R v Burns - [2009] SASC 105

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BURNS
[2009] SASC 105
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kourakis)
21 April 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - DIRECTION TO JURY
Appeal against conviction - defendant convicted by unanimous jury in District Court, of offence of unlawfully causing harm with intent to cause harm contrary to section 24(1) of Criminal Law Consolidation Act 1935 (SA) - whether trial Judge erred in direction regarding burden of proof concerning self defence - whether trial Judge erred in direction in relation to flight as evidence of guilty - whether trial Judge erred in directions concerning use jury could make of conversation between defendant and de facto partner - whether miscarriage of justice occurred.
Held: appeal against conviction allowed - risk of miscarriage of justice - real risk that jury may have misunderstood where onus of proof lay on issue of self defence - misdirection of some substance in relation to flight as evidence of guilt - conviction set aside - remitted to District Court for retrial.
Criminal Law Consolidation Act 1935 (SA) s 24(1) and s 353, referred to.
R v Petroff (1980) 2 A Crim R 101; R v Dunn (2006) 94 SASR 177; R v Baltensberger (2004) 90 SASR 129; R v Dickson (1983) 1 VR 227; R v Melrose (1989) 1 Qd R 572; R v Power (1996) 87 A Crim R 407; Re Knowles [1984] VR 751; Weiss v The Queen (2005) 80 ALJR 444; Libke v R (2007) 230 CLR 559; Mraz v R (1955) 93 CLR 493; Stokes v R (1960) 105 CLR 279; R v Bourke [2003] QCA 113; R v Radford (1986) 133 LSJS 110; People v Galbo 218 NY 283, 112 NE 1041 (1916); Shepherd v The Queen (1990) 170 CLR 573; Edwards v The Queen (1993) 178 CLR 193; R v White (1988) 125 C.C.C. (3d) 385; R v Kanaan (2005) 157 A Crim R 238 at 279; R v Franklin (2001) 3 VR 9; R v Chang (2003) 7 VR 236; R v Mazur (2003) 113 A Crim R 67; Zoneff v The Queen (2000) 200 CLR 234, considered.

R v BURNS
[2009] SASC 105
Court of Criminal Appeal Gray, Sulan and Kourakis JJ
GRAY and SULAN JJ

This is an appeal against conviction.
Raymond Alexander Burns was charged with the offence of unlawfully causing harm with intent to cause harm contrary to section 24(1) of the Criminal Law Consolidation Act 1935 (SA).[1] It was alleged that, on 13 August 2006 at Elizabeth North, he caused harm to Leonard William Evans intending to cause him harm. The defendant was convicted by unanimous jury verdict following a trial in the District Court.
[1]    24—Causing harm
(1)A person who causes harm to another, intending to cause harm, is guilty of an offence.
Maximum penalty:
(a)    for a basic offence—imprisonment for 10 years;
(b)    for an aggravated offence—imprisonment for 13 years.
A number of grounds of appeal have been advanced. It is contended that the trial Judge erred in his direction with respect to the burden of proof concerning self-defence; erred in his direction in relation to flight as evidence of guilt and erred in directions concerning the use the jury could make of a conversation between the accused and his de facto partner.
Finally it was said that a risk of a miscarriage of justice had arisen as a result of an error made by the defence counsel with respect to the admissibility of evidence. It was claimed that there was a body of evidence relevant to the defendant’s state of mind concerning the propensity to violence of the alleged victim. Fresh evidence was also sought to be introduced on this topic on the hearing of the appeal. The fresh evidence related to alleged conduct by the victim threatening violence to the defendant and his de facto partner.
On 11 March 2009 the Court made orders allowing this appeal, setting aside the conviction and sentence and remitting the matter for re‑trial. We now provide our reasons for those orders.
The prosecution case at trial was that the defendant engaged in a deliberate and vicious attack on the complainant. It was said that the defendant had struck heavy blows to the head and face of the complainant and that the defendant forcefully kicked the complainant in the face when he fell to the ground. The defence case was that the defendant had struck the complainant a number of blows to the head but that he had acted in self-defence. He denied kicking the complainant at any time.
Early in his summing up the trial Judge summarised the evidence about the punches and kick in the following terms:
Mr Evans [the complainant] said that the accused punched him more than once and was still hitting him when he was on the ground. He did not recall much else and said he probably lost consciousness at some stage. He next remembered being at the police station and then at the Lyell McEwen Hospital.
Mr Madden told you that he saw the accused punch Lennie Evans after having put something in his right hand that looked to be some keys. He hit Lennie with his right hand. It was a powerful hit that opened Lennie up across the top of an eye. Lennie fell back and got another couple of hits. The hits were mainly to Lennie’s face. When Lennie stopped defending himself, the accused kicked Lennie across the face with a devastating big kick.
The accused told you that he punched Lennie Evans to his face three times – bang, bang, bang. He said that he did not strike him more than three times with his fist, nor did he kick Lennie Evans. He said he only punched Lennie Evans three times when Lennie Evans was standing up.
