to give a Liberato direction also erroneous – Appeal allowed and new trial ordered
CRIMINAL LAW – Practice and procedure – Summing-up of trial judge – Where trial judge expressed a number of views in the course of the summing-up which were critical of aspects of the appellant’s evidence in the course of his summing-up – Absence of any clearly defined summary of the appellant’s case in the summing up – Where the trial judge put propositions to the jury which had not been advanced by the Crown – Summing-up generally lacking in fairness and balance – Appeal allowed and new trial ordered – Observations as to the extent to which comments by the trial judge as to the evidence and the facts is permissible
CRIMINAL LAW – Juries – Where trial judge discharged a juror at a relatively early stage of the appellant’s trial – Where the trial judge subsequently discharged two other jurors on the basis of the stress and anxiety associated with the trial – Where trial judge then refused an application to discharge the whole jury following the discharge of the third juror – Where verdict of guilty followed virtually immediately following the discharge of the third juror – Clear inference that the views of the third juror were at odds with the majority – Risk of miscarriage of justice arising from the refusal of the trial judge to discharge the jury – Appeal allowed and new trial ordered
CRIMINAL LAW – Practice and procedure – Directions of trial judge – Where jury indicated that they were unable to reach a unanimous verdict – Where trial judge then gave what he described as an “adaptation” of a Black direction – Where that direction departed from the model direction and omitted a material part – Where the direction which was given contributed to the miscarriage of justice which arose from the subsequent failure to discharge the jury – Appeal allowed and new trial ordered – Observations as to the undesirability of departing from the terms of the model direction which is given in response to an indication that the jury are unable to reach a unanimous verdict
CRIMINAL LAW – Practice and procedure – Juries – Where deliberations were permitted to continue on two separate occasions for substantial periods of time in the absence of all members of the jury being present – Where the trial judge had not made any order for separation of the jury – Where the trial judge had not directed the jury at any stage that deliberations should only take place when all members of the jury were present – Whether either instance of separation amounted to an irregularity – If so whether such irregularity gave rise to a miscarriage of justice and was thus material – Material irregularity established – Appeal allowed and new trial ordered – Observations as to the importance of making orders allowing a jury to separate during deliberations – Further observations as to the importance of directing juries at the commencement of, and during, the trial that deliberations must only be undertaken when all members of the jury are present

Legislation Cited:
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Jury Act 1977 (NSW)
Jury Amendment Act 2010 (NSW)

Cases Cited:
B v The Queen (1992) 175 CLR 599; [1992] HCA 68
BG v R [2012] NSWCCA 139; (2012) 221 A Crim R 225
Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46
Cleland v The Queen (1982) 151 CLR 1; [1982] HCA 67
Connelly v Director of Public Prosecutions [1964] AC 1254
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
De Pledge v Western Australia [2021] WASCA 1; (2021) 95 MVR 37
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
Decision Restricted [2021] NSWCCA 227
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13
Douglass v The Queen (2012) 290 ALR 699; [2012] HCA 34
El-Jalkh v R [2009] NSWCCA 139
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Jenkins v Director of Public Prosecutions [2013] NSWCA 406
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26
Phan v R [2018] NSWCCA 225
Popovic & Ors v R [2016] NSWCCA 202
R v Alexander [1974] 1 WLR 422; [1974] I All ER 539
R v Bates [1985] 1 NZLR 326
R v Chaouk [1986] VR 707
R v Courtney-Smith (No. 2) (1990) 48 A Crim R 49
R v Dempster (1980) 71 Cr. App. Rep. 302
R v E (1995) 89 A Crim R 325
R v Esposito (1998) 45 NSWLR 442
R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
R v Haile [2016] NSWSC 1732
R v Hodgkinson [1954] VLR 151
R v Ketteridge [1915] 1 KB 467
R v Locchi (1991) 22 NSWLR 309
R v Machin (1996) 68 SASR 526
R v Marsland (unreported, Court of Criminal Appeal, NSW, No 60263 of 1990, 17 July 1991)
R v Meher [2004] NSWCCA 355
R v Minarowska (1995) 83 A Crim R 78
R v Pavlukoff (1953) 106 CCC 249
R v Riley [1982] 1 NZLR 1
R v Roberts [2004] QCA 366
R v Skaf & Anor (2004) 60 NSWLR 86; [2004] NSWCCA 37
R v Spiteri-Ahern [2018] NSWSC 1072
R v Spiteri-Ahern, Barber and Zraika [2017] NSWSC 1820
R v Twiss [1918] 2 KB 853
RPS v The Queen (2000), 199 CLR 620; [2000] HCA 3
South v R [2007] NSWCCA 117
Spiteri-Ahern v R [2022] NSWCCA 56
Tennant v R [2006] NSWCCA 208
Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52

Category: Principal judgment
Parties: Daniel Haile – Appellant
Regina – Respondent
Representation:
Counsel:
B Rigg SC and J Brock – Appellant
E Balodis – Respondent
Solicitors:
Benjamin Leonardo Criminal Defence Lawyers – Appellant
C Hyland, Solicitor for Public Prosecutions NSW – Respondent

File Number(s): 2013/334195
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

[2016] NSWSC 1732

Date of Decision:

09 December 2016

Before:

R S Hulme AJ

Judgment

BELL CJ: I have had the privilege of reading Bellew J’s reasons. They express with great clarity the various respects in which the trial judge erred. Those errors dictate that the appeal must succeed, the appellant’s conviction and sentence be quashed and a new trial ordered. I agree with his Honour’s reasons for those orders.
The facts of this case, as explained in Bellew J’s reasons, supply a graphic demonstration as to why a Liberato direction will invariably be essential where conflicting versions of events are presented in a criminal trial. The inappropriate language of “choice” as between “competing” versions employed by the trial judge in his directions to the jury wrongly and misleadingly suggested a binary inquiry was required in circumstances where the inculpatory “version” of events may have been quite inadequate to satisfy the standard of proof beyond reasonable doubt. Just as the Liberato direction “serves to clarify and reinforce directions on the onus and standard of proof” in a case where there are competing versions of events (see De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [10] extracted by Bellew J at [69] below), the failure to give a Liberato direction in such a case is apt to give insufficient guidance to a jury. To give, as occurred in the trial in the present case, a positive direction or series of directions in terms of “choice” of competing versions renders it highly likely that the jury will be misguided in its deliberations, and the trial miscarry. That was regrettably what occurred in this case.
I also agree with Bellew J that the trial judge’s modification of the Black direction to omit any reference to the power of the trial judge to discharge the entirety of the jury in the event of a deadlock was apt to create an intolerable choice for the juror described in his Honour’s reasons as “the third juror”: either, on the one hand, to hold to his or her conscience as to the appellant’s guilt and keep a no doubt increasingly fraught jury in deadlock, or, on the other hand, to succumb against his or her oath and contrary to his or her duty to the majority position: see s 72A of the Jury Act 1977 (NSW). The third juror’s discharge on medical grounds appeared to have been brought about by the pressure which this apparently inescapable moral dilemma presented, and followed quickly on the heels of the discharge of another juror. For the reasons given by Bellew J, this was apt to and, with hindsight, did lead to the conversion of what was likely to be a hung jury of 10 to a unanimous jury of 9, an outcome permitted under s 22(a)(iii) of the Jury Act in a trial of longer than 2 months duration. In these circumstances, I agree with his Honour that the whole of the jury should have been discharged on the discharge of the third juror. The discharge of the third juror in the particular circumstances of this trial generated the risk of a substantial miscarriage of justice within the meaning of s 53C of the Jury Act. A majority verdict is not permitted in a jury comprising 10 or fewer jurors (see s 55F of the Jury Act) but in a functional sense, that is what in substance if not in form eventuated.

BELLEW J:

INTRODUCTION

On 2 February 2016 Daniel Haile (the appellant) pleaded not guilty to an Indictment alleging that on 30 October 2013, at Pendle Hill in the State of New South Wales, he murdered Raymond Pasnin (the deceased). The appellant was jointly indicted with the following co-accused:

Louise Catherine Spiteri-Ahern (Spiteri-Ahern), who pleaded not guilty to the murder of the deceased, and not guilty to an alternative count of soliciting the appellant to murder the deceased;

April Barber (Barber), who pleaded not guilty to being an accessory before the fact to the murder of the deceased; and

Amin Zraika (Zraika), who pleaded not guilty to concealing a serious indictable offence.

Following a trial before R S Hulme AJ and a jury, the appellant was convicted of the deceased's murder. On 9 December 2016 he was sentenced to imprisonment for 32 years with a non-parole period of 24 years. [1] The jury were discharged without being able to deliver verdicts in respect of any of the three co-accused.
1. R v Haile [2016] NSWSC 1732.
The co-accused were subsequently tried before Rothman J, sitting without a jury. On 21 December 2017, Spiteri-Ahern was found guilty of murder, whilst Barber and Zraika were each acquitted. [2] Spiteri-Ahern was subsequently sentenced to 30 years’ imprisonment with a non-parole period of 24 years. [3] An appeal by Spiteri-Ahern against her conviction was dismissed by this Court. [4]
2. R v Spiteri-Ahern, Barber and Zraika [2017] NSWSC 1820.
3. R v Spiteri-Ahern [2018] NSWSC 1072.
4. Spiteri-Ahern v R [2022] NSWCCA 56 (Meagher JA, R A Hulme and Davies JJ).
The appellant now seeks to appeal against his conviction on the grounds set out below.

THE APPLICATION FOR AN EXTENSION OF TIME

The appellant requires an extension of time in which to bring his appeal, and in that regard relies on affidavits of Benjamin Goh of 30 July 2021 [5] and Alessandro Albanese of 11 August 2021. [6] Those affidavits set out, in considerable detail, the chronology of events following the appellant’s sentence. They establish, amongst other things, that it took those acting for the appellant almost 12 months to obtain the summing-up of the trial judge, and a further 6 months to obtain copies of all of the trial exhibits. Those delays were not the fault of the appellant, nor were they the fault of those acting on his behalf.
5. AB 7 – AB 27.
6. AB 28 – AB 116.
In light of the views that I have reached regarding the various grounds of appeal, an extension of time should be granted.

THE COURSE OF THE TRIAL

Given some of the issues which have been raised in the grounds of appeal, it is appropriate to set out a summary of the course of the trial. The various times and dates of events which I have cited in this judgment, particularly insofar as those events are relevant to my consideration of grounds 3, 4, 5 and 6, have been drawn from an agreed chronology which was provided by the parties, at the Court’s request, following the conclusion of the hearing.
The jury were empanelled on 22 February 2016. The evidence in the trial concluded on 22 April 2016. Within that period there were, for varying reasons (including illness of members of the jury and public holidays) a total of 13 days on which the Court did not sit and hear evidence.
Closing addresses of counsel commenced on 26 April 2016 and continued for five days. However, the Court did not sit at all during the following week commencing 2 May 2016, in order to accommodate a juror’s pre-arranged holiday. Closing addresses resumed on 9 May 2016 and ended on 13 May 2016 (the Court not sitting on 10 May due to illness of Spiteri-Ahern).
The summing-up of the trial judge commenced on 16 May 2016 and continued over the following five days. Jury deliberations commenced at 10:47am on 20 May 2016 and a verdict of guilty was returned in respect of the appellant at 11.19am on 6 June 2016.
I have made further reference to specific events which occurred in the course of the jury’s deliberations when addressing grounds 3, 4, 5 and 6 below. However, it follows from that short summary that on any view, the trial was a protracted one, and was punctuated by a large number of days on which the Court did not sit and hear evidence.

