Lane v The Queen - [2017] NSWCCA 46

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Lane v R [2017] NSWCCA 46
Hearing dates: 21 October 2016
Date of orders: 22 March 2017
Decision date: 22 March 2017
Before: Meagher JA at [1];
Davies J at [1];
Fagan J at [107]
Decision:
1. The time for the appellant to give notice of the appeal on grounds 1, 2 and 3 be extended to 5pm on 17 June 2016.
2. The time for the appellant to give notice of the appeal on ground 4 be extended to 5pm on 18 October 2016.
3. Grant the appellant leave to appeal on grounds 1 and 4.
4. Dismiss the appeal against conviction on grounds 1, 2, 3 and 4.

Catchwords:
CRIME – conviction appeal – manslaughter – where two separate acts of the appellant relied on as constituting the voluntary act causing death – whether trial judge erred in not directing jury that they could not convict unless they were unanimous as to the voluntary act or acts which resulted in their verdict – whether proviso in s 6(1) of Criminal Appeal Act 1912 (NSW) applicable

CRIME – conviction appeal – manslaughter – where references by Crown before jury to “king hit” offence and where handwritten material found in jury room at conclusion of trial which urged the stopping of “coward” punches – whether “miscarriage of justice” within third limb of s 6(1) – whether reasonable basis for apprehending that the jury or a juror had not discharged task impartially

CRIME – conviction appeal – manslaughter – where note containing extracts of dictionary definitions including “murder” and “manslaughter” found in jury room at conclusion of trial – whether miscarriage of justice – whether reasonable basis for apprehending that a juror had not considered the evidence and the charges made in accordance with the directions of the trial judge

CRIME – conviction appeal – manslaughter – written directions to jury including “question trail” – whether formulation of questions relating to self-defence confusing and reversed or distorted onus of proof
EVIDENCE – criminal appeal – exclusionary rule of evidence as to deliberations of jury – Evidence Act 1995 (NSW) s 9(2) – whether evidence as to provenance of notes and writing on magazines covers, and whether they came to the attention of jurors, admissible
Legislation Cited: Crimes Act 1900 (NSW), ss 18(2), 419, 421
Criminal Appeal Act 1912 (NSW), s 6(1)
Criminal Appeal Rules, rr 4, 25A
Criminal Code 1899 (Qld)
Evidence Act 1995 (NSW), s 9(2)
Jury Act 1977 (NSW), s 73A
Cases Cited: AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
Attorney General’s Reference (No 4 of 1980) [1981] 1 WLR 705
Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14
Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59
Castle v The Queen [2016] HCA 46; 91 ALJR 93
Chapman v R [2013] NSWCCA 91; 232 A Crim R 500
Cramp v The Queen (1999) 110 A Crim R 198
Doney v The Queen (1990) 171 CLR 207
Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59
Fermanis v The State of Western Australia (2007) 33 WAR 434; [2007] WASCA 84
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Hadchiti v R [2016] NSWCCA 63
KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54
Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16
Magnus v The Queen (2013) 41 VR 612; [2013] VSCA 163
Moore v R [2016] NSWCCA 185
Moore v The Queen [2016] HCASL 323
Mraz v The Queen (1955) 93 CLR 493
Pratten v R [2014] NSWCCA 117
Quartermaine v The Queen (1980) 143 CLR 595
R v Boreman [2000] 1 All ER 307
R v Emmett (1988) 14 NSWLR 327
R v K (2003) 59 NSWLR 431; [2003] NSWCCA 406
R v Klamo (2008) 18 VR 644; [2008] VSCA 75
R v Dally [2000] NSWCCA 162; 115 A Crim R 582
R v Marsland (NSWCCA, 17 July 1991, unrep)
R v Mead [2002] 1 NZLR 594
R v Medici (1995) 79 A Crim R 582
R v Moffatt [2000] NSWCCA 174; 112 A Crim R 201
R v More [1987] 1 WLR 1578
R v PL [2009] NSWCCA 256; 199 A Crim R 199
R v Puckeridge [1999] HCA 68; (1999) 74 ALJR 373
R v R (1989) 18 NSWLR 74
R v Smith [1997] 1 Crim App R 14
R v Walsh [2002] VSCA 98; 131 A Crim R 299
Royall v The Queen (1991) 172 CLR 378
Smith v State of Western Australia (2014) 250 CLR 473; [2014] HCA 3
Webb v The Queen (1994) 181 CLR 41
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Wells v The Queen (1994) 181 CLR 41
Wilde v The Queen (1987) 164 CLR 565
Wilson v The Queen [2016] VSCA 62
Category: Principal judgment
Parties: Paul Ian Lane (appellant)
Crown (respondent)
Representation:
Counsel:
S Buchen with M Burke (appellant)
N Williams (Crown)
Solicitors:
S E O’Connor for Legal Aid (appellant)
C Hyland Solicitor for Public Prosecutions (Crown)

File Number(s): 2012/289582
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Criminal

Citation:

2015 NSWSC 50
2015 NSWSC 118

Date of Decision:

27 February 2015

Before:

Campbell J

File Number(s):

2012/289582

Judgment

MEAGHER JA and DAVIES J:

Introduction

On 7 October 2014 the appellant was arraigned on an indictment charging him with the murder of Peter Morris. On 27 October 2014 the jury returned a verdict of not guilty of murder, but guilty of manslaughter. The alternative verdict of manslaughter was left to the jury as being available on two bases; namely manslaughter by excessive self-defence (Crimes Act 1900 (NSW), s 421) and manslaughter by unlawful and dangerous act (ie “punishable homicide” within Crimes Act, s 18(1)).
On 27 February 2015 the appellant was sentenced to a term of imprisonment having a non-parole period of 6 years and 4 months commencing 27 September 2013 with an additional term of 2 years and 2 months expiring on 26 March 2022.
The appellant appeals against his conviction on the following grounds:

1.   The trial judge erred in failing to direct the jury that in their consideration of the charge of manslaughter they were to be unanimous in their deliberations as to the factual basis on which they might convict the applicant of manslaughter.
2.   The trial miscarried because the Crown misled the jury by describing the offence as a "king hit" offence and "one punch" offence with reference to evidence that the trial judge had expressly excluded.
3.   The verdict of the jury was affected by the improper conduct of a member or members of the jury.
4.   The learned trial judge misdirected the jury on self-defence, particularly having regard to the onus and standard of proof.

The appellant’s notice of appeal filed on 17 June 2016 relied on grounds 1, 2 and 3. The appellant requires an extension of the time for giving that notice. That application is not opposed and should be granted. One explanation for part of the delay is that it was not until April or May of 2016 that the appellant’s solicitor received a copy of the sheriff’s report described below.
The appellant also requires an extension of the time in which to raise ground 4, which was not advised to the Crown until further written submissions were filed on 18 October 2016. That extension is sought under r 25A(1) of the Criminal Appeal Rules. We also consider that application should be granted. The ground raises difficult questions concerning the directions as to self-defence.

Summary of relevant events and issues at trial

The relevant events occurred late in the evening of 15 September 2012. Both the appellant and the deceased had been drinking at the Commercial Hotel in Barker Street, Casino, and each was intoxicated to some degree. Each was in his mid-50s and neither was previously known to the other. Each had left the hotel with a companion, the deceased with Mr Schwager and the appellant with his son.
Barker Street runs in an east-west direction and the hotel is on the southern side of that street. After the men left the hotel and proceeded in a westerly direction along Barker Street, there was an altercation between them that occurred on the footpath and roadway outside a dental surgery which was the fifth shopfront to the west of the hotel. That altercation was captured by a CCTV security camera. That camera was protecting a bank ATM and was outside the second of two shopfronts further to the west of the dental surgery.
It will be necessary later to describe in more detail what can be seen on the CCTV footage. It shows the deceased falling to the ground and striking his head on the roadway on two occasions, the first happening about 10 seconds before the second. By the conclusion of the trial it was accepted that the head injuries sustained by the deceased in each fall were separately sufficient to cause his death, which occurred in Southport Hospital nine days later.
In the Crown opening the first fall was described to the jury as caused by contact between the appellant and the deceased which “perhaps [caused] the deceased to trip and to fall” on the roadway. The second fall was described as being the result of the appellant swinging a “round house type left hook impacting with the deceased’s face to the right hand side”. Five witnesses gave evidence of having seen or heard this second incident.
The appellant did not give evidence. His case was that the jury could not be satisfied that either fall was caused by a voluntary act on his part. On the first occasion the CCTV was said to show the deceased stumbling backwards and falling. In relation to the second there was said to be no movement consistent with his having thrown a punch. It was also the defence case that on each occasion the jury was entitled to consider that he was engaged in self-defence.
In his summing up, the trial judge (Campbell J) made clear that if the jury were not satisfied that the appellant was guilty of murder they had to consider whether he was guilty of manslaughter. His Honour identified the two alternative paths by which they might reason to that verdict. The first – manslaughter by excessive self-defence – arose if the jury was satisfied that the appellant deliberately struck the deceased intending to inflict really serious physical injury but was not satisfied that he had not done so because he believed that it was necessary to do so to defend himself. In that circumstance, although the outcome was that the appellant could not be found guilty of murder, the jury had to consider whether the Crown had also proved that the appellant’s conduct in striking the deceased was not a reasonable response. If the jury was so satisfied the appellant was guilty of manslaughter (Crimes Act, s 421).
The second alternative – manslaughter by unlawful and dangerous act – arose if the jury were satisfied that the appellant had deliberately struck the deceased but not satisfied that he had done so intending to inflict really serious physical injury. In that event the jury had to consider whether the Crown had established that the striking was an unlawful and dangerous act. That meant that the jury had to be satisfied that the Crown had proved that the appellant did not strike the deceased believing that was necessary to defend himself (Crimes Act, s 419) and that a reasonable person in his position would have realised that in doing so he exposed the deceased to an appreciable risk of serious injury.
Two further matters should be mentioned in the course of introducing the issues in the appeal. The first is the subject of ground 2 and the second the subject of ground 3.
In the course of his evidence-in-chief, one of the witnesses to the deceased’s second fall, Mr Perkins, described what the appellant did as involving “one hit, a king hit”. He then explained what he meant by those expressions. The trial judge directed the jury that they should not take account of that evidence because it went beyond evidence of what had been seen and heard and involved “conclusionary statements”. That direction was given at the end of Mr Perkins’ evidence.
However in its final address the Crown made further reference to Mr Perkins’ “one hit, a king hit” evidence and also described that witness as “the young chap with a description of a king hit and we all know what that is”. In his closing address defence counsel referred to that exchange and reminded the jury of the earlier direction given by the trial judge. At the conclusion of that address the Crown was given leave to withdraw reliance on the evidence earlier referred to and requested that the jury “ignore it”. The trial judge returned to that subject at the commencement of his summing up.
The second matter is that after the jury had returned its verdict the sheriff’s officer at Coffs Harbour, where the trial was conducted, found in the jury room a typewritten note and two magazines each of which had handwriting on its front and back pages. The typewritten note contained extracts of dictionary definitions of “murder”, “manslaughter”, “malice” and “aforethought”. The front and back pages of the magazine covers contained handwritten messages or commands, including the following:

“STOP THE COWARD PUNCH
IT DESTROYS LIVES
Please - think before you Act"
"NO MORE COWARD PUNCHES
IT COULD BE YOU-ONE DAY SUFFERING".
"STOP THE COWARD PUNCH
IT HAS TO STOP
IT DESTROYS LIVES.
THINK FIRST DON'T ACT"

Following the discovery of that material the sheriff, at the request of the trial judge, undertook an investigation under s 73A of the Jury Act 1977 (NSW). That investigation was the subject of a written report, parts of which were tendered by the appellant in relation to the argument on grounds 2 and 3.