Mr Bowden told you that he saw the accused hit Leonard a few times with his fist, three or four times, he was not quite sure. That was to the side of Lennie’s face. He said to the right side.
So, in this case, you have a number of witnesses who said that the accused struck Lennie Evans to his head at least three times with his fist. The accused’s evidence was that he had struck Lennie Evans three times – bang, bang, bang – and in doing so, he gave it everything he had. The accused said that he thought that if he just knocked Lennie out, such that Evans let him go and he was on the ground, there would be no more. You also have the other evidence, denied by the accused, that when Lennie Evans was on the ground and not defending himself, the accused gave him a devastating kick across his face, causing his body to move. Mr Bowden told you that he did not see a kick.
Later in his summing up the Judge returned to discuss the evidence of each of the witnesses and of the defendant in more detail.
The Appeal
Self-Defence
The substantive defence at trial was self-defence. It was said that the Crown had not proved that the defendant was not acting in self-defence. As a consequence it is necessary to examine the relevant parts of the Judge’s summing up in some detail.
On the hearing of the appeal it was complained that the Judge’s directions concerning self-defence were confusing and that a number of those directions reversed the onus of proof. It was accepted that at times the Judge directed the jury that the Crown carried the onus of disproving the defence but it was said that those directions did not overcome the risk of a miscarriage of justice arising from other statements made by the Judge that were said to have reversed the onus of proof.
Early in his summing up the trial Judge directed the jury:
Accused persons come to this court with a presumption of innocence in their favour. The law regards them as innocent unless their guilt has been proved to the satisfaction of you, the jury, beyond reasonable doubt. The burden of proving a particular charge lies wholly upon the Crown. An accused person does not have to prove anything. If an accused person puts forward a defence, he or she does not have to prove it.
Furthermore, nothing short of proof by the Crown beyond reasonable doubt will do. It is not enough for the Crown to show a mere suspicion of guilt, or to show than an accused person is probably guilty. In this case, the accused is not to be convicted of the charge against him unless his guilt has been proved to your satisfaction beyond reasonable doubt.
Furthermore, the requirement of proof beyond reasonable doubt extends to each and every element of the offence. You cannot convict the accused so long as you have any reasonable doubt as to any essential element of the crime charged against him. If, at the end of the case, you are left with a reasonable doubt about his guilt, then you must give him the benefit of that doubt and find him not guilty.
When addressing self-defence, the Judge made reference to a written memorandum that he proposed to make available to the jury:
At the end of my summing up to you you will each be given a memorandum that I have prepared for your assistance about self‑defence. The memorandum will state in writing what I am about to say to you about self‑defence. In his address to you Mr Crowe submitted to you what self-defence was. He did so in terms that were the most simple and straightforward that I have heard on this topic. The law regarding self-defence is not simple to state and to follow. I think that it will be made more simple and straightforward to you if you have a written document to which you may refer from time to time during your deliberations, rather than trying to remember precisely what I now say to you.
In the summing up, having discussed aspects of the defence, the Judge continued:
It is important for you to appreciate, and I therefore stress, that a person raising self‑defence is not required to prove that he was acting in self-defence. The onus remains on the prosecution at all times to negative the possibility. The defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
That completes my direction on the third element, the question of self‑defence, and that will be the subject of the memorandum which will be given to you just before you retire.
Toward the end of the summing up the Judge returned to the question of self‑defence:
I remind you that the defence case is that you should not be satisfied that the Crown has proved that the accused committed the offence charged because, in particular, the Crown has not proved that the accused was not acting in self-defence when he struck Mr Evans to the head with his fist, or when he kicked him to the head, if you are satisfied that he did.
It is convenient at this time to turn to the written memorandum provided to the jury. That document was in the following terms:
Memorandum for the jury about self-defence
The law provides that the accused does not commit the crime charged if the prosecution fails to exclude as a reasonable possibility:-
1.That he genuinely believed that the conduct to which the charge relates was necessary and reasonable to defend himself;
AND
2.That the conduct was, in the circumstances as the accused genuinely believed them to be, reasonably proportionate to the threat that the accused genuinely believed to exist.
Question 1
“At the time when he punched Lennie Evans is it at least reasonably possible that Mr Burns genuinely believed that it was necessary and reasonable to do so in order to defend himself?”
[In answering this question you must consider what Mr Burns himself genuinely believed was necessary and reasonable to defend himself in all the circumstances in which he found himself. You do not answer this question by considering what some imaginary reasonable person would have believed. This stage of enquiry is concerned with Mr Burns’ own belief, given the actual situation in which he was at the time.]
If the answer to this question is “No”, then the question of self-defence disappears from the trial.
If the answer to this question is “Yes”, then you must go on to consider Question 2.