AN OVERVIEW OF THE RESPECTIVE CASES

The various grounds of appeal relied upon by the appellant centre upon issues arising firstly from the summing-up of the trial judge, and secondly from the deliberations of the jury. Given that the appellant does not assert that the verdict of the jury was not open, it is sufficient, for the purposes of considering the various grounds of appeal, to summarise the competing cases at trial. In doing so I have been greatly assisted by the comprehensive written submissions filed on behalf of the appellant.

The Crown case

At approximately 11:55pm on 30 October 2013, the deceased was shot and killed in the car park of a unit block in Pendle Hill (the unit block). At the time of his death, he was in the company of his then partner, Lyndal Archbold (Archbold). There was no dispute at the trial that the shot which killed the deceased was fired by the appellant. Although there were other witnesses who gave evidence of hearing gunshots and seeing the deceased at or about the time that he was killed, Archbold and the appellant were the only eyewitnesses to the shooting.
Spiteri-Ahern was a former partner of the deceased who was said to harbour some animosity towards him as a consequence of the breakdown in their relationship. On the Crown case, Spiteri-Ahern and the appellant were acting pursuant to a joint criminal enterprise in which they had agreed that the appellant would kill the deceased in return for the payment, from Spiteri-Ahern, of $4,000.00. The evidence which was relied upon by the Crown at the trial included mobile telephone records establishing communications between Spiteri-Ahern and the appellant. On the Crown case, those communications had escalated in the period leading up to the deceased’s murder.
The Crown asserted that the appellant and Spiteri-Ahern were assisted in the joint criminal enterprise by Barber. Barber was also a former partner of the deceased, with whom she shared a daughter. On the Crown case, Barber assisted the appellant and Spiteri-Ahern by arranging for the deceased to have access to his daughter on the day of his murder, the details of which were passed on to the appellant to allow him to locate the deceased in order to kill him. Archbold gave evidence that it was unusual for access arrangements to involve the deceased’s daughter being collected from the unit block, and that Barber had insisted that this occur on the night of the shooting. The Crown relied on mobile telephone records to establish communications between Barber and Spiteri-Ahern in the lead-up to the deceased being killed, from which it sought to infer that Barber was corresponding with Spiteri-Ahern about the arrangements which had been put in place for the deceased to be with his daughter. On the Crown case Spiteri-Ahern then updated the appellant about those arrangements.
The Crown also adduced evidence from an associate of the appellant who was referred to in the proceedings as “Tom Jones” (Jones). Jones gave evidence that on 29 October 2013, the day prior to the shooting, the appellant had called asking that Jones collect him. The appellant later cancelled that request, telling Jones that he would “leave it for another night". On the Crown case, this was because the arrangements for the deceased to have access to his daughter had not yet been settled with Barber.
Jones gave evidence that on the following day, 30 October, the appellant contacted him again and asked to be collected. When Jones did so, the appellant was in possession of a plastic bag which contained a change of clothes. Jones drove the appellant to a location near the unit block where the appellant got out of the car, requesting that Jones wait for him to return. At about 11:00pm, the deceased entered the vicinity of the unit block accompanied by his daughter. Jones said that after approximately half an hour, the appellant returned and said words to the effect:

I felt like slapping the bitch. He was supposed to be there to fix it up.

On the Crown case, this statement was a reference to the appellant being misinformed by Spiteri-Ahern about the arrangements which had been made for the deceased to have access to his daughter.
Jones said that after the appellant had returned to the car, and at the appellant’s request, he (Jones) drove to another location where, on the Crown case, the appellant contacted Spiteri-Ahern in order to clarify the deceased’s whereabouts. Following that, the appellant asked Jones to drive him back to the area of the unit block where, upon arrival, the appellant got out of the vehicle whilst Jones waited behind.
By the time the appellant arrived at the unit block, the deceased was leaving the area in the company of Archbold. Archbold’s evidence was that the deceased was unarmed when they left, and that upon seeing the deceased the appellant fired a number of shots towards him. On Archbold's account, the deceased reacted by chasing the appellant, whilst Archbold ran to her car to take cover. According to Archbold, the chase ended with the appellant and the deceased in the vicinity of the car, at which time more shots were fired. Archbold got out of the car to assist the deceased, who fell to the ground with Archbold cradling him. At that point, the appellant ran from the area.

Jones gave evidence that he heard gunshots whilst waiting for the appellant, who returned to the car shortly thereafter. The appellant and Jones then drove away, in the course of which the appellant told Jones that he had “fucked up". During the trip, the appellant changed his clothing and left a bag containing his original clothing in Jones' car, requesting that Jones burn it.
The following morning, 31 October, Jones learned through the media of the deceased’s shooting. He contacted the police, who made arrangements to seize his car. Jones spoke with the appellant on 1 November, at which time he told him that the car, containing the appellant’s clothes, had been seized. In a statement relied upon by the Crown as an admission, the appellant replied:

You fucked me. I'm going to do 25 years now. I'm fucked.

The Crown also relied on the evidence of Marko Pehar (Pehar) that on 3 November 2013 the appellant had asked him to contact Spiteri-Ahern and request that she pay the sum of $4,000.00. On the Crown case, this money was the payment due to the appellant for shooting the deceased.
In the course of the investigation, conversations between Zraika and Barber were recorded by police, during which Zraika was said to have made statements indicating that he had knowledge of Barber’s involvement in the deceased’s shooting. Based on this evidence, the Crown alleged that Zraika was guilty of concealing a serious indictable offence.

THE APPELLANT’S CASE

The appellant did not deny that he had fired the shot that killed the deceased, but asserted, in the course of sworn evidence before the jury, that he had acted in self-defence.
The appellant gave evidence that he was involved in the supply of drugs, and that he had come to know the deceased as a consequence of having sold him significant quantities of ice. The appellant said that on one particular occasion on which he had supplied drugs to the deceased, the deceased had offered a firearm as a form of payment.
Generally speaking, the appellant took no issue with the evidence of Jones regarding the arrangements which had been made to drive to the unit block on the night of the deceased’s murder. However, it was the appellant’s case that he had gone there, not to kill the deceased, but to recover money owed to him by the deceased from a recent drug transaction. The appellant's case was that when he first arrived, he saw the deceased returning his daughter to Barber, following which the deceased signalled him (i.e. the appellant) to wait. The appellant said that after Barber and his daughter had left, the deceased came and spoke with him, assured him that he would have the outstanding money within 40 minutes, and requested that he supply him with 2 ounces of ice.
The appellant took no issue with Jones’ evidence as to what he had said when he returned to Jones’ vehicle. However, he maintained that this statement was a reference to the deceased’s failure to settle the existing debt. The appellant said that he then directed Jones to drive to a location that he (i.e. the appellant) used to store drugs, from which he retrieved the quantity of ice requested by the deceased, before returning to the unit block. The appellant agreed that he was in possession of a change of clothes at that time, and said that he adopted that practice to allow him to change his appearance so as to limit the risk of police attention during his drug dealing activities.
When the appellant returned to the unit block, the deceased came outside in the company of Archbold. When they reached the car park, the deceased took the appellant aside to talk to him, with Archbold going in a different direction. At that point, the appellant asked the deceased whether he had the money, and the deceased sought to confirm that the appellant had the drugs that he had requested. When the appellant confirmed that he had the drugs, the deceased produced a firearm and pointed it at him. Fearing that he was to be shot, the appellant reacted by grabbing the firearm and twisting it from the deceased. He ran from the deceased, at which time Archbold entered the deceased's car. The deceased then moved towards the car, whilst the appellant attempted to flee. On the appellant's case, the deceased pursued him, lunging towards him and acting aggressively. The deceased then started punching the appellant, during which time the appellant raised the firearm and pulled the trigger. The deceased then came towards the appellant as though to tackle him. The appellant responded by striking the deceased to the head with the butt of the firearm. At that point, the deceased fell back and the appellant then tried to secure a firmer grip on the firearm which resulted in further shots being fired. The appellant then fled the area.
The appellant took no issue with Jones’ evidence that when he returned, he changed his clothes and left his discarded clothes in Jones’ car. He said that he kept possession of the firearm but disposed of it shortly afterwards in an attempt to disassociate himself from the shooting. He said that he was unaware at the time whether the deceased was injured, and that he was concerned that he might be charged as a consequence of being in possession of, and discharging, a firearm.
The appellant also took no issue with the statement attributed to him by Jones upon finding out that Jones’ car had been seized by the police. Similarly, he took no issue with the fact that he had an association with Spiteri-Ahern. On his case, that association had originated as a consequence of his supplying Spiteri-Ahern with quantities of prohibited drugs, following which a friendship had developed between them, in the course of which the appellant had loaned Spiteri-Ahern an amount of money. The appellant said that after the shooting, he did not want to have any direct contact with Spiteri-Ahern. As a consequence, he had asked Pehar to assist him in recovering the sum of $4,000.00 which he maintained was owing to him by Spiteri-Ahern.

THE GROUNDS OF APPEAL

GROUND 1

HIS HONOUR ERRED IN DIRECTING THE JURY AS TO THEIR ASSESSMENT OF CONFLICT BETWEEN THE EVIDENCE OF LYNDAL ARCHBOLD AND THE EVIDENCE OF THE APPELLANT

The summing-up of the trial judge

At the commencement of his summing-up, following a series of introductory remarks, the trial judge gave the jury what he described as “fundamental directions that apply in every criminal trial". [7] In the course of doing so, his Honour said: [8]

Now, let me make it clear that nothing I say, in any later part of this summing-up, is in any way whatsoever a qualification of these fundamental principles.
7. AB 4512.
8. AB 4512.

Amongst those “fundamental principles” were the following: [9]

Sixthly, each accused is presumed to be innocent. He or she does not have to prove anything.
Seventhly, you cannot find an accused guilty unless the Crown satisfies you of that person's guilt to the high standard embodied in the words “beyond reasonable doubt”. Now, allow me to emphasise those words “beyond reasonable doubt” and this is a much higher standard than that which applies in civil trials where the standard is simply on “the balance of probabilities”.
9. AB 4513.

His Honour then said: [10]

Now, because of their importance, let me just summarise those fundamental principles.…… Six, each accused is presumed to be innocent. He or she does not have to prove anything. Seven, you cannot find an accused guilty unless the Crown satisfies you of that person's guilt beyond reasonable doubt.
10. AB 4513.

His Honour returned to the subject of the standard of proof a short time later and said: [11]

The seventh direction was that before you could convict you had to be satisfied beyond reasonable doubt. Now that is the ultimate test. It does not mean that as you go through you cannot use evidence because it is not as strong as that test requires. In many trials, one piece of evidence will support another. One witness will support the evidence another witness has given. You can use any evidence you think is good enough to rely on so long as at the end of the day you apply the test embodied in the words “beyond reasonable doubt”.
11. AB 4517.

After further oral directions, his Honour provided written directions to the jury regarding the elements of the offences [12] which included a number of references to the onus of proof. Subsequently, and specifically in the context of the issue of self-defence which had been raised by the appellant, his Honour said: [13]

When a person is charged, as [the appellant] is, the onus of showing that the killing did not occur in self-defence is on the Crown. So do not be misled by the reference “self-defence”. Throughout the Crown has the onus of proving beyond reasonable doubt that the killing did not occur in self-defence.
12. AB 4519; MFI 53.
13. AB 4520 – AB 4521.