Was a specific direction required that the jury had to be unanimous as to the voluntary act of the appellant that caused death? (ground 1)

This formulation of ground 1 reflects the way in which, without objection, this ground was argued. As we note below, an argument supporting the ground as pleaded (see [3] above) was abandoned. There is no issue between the parties as to the relevant principles which for present purposes are sufficiently summarised by Phillips and Buchanan JJA (Ormiston JA agreeing) in R v Walsh [2002] VSCA 98; 131 A Crim R 299 at [57]. In that passage, their Honours address two of the more common situations in which the need for a specific direction as to jury unanimity may arise:

… The first is that exemplified by the cases concerning murder and manslaughter, where, when alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts, there is no need for a direction on “unanimity” about one or other or more of those bases, at least if they do not “involve materially different issues or consequences”. (How far in cases of murder or manslaughter this qualification extends - having regard especially to Clarke and Johnstone which has been long accepted in Victoria and to the similar practice in New South Wales - is of no present relevance). The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend “upon the precise nature of the charge, the nature of the prosecution’s case and the defence and what are the live issues at the conclusion of the evidence”. …

That statement was cited with approval by this Court in Chapman v R [2013] NSWCCA 91; 232 A Crim R 500 at [28] (Adamson J, Hoeben CJ at CL and Davies J agreeing) and Pratten v R [2014] NSWCCA 117 at [45] (Meagher JA, Fullerton and Hamill JJ). It was also applied in Magnus v The Queen (2013) 41 VR 612; [2013] VSCA 163 at [35]-[37] (Buchanan, Ashley and Redlich JJA); Wilson v The Queen [2016] VSCA 62 at [32] (Weinberg AP, Priest and Beech JJA); and Fermanis v The State of Western Australia (2007) 33 WAR 434; [2007] WASCA 84 at [68]-[69], [73] (Steytler P, Roberts-Smith and McLure JJ agreeing).
The essence of the distinction to which reference is made with respect to cases concerning murder and manslaughter was described by Barr J (Sully J and Ireland JJ agreeing) in Cramp v The Queen (1999) 110 A Crim R 198 at [65]:

A distinction is to be made between alternative factual bases of liability and alternative legal formulations of liability based on the same or substantially the same facts. The cases to which I have referred [which included Clarke and Johnstone] speak about the former. This appeal is about the latter.

As was observed in Pratten, the reference in Walsh at [57] to the need in this context to consider the “live issues at the conclusion of the evidence” is from the judgment of Lord Ackner in R v More [1987] 1 WLR 1578 at 1584. As was also noted in Pratten, observations to the same effect were made by Elias CJ in her Honour’s dissenting judgment in R v Mead [2002] 1 NZLR 594 at [17].
The appellant submits that there were alternative factual bases of liability in the present case. Ultimately, two discrete acts of the appellant were relied on as having been capable of constituting the voluntary act which caused Mr Morris’ death. For that reason it was necessary that the jury be directed in relation to any verdict of murder or manslaughter that they had to be unanimous as to the deliberate act or acts of the appellant that had caused the deceased’s death and resulted in the relevant verdict.
In his written submissions the appellant also argued, consistently with ground 1 as originally formulated, that the alternative bases of liability for manslaughter relied on in this case were not alternative legal formulations of liability for manslaughter based on the same or substantially the same facts. If that was the position there may have been a separate need for a specific direction that the jury be unanimous as to which of the alternative bases of liability for manslaughter was made out. That submission was abandoned in oral argument in this Court.
The appellant correctly emphasised that in relation to the charge of murder, and each of the manslaughter alternatives left to the jury, it was necessary that the voluntary act causing death be identified with precision. This was because proof of the elements of the offence charged, and any available alternative verdict, directed attention to the act said to constitute the crime and the appellant’s intention at the time that act was done; to whether it was done in self-defence; and, to whether it was dangerous. The appellant referred to R v Klamo (2008) 18 VR 644; [2008] VSCA 75 in which the prosecution case was that the voluntary act causing the death of a four week old baby was the shaking of it by the accused, either on the night of the baby’s death or approximately a week earlier. Applying Walsh, the Court (Maxwell P, Vincent and Neave JJA agreeing) concluded (at [76]) that the jury should have been directed that they could not convict unless they were “agreed upon [the] act which, in their opinion, does constitute” the crime.
In response the Crown did not accept the description or characterisation of its case as being that there were two separate voluntary acts, each of which caused death and was capable of constituting murder or manslaughter. Specifically, the Crown submitted that its case had been that the acts of the appellant occurred in the course of an assault upon the deceased, that the medical evidence was such that the head injuries could not be attributed to a particular fall and that the position was that either or both of those falls could have been the cause of death. In such a case a direction that the jury be unanimous as to which of the falls caused death would be wrong because that was not part of the case made.
It is undoubtedly correct that it is not always necessary to prove the precise act causing death in order to establish either murder or manslaughter. As Spigelman CJ noted in R v PL [2009] NSWCCA 256; 199 A Crim R 199 at [47] the position in that respect was as stated by Ackner LJ in Attorney General’s Reference (No 4 of 1980) [1981] 1 WLR 705 at 710:

[T]his reference raises a single and simple question, viz: if an accused kills another by one or other of two or more different acts each of which, if it caused the death, is a sufficient act to establish manslaughter, is it necessary in order to found a conviction to prove which act caused the death? The answer to that question is “No, it is not necessary to found a conviction to prove which act caused the death”.

Where there is more than one act capable of causing death it is not necessary to prove which of those acts did so provided the jury may be satisfied that each of the two or more acts referred to “is a sufficient act to establish” murder or manslaughter. In other words in such a case the Crown has to establish that each of the acts, which in combination or separately caused death, was also accompanied by any relevant mental state and other characteristic: Royall v The Queen (1991) 172 CLR 378 at 404-405 (Brennan J); R v PL at [47]-[49] (Spigelman CJ).
In the present case, as will become apparent, there was an issue as to whether either of the falls was caused by a voluntary act of the appellant and also an issue as to whether the elements of the offences of murder or manslaughter were established with respect to any such act. At the same time the jury was told clearly that the injuries sustained from each fall were sufficient separately to cause, and eventually had caused, Mr Morris’ death. The Crown’s case as left to the jury was not that either or both of the falls had caused death and that each involved a sufficient act of the appellant to establish murder or manslaughter. Had that been its case it would have been necessary for the jury to have been directed that they had to be satisfied that each of the acts which together or separately caused death was accompanied by any relevant mental state and other characteristic.
It is convenient at this point to consider in more detail the issues as they were presented to the jury. In its opening address, when referring to the CCTV footage, the Crown described the two incidents in which the deceased fell onto the roadway. In the first it was said that the appellant had made contact with the deceased “perhaps causing [him] to trip and fall”. In relation to the second it was said the footage showed the appellant punching the deceased on the right side of his face.
The Crown’s closing address included a detailed description of the CCTV footage. In the course of that description it was submitted that in relation to the first fall there was a “blow” from the appellant and that in relation to the second the footage and eyewitness accounts established that the appellant had landed a punch which caused the deceased to go straight to the roadway, making no attempt to break his fall. The Crown’s remaining submissions as to the availability of self-defence did not focus on the immediate circumstances in which each of the deceased’s falls occurred. Rather they focussed on the overall sequence of events as showing that the appellant was the aggressor and instigator and not under any threat at the time he engaged the deceased, and then Mr Schwager.
In his closing address defence counsel accepted that there was no issue as to the deceased’s death having been caused by brain injuries sustained on each of the two separate occasions on which his head hit the roadway. Counsel continued:

Whether it was a voluntary deliberate act by the accused is something that you do have to be satisfied about. There is less agreement as to whether that is insignificant or whether it’s a given in the facts of this case. That is the case here because when you look at exhibit C, the CCTV footage, you have to see whether you can see to your satisfaction, and remember it is satisfaction beyond reasonable doubt for each of these elements, whether you can see the accused offer to do some wilful, voluntary, deliberate act that caused Mr Morris to fall to the ground. I am not suggesting that’s the most significant matter in the trial, but it is a matter that you have to be satisfied beyond with reasonable doubt. Have a look at the time Mr Morris goes to the ground. Initially and on the second occasion when the accused is on the street whether there is any mechanism, whether there is anything you can discern that amounts to a deliberate act.

Defence counsel returned to that question when referring in more detail to the CCTV footage, pointing out that in the first incident “the accused has not just touched him or isn’t in close physical proximity to him. There is no explanation other than unfortunately Mr Morris tripped at that stage and went headlong onto the roadway.” Counsel submitted in relation to the second incident that in the footage one of the things that could not be seen was “any arm movement by the accused consistent with the blow that other witnesses have talked about”.
Referring to that footage showing the “accused’s head” going backwards on that second occasion, counsel observed that the question which then arose was whether “one or other of them [was] doing something in the direction of the other’s head at that stage… one would normally expect one to move one’s head back to evade something.” The fact that the appellant’s head was seen to be “going back” was said to be significant to whether, if he had delivered a blow at that stage, it was “done in self-defence”.
Early in his summing up the trial judge gave the following general direction as to the need for unanimity in relation to the jury’s verdict.