Question 2
“Has the prosecution excluded as a reasonable possibility that Mr Burns’ conduct, in the circumstances as he genuinely believed them to be, was reasonably proportionate to the threat that Mr Burns genuinely believed to exist?”
[In answering this question you must consider:
(a)The belief of Mr Burns as to the circumstances in which he found himself.
(b)Then apply your assessment as a jury (and not that of Mr Burns) as to whether the conduct was, or was not, reasonably proportionate to the threat which he genuinely believed he faced.]
If the answer to this question is “No”, then the prosecution has failed to prove its case against Mr Burns and your verdict should be not guilty.
If the answer to this question is “Yes”, then your verdict should be guilty, assuming all other matters are proved beyond reasonably doubt.
These extracts from the summing up and the text of the written memorandum make it plain that the prosecution has the obligation and the onus to exclude the defence of self‑defence.
Counsel for the defendant complained, notwithstanding the foregoing, that the following passages from the summing up had the effect of reversing the onus of proof:
A person does not commit an offence if two circumstances exist. First, if that person genuinely believes that the conduct to which the charge relates was necessary and reasonable to defend himself, and secondly, that the conduct was, in the circumstances as the accused genuinely believed them to be, reasonably proportionate to the threat that the accused genuinely believed to exist.
As to the first requirement, to justify his actions the genuine belief of the person must extend both to the necessity and to the reasonableness of the conduct. There is a distinction between necessity and reasonableness, and to justify the accused’s actions, his genuine belief must extend both to the necessity and the reasonableness of his conduct.
You must recognise, of course, that a person defending himself cannot be expected to weigh precisely the exact amount of defensive conduct that is necessary and reasonable. The genuine belief which the law requires may be no more than an instinctive reaction to a critical situation.
In determining whether the accused genuinely believed that the force which you find he used was necessary and reasonable, regard must be had to any alternatives open to him. Could he have adequately defended himself by a mere threat to use force? Could he have safely avoided the attack or threatened attack by retreating? These, and all other relevant considerations, must be weighed by you in assessing the genuineness of the accused’s belief in the necessity and reasonableness of his actions. This first requirement is a purely subjective one. You are required to have regard only to the belief of the accused.
The second requirement, however, is partly subjective and partly objective. You are still required to have regard to the circumstances as the accused genuinely believed them to be, and you are required to have regard to the accused’s belief as to the existence of the threat. But, having done that, you are required to consider whether the accused’s conduct in those circumstances was reasonably proportionate to that threat. That is the objective part in the requirement. If a man is threatened by a kick to the shins, he is plainly not entitled to shoot the person threatening him. You are not expected to weigh on a knife edge the exact extent to which the conduct should be reasonably proportionate. Account must be taken of all of the circumstances as the accused genuinely believed them to exist at the time.
If he does no more than is reasonably proportionate to the threat that he genuinely believes to exist, then his conduct is lawful. If, in all the circumstances, though some measure of defence was warranted, he plainly overstepped the mark and his conduct was not reasonably proportionate to that threat, then what he did is unlawful.
In the course of summing up when dealing with self-defence the Judge directed the jury with respect to what he described as the two requirements giving rise to self-defence. Having discussed the elements of the defence, the trial Judge said:
The first requirement requires you to look at the accused’s state of mind and to ask the question: did he genuinely believe that his conduct was necessary and reasonable to defend himself?
The second requirement requires you to look at the accused’s conduct in the circumstances as he genuinely believed them to be and to ask the question: was the accused’s conduct reasonably proportionate to the threat that he genuinely believed to exist?
The problem with this direction is that the wrong questions are posed for the jury’s consideration. In regard to the first requirement, the correct question is for the jury to consider whether it is at least possible that the defendant genuinely believed that it was necessary and reasonable to punch the other party in order to defend himself. Another way of posing the question is to ask whether the prosecution has excluded as a reasonable possibility that the defendant genuinely believed that it was necessary and reasonable for him to so act in order to defend himself.
The second requirement is also to be addressed in the same way – has the prosecution excluded as a reasonable possibility that the defendant’s conduct in the circumstances as he genuinely believed them to be, was reasonably proportionate to the threat that the defendant believed to exist?
In our view in the present proceedings, there is a real risk that the jury may have misunderstood where the onus of proof lay on the issue of self-defence. We consider that the references by the trial Judge to the onus resting on the prosecution to disprove the defence of self-defence were insufficient to adequately guard against the risk of a miscarriage of justice.
The written memorandum
The point can be illustrated by comparing the Judge’s oral summing up in the above respects with the terms of the written memorandum. The memorandum posed the questions correctly.
The use of written directions was discussed in Petroff,[2] in the New South Wales Court of Criminal Appeal. The case involved complex directions about self-defence. It was submitted that the use of a written direction was a radical departure from practice and, as such, was a fundamental breach of the proper conduct of a criminal trial. Nagel CJ at Common Law, with whom Street CJ agreed, observed:[3]
However, in my opinion it is not correct to assert that a trial judge is debarred from using a written document in expounding in his summing up matters of law to a jury, or to embody in written form the questions that it may be pertinent for them to consider, or the possible verdicts at which they may properly arrive.