In the third part of the summing-up, which the trial judge described as consisting of “some instructions not falling within the previous two groups and some advice as to the drawing of inferences”, [14] the jury were directed in the following terms: [15]

The first instruction is by way of reminder that the choice of some of the accused not to give evidence cannot be used against them. …. In choosing not to give evidence, Ms Spiteri-Ahern, Ms Barber and Mr Zraika are simply exercising rights all of us have. And when you think about it, if the exercise of that right could be regarded as some evidence against them, the right would be meaningless and, in effect, cease to exist.
You cannot, and I tell you this as a matter of law, use the fact that they have not given evidence in any way, shape or form, against them. And if you think about it, you will appreciate that, if it could, then, effectively, the right would just not exist. They have a right to stay silent and say the Crown has to prove its case.
14. AB 4533.
15. AB 4533 – AB 4534.

It should be noted at this point that unlike the three co-accused, the appellant did give sworn evidence in his case. However, his Honour did not direct the jury, be it at this stage of the summing-up or at any other time, as to how the appellant’s evidence should be approached and evaluated, bearing in mind that the onus of proof was on the Crown.
His Honour subsequently commenced to summarise various aspects of the evidence by reference to specific topics. Those topics, and the general structure of his Honour’s summing-up, are considered further in the context of ground 2. However, in the course of dealing with one such topic, defined as “The shooting and post-mortem”, his Honour said: [16]

Now let me go to the first topic, the shooting and post-mortem. There is no doubt he was shot on the night of 30 to 31 October and it was the shooting which caused his death. ….. Now the position of the wounds and the trajectory of the bullet are matters not in dispute and you may think they give you a good idea of where the gun was relative to the deceased when it was discharged. That may also help you to reach some view as to where the gunman was and help you in making a decision between the quite different accounts of Miss Archbold and [the appellant] (my emphasis).
16. AB 4547 – AB 4548.

In the context of addressing the same topic, his Honour said: [17]

Also to be borne in mind is the evidence of Mr Crowther and Sergeant Moynihan to the effect that it appeared that Mr Crowther's car, he living over the road, had been hit by a bullet. Although absolute positions might be unable to be determined, nevertheless, the matters to which I have referred are not in issue and I have said may help you to decide between the different accounts of Ms Archbold and [the appellant] (my emphasis).
17. AB 4549.

A short time later, in addressing the head wound sustained by the deceased, his Honour said: [18]

Given that, on the accounts given by Ms Archbold and Ms Haile [sic], there was some sort of struggle between [the appellant] and the deceased, it may be that the head injury, even if caused by the butt of a gun, does not argue persuasively in favour of either account and that is a matter for you (my emphasis).
18. AB 4550.

In addressing a further topic, defined as “Details of events in the car park”, the trial judge made reference to Archbold’s account on the one hand, and the appellant’s account on the other, in terms of what each had said had occurred at or about the time the deceased was shot. In doing so, his Honour said: [19]

Let me go to my second topic: Details of events in the car park. The Crown case commenced with the evidence of Ms Archbold as to what happened in the car park. When he gave evidence [the appellant] gave a different account. Both accounts cannot be right and clearly inconsistency is one of the major issues which you have to address (my emphasis).
19. AB 4554.

A short time later, having addressed aspects of Archbold’s evidence, his Honour said: [20]

[The appellant's] account was radically different (my emphasis).
20. AB 4556.

His Honour then said: [21]

As I said, the position described and indicated by [the appellant] is such a long way from where Ms Archbold said the deceased ever went that both versions cannot be right (my emphasis).
21. AB 4557.

His Honour then summarised aspects of the appellant’s account of what had occurred, at the conclusion of which he said the following: [22]

Is there anything to help you decide between these two versions?
Obviously any conclusions you reach as to the respective credibility of Ms Archbold and [the appellant] may do so, as may any conclusion you reach as to whether the deceased was dealing in ice, or whether there was a joint criminal enterprise, as may the evidence of [Tom Jones] and Mr Pehar. But is there anything in the accounts themselves or in the circumstances of the shooting? I already suggested you consider the entry wound of the bullet and its trajectory and the evidence of Mr Crowther.
You should, as [counsel for the appellant] suggested, consider the lighting in the car park. Consider the inherent likelihood of the three persons present doing each of the things attributed to them by one or other of the witnesses’ account. For example, the call ‘you motherfucker’. That may suggest, it is a matter for you, something must have occurred before those words were uttered. That is the sort of thing which I suggested you have a look at when you are trying to make a judgment between competing versions.
My suggestion is you consider the individual actions said to have occurred one at a time and say, “Well, now, do I think that's likely? Do I think that's credible?”, or whatever other conclusion you come to (my emphasis).

The application for a Liberato direction

22. AB 4559 – AB 4560.

Following these directions, counsel for the appellant (who was not senior counsel for the appellant before this Court) sought a specific direction from the trial judge, the nature of which he articulated in the following exchange with the trial judge: [23]
23. AB 4564 – AB 4565.

COUNSEL: When your Honour took this jury to the events of the car park, your Honour gave them directions or suggested ways they might decide between the two versions. I say that that is an incorrect direction at law, with respect, and that the jury should be told it is not merely a matter of choosing between witnesses. This is obviously crucial to their determination of [the appellant's] guilt or innocence and, indeed, I was going to submit your Honour that, in the event that your Honour hadn’t considered doing it, that your Honour would be giving this jury a Liberato direction because, so far as the immediate events around the shooting, there is only two people who can give evidence about that and they have given evidence about it and, very clearly, this jury should be told it is not a matter of simple choice between the two.
HIS HONOUR: … [M]y initial instructions to the jury included considerable reference to the obligation on the Crown to prove beyond reasonable doubt. It is contained on every single page of the written directions and in a statement to the jury that nothing I said thereafter was to be regarded as a qualification of those remarks.
Now, I don't regard myself as obliged in every issue in the case to keep constantly going back, saying, “The Crown has to prove, the Crown has to prove, the Crown has to prove”.
COUNSEL: But when your Honour gives them a direction to the effect that they have to decide between the two – –
HIS HONOUR: Well, they do.
COUNSEL: – – it leads them into what I say is the very real potential that they will erroneously conclude that it is a mere choice between which they prefer.
HIS HONOUR: I don't believe that is a reasonable possibility.
COUNSEL: As your Honour pleases.

Towards the end of the summing-up, counsel for the appellant renewed his application for a Liberato direction in the following exchange: [24]
24. AB 4713.

COUNSEL: … Your Honour, firstly, a query I raised with you a couple of days ago, a direction sometimes described as a Liberato direction. I take it, now your Honour has come to the conclusion of your directions for this jury that, having considered the matter – –
HIS HONOUR: What's the direction you want?
COUNSEL: The direction I want, your Honour, is to the effect that in this case, the jury is faced with two very different versions of what occurred in the car park. It would be wrong to approach the consideration of whether [the appellant] is guilty or not guilty of this – your Honour, perhaps it’s better that I just refer your Honour to paragraph 3-610 of the Bench Book.
HIS HONOUR: I don't have it here at the moment.
CROWN PROSECUTOR: It's the Murray direction.
COUNSEL: Yes, and there’s also the Liberato direction. In any case, your Honour, any such direction, any formula of words that your Honour employs must, in my submission, convey very clearly to this jury that it is not a choice for them as between [the appellant] and Ms Archbold that, even if they were to reject [the appellant's] evidence entirely about that, that they must still conclude that Ms Archbold's evidence about important matters can be relied upon to reason [the appellant's] guilt beyond reasonable doubt.
The obligation or burden of proof of guilt of the accused never shifts; it is placed squarely on the Crown. The burden never shifts to the accused. It is not for [the appellant] to prove his innocence, but for the Crown to establish his guilt.
Given that the case against [the appellant], your Honour, relies so heavily on the evidence of Ms Archbold, I do say that in this case some direction in the nature of a Murray direction cautioning this jury that, before they relied on Ms Archbold’s evidence, that they needed to scrutinise it with great care before they reasoned to a guilty verdict based on her evidence would be appropriate.
HIS HONOUR: Very well.
COUNSEL: I did do that in a rather shorthand fashion a couple of days ago, but at that stage I think your Honour had indicated it wasn’t the appropriate time to discuss directions.
HIS HONOUR: I may well have. I'm not taking exception to your raising it now.
COUNSEL: So I say that at the very least some form of those words that conveys that should be said to the jury.
HIS HONOUR: All right. Is that all you wanted to raise?

At that point counsel went on to make a further application which I have considered in the context of ground 2 below.
The following exchange then took place between the Crown and the trial judge: [25]
25. AB 4728 – 4729.

CROWN PROSECUTOR: In respect of the Liberato direction – –
HIS HONOUR: I don't need to hear you any further on the topic.
CROWN PROSECUTOR: One other matter, your Honour.
HIS HONOUR: I'm sorry, Mr Crown, perhaps it was premature, but I did have a look at the Bench Book where [counsel for the appellant] suggested that I look and the notations there in the case of the Liberato direction where the jury is given clear directions regarding the onus and standard of proof, Liberato-type direction may be unnecessary. I believe I gave them clear directions in that respect.

The passage goes on, “If there’s no suggestion of a choice between conflicting cases, a Liberato direction is not required” . There is a conflict here. I accept that.
The next paragraph, 3610, which deals with the Murray direction, applies where there is one witness essential to the Crown case. Well, in my view, this is not that sort of case. Where the issue is self-defence the Crown relies on three witnesses or topics: One, Ms Archbold; two, [Mr Jones]: three, the evidence concerning drugs.
CROWN PROSECUTOR: And four, Mr Pehar, because the Crown relies upon that conversation after the event as containing admissions as well.
HIS HONOUR: The matters I've outlined are the ones that make me disinclined to give a Liberato or Murray direction. Do you suggest I should do so?
CROWN PROSECUTOR: I agree with your Honour that you should not.
HIS HONOUR: Very well.

In rejecting the application for a Liberato direction, the trial judge said the following in ex-tempore reasons: [26]

It was also suggested that I should give the jury some Liberato and/or a Murray direction. I decline to do either. I do so because the circumstances of this case, in my view, do not bring the principles referred to in those cases into operation.
I take the view that the fundamental directions I gave to the jury at the commencement of my summing-up were clear, were emphasised, and some of them, particularly dealing with the onus and burden of proof were included on every page of my written directions to the jury.
Secondly, this is not a case where it is one witness against the accused. The Crown case depends on, and has at least four strands or witnesses in it: One is Ms Archbold; a second is [Tom Jones]; a third is the evidence concerning the likelihood of the deceased having been dealing in ice or buying it from [the appellant]; and a fourth concerns the pattern of phone calls.
True it is that, to an appreciable degree, that evidence is directed to the question of self-defence; nevertheless, in my view, it is quite sufficient to take the case well away from the circumstances in which it is regarded as appropriate to follow either of the Liberato or the Murray direction which I was asked to give.

26. AB 4959.

The further directions of the trial judge

Having determined that a Liberato direction should not be given, his Honour concluded the summing-up with the following final directions: [27]

Now, during the course of my address, I said that the accounts of Ms Archbold and [the appellant] as to what occurred in the car park, were very substantially different and you had to choose between them; you do.
I also suggested, on one or two occasions, I think in relation to parts of Ms Archbold's evidence, that you ask yourself: Why would she lie about that? That remains a proper question for you to ask yourselves. However, in respect of both of these matters, choosing, why did she lie and, indeed, all issues in the case, do not allow yourselves to lose sight of the fact that, at the end of the day, the onus of proof remains on the Crown to prove the cases it brings beyond reasonable doubt.
As I said, you can use any piece of evidence you think is reliable enough to rely on in trying to reach your ultimate conclusion. But, at the end of the day, you have got to ask yourself, accepting all that: Am I persuaded to the requisite standard? (my emphasis).
27. AB 4771.