… your verdict whether it is guilty, not guilty of murder but guilty of manslaughter, or not guilty must be unanimous. That is not to say that each of you must agree upon the same reasons for your verdict.
There is room for differences of opinion about what is important in the evidence. Individually you may rely upon different parts of the evidence. You may place different emphasis on parts of the evidence. However, by whatever route individually you arrive at your decision in relation to this matter the final decision, the verdict, must be the decision of all of you, unanimously, before it can become your verdict.”
…
As I have said to you there maybe more than one path to unanimity. That is what I meant when I explained that some of you might be persuaded by different parts of the evidence from others. Provided you are all persuaded beyond reasonable doubt in terms of a verdict of guilty your reasoning path does not have to be identical. If you are not persuaded beyond reasonable
doubt there may be different reasons why you have a doubt, if I can put it that way. Again your verdict of not guilty in that situation would still be unanimous.
When I speak to you about the alternative verdict of manslaughter, as the learned Crown Prosecutor touched on this morning, there are in this case two alternatives that support manslaughter. Some of you, let us say hypothetically- I will not say some of you, but say hypothetically a jury faced with such an option might be unanimously agreed that the verdict is not guilty of murder but guilty of manslaughter. But some might think or some might be persuaded that is because the case is one of excessive self-defence, where others might be persuaded that it is a case of manslaughter by an unlawful and dangerous act
Even though they are quite different legal bases for the decision, the decision is the same. Different members of the jury have followed a different path but the verdict is unanimous. It is a lawful and true verdict.

In the course of that summing up the trial judge made three documents available to the jury. The first (MFI 11) contained written direction under the headings “the legal elements of murder”, “murder and self-defence”, and “manslaughter by unlawful and dangerous act”. A separate document (MFI 12) included a summary of the elements of murder and manslaughter by unlawful and dangerous act, as well as descriptions of self-defence and excessive self-defence. The final document (MFI 15) was in the form of a flow chart suggesting a question trail or pathway to be followed by the jury in reaching their verdict. (It will be necessary to return to these directions in more detail when considering ground 4).
By reference to the second document the trial judge described the first issue for the jury as being “whether there was a deliberate act of [the appellant] which caused the death of Mr Morris”. The next issue was said to be whether, if there was, that act was done with an intention to kill or cause grievous bodily harm.
Having referred to the medical evidence the trial judge directed the jury that they could be satisfied as to that first issue if they were persuaded “beyond reasonable doubt” that a deliberate act of the accused caused Mr Morris to fall to the roadway on either” of the occasions on which he fell to the roadway. There was then a discussion in the absence of the jury as to whether there was any issue that each of the falls caused brain injuries which separately were sufficient to have caused his death. In the course of that discussion defence counsel stated that his case was that the jury could not be satisfied beyond reasonable doubt that either of the deceased’s falls was caused by a strike by the appellant.
Following that discussion the trial judge directed the jury that it was not in dispute that each fall had caused a significant brain injury and that each injury in its own right was sufficient to have caused death. The trial judge then returned to the first issue as described earlier and said:

It is in issue and strongly in issue that either fall was occasioned by a deliberate act of Mr Lane. That is why I said to you before the break that because there are two separate injuries caused by two falls, the question is did a deliberate act of Mr Lane cause either fall and you understand that the issue that you have to determine, as presented by counsel in their arguments, is whether either fall was caused by a deliberate act of Mr Lane. That is to say Mr Lane disputes that some deliberate act of his caused the first fall and he disputes that some deliberate act of his caused the second fall.

Having referred in some detail to the evidence of the lay witnesses as to events in the hotel and the roadway, the trial judge summarised the position of the parties on the first issue as being:

That first issue is are you satisfied beyond reasonable doubt that it was a deliberate act of Mr Lane’s that caused Mr Morris to fall on either occasion that he fell. The way it is put is that the Crown would say to you, well despite what might be said about the limitations of some of the witnesses, intoxication, disadvantage of their position, you have got at least three witnesses as I said who say the fall, probably the second fall, was preceded by a punch and if you accept their evidence that is enough for the Crown to discharge their onus of proof provided you are satisfied beyond reasonable doubt that that is what happened. On the other hand the defence say or would say, how can you be satisfied that is what happened, how can you accept the evidence of those three witnesses when you look at all the detail of the evidence of all five eye witnesses. They are all over the shop, they are all intoxicated and not all of them see, or could see, what they said they saw.
And if that is how you are left after your consideration of the evidence and your deliberations then you might conclude that you cannot be satisfied beyond reasonable doubt about that necessary element of the offence of murder, and of manslaughter, Now what you have to understand that if you are not satisfied beyond reasonable doubt that it was a deliberate act of the accused that caused Mr Morris to fall and hit his head on either occasion then Mr Lane is not guilty of either murder or manslaughter.

His Honour continued:

You need only consider the rest of these matters if you have decided the first issue in favour of the Crown. If Mr Lane struck Mr Morris down you must not convict Mr Lane of murder unless and until you are satisfied that in striking Mr Lane, Mr Lane had the specific intention of causing really serious physical injury. This is the second dispute for you to resolve.

What emerges is that in relation to each of the deceased’s falls it was left to the jury to decide whether it was caused by a voluntary act of the appellant. If the jury was persuaded that one or other or both of those falls was caused by a deliberate act of the appellant’s they were invited to consider the other elements necessary for the Crown to establish murder and disprove self-defence, and depending on the way they resolved those questions, the elements of manslaughter by unlawful and dangerous act.
Three things follow. The first is that on the Crown case as left to the jury there were two discrete acts which were said to have been deliberate and to have caused death. Each may have been sufficient to establish murder or manslaughter and accordingly was an alternative factual basis of liability. The second is that in such circumstances the jury could not convict of murder or manslaughter unless they were agreed as to whether one or both of those acts was a criminal act of the appellant.
Finally, in the absence of any direction to that effect it remained possible that some jurors might reason to a verdict of guilty of murder or manslaughter by being satisfied that the appellant’s voluntary act caused the first fall while others might reason to the same conclusion by reference to his voluntary act having caused the second fall. That possibility was not excluded by the trial judge’s general direction as to unanimity (see [34] above) which accommodates only the circumstance that the same facts may support alternative legal bases of guilt.
To remove that possibility the jury should have been directed that they could not convict unless they were agreed as to the voluntary act which resulted in their being satisfied that there should be a verdict of guilty of murder or not guilty of murder but guilty of manslaughter. The trial judge erred in not giving such a direction. Because no objection was taken at trial to the adequacy of the trial judge’s directions in this respect, r 4 of the Criminal Appeal Rules requires that the appellant seek leave to raise and rely on that omission. In our view that leave should be granted. The omission to direct was not trivial and a substantial miscarriage of justice may have occurred. It is in the interests of justice that the appellant have that question addressed.

The application of the proviso

Our conclusion makes it necessary to consider whether the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) applies and requires that this Court dismiss the appeal to the extent it relies on this first ground. For the proviso to apply we have to consider whether, notwithstanding the omission to give a specific unanimity direction, “no substantial miscarriage of justice has actually occurred”. If that condition is satisfied, the proviso must be applied: Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14 at [25]; Lindsayv The Queen (2015) 255 CLR 272; [2015] HCA 16 at [43]; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [15].
In Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, whilst emphasising that there is no single universally applicable description of what constitutes a “substantial miscarriage of justice”, the Court (at [44]) made clear that it could not be said that no substantial miscarriage of justice has actually occurred “unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty”. At the same time it was accepted (at [45]) that there may be cases where the appellate court applying the proviso may not be satisfied that no substantial miscarriage has occurred although it is satisfied as to the inevitability of conviction, assuming the jury was properly instructed: see also Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [33] (French CJ, Hayne, Crennan, Kiefel, Bell JJ), [65] (Gageler J); Castle v The Queen [2016] HCA 46; 91 ALJR 93 at [64]; and the earlier decisions in Quartermaine v The Queen (1980) 143 CLR 595 at 601; Wilde v The Queen (1987) 164 CLR 565 at 372-373; Krakouer v The Queen (1988) 194 CLR 202 at [23]-[24], [72], [74]-[76]; AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [54], [110]; and Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59 at [39], [117], [262].
To the same effect in Filippou, the plurality explained at [15]:

By "substantial miscarriage of justice" what is meant is that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her or that there was some other departure from a trial according to law that warrants that description.

The appellant will have been denied a chance of acquittal which was fairly open unless this Court concludes from its review of the record that in the absence of the omission to give the unanimity direction his conviction was inevitable; or to put it another way, assuming that direction had been given, that it would not have been open to the jury to entertain a reasonable doubt as to his guilt: Baini at [32]. Accordingly, it is first necessary to consider the possible effect of the omission of that direction on the outcome of the trial.
Had such a direction been given the jury would still have had to address whether one or other or both of the deceased’s falls was caused by a voluntary act of the appellant. The jury would have done so appreciating that they had to be unanimous as to that being established in respect of one or other or both of those falls before they could proceed to a verdict of guilty of murder, or not guilty of murder and guilty of manslaughter, by reason of any act that did so. For that purpose they had to consider the same evidence as was admitted at the trial, having been properly directed as to the onus and standard of proof and as to the matters which the Crown had to prove, including that the appellant did not act in self-defence.
Addressing that question in our view the jury necessarily should have entertained a doubt as to whether the deceased’s first fall was caused by any voluntary act of the appellant. In other words it was not open on the evidence to the jury to be so satisfied beyond reasonable doubt: see Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Hayne J). The only evidence of that incident is the CCTV footage and, perhaps, the evidence of Mr Armstrong. None of the other four witnesses who gave evidence of the appellant striking the deceased saw him trip or fall backwards on the roadway the first time. Mr Armstrong gave evidence that he saw the appellant throw three punches. He described the deceased and Mr Schwager as still sitting in the gutter or starting to stand when the first of those punches was thrown.
That evidence of Mr Armstrong was not at all consistent with the CCTV footage of the first fall. That footage shows an initial scuffle on the footpath between the deceased and the appellant in which the deceased pushes the appellant against a shopfront. The deceased, with his back to the roadway, then proceeds to move backwards across the footpath and onto the roadway followed by the appellant who is facing the deceased as the latter moves backwards. The deceased then stumbles and falls hitting the back or side of his head on the roadway. The CCTV footage shows no punch or apparent or obvious contact between the two men. It is wholly in accord with the deceased having lost his balance as he stepped from the footpath and onto the (lower) roadway. The appellant is then shown to stand in front of and over the deceased as he starts to regain his feet. At the same time Mr Schwager moves in the direction of the deceased from his position next to a telegraph pole, which was on the footpath. As he does so the appellant turns to his right, moves back towards Mr Schwager and punches him, knocking him to the ground near the base of the telegraph pole.