Nagel CJ at Common Law observed that the use of a written document by a judge in summing up to a criminal jury had been the subject of previous decisions which had approved the practice.
[2] R v Petroff (1980) 2 A Crim R 101.
[3] R v Petroff (1980) 2 A Crim R 101 at 113.
It should be noted, however, that the written document is not in lieu of the oral directions a judge is required to give to a jury. The document is not to be used as a substitute for the detailed oral directions. It is to be used as an aide memoire which may assist the jury to recall the various steps which they might follow in arriving at a proper verdict.

This court in Dunn[4] considered the use of written directions to the jury. Bleby J, with whom Sulan and White JJ agreed, observed that judges are becoming increasingly aware of the benefit of various aids which assist communication of their directions to juries. Bleby J observed that judges should not be discouraged from using aids to assist juries to understand what may be complex oral directions.
[4] R v Dunn (2006) 94 SASR 177.
Ultimately it is the oral directions of the judge which must prevail. It is incumbent upon a trial judge to direct the jury orally and, if the trial judge uses a written direction or other aid, it is to be used to assist the jury to understand the oral directions. For example, handing the jury a document setting out the elements of the offence, without directing the jury about the elements of the offence and relating them to the evidence presented at trial, would amount to a misdirection.
Bleby J observed in Dunn:[5]
The use of written directions as an aid to a judge’s oral summing up is now commonplace. It is particularly helpful where a direction on the law is complicated, such as a direction on self-defence, or where there are a number of possible alternative verdicts to be considered by the jury. Although they are commonplace, appellate courts have stressed the limitations associated with their use. No court has held that they can be used as a substitute for oral directions. They are to be used in conjunction with and by way of supplement to oral directions.
Their use was first considered by this Court in R v Radford[6] where King CJ said:[7]
The right of a trial judge, in his discretion, to provide a jury with written directions to supplement his summing up, has been recognised and approved in the Supreme Court of Victoria, R v Hughes (1981) 7 ACR 51; R v Wilson (1985) 17 ACR 359; R v Zikovic (1985) 17 ACR 396. I see no reason to doubt the correctness of that view. It is a right which should, in my view, be exercised sparingly, and only where it appears to be necessary to meet the special needs of a particular case. I agree with the views expressed on this point in the cases cited above and also in the Court of Criminal Appeal of New South Wales in R v Petroff (1980) 2 ACR 101. Where a judge decides to make use of written directions, I think that they should be confined to setting out alternative verdicts which might be open to the jury and key directions on questions of law. The temptation to indulge in theoretical expositions of the law should be firmly resisted and the directions should be restricted to directions which directly relate to the facts and issues in the particular case. Juries consist of individuals of varying degrees of education and varying capacities to master the written word. They have no training in the law and the dangers of misunderstanding written expositions of the law are considerable. Generally speaking a clear oral explanation directly related to the facts and issues in the case is more suited to the needs of a jury than a document setting out the law. Nevertheless it is for the trial judge, not the appellate court, to decide how the directions should be given and, so long as there is no inaccuracy and no tendency to produce a miscarriage of justice, an appellate court will not interfere.
[5]    R v Dunn (2006) 94 SASR 177 at [36]-[43]. (Footnotes omitted)
[6]    R v Radford (1986) 133 LSJS 110.
[7]    R v Radford (1986) 133 LSJS 110 AT 117. See also Olsson J at 137-138.
Radford’s case was decided some 20 years ago. Since that time, there have been numerous legislative enactments creating new offences. For example, the offence of breaking and entering and larceny, which required a relatively straightforward direction to the jury, has been replaced by the offence of serious criminal trespass. There are a variety of additional elements to that offence, including matters of aggravation, which have added to the directions required to be given. There are a number of alternate verdicts that may be open and must be considered by a jury.
Similarly, certain defences are now governed by statute. Self-defence and intoxication, for example, require complex directions. Further, it has now become a practice for the Director of Public Prosecutions to charge a number of alternative counts on an information. The jury is faced with applying complex legal directions to the facts which, in the past, did not exist to the extent that they do today. Written directions, properly used, will assist juries in their deliberations. It follows that it is desirable to assist juries with written directions in many cases.
The difficulty that results if the oral and written directions are not consistent was considered in Baltensberger.[8] Gray J, with whom Doyle CJ and Bleby J agreed, said:[9]
When a trial Judge provides a written memorandum detailing the elements of the offence, it is important when giving additional oral directions that care is taken not to use terminology departing to any material degree from the terms of the written memorandum. The use of different language may create confusion.
[8] R v Baltensberger (2004) 90 SASR 129.
[9] R v Baltensberger (2004) 90 SASR 129 at [66].