At that point the jury retired to commence deliberations.

Submissions of the appellant

Senior counsel for the appellant submitted that in the various passages of the summing-up set out above, the trial judge had, in effect, repeatedly directed the jury that their deliberations required a choice between the evidence of Archbold on the one hand, and the evidence of the appellant on the other. It was submitted that in those circumstances, a “protective warning” had been required, in the form of a direction to the jury that even if they did not positively believe the evidence of the appellant, it was not open to find that the case against him was established if the evidence gave rise to a reasonable doubt.
Senior counsel submitted that the Liberato direction which had been sought by counsel for the appellant constituted the minimum form of such protective warning, and the minimum means of providing the jury with a proper appreciation of the interrelationship between the onus of proof, the standard of proof, the evidence of Archbold, and the evidence of the appellant. Senior counsel acknowledged that the trial judge had directed the jury, on a number of occasions, as to the onus and standard of proof. However, it was submitted that those directions had been given in general terms, and that it was imperative that the jury understood that their task did not involve, as the trial judge had repeatedly directed, deciding or choosing between the accounts of Archbold and the appellant. Senior counsel submitted that if a reference to the jury having to decide, or choose, between those accounts was to be made at all, it should have been in terms which made it clear that even though it might have seemed like a choice was required, that was not the nature of the jury’s task.
It was submitted that his Honour had erred, not only in directing the jury in the terms in which he did, but in refusing to give the Liberato direction which had been sought.

Submissions of the Crown

The Crown submitted that in the circumstances of this case, a direction in the terms which had been proposed by counsel for the appellant was entirely inappropriate. The Crown emphasised that there had been an alternative case brought against the appellant, namely that even on his own evidence he had not believed that he needed to act as he had in self-defence, and was therefore guilty. It was submitted that in these circumstances, a Liberato direction simply could not have been given.
The Crown further submitted that there was a need to view the summing-up as a whole, and not in piecemeal way. Adopting that approach, the Crown pointed to the directions given by the trial judge at an early stage of the summing-up as to the onus and standard of proof, and to his Honour’s final directions to the jury which contained an express reference to the importance of the jury not losing sight of the fact that the onus of proof remained on the Crown to prove its case beyond reasonable doubt. It was submitted that the terms of those directions could not have left the jury in any doubt about the nature of their task, or the fact that the onus of proof always remained on the Crown. It was submitted that those directions, which were given to the jury immediately before they retired to commence deliberations, were more than sufficient to address any risk which may have arisen from his Honour’s earlier references to the necessity to decide or choose between the accounts of Archbold and the appellant.

Consideration

In Liberato v The Queen [28] the Crown case against the accused, who had been charged with rape, depended upon the evidence of the victim, MK. MK denied that she had consented to any act of sexual intercourse, and described the relevant events in terms from which it was open to the jury to infer that the accused must have had a guilty state of mind at the relevant time. The accused denied having that state of mind, and described the relevant events in terms from which it was open to the jury to infer that MK may have consented. Against that background, the trial judge, in the course of his summing-up, made reference to the jury having to choose between the evidence of the accused and MK, adding that if the jury were unable to make such a choice it would follow that they were not satisfied beyond reasonable doubt of the accused’s guilt.
28. (1985) 159 CLR 507; [1985] HCA 66.
The South Australian Court of Criminal Appeal concluded that these directions undermined the principle that the onus of proof remained with the Crown throughout, but determined that there had been no substantial miscarriage of justice. A majority of the High Court concluded [29] that special leave to appeal should not be granted, saying:

It is not suggested that the Court of Criminal Appeal fell into any error of law in its consideration of the summing-up, or that it failed to recognise any inaccuracy or insufficiency in the directions given. Nor is it suggested that the Court misconceived the principles governing the application of the proviso.
29. Mason ACJ, Wilson and Dawson JJ at 508 (citations omitted).

In a dissenting judgment, Brennan J (with whom Deane J agreed) said: [30]

When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make that clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is “a gross simplification” .
30. At 515.

In Murray v The Queen [31] the accused had been convicted of murdering the deceased by shooting him. The accused admitted having pointed a gun at the deceased with the intention of frightening him, but denied having deliberately pulled the trigger. In the course of her summing-up, the trial judge drew the jury's attention to the prosecution and defence cases and instructed the jury that it was necessary “to decide which versions of those events” was to be accepted.
31. (2002) 211 CLR 193; [2002] HCA 26.
The plurality [32] allowed the accused’s appeal against his conviction. Gummow and Hayne JJ said: [33]

[57] Although at the start of her directions about murder her Honour told the jury that it was for the prosecution to prove that the appellant had intended to kill or do grievous bodily harm, the references she made, particularly in the passage of the directions set out earlier, to the jury accepting the accused's evidence or version of events were apt to mislead the jury about the decision they had to make. The choice for the jury was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant.
32. Gummow and Hayne JJ; Gaudron, Kirby and Callinan JJ agreeing).
33. At 212 – 213; [57].

Gaudron J said: [34]

Although the trial judge, in the early part of her directions, correctly instructed the jury with respect to the onus of proof, in the passages set out above, her Honour posed the question for the jury’s determination with respect to murder as the question whether it accepted the prosecution's or the appellant's version of events. That was the central or critical direction in her Honour’s summing up. And as the issue for the jury was not whether it should accept the appellant's version but whether the prosecution had negatived it as a reasonable possibility, that direction misstated the issue for determination in a way that relieved the prosecution of proving its case beyond reasonable doubt. Accordingly, the appeal should be allowed on that ground.
34. At 201; [23].

In Douglass v The Queen [35] the accused had been convicted of the aggravated indecent assault of his granddaughter. The only evidence of the commission of the offence came from the victim, and the accused gave evidence denying the victim's account. In allowing an appeal against conviction, the plurality said the following: [36]

[12] … It was an error to view (as the Court of Criminal Appeal did) the appellant's trial as reducing to a case of "word against word". It is a characterisation which fails to recognise that the resolution of a criminal case does not depend on whether the evidence of one witness is preferred to that of another. The resolution of a criminal trial depends upon whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt.
35. (2012) 290 ALR 699; [2012] HCA 34.
36. French CJ, Hayne, Crennan, Kiefel and Bell JJ at [12].

Their Honours went on to cite, with approval, the passage from the judgment of Gummow and Hayne JJ in Murray extracted above. [37]
37. At [65] above.
In De Silva v The Queen [38] the accused had been convicted of two counts of rape. He did not give evidence at his trial but had made a number of exculpatory statements to police which were admitted into evidence. The trial judge was not requested to, and did not, give a Liberato direction. It was argued on appeal that the failure to give such a direction was an error. Whilst concluding [39] that when the summing-up was read as a whole, the trial did not miscarry by reason of the omission of a Liberato direction, the plurality [40] made a number of observations as to the circumstances in which such a direction might be appropriate. Those observations included the following: [41]

[9] Whatever may have been the practice when Liberato was decided, in Murray v R this Court made clear that it is never appropriate for a trial judge to frame the issue for the jury's determination as involving a choice between conflicting prosecution and defence evidence: in a criminal trial the issue is always whether the prosecution has proved the elements of the offence beyond reasonable doubt. In light of Murray, the occasions on which a jury will be invited to approach their task as involving a choice between prosecution and defence evidence should be few.
[10] This is not to say that the occasions calling for a Liberato direction should be few. The Liberato direction serves to clarify and reinforce directions on the onus and standard of proof in a case in which there is a risk that the jury may be left with the impression that the evidence on which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt. Subject to statute, a Liberato direction should be given in a case in which the trial judge perceives that there is a real risk that the jury might view their role in this way.
[11] The Liberato direction is addressed, in terms, to a trial at which there is conflicting sworn evidence. Intermediate appellate courts have expressed differing views as to whether a Liberato direction is appropriate in a case in which the conflicting defence version of events is not given on oath, but is before the jury, typically in the accused's answers in a record of interview. If the trial judge perceives that there is a real risk that the jury will reason that the accused's answers in his or her record of interview can only give rise to a reasonable doubt if they believe them, or that a preference for the evidence of the complainant over the accused's account in a record of interview suffices to establish guilt, a Liberato direction should be given. Where the risk of reasoning to guilt in either of these ways is present, whether the accused's version is on oath or in the form of answers given in a record of interview, the Liberato direction is necessary to avoid a perceptible risk of miscarriage of justice. When an accused gives, or calls, evidence there is a natural tendency for the focus to shift from the assessment of the capacity of the prosecution case to establish guilt to an assessment of the perceived strengths or weaknesses of the defence case. Recognition of this forensic reality suggests that the risk that the jury will reason in either of these ways is more likely to arise in a trial in which the conflicting defence account is on oath.
38. (2019) 268 CLR 57; [2019] HCA 48.
39. At [36].
40. Kiefel CJ, Bell, Gageler and Gordon JJ.
41. At [9] – [11].

Their Honours went on to observe: [42]

… [I]t is preferable that a Liberato direction be framed along the following lines: (i) if you believe the accused's evidence (if you believe the accused's account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused's evidence (if you do not believe the accused's account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?
42. At [12].

Although the judgment in De Silva was delivered after the appellant's conviction and sentence, it was not suggested by either party before this Court that such judgment materially changed the law set out the in various authorities which preceded it. In my view, the following propositions may be distilled from those authorities, as well as from the judgment in De Silva.
First, it is never appropriate for a trial judge to frame the issue for a jury’s determination as one which involves the making of a choice between conflicting Crown and defence evidence. In a criminal trial, the issue is always whether the Crown has proved its case beyond reasonable doubt.
Secondly, a direction of the kind postulated by Brennan J in Liberato will be appropriate for the purposes of reinforcing directions as to the onus and standard of proof in any case where, absent such a direction, there is a risk that the jury may be left with an impression that:

the evidence upon which the accused relies will only give rise to a reasonable doubt if that evidence is believed as truthful; or

a preference for the evidence led by the prosecution is sufficient to establish guilt.

Thirdly, if such a direction is considered appropriate, it should be given in terms which make it clear that:

a preference for the evidence led by the Crown is not a sufficient basis for a finding of guilt;

the jury must not convict the accused unless satisfied, beyond reasonable doubt, of the truth of the evidence relied upon by the Crown;

if the accused’s account is accepted, a verdict of not guilty must follow;

if the accused’s account is not accepted, but the jury consider that it might be true, a verdict of not guilty must follow;

if the accused’s account is not accepted, it should be put to one side, and the question will remain whether the Crown, on the basis of the evidence that is accepted, has proved the guilt of the accused beyond reasonable doubt; and

even if evidence given by an accused is not positively believed, the jury must nevertheless acquit the accused if that evidence gives rise to a reasonable doubt about his or her guilt.

Bearing in mind these principles, and for the reasons that follow, I am satisfied that this ground of appeal is made out in the present case.
The trial judge appropriately directed the jury, both at the commencement of his summing-up and at its conclusion, that the Crown bore the onus of proof. However, it remains the case that on a series of occasions in the course of a summing-up which extended over a number of days, the trial judge directed the jury in terms which, expressly or by implication, framed the issue for the jury in terms of the requirement for a choice between the evidence of Archbold and the evidence of the appellant. Those directions were erroneous. The authorities to which I have referred make it clear that framing the issue in such terms is never appropriate, for the simple reason that doing so has the clear tendency to obscure the fundamental fact that in any criminal trial, the issue for the jury is whether the Crown has established its case beyond reasonable doubt. I should also say that his Honour’s direction to the jury that they should ask themselves “Why should [Archbold] lie?” was also an error, for the reasons I have expressed in considering ground 2 below.