In relation to the second fall, the CCTV footage, the evidence of the eyewitnesses (outlined below) and the evidence of Dr Little, the forensic pathologist who conducted the autopsy, establishes beyond reasonable doubt that it was caused by a punch thrown by the appellant. We do not consider that it was open to the jury to have any reasonable doubt about that. After the first incident (as described above), the CCTV footage shows the appellant then turn and move towards the deceased who by this time was on his feet on the roadway. The appellant steps off the footpath. As the two men come together and are facing each other, the appellant has both arms raised, in a boxing stance. The appellant’s head appears to move back at the same time as the deceased falls backwards, hitting his head on the roadway. The appellant is then seen to stand over the deceased’s prostrate body for a few seconds before he turns and walks back onto the footpath and continues in a westerly direction down Barker Street.
The evidence of Mr Cupitt and Ms Livingstone was that they each saw the appellant punch the deceased. Mr Marsh’s evidence was that he saw the appellant swing his arm at the deceased and then saw the deceased fall backwards and hit his head on the roadway. He did not see the arm connect. Mr Perkins describes hearing the sound of a punch and turned to see one of the men falling backwards. He did not see the punch. Mr Armstrong gave evidence of seeing the appellant punch the deceased on a second occasion but did not see where that punch hit.
In our view the only sensible explanation for what is shown on the CCTV footage in relation to the second fall is that the deceased was hit causing him to fall backwards onto the roadway. That accords with what was described by at least three of the eye witnesses. It is also consistent with the evidence of Dr Little. Her evidence was that the deceased sustained two separate impacts to his head as a result of falls, as well as bruising on the right side of his jaw consistent with a blow to that side of his face. In our view it was not open to the jury on that evidence to entertain a reasonable doubt as to whether the appellant’s voluntary act caused that fall.
We are also satisfied beyond reasonable doubt that that act was dangerous and that it was not open to the jury to have concluded otherwise. A reasonable person in the appellant’s position would have appreciated that punching the deceased in the side of the head exposed him to an appreciable risk of serious injury, both from the direct impact of the punch and from the consequence of his falling backwards onto the roadway, as was foreseeable and occurred. Finally, we are satisfied beyond reasonable doubt that in punching the deceased on this second occasion the appellant did not act in self-defence. More specifically we are satisfied to that standard that the appellant did not believe that his conduct in punching the deceased was necessary to defend himself; and that his doing so was not a reasonable response in the circumstances as he perceived them. That is so whether one has regard to all of the circumstances, or only to those immediately preceding the second fall. In each case we do not consider it was open to the jury to have concluded otherwise. After the first incident the deceased did not represent any threat to the appellant. There was nothing that prevented him from walking away. Yet he did not do so. Instead, having punched Mr Schwager he turned his attention back to the deceased, moved towards him and punched him to the ground.
It remains for us to consider whether in the circumstances of this case the omission of the direction as to the need for unanimity involved or constituted such a departure from a trial according to law that for that reason alone we cannot be satisfied that there was no “substantial miscarriage of justice”: Filippou at [15]. It is submitted on behalf of the appellant that it does because that “misdirection” was as to a “fundamental” matter (Wilde at 372), namely one as to which the jury had to be satisfied unanimously in order to convict of murder or manslaughter.
In our view this is not such a case. The omission relied on here did not have the consequence that the jury were not correctly directed about the elements of the offences of murder and manslaughter, or as to the standard and onus of proof: cf Baida at [31]; Krakouer at [23]-[24] (Gaudron, Gummow, Kirby and Hayne JJ) and [74]-[75] (McHugh J) and the discussion in Hadchiti v R [2016] NSWCA 63 at [146]-[152] (Leeming JA, Hall and Bellew JJ). Rather that omission raised at least as a theoretical possibility that some members of the jury might determine his guilt by reference to the first fall, and others by reason of his having caused the second. Where there were two separate allegedly criminal acts left to the jury, the appellant was entitled to have the jury determine unanimously whether he was guilty in relation to one or other or both of those acts.
However that possibility did not give rise to any miscarriage in this case because the evidence was not capable of supporting a finding beyond reasonable doubt that a deliberate act of the appellant caused the first fall. We have (at [51] above) referred to the absence of any evidence of a punch or other contact by the appellant which could have caused that fall. It was not the Crown’s case at trial that in the absence of any such contact the jury could nevertheless conclude that the first fall and consequent head injury was caused by a deliberate act of the appellant.
It follows that the non-direction did not deprive the appellant of the opportunity of having the jury decide, on the basis that they had to be unanimous, a question that they had to determine, if he was to have a trial according to law. Whether the appellant was guilty of murder or manslaughter because of a voluntary act that caused the deceased’s first fall – because of the absence of sufficient evidence supporting a finding to that effect – was not required to be determined by the jury: see R v R (1989) 18 NSWLR 74; Doney v The Queen (1990) 171 CLR 207 at 214-215. Furthermore, had the jury addressed that question, they necessarily should have entertained a doubt about the appellant’s guilt. It was not open to them to conclude otherwise.
The absence of any specific unanimity direction did not prevent the jury from considering the appellant’s guilt on the basis that his deliberate act caused the deceased’s second fall; and acting reasonably and properly they should have done so, having necessarily entertained a doubt about the appellant’s guilt with respect to the first: cf Krakouer at [23]-[24] and [75]. Having done so, it was not open to the jury to have had a reasonable doubt as to his being guilty of manslaughter by that unlawful and dangerous act.
We conclude that no substantial miscarriage of justice actually occurred in this case by reason of the absence of the specific unanimity direction. Accordingly the appeal on the basis of ground 1 should be dismissed.

Was there a miscarriage of justice by reason of the references before the jury to the offence being a “king hit” offence, and any related improper conduct of a member of the jury? (grounds 2 and 3)

It was accepted in argument by the appellant’s counsel that these grounds should be dealt with together. They are directed to three matters, two of which are said to be related. Each ground relies on the third limb of s 6(1) of the Criminal Appeal Act, namely that “on any other ground whatsoever there was a miscarriage of justice”. Gageler J, in dissent, uncontroversially observed of this provision in Baini at [54]:

The words "on any ground" in paragraph (c) of the common form criminal appeal statute "do not postulate the demonstration of error" but rather "simply require that 'something occurred or did not occur' in the trial". The thing that occurred or did not occur in the trial may be an "irregularity" falling short of a failure to observe some condition essential to a satisfactory trial – such as a misdirection or non-direction of fact or what is shown to have been at the time of exercise or in the light of developments at the trial a wrong but legally available exercise of judicial discretion resulting in the admission of evidence prejudicial to the appellant. In those circumstances, it has been accepted that the criterion in paragraph (c) will be made out only where the appellant is able to establish a causal connection between the irregularity and the conviction in the sense that, but for the irregularity, the result might have been different and the appellant might have been acquitted.

Also, as was stated in Filippou at [14], this third limb includes cases where by reason of such an “irregularity” the accused has not received a trial according to law or has not received a fair trial; being one in which the relevant law has been correctly explained to the jury and the rules of procedure and evidence followed: Mraz v The Queen (1955) 93 CLR 493 at 514 (Fullagar J).
The first matter is the presence in the jury room of the note containing the extracts of dictionary definitions (see [16] above). The sheriff’s investigation report includes a statement that one of the jurors who was interviewed prepared this note at the beginning of the trial “before the judge gave formal definitions”, put the note inside an exercise book and did not further refer to it after the trial judge’s opening remarks.
The Crown tendered the part of that report which established those facts. That tender was objected to by the appellant. In our view the evidence described above is relevant and not inadmissible because of the common law rule that evidence of a juror or jurors as to the deliberations of the jury is not admissible to impugn the verdict: see Smith v State of Western Australia (2014) 250 CLR 473; [2014] HCA 3 at [1]; R v Emmett (1988) 14 NSWLR 327; R v K (2003) 59 NSWLR 431 at [54]-[55]; and R v Medici (1995) 79 A Crim R 582 at 590-591. The application of this rule is preserved by the Evidence Act 1995 (NSW), s 9(2).
The admission of the evidence concerning the provenance of this note does not impinge on the jury’s deliberations by disclosing any discussions between the jurors or any effect the note may have had on their deliberations.
Here there was an “irregularity” to the extent that one of the jurors, contrary to the trial judge’s direction at the commencement of the trial sought to inform him or herself as to aspects of the law from the Oxford and Macquarie dictionaries. However that irregularity is not shown to have been of any moment. The trial judge having given those directions, and later written and oral directions as to the elements of the relevant offences, there is no reason for the Court to proceed otherwise than on the basis that the juror put the note aside and proceeded to consider the evidence in accordance with the directions of the trial judge. That being the position it is not established that but for this first matter the result might have been different so as to admit of the possibility that the appellant was thereby denied a chance of acquittal which was fairly open to him.
The second and third matters fall to be considered together. The second is the Crown’s reference in its final address to Mr Perkins’ description of a king hit and statement that “we all know what that is” (see [14] and [15] above). The third matter is the presence in the jury room of the two magazine covers containing hand written messages, which included “stop the coward punch” and “no more coward punches” (see [16] above). The evidence in the sheriff’s report in relation to those magazine covers is that they were found in a secluded area of the jury room and did not come to the attention of the five jurors who were interviewed by the sheriff when undertaking the s 73A investigation.
Specifically that sheriff’s report (in parts 2 and 4) includes the following statements relevant to this third matter:

Jury members involved in the trial were contacted by phone and letter to request interviews and statements.
5 jurors have been interviewed. Interviews were conducted by phone. Further inquiries may be made if requested.
All jurors interviewed have stated that they were not aware of any magazines in the jury room at any time. [Sheriff’s officer M] … has confirmed the magazines were found in a secluded area of the jury room.
All interviewed jurors state that they were unaware of any magazines being in or being brought into the jury deliberation room, nor were there any interviewed jurors that recalled notations on magazines or other jurors making notations on magazine covers.