In the present proceeding the questions posed orally in the summing up were the wrong questions. Even though the questions were correctly stated in the written direction, they were not in the oral directions and the inconsistency between the two may have led to confusion.
It is not possible to determine which questions the jury considered when arriving at its verdicts. If the jury followed the oral directions they were misled. There is a risk that they applied an incorrect onus of proof with the consequent risk of a miscarriage of justice.
It is to be recognised that there may be a difficulty when addressing aspects of a defence case for a judge in summing up to avoid using words that might infer some form of onus resting with a defendant. This difficulty may arise when addressing self-defence. That problem is well recognised and can be addressed either by sufficient or explicit directions about the onus of proof resting on the prosecution. Any remaining problems may be overcome by pointing out to the jury that language can be ambiguous but that at all times they must understand that the burden of proof rests on the Crown.
Flight
It was the prosecution case that following the incident the defendant ran from the scene. It was contended that this was evidence of flight and evidence of consciousness of guilt. It was not in dispute that the defendant had fled from the scene.
The Judge gave the following direction to the jury:
I now give you a direction concerning the evidence that the accused fled or ran away from the scene where the incident occurred. What, if any, significance is to be attached to his flight as evidence of his guilt?
Evidence that indicates a consciousness of guilt on the part of an accused person may be some evidence of his guilt. Before you can use the evidence in the present case in that way, you must be satisfied that the accused did in fact flee, and that his action in doing so is not explicable on some basis other than flight. You must also be satisfied that his flight was referable in his mind to the offence with which he is charged. In this case this means that you must be satisfied that his flight was referable to a genuine belief in his mind that his conduct to which the charge relates was necessary and reasonable to defend him.
Sometimes flight is explicable by a desire to escape the consequences of some other wrongdoing, or has some other explanation unrelated to the offence charged. If, however, you are satisfied about those matters to which I referred, you may, if you see fit, treat the flight as some indication of a consciousness on the part of the accused of his guilt of the offence charged and therefore is [sic] some evidence of his guilt.
There may, of course, be other explanations, such as fear of being wrongly accused. I have referred to the accused’s evidence as to why he ran away. He said that he did not know why he ran. He referred to confusion, his not knowing what to do, how to respond, how to react. He said that he was a bit dumbfounded and freaked out.
[emphasis added]
On the hearing of the appeal it was complained that the Judge erred in his direction that evidence of flight was capable of establishing consciousness of guilt. It was submitted that the evidence of flight was simply that the defendant ran away while the other two persons with him left the scene in a car. The defendant gave an explanation for leaving. It was said that the defendant acted in self-defence and wished to leave the scene. At the very least it was said that the evidence of flight was ambiguous and capable of an innocent explanation.
It was further submitted that the direction referred to above and in particular:
Before you can use the evidence in the present in that way, you must be satisfied that the accused did in fact flee, and that his action in doing so is not explicable on some basis other than flight
was a misdirection.
It is well settled that evidence of flight is admissible as showing a consciousness of guilt.[10] In Power[11] Doyle CJ summarised the legal position:
There is adequate authority to support the view that evidence of flight (and I use this term compendiously to describe the whole of the evidence, because in my opinion it is all interrelated) is admissible as showing a consciousness of guilt: see, eg, Melrose [1989] 1 Qd R 572; (1987) 30 ACrimR 332. It will not be often in such cases that the evidence is unequivocally indicative of guilt. There may, I suppose, be cases in which the evidence is intractably neutral, but I fail to see how the evidence in this case can be so regarded. Of course, the explanation advanced by the appellants was not a ludicrous or obviously false one, but to my mind that does not render the evidence incapable of supplying proof or evidence of guilt. If it did, then much circumstantial evidence which is routinely admitted would be rejected. In my opinion, the ruling by White J, reported in Bridgman (1980) 24 SASR 278, is not to be taken as meaning that evidence of flight is inadmissible simply because a credible explanation is advanced. In my opinion, the approach to be taken is that indicated by Sheperdson J in Melrose (at 579; 338-339) (assuming that the evidence is not intractably neutral):
"I would however say that in my opinion, when there is evidence of flight before a jury whether there be one or more than one reason advanced for that flight, the jury should be told that it is for them to decide on the whole of the evidence relevant to the charge in which evidence of flight has been admitted what inference is to be drawn from the accused person's flight but if at the end of the day they decide to infer a consciousness of guilt in the accused person for the offence alleged, they must be satisfied beyond reasonable doubt of such an inference."
[10] Wigmore on Evidence (3^rd Ed) at [276]; R v Dickson [1983] 1 VR 227; R v Melrose [1989] 1 Qd R 572; R v Power (1996) 87 A Crim R 407.
[11] R v Power (1996) 87 A Crim R 407 at 409.