There was a clear risk that the jury may have understood that their task involved choosing between the two competing accounts. Unfortunately, that risk was created by the terms of the directions which his Honour gave, and which are set out in the passages above. Moreover, that risk was heightened, and the identified errors of the trial judge compounded, by the fact that at no stage was the jury directed as to how the sworn evidence of the appellant was to be assessed, and how that assessment was to be undertaken bearing in mind the fact that the Crown bore the onus of proof.
These errors were further compounded by the trial judge’s error in refusing to give the Liberato direction which had been sought. The basis of that refusal was his Honour’s assessment that the circumstances of this case did not “bring the principles referred to in [Liberato] into operation” because this was not a case of “one witness against [the appellant]”. Analysing the case in that way may have been correct in the (very technical) sense that there were a number of witnesses called by the Crown who gave evidence as to the circumstances in which the deceased was shot and killed. However, such analysis completely overlooked the fact that there were only two eyewitnesses to the deceased’s murder, namely Archbold and the appellant. His Honour’s repeated directions as to the necessity for the jury to decide or choose between their respective accounts effectively framed the case as one in which there was indeed “one witness against [the appellant]”. Accordingly, the analysis of the case that had been conveyed by his Honour’s directions was precisely the analysis, the disavowal of which was used by his Honour as a basis for concluding that a Liberato direction was not warranted.
In the course of oral submissions before this Court the Crown relied upon the decision of the Western Australian Court of Appeal in De Pledge v Western Australia [43] to support the proposition that because the Crown had brought an alternative case against the appellant, a Liberato direction could not have been crafted, and that such a direction was therefore not appropriate. I do not accept that to be the case. The fundamental conclusion reached by the Court in De Pledge was that a Liberato direction was not required because there was no conflict between the accounts of any prosecution witness and the accused. [44] Because there was no conflict, there was no risk that the jury might have viewed their task as one which required them to choose between competing accounts. That, without more, distinguishes the circumstances in De Pledge from the circumstances of the present case.
43. [2021] WASCA 1; (2021) 95 MVR 37.
44. At [128].
Having reached that conclusion, the Court went on to state the following in a passage on which the Crown before this Court particularly relied: [45]

…. Any form of Liberato direction would need to have been modified to identify the particular parts of the appellant's evidence which, if the jury believed them or thought they might be true, would lead to a not guilty verdict. The task of identifying relevant parts of the appellant's evidence would be significantly complicated by the evaluative nature of the questions posed for the jury's consideration. Whether a failure to positively reject particular evidence would lead to a not guilty verdict would depend in part on the jury's evaluative assessment of the dangerousness of driving in a particular manner. A Liberato direction modified to the circumstances of this case would have been likely to have been so complicated and qualified as to have run a risk of confusing the jury rather than to clarify directions on the onus of proof.
45. At [128].

In light of the Court’s conclusion that the circumstances of the case did not warrant a Liberato direction being given, this passage of the judgment should be viewed as obiter. In any event, and even allowing for the alternative case brought by the Crown against the appellant, a Liberato direction was clearly able to be formulated in the present case, whilst preserving the Crown’s alternative position. There was no suggestion to the contrary on the part of the Crown when opposing the direction at the time. Further, and more importantly, if the circumstances of a particular case are such as to require a Liberato direction, the fact that such a direction may require some modification to suit those circumstances is highly unlikely to ever justify a decision not to give such a direction at all.
For all of these reasons, this ground is made out.

GROUND 2 – THE SUMMING-UP WAS UNFAIRLY IMBALANCED IN FAVOUR OF THE CROWN

The final address to the jury of counsel for the appellant

Counsel for the appellant addressed the jury over a period of two days, in the course of which he advanced a number of propositions in support of the ultimate submission that the appellant should be found not guilty. Amongst the principal submissions that counsel put to the jury were the following:

contrary to what had been put by the Crown, the appellant had not tailored his evidence in an effort to “fit” it around objectively provable facts; [46]
46. AB 4361 – AB 4362.

the fact that the appellant was a drug dealer was not something that should prejudice him, and was not an issue that the jury were required to determine; [47]
47. AB 4363 – AB 4364.

the absence of any demonstrated animosity between the appellant and the deceased supported a conclusion that the appellant had no motive to kill the deceased; [48]
48. AB 4365.

accepting the Crown case required accepting the unlikely proposition that Barber had taken part in a plan to have the deceased killed, in circumstances that placed her own child in danger; [49]
49. AB 4376.

the absence of any recorded conversation following the deceased’s murder between the appellant and any co-accused, in which a plan to murder the deceased was discussed, was inconsistent with such a plan ever having been formed; [50]
50. AB 4378.

the appellant’s demeanour on the evening of the deceased’s murder was inconsistent with that which might reasonably have been expected of a person who was about to kill someone pursuant to a predetermined plan; [51]
51. AB 4380.

the fact that the deceased was not killed when the appellant first saw him on the evening of 30 October was inconsistent with the Crown case that there was a plan to kill the deceased, but entirely consistent with the appellant’s case that he had attended the unit block, not to kill him, but to recover money that was owing to him; [52]

the fact that the appellant was present when the deceased entered the car park was consistent with his case that there had been an agreement between the two of them to meet, and nothing said by the appellant to Tom Jones was consistent with the proposition that the appellant was acting with, or pursuant to the instructions of, a female; [53]

the evidence of Tom Jones was unsatisfactory in various respects; [54]

there was clear evidence that the appellant was in fear, a factor directly relevant to his assertion of self-defence; [55] and

it was entirely unrealistic to conclude that the appellant would have been a party to an agreement to kill the deceased in return for payment of the relatively small sum of $4,000.00. [56]
52. AB 4380 – AB 4381.
53. AB 4390.
54. AB 4392 – AB 4393.
55. AB 4416.
56. AB 4445.

In addition to putting these (and other) specific submissions, counsel for the appellant mounted, as one might have expected, an attack on the evidence of Archbold. That attack was extensive and covered, in considerable detail, numerous aspects of Archbold’s evidence of what had occurred on the night of the shooting. [57]
57. AB 4395 – AB 4412.

The summing-up of the trial judge

It is convenient to begin an analysis of the trial judge’s summing-up by setting out its general structure, which was explained by his Honour as follows: [58]

Now, my summing-up is going to fall into a number of parts. Firstly, there will be some fundamental directions that apply generally in criminal trials. And there are four parts.
Secondly, I will give you some directions as to the legal principles that apply to the charges here and the most important of those directions will be in writing.
Thirdly, there will be some instructions as to matters you must bear in mind and some suggestions.
And, fourthly, I will make some reference to the evidence and counsel’s argument. Obviously, I am not going to refer to all of the evidence. We will be here for another three months if I do.
58. AB 4510 – AB 4511.

The “fundamental directions that apply in every criminal trial” encompassed the following propositions: [59]
59. AB 4512 – AB 4513.

the jury were bound to accept his Honour’s directions of law;

the jury determined issues of fact;

the jury’s determination was required to be based solely on the evidence;

the jury’s determination was required to be unanimous;

all accused were presumed to be innocent;

the jury could not find the appellant guilty unless the Crown satisfied the jury of his guilt beyond reasonable doubt; and

in a case based on circumstantial evidence, it was necessary that the jury be satisfied that a finding of guilt was the only reasonable finding to make, and that there was no reasonable explanation consistent with innocence.

His Honour also gave the following further direction in this context: [60]

… [Y]ou are entitled to disregard any views you think I may have as to the evidence or the facts. Indeed, you should disregard them unless, by the end of your deliberations, you are persuaded by the evidence to a similar view.
60. AB 4512.

All of those directions were repeated in a summary form [61] before his Honour said the following: [62]

Let me amplify the third direction that you should discard any views you think I may have as to the facts or concerning the evidence unless at the end of your deliberations, you are persuaded by the evidence to a similar view. Firstly, let me say I am entitled to express views. That said, it is certainly not my intention to indicate any view on the question of what your verdict should be. However, you are likely to be assisted if I concentrate on the matters that seem to me important rather than referring to all the evidence that has been given. Much of what I say I expect will be contentious. However, I recognise, as should you, that that may not be so and indeed you may disagree with what I see as important.
So let me make it clear that you are the masters in this area. You have to decide the case of each accused on the basis of all the evidence admitted in the case of that accused, and if I do not mention something or a witness one of you thinks is important, still take it or the witness’s evidence into account. If you want me to mention or refer to something or someone else, please say so and I will add to what I otherwise have in mind. Counsel know they have the right to ask me to do the same.
During the course of this summing-up I will invite your consideration as I have indicated to various matters in the evidence. Sometimes this may be because the Crown or defence counsel have not referred to them or not referred to them in the detail that I think the topic deserves. Sometimes it may be merely by way of completing a picture. Sometimes it may be because I think they are sufficiently important to merit further consideration, but whatever the reason the result will be that at times I make or appear to make points favourable to the Crown or to the accused. We would not be here at all if there were not some points to be made in favour of the Crown. We would not have been here for this length of time if there were not also some points to be made in favour of the accused.
As I go through picking points in what seem to me some sort of logical order among the mass of material there are going to be matters that favour one side or the other. When that occurs bear my purpose in mind, I am in no sense trying to usurp your role. So far as matters of fact and evidence and the result of the trial are concern [sic] it is your view and your decision that matter.
61. AB 4513.
62. AB 4515 – AB 4516.

The trial judge then commenced the second part of his summing-up by distributing written directions to the jury setting out the elements of each offence. Those written directions were then supplemented by oral directions. [63] His Honour then commenced the third part of his summing-up [64] in which he gave the jury a number of specific directions in relation to discrete issues including the choice of the three co-accused not to give evidence, expert opinion evidence, unreliable evidence, lies, and the drawing of inferences. But for the fact that no direction was given to the jury regarding the appellant’s evidence and how it should be assessed, the second and third parts of the summing-up are, of themselves, generally uncontroversial.
63. AB 4519 – AB 4533.
64. AB 4533 – AB 4545.
In commencing the fourth part of his summing-up, his Honour said: [65]

Now I am going to split this summing-up also into a variety of topics in the hope that by doing so I can provide some assistance to you and my suggestion is that when you, at least at some stage in your deliberations, you consider the evidence in effect, topic by topic, perhaps the ones I have picked, perhaps others, but clearly discussion between you is not going to be advanced if you try and talk about half a dozen different things at the one time.
65. AB 4545.

The topics identified by his Honour for the purposes of this part of his summing-up were: [66]
66. AB 4547.

the shooting and post-mortem;

the details of events in the car park;

the evidence of Jones and Pehar;

the evidence of the deceased’s drug dealing; and

the issue of self-defence.

In addressing the first of those topics his Honour said: [67]

[Counsel for the appellant] criticised Ms Archbold's account of the number of shots quite trenchantly. He asserted on I think seven occasions that she had referred to ten shots. She did not. She referred to one group of three shots and then another group of “about seven”. It is a matter for you what number or numbers are embraced within the expression “about seven”, but she clearly did not assert that she had heard ten (my emphasis).
67. AB 4554.