The appellant objected to the Crown’s tender of these parts of the sheriff’s report. In our view those parts also are relevant and admissible. They do not disclose discussions between the jurors that constitute any part of their deliberations.
The appellant’s primary submission is that considered together these matters indicate (and would do so in the assessment of a fair minded and informed member of the public) that the jury or a juror might not have decided the case impartially.
The second matter was said to constitute an invitation to the jury to deal with the case against the appellant other than on its merits by suggesting that it involved, or was to be treated as having involved, a “king hit” or “cowards punch”. In relation to the third, it was submitted that the magazine notations with their slogans directed to the “prevalence or… scourge of coward punches” was a similar invitation and actualised “the risk of prejudice” which arose from the Crown’s statements which are the subject of the second matter. It was contended that a reasonable inference available from the existence of the notations on the magazine covers was that one or more of the jurors had adverted to social media during the deliberation period and introduced those slogans or sentences into the deliberation process.
In the appellant’s written submissions this third matter was said to constitute an “irregularity”, because it involved a juror or jurors disregarding the trial judge’s direction that they do not try and find information believed to be relevant to the case by their own inquiries, which this Court could not be satisfied had not affected the jury’s verdict. This last submission was not pressed in oral argument; and it was submitted that the relevant question in relation to that matter was as set out below and not whether the Court could be satisfied that the irregularity had no effect on the verdict (cf R v Marsland (NSWCCA, 17 July 1991, unrep).
That question was whether there was a miscarriage of justice because there may have been a serious breach of one of the presumptions of a fair trial; namely that there be no reasonable basis for apprehending that the jury or a juror has not discharged or will not discharge their task impartially: see Smith at [52]-[55]; Medici at 598; and Wells v The Queen (1994) 181 CLR 41 at 53, 57, 65. That would be so if the presence of the magazine covers, in the context of the Crown’s final address, considered from the perspective of a fair minded and informed member of the public, gives rise to a reasonable apprehension or suspicion to that effect.
The evidence does not enable a conclusion as to how the magazine covers came to be in the jury room. They could have been written by a third party and handed to a juror who brought them into the room. Or they could have been written by a juror, either before or after the magazines came to be in the jury room. They might have been intended as messages for the jury to consider, or as in our view is more likely, record what the writer read when searching the internet. As such the slogans could reflect views of the writer, or merely repeat what was written elsewhere.
We think there are two realistic possibilities. The writing on the magazine covers is either that of a juror and is the result of an internet or other inquiry, as the appellant contends, or was written by a third party and the magazines given to a juror at some stage and brought into the jury room. The former is more likely. In either case the writing on the magazine covers does not appear to have come to the attention of at least five of the jurors.
For a juror to have made such an inquiry would have been contrary to the trial judge’s often repeated direction that the jury should not make inquiries about the case or conduct searches of social media to see what they could find there. For the magazine covers to have been written by a third party and found their way into the jury room via a juror is also likely to have involved that juror disregarding the trial judge’s directions and requests that jurors not speak to or communicate with outsiders about the case.
The evidence does not establish or suggest when either of these possibilities might have occurred. It could have happened at the commencement of the trial and the magazines may then have been discarded to where they were found. That is more consistent with them having been found in a secluded area of the jury room, and not having come to the attention of any of the jurors who were interviewed.
The messages on the magazine covers were of the kind that the members of the jury were likely to have been familiar with, or exposed to, or not surprised by, before they were empanelled. As the trial judge observed at the outset of his opening remarks, incidents involving alcohol and altercations in public streets had “received a great deal of publicity in New South Wales and throughout Australia” in the 12 months preceding the trial. His Honour had made similar remarks to the jury before it was empanelled; and later returned to that subject when directing the jury following the giving of Mr Perkins’ evidence. At that time he said:

I should also tell you, of course - and this goes back to something you’ll recall I said when you were all still members of the jury panel and before you had been empanelled on the jury, and that is that although we shouldn’t talk about cases falling into categories, because each case is different, obviously, as I said at that time I’ll repeat, events of this character or events like the Crown allege occurred in this case, because you still have to hear all the evidence and make your decision, have attracted a lot of publicity in New South Wales and in Australia, especially over the last 12 months and there has been a lot of comment about it in the press, as you would have seen if you ever read any newspapers or if you watch any television news. … You need to put to one side any preconceived notions or attitudes you may have formed about those type of things to one side. That is part of your obligation of impartiality. It is part of your sworn duty to decide the case on the basis of what happens in this courtroom, only upon the evidence you hear in this courtroom, the arguments that counsel address to you in this courtroom and the directions of law that I give to you in this courtroom. It is part of your obligation to be calm and dispassionate. It is part of your obligation to put aside prejudice, pre-judgment or even sympathy for one person or another for the purpose of deciding this case. … So that type of language that Mr Perkins used, please simply ignore. Any publicity that you’ve read, put entirely to one side for the reasons I’ve given you. … that is not a comment, that is a direction of law.

Taking these matters into account it is our view that the evidence of the magazine covers in the jury room, considered in the context of Mr Perkins’ evidence and the Crown’s reference to that evidence in its final address, would not give rise to reasonable suspicion on the part of a fair minded and informed member of the public that the jury or a juror had not discharged their task impartially.
In the course of argument it was accepted by the appellant’s counsel that the Crown’s reference to Mr Perkins’ evidence would not itself give rise to any such suspicion. That reference was dealt with by the appellant’s counsel in his closing addressing and, following that address, the Crown was given leave to and did withdraw reliance on the evidence referred to and its earlier submission. The trial judge also directed the jury to put aside all preconceived notions they might have had about the case before hearing the evidence; and to disregard Mr Perkins’ references to “king hit” and “one punch”, and whether the appellant might have been acting in self-defence, as conclusionary and as trespassing on the jury’s role to decide questions of fact. It was accepted that there is no reason for this Court to believe that the jury would not have taken this direction at face value and proceeded to disregard that evidence.

The appellant contends that the presence of the notations on the magazine covers gives rise to a suspicion that a juror or jurors did not act impartially because it is likely that the notations were made by a juror following internet access to social media during the deliberation period. It is suggested that the various slogans were a call to people, such as the jurors, to do what they could to stamp out conduct which might be characterised as involving a “coward punch”. In their terms the slogans were said to indicate a particular attitude of the writer which, contrary to the trial judge’s direction, had not been “put aside”. There was also said to be a risk the writing was seen by other members of the jury who also might have been persuaded to act partially and without proper regard to the evidence and the issues as explained by the trial judge.
This argument should not be accepted. Each of the notations is in the form of a command directed to ensuring that the reader not engage in conduct involving a “coward punch”. This appears from the language imploring that the reader “think before you act” (emphasis added). None of the commands is directed specifically to members of the jury in relation to their task of dealing with the charges against the appellant. The form of the notations is consistent with their having been copied from another source. All of this might give rise to a reasonable suspicion that a juror undertook an internet search in relation to the expression “coward punch” and recorded what was found. That suspicion would not by reason of these facts alone include that the person was sympathetic to the views expressed, and prepared to act in accordance with them, when participating as a juror in the deliberations of the jury.
As was observed by Mason CJ and McHugh J in Webb (at [56]) a fair minded person would assume that the jury will do their best to follow the trial judge’s directions, that they will examine the evidence calmly and dispassionately and will put aside any prejudice against the accused or sympathy for any victim. There is no reason in the evidence to suggest that the jury in this case would have acted otherwise than in accordance with the trial judge’s directions. The fact that the magazine covers did not come to the attention of the five questioned jurors is consistent with that having occurred.
Another matter which speaks against the existence of such a suspicion is that the facts, as revealed by the CCTV footage, were far removed from one in which a punch was thrown without notice, so as to justify the description “coward punch”. The scuffle between the appellant and Mr Morris commenced with the latter pushing the appellant up against the shop front following some verbal exchange between them. This makes it unlikely that any juror would have regarded this case as involving such a punch and been prepared to act in accordance with any sentiment underlying the slogans, rather than as directed.
We conclude that there is no reasonable basis for apprehending that the jury or a juror did not discharge their task impartially. For this reason grounds 2 and 3 are not made out.

Was there a miscarriage of justice because the trial judge misdirected the jury on self-defence, and particularly as to the onus and standard of proof? (ground 4)

As is apparent from the foregoing discussion self-defence was a central issue in the trial. The appellant submits that the trial judge’s directions, both written and oral, misdirected the jury in relation to self-defence. It is said that they did so by proposing a question trail, as a suggested framework for the jury to reason to their decision, which required that the jury make positive findings or conclusions about the existence of “reasonable possibilities” as to the subjective and objective elements of that defence (see s 418(2)) before the appellant could be acquitted.
In doing so the directions are said impermissibly to equate the existence of a reasonable possibility with a reasonable doubt; and to reverse or distort the onus of proof by suggesting that the jury had to be positively satisfied of the existence of those possibilities before the appellant could be acquitted. In these respects, the trial judge’s directions are said to have involved the kind of error identified in Hadchiti v R.
It is convenient at this point to refer in more detail to that decision. H was charged with murder, and an alternative verdict of manslaughter by unlawful and dangerous act was also left to the jury. The trial judge provided the jury with a seven page written direction and summed up by reference to that document. Those directions identified five issues and stated eight questions which the jury had to answer in resolving those issues. With two exceptions the questions as formulated made no reference to the prosecution’s onus of proving the elements of the charged offence, and excluding any available defence, in each case beyond reasonable doubt. At the same time those questions equated the existence of a reasonable possibility with a failure of the Crown to establish affirmatively, or negate, those matters. In relation to questions directed to matters of defence it was argued in Hadchiti v R that the onus of the Crown to exclude matters of defence beyond reasonable doubt was equated to a requirement that the jury positively find the existence of a reasonable possibility in order to avoid a guilty verdict on the basis of the availability of that defence.
Ground 1 of appeal in Hadchiti v R was that these written directions considered in the context of the whole summing up (including directions that correctly addressed on the onus and standard of proof) “contravened well-established principles by which juries in criminal trials must be directed concerning the legal onus upon the Crown”: Hadchiti v R at [26], [112]. The Court, focussing on the trial judge’s written directions which in terms instructed the jury how they should go about reaching their verdict (at [70]), held that ground to have been made out.
In doing so the Court reasoned in [87] and [107]-[109] as follows:

[87] It will be seen that, repeatedly, in the document taken into the jury room at the time of the jury’s deliberations, the notion of reasonable doubt was equated to the existence of a reasonable possibility. …
…
[107] This was not a case where, in relation to the elements which the Crown had to negate beyond reasonable doubt, MFI 19 instructed the jury that the Crown must “remove or eliminate any reasonable possibility” (cf Kanaan at [145]) or that if any reasonable possibility remained, the jury must acquit (cf Ayoub at [4]). There is nothing wrong with such formulations. But to our minds there is a critical difference between what will necessarily result in an acquittal and what is sufficient to reach a guilty verdict. There is a critical difference between an instruction to the effect that the Crown must remove a reasonable possibility in order for a guilty verdict to be available and an instruction that turns on whether the jury has found there to be a reasonable possibility in order to avoid a guilty verdict. This is essentially the point made by Macrossan CJ in Holman and may be seen in the passages from Ayoub, Kanaan and Ward considered above.
[108] Sixthly, a deal of the force in Mr Game’s submissions, to our minds, was that there was no occasion for much of the elaboration in the “question trail”. The first issue was whether the Crown had proved beyond reasonable doubt that the accused deliberately stabbed the deceased in the neck. The second issue was whether the Crown had proved beyond reasonable doubt that the accused intended to kill or cause grievous bodily harm to the deceased. Of course, as Hunt CJ at CL pointed out, there is a potential for confusion when the Crown must negative a defence to the criminal standard, for which reason it has long been accepted in this State that in relation to negative elements, it can be appropriate to ask whether the Crown has eliminated any reasonable possibility that the accused, say, acted in self-defence: see Jones at 659-660. But the written direction was not framed in those terms even in respect of the elements which the Crown had to negative. MFI 19 treated identically the positive and negative elements which the Crown had to prove beyond reasonable doubt.
[109] We regard the departure from the conventional formulation to be material. One way of explaining why is as follows. If the answer to “Question 1” was affirmative, such that there was found to be a reasonable possibility that the appellant did not deliberately stab the deceased in the neck, then it is plain that the Crown case was not made out and a not guilty verdict should have been returned. But that is not the only way in which the Crown could fail on that issue. The Crown could fall short of establishing beyond reasonable doubt that the appellant deliberately stabbed the deceased in the neck, even if the jury were unable to conclude that there was a reasonable possibility that the appellant did not do so. We think that a jury would be unlikely readily to grasp the nuances here, between the reasonable possibility which is sufficient for an acquittal but the absence of which is not necessary for a guilty verdict.

Reference may now be made to the trial judge’s summing up and written directions in this case. As will become apparent, his Honour’s oral and written directions dealing with self-defence made clear that the Crown had to eliminate it as an issue by proving beyond reasonable doubt that the appellant did not act in self-defence; and that to do so the Crown had to prove that there was no reasonable possibility of one or other of the subjective or objective elements in s 418(2) of the Crimes Act applying or being satisfied.
The trial judge provided the three documents described in [35] above to the jury during the course of a summing up which proceeded over three days. The first, handed to the jury on the afternoon that the summing up commenced, became MFI 11 and included the following under the heading “Murder and self-defence”.

17. It is for the Crown to prove to your satisfaction beyond reasonable doubt that Mr Lane did not kill Mr Morris in self-defence. If the Crown does not discharge its onus, Mr Lane must be acquitted of the charge of murder even if you have decided that Mr Lane struck Mr Morris down intending to inflict really serious physical injury.
18. Depending on the circumstances as found by you, self-defence may either be a complete or a partial defence to the charge of murder. If a complete defence, Mr Lane is not guilty of murder. If a partial defence, Mr Lane is not guilty of murder, but is guilty of the less serious offence of manslaughter by excessive self-defence.
19. Self-defence will be a complete defence if your answer is yes to each of these questions:
(a) Is there a reasonable possibility that Mr Lane believed that striking Mr Morris was necessary in order to defend himself; and
(b) Is there also a reasonable possibility that what Mr Lane did was a reasonable response to the circumstances as he perceived them.
20. Self-defence will operate as a partial defence only, reducing murder to manslaughter, if you answer yes, to the first question, but no to the second question.

Under the heading “Manslaughter by unlawful and dangerous act” MFI 11 stated:

27. However a strike will not be unlawful if it was delivered in self-defence. Unlike for murder, for manslaughter self-defence only operates as a complete defence. The elements are as discussed above at [18] [sic]. You must acquit unless satisfied beyond reasonable doubt that Mr Lane did not believe at the time he struck Mr Morris down (if it occurred) that it was necessary to do what he did in order to defend himself in the circumstances as he perceived them to be; or the punching by Mr Lane was not a reasonable response in the circumstances as he perceived them.
28. It is sufficient if the Crown excludes either element to you satisfaction. Intoxication remains relevant in the way discussed at [19] above.

Finally this direction included the following reference to the flowchart which became MFI 15:

30. I have provided a flowchart or question trail as a suggested framework for reasoning to your decision. It attempts to direct your attention to the issues for your decision in this case. You must apply the law I have given you but you are not bound to follow my suggested framework. You may discard it if you wish. You are entitled to reason to your decision by any rational path which seems appropriate to you provided you apply the directions of law I have given you.

The second document, provided to the jury on the morning of the second day of the summing up, became MFI 12. It set out the legal elements of murder and unlawful and dangerous act manslaughter, and then dealt with self-defence in the respects in which it might be available. In doing so it explained what the Crown must prove in relation to self-defence:

… Although “self-defence” is referred to as a defence, it is for the Crown to eliminate it as an issue by proving beyond reasonable doubt that an accused did not act in self-defence.
Self-defence has 2 components;
A person acts is self-defence if and only if they believe at the time of the act that it was necessary to do what they did in order to defend him/ herself; and
The conduct was a reasonable response in the circumstances as the person perceived them
For the Crown to eliminate self-defence as a complete answer to a charge, it must prove that either:
there is no reasonable possibility that at the time of the conduct which caused death the accused believed it was necessary to defend himself;
or
there is no reasonable possibility that the conduct which caused death was a reasonable response in the circumstances as perceived by the accused.

When introducing MFI 12 to the jury, the trial judge emphasised the onus and standard of proof borne by the Crown:

Although self-defence is referred to as a defence, it is for the Crown to eliminate it as an issue by proving beyond reasonable doubt that the accused did not act in self-defence. It has two components [reference is made to the subjective and objective elements in s 418(2)]
…
Now you will see the next statement that for the Crown to eliminate self-defence as a complete answer to a charge, it must prove either that there is no reasonable possibility that at the time of the conduct which caused the death, the accused believed performing that conduct was necessary to defend himself. We put it that way there is no reasonable possibility to incorporate the onus of proof, the standard beyond reasonable doubt… But if you are not satisfied that there is no reasonable possibility, if you are not satisfied beyond reasonable doubt that it was not reasonably possible that Mr Lane in this case, let us put it in practical terms, believed that it was necessary to do what he did to defend himself, then the Crown has not displaced the first element.
Now the second element is that there is no reasonable possibility that the conduct that caused the death was a reasonable response in the circumstances as perceived by the accused. Again the question is formulated that way to take account of the burden of proof.

The third document handed to the jury was the flowchart which became MFI 15. It was provided at the end of the summing up, in the morning of the third day. MFI 15 was in two parts headed “Murder flowchart” and “Manslaughter flowchart (only consider this flowchart if directed by the murder flowchart)”.
Each of those parts included questions in substantially the same terms as paras 19(a) and (b) of MFI 11 (see [93] above). Questions 3 and 4 of the murder flowchart provided:

(1) Are you satisfied beyond reasonable doubt that Mr Morris fell and struck his head because of a voluntary act of Mr Lane, in the sense of being deliberate, which was not a spontaneous, unintended reflex action?
(i) No → Not guilty of murder (or manslaughter)
(ii) Yes → Next question
(2) Are you satisfied beyond reasonable doubt that Mr Lane specifically intended to cause really serious physical injury to Mr Morris?
(i) No → Not guilty of murder. Turn to manslaughter flow chart.
(ii) Yes → Next question
(3) Is there a reasonable possibility that Mr Lane believed that striking Mr Morris was necessary in order to defend himself? (intoxication relevant as to his perceptions)
(i) No → Guilty of murder
(ii) Yes → Next question
(4) Is there a reasonable possibility that what Mr Lane did was a reasonable response to the circumstances as he perceived them?
(i) No → Not guilty of murder, guilty of manslaughter
(ii) Yes → Not guilty of murder or manslaughter

The trial judge also explained that a “no” answer to the third question meant that the jury was satisfied beyond reasonable doubt that there was no reasonable possibility that the appellant believed that striking Mr Morris was necessary in order to defend himself. It followed that the Crown had discharged its onus in respect of the subject matter of that question. That direction was wholly consistent with the terms of MFI 12 (see [96] above) which included that for the Crown to eliminate self-defence as a complete answer to the murder charge it had to negate, beyond reasonable doubt, the possibility of either of the subjective and objective elements in s 418(2).
The appellant’s argument, to which we now turn, has two strands. First, it is said that the flowcharts framed the jury’s consideration of self-defence “in terms of finding reasonable possibilities as a pre-condition to acquittal” and that in doing so they “shifted, or at least distorted, the onus of proof”. Secondly, it is contended that equating the presence of reasonable doubt with there being a reasonable possibility of the existence of some exculpatory factor and providing only for a “yes” or “no” answer to a question directed to whether there was such a possibility does not accommodate the possibility of a third answer to that question, namely “unsure”. A similar argument was made and rejected by this Court (Basten JA and RA Hulme J, Adamson J dissenting on this question) in Moore v R [2016] NSWCCA 185 at [34]-[36] (Basten JA) and [128]-[129] (RA Hulme J). The High Court refused special leave to appeal from that judgment on the basis that the decision of the majority was not attended with sufficient doubt: Moore v The Queen [2016] HCASL 323.
The appellant’s first argument does not take account of the oral and other written directions that accompanied the flowchart questions. MFI 12 and the trial judge’s explanation of it with respect to self-defence emphasised that the Crown bore the onus of proving beyond reasonable doubt that the appellant had not acted in self-defence; and instructed the jury that the Crown satisfied that onus and standard at each point at which it arose by proving the absence of any reasonable possibility of the existence of any subjective or objective element necessary for the availability of the defence. The trial judge’s description of each of the questions concerning self-defence was to the same effect. Those questions focussed on what it was necessary for the Crown to exclude beyond reasonable doubt in order to satisfy its onus. The trial judge explained that a “no” answer to each question would mean that the jury was satisfied that there was no such reasonable possibility.
The formulation of these questions did not in our view shift or distort the onus of proof. On the contrary in relation to the relevant subject matter, those questions, in circumstances where it has been made clear that the Crown bears the burden of excluding self-defence beyond reasonable doubt, inquire whether it has discharged that onus by establishing that there is no reasonable possibility of the existence of the subjective and objective elements in s 148(2). We do not understand the Court in Hadchiti v R to suggest that in relation to self-defence there is anything wrong with formulating a question for the jury in terms which inquire whether there is a “reasonable possibility”, where the Crown’s onus and standard of proof are otherwise stated clearly. See also Moore at [114] (RA Hulme J).