Generally, the authorities dealing with flight have involved an accused fleeing the jurisdiction after he or she has been charged, and on occasions making use of false identity or other disguise. The present case was submitted to be entirely different as it involved the defendant leaving the scene of an altercation in which he claimed to have acted in self‑defence. On his own admission he had struck the other party but it was said the defendant might have been expected to be keen to leave the scene for his own safety, given the presence of associates of the other party.
The prosecution led evidence of flight from the scene. The defendant left on foot and his companions left in a motor vehicle. The defendant’s manner of leaving could be accepted as flight by the jury and it was possible to infer that it provided some evidence of guilt. It was open to the Judge as a matter of discretion to leave the evidence before the jury.
When directing the jury, the Judge was careful to point out that there may be explanations for flight other than a consciousness of guilt and the jury had to be satisfied that the flight was out of a consciousness of guilt in respect of the offence charged before they could make use of the evidence in a manner adverse to the accused. However, there is substance to the defendant’s submission that the trial Judge failed to adequately assist the jury with respect to their treatment of the evidence of the so-called flight. The jury should have been informed that a very ready explanation for the defendant leaving the scene was to seek to avoid retribution from the other party or his associates. Such conduct on the part of the defendant could result from fears for his own safety and not from any consciousness of guilt. The Judge did not address this issue at all and as a consequence there is a risk the jury may have misused the evidence with a consequent risk of a miscarriage of justice.
However, there is further difficulty with the summing up and it relates to the passage in the summing up emphasised earlier in these reasons. The Judge directed the jury that they needed to be satisfied that the accused’s flight was referable in his mind to the offence with which he is charged. The Judge then added:
In this case, this means that you must be satisfied that his flight was referable to a genuine belief in his mind that his conduct to which the charge relates was necessary and reasonable to defend him.
The Judge appears to have informed the jury that if he acted with a genuine belief that the defendant had been defending himself and then fled the scene that would be evidence of consciousness of guilt. This is an incorrect analysis of the position and is a misdirection of some substance. The direction should have made it clear to the jury that, if they were to consider the defendant leaving the scene as evidence of consciousness of guilt, they must be satisfied beyond reasonable doubt that when he left the scene he did so because he believed that he had committed the offence of assault, in circumstances in which he believed he had not acted in self-defence.
Hearsay
It was the defence case that the defendant had spoken to his de facto partner, Alicia, who had given him information that made him fear for his safety and led him to act in the way he did in the altercation. The trial Judge summarised the effect of this evidence to the jury in the following terms:
The accused told you that as he pulled into Jacko’s place Alicia phoned him and said that there were a couple of blokes next door knocking on the front door. He told Alicia to ask them what they want. There was then another phone call when Alicia told him that the bloke was saying that the accused had ripped him off and he was swinging a shovel head through the air. The accused asked Alicia to describe the man to him over the phone. When he [sic] did so he thought ‘It’s Lennie’. The accused told you ‘I didn’t really think anything by this stage but we were just pulling around the corner and they had just left, so things were calming down I thought’. He told you that Alicia had asked him to come back because ‘she was shitting herself’.
The Judge then directed the jury about the use they could make of that evidence in the following terms:
I direct you that the accused’s evidence of what Alicia said to him during this phone call must not be used by you as evidence of any of the facts of which Alicia said. It is certainly not to be used by you as evidence of the fact of what Alicia told the accused as to what Lennie Evans had told her. But none of that conversation can be used as evidence of the facts of the topics of what was said. It can only be used as evidence to explain what the accused then did and you may consider it when you are considering the mood of the accused.
On appeal it was complained that the Judge’s direction was entirely inadequate. It was said that the direction failed to point out that the evidence of Alicia’s statement to the defendant was significant and important evidence in relation to his belief as to the need for him to defend himself. The information received from Alicia had the capacity to colour the defendant’s view of the other party’s intentions. The defendant’s state of mind in this respect was a relevant matter for consideration by the jury when addressing self-defence.
The Judge’s direction is to be understood in context and in particular against the background of the submissions made by counsel. The Judge’s direction “that Alicia told him that the bloke was saying that the accused had ripped him off and he was swinging a shovel head through the air can only be used as evidence to explain what the accused then did and you may consider it when you are considering the mood of the accused” correctly identifies the relevance of the evidence. However, it is to be accepted that the Judge did not explicitly point out that it was relevant to the accused’s state of mind in the jury’s assessment of the defence of self‑defence.
Counsel’s error
Counsel for the defendant submits that the complainant gave evidence that he was acting impassively and had done nothing to justify the defendant assaulting him. He gave evidence that the complainant had been aggressive and that he had struck him in self-defence.
The defendant submits that it was relevant to his defence to establish that the complainant was not a passive person, and that he had an aggressive nature.