His Honour then said the following about Archbold’s evidence: [68]

Subject to what anyone may say, I am not going to spend a great deal of time referring to all of the details of Ms Archbold’s evidence as to what happened. What occurred is intimately bound up with the question of who brought the gun to the site and I doubt that your decision is likely to depend on Ms Archbold’s recollection of the less significant details of what occurred during what must on any view have been to her a very stressful event and during some of which she said she had her head down in the car. She agreed that events that night were a blur and that her thoughts were jumbled. At another stage she said her mind was a complete jumble that night. Detective Mason said that when the recorded interview with Ms Archbold occurred, she was extremely distressed. At one stage in evidence Ms Archbold said she was sure of the events of the night but her recollection of the order of them was not the best.
However, there are differences between Ms Archbold’s and [the appellant’s] account of what occurred that seem to me to be more significant and I shall refer to them.
68. AB 4554.

His Honour then made reference to what he apparently perceived were inconsistencies between the evidence of the appellant and evidence given by other witnesses called by the Crown. For example, in dealing with the evidence of Tom Jones, his Honour said: [69]

On the following day when he told [the appellant] that the police had his car and clothes, [the appellant's] response was to the effect: “You fucked me, I'm going to do 25 years, now I'm fucked”. At one stage [the appellant] agreed this was possibly said; at another stage he agreed it was said (my emphasis).
69. AB 4584

A short time later, in respect of the same issue, his Honour said: [70]

[The appellant] agreed he made the statement about doing 25 years, at least at one stage he agreed (my emphasis).
70. AB 4584.

In addressing the appellant's drug dealing activities, his Honour said: [71]

[The appellant] said that the deceased had regularly purchased cannabis two to three times a week and that he personally would have delivered pot to the deceased in 2012 at least 20 to 30 times. [The appellant] said he also delivered cannabis to the deceased in the August to October 2013 period and there were times he would “usually sit back and talk to the deceased because at that time I wanted [the deceased] to work for me”, transcript 2178. This would occur at the front of a house in Merrylands.
Later in his evidence [the appellant] said it was in 2012 that he tried to persuaded the deceased to be runner and not, as he had said earlier, 2013. I invite correction, but I think there is no explanation for the inconsistency in dates (my emphasis).
71. AB 4624.

In respect of the appellant's knowledge of the deceased's address, his Honour said: [72]

[The appellant] gave somewhat inconsistent evidence as to his knowledge of the deceased's address. He said he had delivered drugs to the car park a couple of times previously; transcript 2195. At 2327 he said, “I knew the unit number. I'd been there before, met him at the front before", and as transcript 2367 he said he did not know the unit number (my emphasis).
72. AB 4626.

As to the events on the night of the murder, and the appellant’s assertion of self-defence, his Honour said: [73]

Now, as I said, there was no suggestion that, on the night or on the occasion where [the appellant] said he was fucked, there was no suggestion by [the appellant] that he had to defend himself against the deceased and no suggestion made during [Tom Jones’] evidence, although I should mention that, in his own evidence, [the appellant] asserted he had remarked to [Tom Jones]: “Don't worry, the prick tried to get me” (my emphasis).
73. AB 4584.

Later in the summing-up, his Honour addressed criticisms of Archbold’s evidence which were the subject of submissions to the jury by counsel for the appellant. His Honour scrutinised some of those submissions in a way which openly questioned the weight which might be given to them. For example, his Honour said: [74]

Now, apart from accepting her time estimate, to which I have just referred, [counsel for the appellant] was very critical of Ms Archbold's evidence, submitting that it was, in many parts, completely unbelievable and on a number of topics she was lying. He asked how can you rely on anything she said for a finding of guilt beyond reasonable doubt.
One topic he went to was the number of shots and groups of shots and I said something about this earlier in my summing-up.
He referred also to later statements she had made the police in which she endorsed her first account, submitted that she lied, would not accept the fact that her evidence of two lots of shots and about ten shots was accurate and then dug herself deeper in.
He took issue with the number of shots, as I have said, and Ms Archbold's evidence that she saw the gun and it was a pistol. Certainly, there is a deal of evidence of what she said in these respects is wrong, but it is fair to ask yourself why she should lie in respect of such matters.
74. AB 4702 – AB 4703.

I have previously noted in my consideration of ground 1 [75] that his Honour also posed the question, “Why should (Archbold) lie?” in his final directions to the jury.
75. At [54] above.
In addressing other aspects of the appellant's evidence, his Honour said: [76]

[The appellant's] evidence raises an appreciable number of obvious questions.…… I leave you to reflect on the other questions that arise.

Such concerns increased as a result of what occurred on the following day when an issue was raised by the third juror as to their ability to continue. When the trial judge indicated to the jury that he would require further information as to the third juror’s state of health, he informed the jury that he had “power to excuse one of the jury”. Again, his Honour omitted any reference to the fact that he had power to discharge the entire jury if a unanimous verdict could not be reached. Significantly, by the time that his Honour received the medical certificate pertaining to the third juror on the following sitting day, the jury (then a jury of 10) had deliberated for a significant part of 3 June, with the participation of the third juror, without being able to reach a unanimous verdict.
When his Honour received that medical certificate, the following circumstances prevailed:

as a consequence of the incomplete Black direction, the jury had not been informed that the trial judge had power to discharge them in the event that they could not agree.

the second juror had been discharged on the basis of the stress and anxiety associated with the trial;

the third juror had sought to be discharged on the same basis;

two members of the jury had given sworn evidence to the effect that a unanimous verdict in respect of one accused was likely;

almost a full day of deliberations on 3 June, with a jury of 10 persons (including the third juror) had failed to return a unanimous verdict; and

the third juror consulted a medical practitioner on 4 June and provided a history that they could not continue on account of the anxiety and stress associated with the trial.

In my view, all of these circumstances support a conclusion that second and third jurors represented a minority view.
That conclusion, particularly insofar as it relates to the third juror, is significantly strengthened by the fact that on 6 June the transcript notes that the jury were informed at 10.54am that the third juror had been discharged, and resumed deliberations at 10.55am. At 11.07am, counsel for the appellant was informed that there was a need to reconvene the Court. The only available inference is that the need to do so arose because the jury (now a jury of 9 persons) had reached a unanimous verdict. On the evidence, that decision was reached within 12 minutes of deliberations resuming without the third juror, in circumstances where deliberations had continued for the entirety of the previous day, with the third juror taking part, without such verdict having been reached.
What also assumes significance in these circumstances is 55F(3) of the Act which defines the term “majority verdict” as:

a verdict agreed to by 11 jurors where the jury consists of 12 persons at the time the verdict is returned; or

a verdict agreed to by 10 jurors where the jury consists of 11 persons at the time the verdict is returned.

Bearing in mind the sequence of events I have set out, it is impossible to view the end result as anything other than a de facto majority verdict in circumstances where, given the number of members of the jury at that point, a majority verdict was expressly prohibited by statute.
The gravamen of his Honour’s conclusion that the jury should not be discharged after the discharge of the third juror was that it was “mere speculation” to suggest that the third juror’s difficulties arose from not being able to join in the views of the majority. Needless to say, the views of the third (or for that matter, the second) juror are not known. However, for the reasons I have outlined, the conclusion that both of them were not satisfied beyond reasonable doubt of the appellant’s guilt, and were dissenting from the majority, is frankly overwhelming. [178]
178. Phan at [190].
It is also of some significance that in declining to discharge the jury his Honour relied upon his purported Black direction. For the reasons I have pointed out, that direction was deficient in a material respect. It provided absolutely no support for the conclusion that the jury should not be discharged.
Viewing the evidence as it stood at the time, the circumstances fall within the second category identified by Adamson J in BG. Viewing the evidence retrospectively, the circumstances fall within the third category identified by her Honour. In either case, a risk of a substantial miscarriage of justice has been made out. The trial judge erred in not discharging the jury following the discharge of the third juror, and the verdict which was returned is tainted with that error.
It follows that grounds 4 and 5 are made out.

GROUND 6 – THERE WERE IRREGULAR JURY DELIBERATIONS IN THE ABSENCE OF ALL MEMBERS WHICH RESULTED IN A MISCARRIAGE OF JUSTICE

During the course of the hearing of the appeal, an issue was raised with the parties which resulted in senior counsel for the appellant being granted leave to rely on this additional ground. In setting out the circumstances which give rise to it, I should note that in the course of reviewing the material and submissions, it became apparent to me that there were in fact two separate occurrences in the trial which were relevant. Only the second of those was raised with counsel during the course of the hearing, and therefore only that occurrence has been the subject of submissions. However, this has not affected my ultimate conclusion in respect of this ground.

The directions of the trial judge

His Honour delivered some brief opening remarks to the jury following their empanelment, [179] in the course of which he emphasised that they should not speak to anyone in the vicinity of the Court complex. [180] At the conclusion of those remarks, the following exchange took place between his Honour and the Crown: [181]

HIS HONOUR: Mr Crown, is there anything else that you suggest I should mention at this stage?
CROWN PROSECUTOR: No, thank you, your Honour. Of course the jurors shouldn't speak to anybody at home about the case either.
HIS HONOUR: Well, it is undesirable. No doubt your wives or spouses or partners are likely to ask you what it is about. It is better that you don't tell them, not because that of itself hurts, but they are likely to put in their six-penneth worth and express their views. When the case is over, talk to your heart's content if you want to, but it is better at this stage that you don't run the risk of them sticking their spoke in.
179. AB 1447.13 – AB 1451.22.
180. AB 1450.25 – AB 1450.27.
181. AB 1451.21 – AB 1451.32.

At no stage of the trial did his Honour direct the jury as to the necessity for discussions and deliberations to take place only when all of the jury members were present. Further, at no stage following the commencement of the jury’s deliberations did his Honour make a formal order pursuant s 54(1)(b) of the Act which is in the following terms:

54 Jury permitted to separate in criminal trials
(1) The jury in criminal proceedings--
(a) …
(b) may, if the court so orders, be permitted to separate at any time after they retire to consider their verdict.

The first period of deliberations in the absence of all members of the jury

As of 2 June 2016, the jury numbered 11 persons. I have previously noted [182] that the transcript of the proceedings of that day indicates that “the jury” returned to the jury room at 10.00am. However, it is clear from what followed [183] that there were, in fact, only 10 members of the jury who returned at that time. The second juror was not present, having provided a medical certificate to the Court seeking to be discharged. To the extent that the notation in the transcript might convey the suggestion that all 11 members of the jury returned at 10.00 am, it is misleading.
182. At [145] above.
183. Summarised at [146] – [149] above.
It was not until 11.17am that his Honour informed the jury that the second juror had been discharged. [184] It follows that from 10.00am until 11.17am, 10 members of the jury were in the jury room, in circumstances where the jury was, in fact, a jury of 11. No direction was given by the trial judge at any time that the 10 remaining members should cease any deliberations on the basis that not all members were present.
184. At [150] above.

The second period of deliberations in the absence of a member of the jury

The transcript of the proceedings on 6 June 2016 records that the jury “returned to the jury room at 9.45am”. [185] The second juror had been discharged. The third juror was not in attendance at Court but had not been discharged, and accordingly remained a member of the jury. Accordingly, as at 9.45am the jury comprised 10 persons. In light of the third juror’s absence, to the extent that the notation in the transcript suggests that all 10 members of the jury returned to the jury room at 9.45am, it is misleading.
185. AB 4911.
The necessity that the jury not continue deliberations until such time as the third juror’s position was resolved was recognised by the Crown in the following exchange with the trial judge and counsel for the appellant when discussing the medical certificate which had been received in relation to the third juror from Dr Marinucci: [186]
186. AB 4912 – AB 4913.