Again without distinguishing between categories of error to which the proviso might be applied, the court said at [43]:

“… the appellate court’s task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The court is not ‘to speculate upon probable reconviction and decide according to how the speculation comes out’. But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court’s assessment of the whole record of trial.” [Footnotes omitted, emphasis in original.]

At [48] – [51] the court rejected an approach of “asking what the trial jury would have done had the wrongly admitted evidence not been before it”. That would be likely to divert attention from the appellate court’s proper task of simply making its own assessment of the proof which had been tendered at the trial. I have already stated my view that these alternative approaches would not be at all likely to produce different outcomes.
Paragraphs [44] – [46] of the judgment make it apparent that the High Court in Weiss v The Queen did not intend to require that in all cases, including those of fundamental misdirection going to the function of the jury (such as identified in Wilde v The Queen and in McHugh J’s judgment in Krakouer v The Queen), engagement of the proviso should turn upon the appellate court’s evaluation of whether guilt had been proved. Paragraph [44] states that an affirmative finding on that question is a necessary condition for applying the proviso. Paragraph [45] is to the effect that it is not in all cases a sufficient condition and [46] expressly reserves the position with respect to fundamental errors affecting the legal validity of the trial:

“[44]   […] No single universally applicable description of what constitutes ‘no substantial miscarriage of justice’ can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused guilty of the offence on which the jury returned its verdict of guilty.
[45]   Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for the court not to dismiss the appeal [that is, not to apply the proviso], even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant’s guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of that kind.
[46]   It is unnecessary in this appeal to examine the issue further, or to consider the related question whether some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form of criminal appeal provision with its proviso: [Wilde v The Queen and other authorities cited]. …” [Emphasis added.]

Weiss v The Queen does not dictate that this Court must, in the face of the fundamental error in ground 1, proceed to form its own view whether the appellant was proved guilty and then apply the proviso if the answer is yes. The import of the passages quoted is that, even if full examination of the evidence led at trial should persuade this Court “to the requisite degree of the appellant’s guilt”, the nature of the error “may” be of such a fundamental kind that the proviso should not be applied. That being so, it is consistent with the High Court’s holding that this Court may look to the second question first. That is, this Court may commence by determining whether the error involved such a “significant denial of procedural fairness” or such a “serious breach of the presuppositions of the trial” that the proviso would not be applied even if this Court should be satisfied of the appellant’s guilt. The Court may go straight to that decisive point and omit the intermediate step of examining the trial record for the purpose of concluding whether guilt was proved. This is also consistent with Wilde v The Queen and McHugh J’s judgment in Krakouer v The Queen.
If the possibility acknowledged by the High Court (that there “may” be cases of “significant denial of procedural fairness” or “serious breach of the presuppositions of trial” requiring that the proviso not be applied even though the court is satisfied of guilt) is ever to be realised, then the present is a case for it. It is difficult to conceive of a more serious error of this nature than one which resulted in the jury not having identified to them for their unanimous determination a factual question which was central to an element of the charge of murder and which the accused had put in issue.
In Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59 all members of the High Court recognised that the decision in Weiss v The Queen had not denied that “the proviso may not be engaged if a trial was so irregular that no proper trial had taken place”, without need for the appellate court to examine the entire trial record and determine whether in its own judgment guilt had been proved: per Gummow and Hayne JJ at [39] and [50] – [51], Kirby J at [117] and Heydon J (Crennan J agreeing) at [262]. Kirby J said:

“[117] There is also unanimity (for the possibility is expressly reserved in Weiss) that there may be cases where ‘errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form of criminal appeal provision with its proviso’.”

Gummow and Hayne JJ at [39] said that it had not been finally established by the High Court’s decisions in Quartermaine v. The Queen (1980) 143 CLR 595; [1980] HCA 29 and Wilde v The Queen that there exists a class of departures from the essential requirements of the law that go to the root of criminal trial proceedings. Their Honours were clear that the proviso could not be applied where such errors are demonstrated.
In Baiada Poultry Pty Ltd v The Queen the offence charged required the prosecution to prove that the defendant company had not “so far as is reasonably practicable” provided a safe environment for its employees. The prosecution’s evidence was capable of satisfying the jury that a dangerous work environment had been created by an employee of the defendant’s subcontractor as a result of his operation of the subcontractor’s forklift. The defendant disputed that it was “reasonably practicable” for it to direct the subcontractor or its employee. The trial judge refused to direct the jury that in order to convict they had to be satisfied beyond reasonable doubt that such direction was “reasonably practicable”. The Victorian Court of Appeal held that the failure to direct the jury in this respect was an error. The appeal provision applicable was in the same terms as s 6(1) of the Criminal Appeal Act, including the proviso. The Court of Appeal applied the proviso.
In the High Court French CJ, Gummow, Hayne and Crennan JJ in a joint judgment said at [29]:

“… the Court held, in Weiss, that the proviso cannot be engaged ‘unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused guilty of the offence on which the jury returned its verdict of guilty’. That is a negative proposition. It states a necessary but not sufficient condition for applying the proviso. … demonstration that a chain of reasoning can be articulated that would require the verdict reached at trial does not always permit, let alone require, the conclusion that no substantial miscarriage of justice actually occurred. …”

At [23] their Honours said:

“… it is neither possible nor useful to attempt to argue about the application of the proviso by reference to some supposed category of ‘fundamental defects’ in a trial.”

In the same vein their Honours said at [31] (quoted in full below) that Weiss v The Queen had decided

“the fundamental point … that the imposition of some taxonomy for the application of the proviso according to expressions – even judicially determined expressions – different from the relevant statutory expression invites error.”

Despite this deprecation of attempts to define a class of appellable errors going to the root of a trial, to which the proviso should not be applied, the plurality at [21] – [29] reaffirmed what had been said in Weiss v The Queen at [44] – [46]. Namely, that in some cases “though persuaded that the evidence properly admitted at trial proves the accused’s guilt beyond reasonable doubt, an appellate court should nonetheless hold the proviso is not engaged” (see Baiada Poultry Pty Ltd v The Queen at [21]) and that instances of “a significant denial of procedural fairness at trial may provide examples of such cases” (see [22]; emphasis added).
The plurality in Baiada Poultry Pty Ltd v The Queen continued as follows at [31] – [32]:

“[31] It may well be right to observe that the proviso could seldom be applied in a case where, as here, the jury were not sufficiently directed of the need to be satisfied to the requisite standard of an element of the offence being considered. And it may also be right to observe that the proviso could seldom be applied if "[t]he inadequacy of the judge's direction denied Baiada the benefit of the jury's consideration of one of its two principal defences". But it is important to emphasise the fundamental point made in Weiss: that the imposition of some taxonomy for the application of the proviso according to expressions – even judicially determined expressions – different from the relevant statutory expression invites error.
[32] For the reasons that have been given, the better view is that the jury were not sufficiently directed about the need to be satisfied about an element of the offence rather than about a matter of defence. A direction of the kind that was found to be necessary was required because Baiada had put the relevant element of the offence in issue. [Citation omitted.]

The quotations given thus far from the judgment of the plurality in Baiada Poultry Pty Ltd v The Queen show that the decision has not altered the understanding of this area of the law which was declared in Weiss v The Queen, as summarised at [170] – [174] above.
The error in ground 1 in the present appeal is of the same essential nature as that which occurred in Baiada Poultry Pty Ltd v The Queen. The failure to direct the jury before whom the appellant was tried that they had to be unanimous as to which if any of the acts alleged against him had been proved is a defect within the class referred to at [31] in the judgment of the plurality, to which the proviso “could seldom be applied”.
Rejection of a “taxonomy” of appellable errors appears to have led the plurality to propound that the question whether the proviso should be applied could be answered by the appellate court forming a conclusion whether the charge was proved beyond reasonable doubt even where the successful appeal ground was a failure to direct the jury on a contested factual issue critical to an element of the offence – that is, error going to the root of the trial. This appears in the following further passages of the judgment:

“[35]   The Court of Appeal could conclude (as the majority did) that [the relevant contested fact] was proved beyond reasonable doubt … only if it was not open to a jury to conclude to the contrary. If it was open to a jury to reach a contrary conclusion, the point was not established beyond reasonable doubt. In particular, if it was open to a jury to conclude that [the contested fact] had not been proved beyond reasonable doubt … , it was open to a jury to acquit.
[36]   All members of the Court of Appeal agreed that the jury should have been instructed to consider the issue of reasonable practicability. And a direction of that kind was necessary only if the issue was a live issue at the trial – an issue which it was necessary for the jury to consider before returning its verdict: Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 at 466. The conclusion reached by the majority in the Court of Appeal – that the evidence established beyond reasonable doubt [the reasonable practicability of instruction of the subcontractor] – was inconsistent with the conclusion that the issue whether the prosecution had established this element beyond reasonable doubt was one which should have been put to the jury for its decision. … It may also be accepted that the evidence led at trial permitted the jury to conclude beyond reasonable doubt that it was reasonably practicable for Baiada to take steps to ensure compliance with instructions [issued to its subcontractor]. But the evidence led at trial did not compel that conclusion.
…
[39]   It was, therefore, not open to the Court of Appeal to conclude from the record of the trial that the charge laid against Baiada was proved beyond reasonable doubt. Because the majority in the Court of Appeal were wrong to reach the conclusion that the evidence led at trial proved the guilt of Baiada beyond reasonable doubt, the proviso could not be engaged. The Court of Appeal could not be satisfied that no substantial miscarriage of justice had actually occurred.” [Emphasis in italics added.]