Counsel for the defendant relied on the decision in Knowles.[12] In that case, the defendant had been convicted of murder. The defendant asserted that the wound causing death had been caused accidentally. He claimed the deceased had an aggressive nature and had attacked him with a knife. She was stabbed in the course of a struggle. Counsel for the defendant had considered that evidence of a former partner of the deceased, that demonstrated that when she was intoxicated she became violent, was not admissible. As a consequence he had not investigated the evidence or led it at trial. A former husband of the deceased could have given evidence that the deceased was argumentative and aggressive during their marriage. The defendant’s representatives had not contacted her former husband. The defendant sought to have his conviction overturned on the ground that there had been a miscarriage of justice.
[12] R v Knowles [1984] VR 751.
The Victorian Full Court (Crockett, McGarvie and Gobbo JJ) allowed the appeal and ordered a new trial. The Court considered that the evidence of the witnesses would have placed a different complexion on the case. The evidence of the defendant that included allegations that the deceased was neurotic, had acted violently in the past, had threatened to harm the children and had tried to commit suicide, was relevant evidence. The Court observed:[13]
A comparison of the summary of the additional evidence with the petitioner’s evidence as to his knowledge of past violence and threats and what he says were the fears he entertained and which motivated his actions at the crucial moments discloses quite startling support for the petitioner’s case.
The evidence of Swaine and Saunders was evidence which went to the following matters – whether the deceased had initiated the fatal scene by appearing with a knife, whether she was acting in a threatening or belligerent manner, whether she was a person prone to sudden and unreasoning violence when affected by drink, whether in any struggle to take the knife away from her she would be likely to have resisted strongly and thus increased the risk of a fatal mishap and whether there was a risk that she would do injury to herself or to her children if the applicant simply left the premises.
All of these matters went to the facts in issue, namely whether the killing was an accident or whether it fell within the bounds of self-defence. The evidence of Swaine and Saunders was evidence of great significance and importance on these matters, which went to the critical issues in the case.
[13] R v Knowles [1984] VR 751 at 765.

Evidence of a victim’s conduct on other occasions may be relevant to a defendant’s defence of self-defence.
The defendant in the present proceeding submitted that evidence, which the defendant says would have assisted his contention that the complainant was not a passive victim of the defendant’s attack, was available, but counsel failed to adduce that evidence. The defendant filed an affidavit in which he deposed that he had told his counsel that, on 11 November 2006, he was almost run over by a green Hyundi motor vehicle. He took the registration number of the car and reported the incident to the police. The next day the same car, driven by the complainant, drove past the defendant’s home. The complainant yelled out, “I’m going to get you, you dog, you’re fucked”. The defendant photographed the complainant driving the car. He reported the incident to the police.
In April 2007, while the defendant was at a service station with a friend, the complainant pulled up and threatened him. In April 2008, during the trial, the complainant came to the defendant’s home and threatened the defendant and his family.
The partner of the defendant could have given evidence that she observed the complainant’s conduct at the service station in April 2007 when he threatened her and the defendant’s life. She was also present when the complainant threatened the defendant while the trial was progressing.
On 27 July 2008, when the defendant was visiting his friend, he observed the complainant drive by several times. He saw the complainant throwing rocks on to the roof of the house. Later that evening, the complainant reversed his car up the driveway of the house, alighted from the car and left bullet shells on the doorstep. That incident was reported to the police.
The defendant raised these incidents with his counsel, who advised him that they were irrelevant to the case. The defendant’s counsel at trial deposed in an affidavit that the defendant raised the incidents with him. He advised the defendant that if he cross-examined the complainant about them, it might result in the defendant placing his character in issue. He stated that he had not turned his mind to the question of whether the complainant’s conduct, as alleged, demonstrated an aggressive disposition on the part of the complainant to the defendant. He had not given consideration to the decision in Knowles’ case, nor had he advised his client about it.
Counsel for the defendant in the appeal submitted that the failure of counsel to consider the significance of the evidence, or to be aware of the decision in Knowles and therefore to advise the defendant about it, has led to a miscarriage of justice. Counsel submitted that, had counsel at trial been aware of the decision in Knowles and had he not mistakenly considered that cross-examining the complainant about the incidents referred to, could result in the defendant putting his character in issue, then he would have cross-examined the complainant. Counsel submitted that the evidence establishes that the complainant is not a “shrinking violet”, he is not passive, and that he has an unhealthy dislike of the defendant.
Counsel for the Director of Public Prosecutions submitted that the evidence was not admissible. He submitted that the case is distinguishable from Knowles in that the conduct of the complainant alleged to be relevant is all post-offence conduct. He submitted that there is no evidence of animosity and a propensity to violence towards the defendant or others prior to the incident.
Secondly, the Director submitted that, for evidence of this nature to be admissible, the evidence must have specific relevance to the specific facts in issue, and to the evidence. He submitted that, at its best, the evidence shows a propensity to threaten after the person has been involved in an altercation, and that this is not relevant to a fact in issue at the trial.
It is convenient to return to this topic later in these reasons.