CROWN PROSECUTOR: So, the question then arises, your Honour, whether the jury should be permitted to continue their deliberations in the absence of a person who is still part of the jury and I think not at the moment, with respect, and they should be brought in and asked not to continue their deliberations because a person who is still a member, and it should be explained, bluntly and directly, a person who is still a member of the jury is not here.
HIS HONOUR: Well, Mr Crown, theoretically, you’re right, but the plain fact of the matter is that it is unreal to think that the jury for the last half hour or so haven't been deliberating.
CROWN PROSECUTOR: Well, that may well be the case, your Honour.
HIS HONOUR: Does anyone disagree with the Crown's suggestion?
COUNSEL: Yes, your Honour. Your Honour, if the Crown's suggestion is that, at some point, that juror be made to come back – –
HIS HONOUR: No. I think the Crown's suggestion is bring the jury now, tell them don’t deliberate until I speak to you again.
COUNSEL: Yes. I would have thought the more important question is what happens to that juror and what happens to the jury, but if your Honour wants to approach it in the manner suggested by my friend, then yes, I have no objection to the jury being told not to further deliberate.
HIS HONOUR: All right. Bring the jury in, please.
CROWN PROSECUTOR: Your Honour might tell them that the medical certificate has been received and in the facts process – –
HIS HONOUR: No, I don't propose to do that. I will just tell them not to deliberate until I hear from me again.
CROWN PROSECUTOR: As your Honour, pleases.

The comments of the trial judge recognise the obvious, that the jury’s deliberations had, in all likelihood, been continuing in the absence of all the jury members being present. The transcript then records that “the jury” returned to Court at 10:16am. [187] For the reasons previously set out, to the extent that such a note might suggest that all 10 members of the jury returned to Court, it is misleading, for the simple reason that there were, in fact, only 9 members present.
187. AB 4913.
When those 9 jury members returned to Court, his Honour said the following: [188]

Members of the jury, it is obvious that another of your members is not present today. I have brought you in here to ask you not to deliberate further until I speak to you again, please.
For the moment the jury includes the absent member, so there shouldn't be a deliberation between a part of you. All right, would you go now. I will call you back in in the not too distant future.
188. AB 4913.

The transcript records that the 9 members of the jury left the Court at 10.17am. [189] It follows that a period of 31 minutes had elapsed between the time at which the 9 jurors were recorded as having returned to the jury room at 9:45am, and the time at which his Honour gave that direction at 10:16am. The jury were then brought back into Court at 10.54am and informed that the third juror had been discharged. They were then directed to continue their deliberations. [190]
189. AB 4913.
190. See [178] above.

Submissions of the appellant

Senior counsel for the appellant acknowledged that the Act does not prescribe the conditions under which deliberations of a jury are to be conducted. However, it was submitted that the fact that deliberations should not occur unless all jury members were present was reflected in a generally accepted practice (albeit one which was not followed in the present case) that in the opening directions of the trial judge, as well as on each occasion when the jury separates during the course of deliberations, a direction is given that deliberations should not take place unless all jury members are present.
Senior counsel acknowledged that there will be occasions on which deliberations may continue for short periods in the absence of a member or members of a jury, and accepted the need for a pragmatic and flexible approach to overcome any unrealistic expectation to the contrary. However, senior counsel stressed the importance of adhering to fundamental rules governing the trial process, and submitted that it was open to infer, in particular, that the 9 jurors who ultimately returned a verdict of guilty were deliberating, for a not insignificant period, in the absence of the third juror.
Accepting that this constituted an irregularity, senior counsel submitted that it was necessary to then determine whether such irregularity gave rise to a miscarriage of justice. In this regard, it was submitted that the irregularity was material, that it had arisen at a critical time, and in circumstances where:

(i)   the trial had been lengthy;
(ii)   the deliberations of the jury had, at this time, been ongoing for more than two weeks;
(iii)   there was evidence of disagreement amongst the jurors;
(iv)   an incomplete Black direction had been given; and
(v)   two jurors had sought to be discharged on the basis of the stress and anxiety associated with their deliberations.

As I understood it, senior counsel did not submit that this irregularity was sufficient, of itself, to give rise to a miscarriage of justice. However, it was submitted that such irregularity simply fortified the conclusion that the ultimate verdict of the jury was tainted with the trial judge’s error in failing to discharge the jury.

Submissions of the Crown

The Crown submitted that the fact that jurors may have deliberated for a period in which not all of them were present did not amount to an irregularity. In this regard, the Crown drew attention to the fact that, as a matter of practicality, jurors separate in the course of deliberations for many reasons.
The Crown further submitted that even if this did amount to an irregularity, it was not one which was of such materiality as to give rise to a miscarriage of justice. It was submitted, in particular, that in circumstances where the jurors who were present were those who ultimately delivered the verdict against the appellant, there had been no risk of “caucusing”.

Consideration

Before addressing the substance of this ground, it is appropriate to make two observations.
First, at the end of each day of deliberations in the present case, the trial judge obviously allowed the jury to separate. However, his Honour did so in the absence of an order pursuant to s 54(1)(b) of the Act allowing such separation to occur. The absence of a formal order under s 54(1)(b) does not have the consequence that the jury ceases to be a jury, or that any verdict which follows is not valid. [191] The reality is that there may well be instances where a jury “separates” without the express knowledge or permission of the trial judge. For example, it is not uncommon for members of a jury to leave the jury room, in the company of a sheriff’s officer, for the purposes of going to have a cigarette. Those occasions aside, the making of an order under s 54(1)(b) when a jury leaves the Court to return home at the end of each day of deliberations would be a prudent course for a trial judge to take. Apart from any other consideration, the making of such an order would go some way to eliminating any issue which might arise from the jury’s separation.
191. Jenkins v Director of Public Prosecutions [2013] NSWCA 406 at [60].
Secondly, as I have previously noted, at no stage in the present case did the trial judge ever direct the jury that their deliberations should not continue unless and until all members of the jury were present. The omission of such a direction was, to say the least, highly regrettable. The prudent course is for a trial judge to give that direction at the commencement of the trial, and to repeat it at appropriate intervals during the trial, particularly when deliberations are ongoing.
Turning to the circumstances of this ground it is, even in the absence of any evidence, entirely unrealistic to think that during each of the two periods of separation, the jury’s deliberations were not continuing. Accepting that they were, the first step in a consideration of this ground is to determine whether that constitutes an irregularity. In written submissions the Court was referred to a number of cases where irregularities had arisen in factual circumstances far removed from the present case. [192] However, some of those cases, even though they are distinguishable on their facts, provide some guidance to the principles to be applied in determining whether an irregularity is made out. For example, in R v Forbes [193] the appellant had been found guilty by a jury of manslaughter and appealed against his conviction partly on the basis that during the trial, a member of the jury had been found in possession of a book on guns, and a brochure for ammunition, and that such misconduct had caused the trial to miscarry. In dismissing the appeal, Spigelman CJ formulated the following general propositions:
192. See for example R v Ketteridge [1915] 1 KB 467; R v Hodgkinson [1954] VLR 151; R v Chaouk [1986] VR 707.
193. [2005] NSWCCA 377; (2005) 160 A Crim R 1.

the occurrence of an irregularity in a criminal trial, including an irregularity involving the jury, invokes the overriding principle of a fair trial; [194]

usually, the issue will be whether something that was done or said in the course of the trial resulted in the accused being deprived of a fair trial, and led to a miscarriage of justice; [195]

the reference to “miscarriage of justice" invokes the traditional formulation set out in s 6 of the Criminal Appeal Act 1912 (NSW), and the irregularity must be material; [196]

the test in New South Wales for determining the materiality of an irregularity is whether the Court can be satisfied that the irregularity had no effect of the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred; [197] and

the test in Victoria is whether the irregularity was such to give rise to a reasonable suspicion or concern about the fairness of the trial, and such terms do not operate differently to the test that applies in this state. [198]
194. At [26] citing Connelly v Director of Public Prosecutions [1964] AC 1254 at 1347 per Lord Devland.
195. At [27] citing Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 at 300 per Mason CJ and McHugh J; at 353 per Toohey J.
196. At [28] citing R v Minarowska (1995) 83 A Crim R 78 at 87 – 89.
197. At [29] citing R v Marsland (unreported, Court of Criminal Appeal, NSW, No 60263 of 1990, 17 July 1991)
198. At [30] – [32].

The factual circumstances considered in R v Locchi [199] were closer to those of the present case. A member of the jury had not attended Court due to illness, at a time when the jury had commenced their deliberations. The trial judge directed the jury that they could retire to the jury room and remain for as long (or as short) a time as they wished, that they could discuss the case, and that they could look at the written material and talk about it provided that they did “not come to any final conclusions until [they were] together as a full jury". In dismissing an appeal against conviction, Samuels JA observed: [200]
199. (1991) 22 NSWLR 309.
200. At 315 – 316.

Counsel does not submit of course that this is a case of contamination, but
rather puts it that a jury of twelve, while it remains of that number, must
discuss the case only together as a unit. Accordingly, any caucusing, that is to
say any independent discussion by less than twelve, amounts to a mis-trial
and presumably requires the intervention of the appellate court.
I must confess that I was troubled by this point and attracted by the
general approach that Mr MacGregor put to us. However, on further
reflection, and having heard observations by my brothers during the course
of the argument, it seems to me that so general a proposition is incapable of
support.
As both Enderby J and Loveday J have pointed out, it is the experience of
all those who have been involved in jury trials, particularly criminal trials
where there are juries of twelve, that sometimes a juror is late and the other
jurors spend some time together in the jury room. Always the jurors of
necessity arrive at different times, so that assembling in sequence, in series
as it were, in the jury room is routine. It can scarcely be presumed that as
they come in, they do not talk about the case. So that it is very likely that in
almost every trial there is some discussion about the case, not involving the
whole of the jury.
Similarly, even after retiring a jury now, by s 54 of the Jury Act 1979, is
permitted, if the judge so orders, to separate; and it might very well be that
two jurors might travel home together or three jurors or any number of
jurors might stop at a hotel on the way and have a drink together and discuss
the case. I do not think that any proposition could be framed which would
turn a discussion about the case between less than the full number of jurors
into a miscarriage of justice. But it is unnecessary to express any general
principle in this case and I do not attempt to do so. I exclude also the effect
of any admonition by the judge that the jury should discuss the case only
when they are all together. No such direction was given here.
The question is whether what occurred in this case establishes a
miscarriage of justice which requires the intervention of this Court. I do not
think that it does. I add to what I have already said the fact that the jury once
they re-assembled were together for forty-eight hours, during which time
they had ample opportunity of the fullest kind to discuss the matter. It is
highly improbable that any views which the eleven members of the jury
might have formed together, prevailed unchanged through the period of that
discussion. I would have thought that the probability is that during that time there would have been the freest exchange of opinion, uninfluenced by the earlier absence of the sick juror.