These paragraphs incorporate the following concepts:

in [35], that an appellate court may determine “it was not open to the jury to conclude to the contrary” of a fact, critical to an element of the offence, having been proved beyond reasonable doubt and

in [36], that there is inconsistency between, on the one hand, a conclusion of an appellate court that a fact was proved beyond reasonable doubt and, on the other hand, a conclusion that a live issue about the fact was properly left to the jury.

These concepts appear to assume, or to have as a necessary corollary, that a jury may be directed to find that a contested fact critical to an element has been proved beyond reasonable doubt and/or to return a verdict of guilty. Of course a jury cannot be so directed and their Honours cannot have intended to say that they can. It is always open to a jury to have a reasonable doubt and to acquit, even on a Crown case which an appellate court may consider overwhelming. This creates a difficulty for an intermediate appellate court endeavouring to give effect to [35] and [36] of the plurality’s judgment in a case where a decision has to be made about application of the proviso to an error at trial constituted by failure properly to leave the factual issues on an element of the offence for the jury’s unanimous determination.
I consider the clearer and safer course in the present case is to apply their Honours’ reasoning at [31] – [32], as I have sought to do at [182] – [185] above. This is consistent also with Weiss v The Queen (see [173] – [174] above), with Wilde v The Queen (see [157] – [159] above) and with McHugh J’s judgment in Krakouer v The Queen (see [165] – [168] above). Within the frame of reference of McHugh J’s articulation of the principles, the learned trial judge’s error in ground 1 of the present appeal concerned “the function of the jury”. Namely, to decide unanimously each element of the charge.
Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 was an appeal from the Victorian Court of Appeal. It was governed by an amended criminal appeal provision which, rather than incorporating a proviso, specified two of three available categories of appeal grounds in terms which required that it be shown by the appellant “there has been a substantial miscarriage of justice”. The Court said at [30] that the Court of Appeal’s satisfaction that a finding of guilt was inevitable was relevant to determining whether there had been a substantial miscarriage of justice “but will not in every case conclude the issue”. At [32] the court said:

[32] … “If it is said that a guilty verdict was inevitable (which is to say a verdict of acquittal was not open), the Court of Appeal must decide that question on the written record of the trial with ‘the natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record. That the jury returned a guilty verdict may, in appropriate cases, bear upon the question. But, at least in cases like the present where evidence has wrongly been admitted at trial and cases where evidence has wrongly been excluded, the Court of Appeal could not fail to be satisfied that there has been a substantial miscarriage of justice unless it determines that it was not open to the jury to entertain doubt as to guilt. Otherwise, there has been a substantial miscarriage of justice because the result of the trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made.” [Emphasis added, footnotes omitted.]

In this paragraph the words emphasised give rise to the difficulty of application adverted to at [186] – [188] above. As Baini v The Queen was not concerned with the common form of criminal appeal provision with proviso, as in force in New South Wales, this decision is not directly applicable to the present appeal and does not require a different approach from that which I have proposed at [189].

Conclusion

It is understandable that the trial judge should have fallen into the error identified in ground 1. The Crown significantly changed its case in closing. The prosecutor appears not to have appreciated the significance of the change for the way in which the jury would have to be directed to decide factual issues regarding the expanded actus reus. This is apparent from the imprecise terms in which the Crown case regarding the appellant’s “willed acts” was articulated in final address and from the failure of the prosecutor to ask the trial judge to revise his MFI 11 directions and/or to redirect.
The Crown’s change of case was, with respect, ill-advised. The evidence of a willed act by the appellant causative of the first fall was very much weaker than that in support of the punch which caused the second fall. If the Crown could not satisfy the jury regarding the punch it would not likely satisfy them regarding causation of the first fall. Reliance upon the first fall was forensically pointless. Certainly the Crown did not need to attribute to the appellant criminal responsibility for the first strike of the deceased’s head on the roadway in order to make out its case on cause of death, in medical terms. It was not in issue that the second impact was a significant or substantial cause of death. That was enough to secure a guilty verdict if the other elements of the offence were proved: Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27; R v Puckeridge [1999] HCA 68; (1999) 74 ALJR 373; R v Moffatt [2000] NSWCCA 174; 112 A Crim R 201.
The error identified in ground 1 denied the appellant a trial by jury according to law of the charge against him. There is no occasion for this Court to examine the entire trial record or to reach its own conclusion whether the appellant’s guilt of manslaughter was proved beyond reasonable doubt. Even if that conclusion should be reached I consider it clear that “a substantial miscarriage of justice has actually occurred” and that the proviso should not be applied. I would extend time and grant leave to appeal so far as necessary to enable ground 1 to be determined, allow the appeal on ground 1, quash the conviction and order a new trial.

**********

Amendments

22 March 2017 - [112] - reference to 'Court of Criminal Appeal' amended to 'Court of Appeal'

[136] - cross-referencing amended

[166] - grammatical correction made

[188] - grammatical correction made

17 April 2018 -

[129], last line: delete [129] substitute [127]

[189]: delete [21] - [22] substitute [31] - [32]

Decision last updated: 17 April 2018

Medium Neutral Citation:	Lane v R [2017] NSWCCA 46
Hearing dates:	21 October 2016
Date of orders:	22 March 2017
Decision date:	22 March 2017
Before:	Meagher JA at [1]; Davies J at [1]; Fagan J at [107]
Decision:	1. The time for the appellant to give notice of the appeal on grounds 1, 2 and 3 be extended to 5pm on 17 June 2016. 2. The time for the appellant to give notice of the appeal on ground 4 be extended to 5pm on 18 October 2016. 3. Grant the appellant leave to appeal on grounds 1 and 4. 4. Dismiss the appeal against conviction on grounds 1, 2, 3 and 4.
Catchwords:	CRIME – conviction appeal – manslaughter – where two separate acts of the appellant relied on as constituting the voluntary act causing death – whether trial judge erred in not directing jury that they could not convict unless they were unanimous as to the voluntary act or acts which resulted in their verdict – whether proviso in s 6(1) of Criminal Appeal Act 1912 (NSW) applicable CRIME – conviction appeal – manslaughter – where references by Crown before jury to “king hit” offence and where handwritten material found in jury room at conclusion of trial which urged the stopping of “coward” punches – whether “miscarriage of justice” within third limb of s 6(1) – whether reasonable basis for apprehending that the jury or a juror had not discharged task impartially CRIME – conviction appeal – manslaughter – where note containing extracts of dictionary definitions including “murder” and “manslaughter” found in jury room at conclusion of trial – whether miscarriage of justice – whether reasonable basis for apprehending that a juror had not considered the evidence and the charges made in accordance with the directions of the trial judge CRIME – conviction appeal – manslaughter – written directions to jury including “question trail” – whether formulation of questions relating to self-defence confusing and reversed or distorted onus of proof EVIDENCE – criminal appeal – exclusionary rule of evidence as to deliberations of jury – Evidence Act 1995 (NSW) s 9(2) – whether evidence as to provenance of notes and writing on magazines covers, and whether they came to the attention of jurors, admissible
Legislation Cited:	Crimes Act 1900 (NSW), ss 18(2), 419, 421 Criminal Appeal Act 1912 (NSW), s 6(1) Criminal Appeal Rules, rr 4, 25A Criminal Code 1899 (Qld) Evidence Act 1995 (NSW), s 9(2) Jury Act 1977 (NSW), s 73A
Cases Cited:	AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 Attorney General’s Reference (No 4 of 1980) [1981] 1 WLR 705 Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 Castle v The Queen [2016] HCA 46; 91 ALJR 93 Chapman v R [2013] NSWCCA 91; 232 A Crim R 500 Cramp v The Queen (1999) 110 A Crim R 198 Doney v The Queen (1990) 171 CLR 207 Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59 Fermanis v The State of Western Australia (2007) 33 WAR 434; [2007] WASCA 84 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Hadchiti v R [2016] NSWCCA 63 KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54 Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16 Magnus v The Queen (2013) 41 VR 612; [2013] VSCA 163 Moore v R [2016] NSWCCA 185 Moore v The Queen [2016] HCASL 323 Mraz v The Queen (1955) 93 CLR 493 Pratten v R [2014] NSWCCA 117 Quartermaine v The Queen (1980) 143 CLR 595 R v Boreman [2000] 1 All ER 307 R v Emmett (1988) 14 NSWLR 327 R v K (2003) 59 NSWLR 431; [2003] NSWCCA 406 R v Klamo (2008) 18 VR 644; [2008] VSCA 75 R v Dally [2000] NSWCCA 162; 115 A Crim R 582 R v Marsland (NSWCCA, 17 July 1991, unrep) R v Mead [2002] 1 NZLR 594 R v Medici (1995) 79 A Crim R 582 R v Moffatt [2000] NSWCCA 174; 112 A Crim R 201 R v More [1987] 1 WLR 1578 R v PL [2009] NSWCCA 256; 199 A Crim R 199 R v Puckeridge [1999] HCA 68; (1999) 74 ALJR 373 R v R (1989) 18 NSWLR 74 R v Smith [1997] 1 Crim App R 14 R v Walsh [2002] VSCA 98; 131 A Crim R 299 Royall v The Queen (1991) 172 CLR 378 Smith v State of Western Australia (2014) 250 CLR 473; [2014] HCA 3 Webb v The Queen (1994) 181 CLR 41 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Wells v The Queen (1994) 181 CLR 41 Wilde v The Queen (1987) 164 CLR 565 Wilson v The Queen [2016] VSCA 62
Category:	Principal judgment
Parties:	Paul Ian Lane (appellant) Crown (respondent)
Representation:	Counsel: S Buchen with M Burke (appellant) N Williams (Crown) Solicitors: S E O’Connor for Legal Aid (appellant) C Hyland Solicitor for Public Prosecutions (Crown)
File Number(s):	2012/289582
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Criminal Citation: 2015 NSWSC 50 2015 NSWSC 118 Date of Decision: 27 February 2015 Before: Campbell J File Number(s): 2012/289582