In Tennant v R [201] two members of the jury had been taken from the jury room, in the company of a sheriff’s officer, to have a cigarette. The remaining 10 jurors remained in the jury room, in the absence of any order being made allowing the jury to separate. This Court concluded [202] that a strict interpretation of the word “separate” in s 54 would be liable to lead to absurd results and that no miscarriage of justice had arisen. James J said: [203]

[42] In any retirement of a jury which lasts for any length of time, it is inevitable that individual jurors will become temporarily separated from their fellow jurors, for example while they are using the bathroom facilities outside the jury room. It is not to be supposed that all such separations are contraventions of s 54 of the Jury Act, in the absence of the trial judge making an order permitting such separation to occur. I doubt whether the taking by a sheriff’s officer of those members of a jury who are smokers to a place, apart from other jurors, where they can have a cigarette, should be regarded as a separation of the jury for the purposes of s 54 of the Jury Act.
[43] Even if what happened in the present trial did amount to a separation of the jury and hence a contravention of s 54 of the Jury Act, I do not, for a combination of reasons, consider that it gave rise to a miscarriage of justice.
[44] According to the trial judge’s statement of the information he had been given, a sheriff’s officer had accompanied the two jurors who had left the jury room to have a cigarette.
[45] The jury had been directed not to discuss the case, unless all twelve of them were present, and the trial judge was entitled to proceed on the assumption that individual jurors had complied with this direction, so that neither the two jurors who were smokers nor the ten jurors who had remained in the jury room had discussed the case during the separation of the jury.
[46] The trial judge thought that, if he had been asked to make an order permitting the separation of the jury so that the smokers among the jury could have a cigarette, he would, subject to any submissions he received from counsel, have made such an order.
[47] Although the period during which the jury was separated does not clearly appear from the trial transcript, the verdict of guilty was not returned until some hours after the jury had been reunited.
[48] Counsel for the appellant at the trial, after the trial judge had explained what had happened and had invited counsel to make submissions, submitted that there should be “no consequences” from what had happened.
201. [2006] NSWCCA 208 at [42] – [48].
202. James J at [42], McClellan CJ at CL and Hoeben J (as his Honour then was) agreeing.
203. At [42] – [49].

In determining whether what occurred in the present case amounts to an irregularity it seems to me that the following considerations are relevant.
First, unlike the circumstances in Tennant, the trial judge did not direct the jury, at any time in the course of their deliberations, that they should not deliberate or discuss the case unless all members were present.
Secondly, there were two occasions on which separation occurred.
Thirdly, each of those periods of separation arose after deliberations had been ongoing for a significant period of time, and had not resulted in the return of a verdict.
Fourthly, the combined periods of separation totalled 1 hour and 48 minutes, which was not insubstantial.
Fifthly, during each period of separation, those members of the jury who were present were deprived of the views of individual jurors, in circumstances where it may reasonably be inferred that the views of each of those individual jurors were in the minority.
Sixthly, it was not until after the second period of separation that the jury were directed, for the very first time in the trial, that deliberations should not continue absent a member of the jury. That circumstance can be usefully contrasted with the position in Locchi where the trial judge had given such a direction to the jury in the course of the trial, and importantly before the separation occurred.
Seventhly, the circumstances of this case were quite different to those in Locchi in another material respect. In that case, once all jurors were present, deliberations continued for 2 days before a verdict was returned. In this case, the verdict of guilty was returned within minutes.
Given all of these circumstances, I am satisfied that the two periods of separation constitute an irregularity.
Whether those irregularities give rise to a miscarriage of justice warranting the quashing of the appellant’s conviction is a separate question. Not all irregularities justify that conclusion. [204] Much will necessarily depend on the circumstances of the case. There have been many instances where an irregularity of some kind or other has been established, but a conclusion has been reached that no miscarriage of justice had arisen. [205] The guiding principle is that there must be a new trial unless the Court can be satisfied that the irregularity has not affected the verdict, and that the jury would have returned the same verdict if the irregularity had not occurred. [206]
204. See for example R v Twiss [1918] 2 KB 853; R v Riley [1982] 1 NZLR 1; R v Bates [1985] 1 NZLR 326.
205. See for example R v Alexander [1974] 1 WLR 422; [1974] I All ER 539; R v Dempster (1980) 71 Cr. App. Rep. 302.
206. R v Skaf (2004) 60 NSWLR 86; [2004] NSWCCA 37 at [242].
His Honour’s decisions to discharge the second and third jurors were made with the consent of all parties at the trial and were therefore not, of themselves, the subject of challenge before this Court. Accepting that those decisions were correct, it is evident for the reasons I have expressed that once the point was reached where the second and third jurors no longer played a part in deliberations, a verdict of guilty was inevitable. That verdict was, as I have found, tainted with, amongst other things, the error arising from his Honour’s failure to discharge the jury and must be quashed.
In considering whether the two periods of separation constitute a material irregularity, I regard it as particularly significant that in each case, the deliberations continued in the absence of individual members of the jury who, I have determined, were obviously in the minority. In those circumstances, I am unable to be satisfied that the irregularities constituted by the two periods of separation did not affect the verdict which was returned. On the contrary, I am satisfied that the two periods of separation materially contributed to the risk of a miscarriage of justice which I have identified in grounds 4 and 5, for the simple reason that in each case, the jury deliberations continued in circumstances where the jury were deprived of one dissenting voice. For those reasons this ground of appeal is made out. It is appropriate that, having reached that view, I reiterate the importance of trial judges making orders for separation, and giving directions not to continue deliberations without all members of the jury being present. Doing so will go a long way to ensuring that the circumstances giving rise to ground 6 of this appeal are avoided in the future.

ORDERS

I propose the following orders:

The time for filing the notice of appeal is extended to 13 August 2021.

The appeal against conviction is allowed.

The appellant’s conviction and sentence are quashed.

The matter is remitted to the arraignments Judge on 6 May 2022 to set a new trial date.

IERACE J: I agree with Bellew J and with the additional observations of Bell CJ.

**********

Endnotes

Amendments

21 November 2022 - correction of typographical errors

13 April 2023 - Publication restriction lifted.

Decision last updated: 13 April 2023

Medium Neutral Citation:	Haile v R [2022] NSWCCA 71
Hearing dates:	16 March 2022
Date of orders:	29 April 2022
Decision date:	29 April 2022
Before:	Bell CJ at [1] Bellew J at [4] Ierace J [259]
Decision:	(1) The time for filing the notice of appeal is extended to 13 August 2021. (2) The appeal against conviction is allowed. (3) The appellant’s conviction and sentence are quashed. (4) The matter is remitted to the arraignments Judge on 6 May 2022 to set a new trial date.
Catchwords:	CRIMINAL LAW – Practice and procedure – Summing-up of trial judge – Where appellant was convicted by a jury of murder – Where principal Crown witness gave an account of the shooting of the deceased – Where that account was contradicted by the sworn evidence of the appellant – Where the trial judge gave directions in terms of the jury having to “choose” or “decide” between the two accounts – No direction given to the jury regarding fact that the appellant had given evidence – No direction given to the jury as to how the appellant’s evidence should be assessed in circumstances where the Crown had the onus of proof – Where the trial judge refused an application for a Liberato direction – Directions of trial judge erroneous – Refusal to give a Liberato direction also erroneous – Appeal allowed and new trial ordered CRIMINAL LAW – Practice and procedure – Summing-up of trial judge – Where trial judge expressed a number of views in the course of the summing-up which were critical of aspects of the appellant’s evidence in the course of his summing-up – Absence of any clearly defined summary of the appellant’s case in the summing up – Where the trial judge put propositions to the jury which had not been advanced by the Crown – Summing-up generally lacking in fairness and balance – Appeal allowed and new trial ordered – Observations as to the extent to which comments by the trial judge as to the evidence and the facts is permissible CRIMINAL LAW – Juries – Where trial judge discharged a juror at a relatively early stage of the appellant’s trial – Where the trial judge subsequently discharged two other jurors on the basis of the stress and anxiety associated with the trial – Where trial judge then refused an application to discharge the whole jury following the discharge of the third juror – Where verdict of guilty followed virtually immediately following the discharge of the third juror – Clear inference that the views of the third juror were at odds with the majority – Risk of miscarriage of justice arising from the refusal of the trial judge to discharge the jury – Appeal allowed and new trial ordered CRIMINAL LAW – Practice and procedure – Directions of trial judge – Where jury indicated that they were unable to reach a unanimous verdict – Where trial judge then gave what he described as an “adaptation” of a Black direction – Where that direction departed from the model direction and omitted a material part – Where the direction which was given contributed to the miscarriage of justice which arose from the subsequent failure to discharge the jury – Appeal allowed and new trial ordered – Observations as to the undesirability of departing from the terms of the model direction which is given in response to an indication that the jury are unable to reach a unanimous verdict CRIMINAL LAW – Practice and procedure – Juries – Where deliberations were permitted to continue on two separate occasions for substantial periods of time in the absence of all members of the jury being present – Where the trial judge had not made any order for separation of the jury – Where the trial judge had not directed the jury at any stage that deliberations should only take place when all members of the jury were present – Whether either instance of separation amounted to an irregularity – If so whether such irregularity gave rise to a miscarriage of justice and was thus material – Material irregularity established – Appeal allowed and new trial ordered – Observations as to the importance of making orders allowing a jury to separate during deliberations – Further observations as to the importance of directing juries at the commencement of, and during, the trial that deliberations must only be undertaken when all members of the jury are present
Legislation Cited:	Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Jury Act 1977 (NSW) Jury Amendment Act 2010 (NSW)
Cases Cited:	B v The Queen (1992) 175 CLR 599; [1992] HCA 68 BG v R [2012] NSWCCA 139; (2012) 221 A Crim R 225 Black v The Queen (1993) 179 CLR 44; [1993] HCA 71 Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46 Cleland v The Queen (1982) 151 CLR 1; [1982] HCA 67 Connelly v Director of Public Prosecutions [1964] AC 1254 Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 De Pledge v Western Australia [2021] WASCA 1; (2021) 95 MVR 37 De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 Decision Restricted [2021] NSWCCA 227 Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 Douglass v The Queen (2012) 290 ALR 699; [2012] HCA 34 El-Jalkh v R [2009] NSWCCA 139 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Jenkins v Director of Public Prosecutions [2013] NSWCA 406 Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26 Phan v R [2018] NSWCCA 225 Popovic & Ors v R [2016] NSWCCA 202 R v Alexander [1974] 1 WLR 422; [1974] I All ER 539 R v Bates [1985] 1 NZLR 326 R v Chaouk [1986] VR 707 R v Courtney-Smith (No. 2) (1990) 48 A Crim R 49 R v Dempster (1980) 71 Cr. App. Rep. 302 R v E (1995) 89 A Crim R 325 R v Esposito (1998) 45 NSWLR 442 R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 R v Haile [2016] NSWSC 1732 R v Hodgkinson [1954] VLR 151 R v Ketteridge [1915] 1 KB 467 R v Locchi (1991) 22 NSWLR 309 R v Machin (1996) 68 SASR 526 R v Marsland (unreported, Court of Criminal Appeal, NSW, No 60263 of 1990, 17 July 1991) R v Meher [2004] NSWCCA 355 R v Minarowska (1995) 83 A Crim R 78 R v Pavlukoff (1953) 106 CCC 249 R v Riley [1982] 1 NZLR 1 R v Roberts [2004] QCA 366 R v Skaf & Anor (2004) 60 NSWLR 86; [2004] NSWCCA 37 R v Spiteri-Ahern [2018] NSWSC 1072 R v Spiteri-Ahern, Barber and Zraika [2017] NSWSC 1820 R v Twiss [1918] 2 KB 853 RPS v The Queen (2000), 199 CLR 620; [2000] HCA 3 South v R [2007] NSWCCA 117 Spiteri-Ahern v R [2022] NSWCCA 56 Tennant v R [2006] NSWCCA 208 Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52
Category:	Principal judgment
Parties:	Daniel Haile – Appellant Regina – Respondent
Representation:	Counsel: B Rigg SC and J Brock – Appellant E Balodis – Respondent Solicitors: Benjamin Leonardo Criminal Defence Lawyers – Appellant C Hyland, Solicitor for Public Prosecutions NSW – Respondent
File Number(s):	2013/334195
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: [2016] NSWSC 1732 Date of Decision: 09 December 2016 Before: R S Hulme AJ