The proviso
Section 353 of the Act provides that, notwithstanding that an error has been identified, if the Court considers that no substantial miscarriage of justice has actually occurred, the Court may dismiss the appeal. Section 353(1) is in the following terms:
The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
Counsel for the Director referred to the defendant’s evidence at trial. He referred to the defendant having alighted from his car and, prior to approaching the complainant, the defendant having given his wallet, telephone and cigarettes to a friend to hold. The altercation then took place. The defendant agreed that he punched the complainant as hard as he could on at least three occasions. Counsel submitted that the evidence of the defendant was fundamentally inconsistent with him acting in self-defence. He submitted that, in the circumstance, no substantial miscarriage of justice has occurred.
On appeal, it was said by the defendant’s counsel and accepted by the Director that counsel for the defendant at trial did not consider the admissibility of the evidence of the conduct of the complainant on the morning of the incident as well as subsequent conduct and whether it was directly relevant to the issue of self‑defence. Counsel for the Director acknowledged that the evidence was relevant and admissible on the issue of self-defence but said that the evidence was too vague and remote from the incident to be of any probative value.
In Weiss,[14] the High Court considered the application of the proviso. The Court observed that there were a number of decisions in which it had been debated whether, in considering the proviso, the Court was required to determine whether the jury hearing the case would have convicted, or whether the test is whether a reasonable jury in the circumstances would have convicted the appellant, notwithstanding the error. The Court observed that both approaches invited error. The Court drew attention to the words of the statute which requires an appellate court to decide the appeal and, therefore, in applying the proviso, the Court must decide whether, in its view, a substantial miscarriage of justice has actually occurred. In cases in which irregularity has been identified and the Court is of the view that, but for the proviso, the appeal should be allowed, the role of the appellate court is to decide whether a substantial miscarriage of justice has actually occurred. In considering the proviso, the task of the appellate court is to make its own judgment and determine if the evidence has established the defendant’s guilt beyond reasonable doubt.
[14] Weiss v The Queen (2005) 80 ALJR 444.
The appellate court’s task is to consider the record of the trial. The court must not speculate but, rather, it must consider all the evidence from the trial in making its determination. It can only decide that there has been no miscarriage of justice if it is persuaded that, on the admissible evidence, the defendant’s guilt has been proved beyond reasonable doubt.
There are cases in which it would be proper to allow the appeal, even when the appellate court is satisfied to the requisite standard required of the defendant’s guilt.
The High Court said it was not appropriate to set any universally applicable criterion as to when it is appropriate not to dismiss the appeal, even though the court is satisfied of the defendant’s guilt. The Court concluded:[15]
That an appellate court must review the whole record of trial when it is required to consider the application of the proviso may be said to tend to prolong appellate hearings and increase the burden on already overburdened intermediate appellate courts. The immediate answer to that proposition must be that it is what the common form criminal appeal provision requires. But no less importantly, the proviso, properly applied, will, in cases to which it is applicable, avoid the needless retrial of criminal proceedings. [footnote omitted]
[15] Weiss v The Queen (2005) 80 ALJR 444 at 455-456 [47].
In Libke,[16] Kirby and Callinan JJ considered the application of the proviso. The defendant had been found guilty of various sexual offences. The complainant was intellectually disabled. On appeal, the defendant complained about the conduct of the prosecution during his cross-examination which, it was submitted, resulted in an unfair trial and a miscarriage of justice. The Queensland Court of Appeal concluded that the conduct of the prosecution did not make the trial unfair. Gleeson CJ, Hayne and Heydon JJ dismissed the appeal. Hayne J was critical of the prosecution’s conduct, but concluded that in the circumstances the trial was not unfair. He concluded that there had been no miscarriage of justice. It was not necessary to consider the proviso. He said:[17]
None of the appellant’s grounds of appeal being made out, it is, of course, not necessary to go on to consider the application of the proviso. It is as well to emphasise, however, that the unanimous decision of this Court in Weiss v R warned against attempting to describe the operation of the statutory language in other words, lest such expressions mask the nature of the appellate court’s task in considering the application of the proviso. The Court expressly discountenanced any attempt to predict what a jury (whether the jury at trial, or some hypothetical future jury) would or might do. Rather, the Court said that “in applying the proviso, the task is to decide whether a ‘substantial miscarriage of justice has actually occurred’”. Unless, and until, a majority of this Court qualifies what is said in Weiss, the intermediate courts of Australia must continue to apply that decision. [footnotes omitted]
[16] Libke v The Queen (2007) 230 CLR 559.
[17] Libke v The Queen (2007) 230 CLR 559 at [115].
Heydon J concluded that there had been breaches of the exclusionary rule. Questions of the prosecutor had been argumentative, had rested upon controversial assumptions, were wild, uncontrolled and of an offensive character. The prosecutor had made comments, rather than asked questions. Heydon J concluded that taken as a whole, however, the breaches were such as not to justify a conclusion that the trial was unfair, nor that there had been a miscarriage of justice. Although he expressed strong disapproval of the prosecutor’s conduct, he concluded that there had been no miscarriage of justice.
Kirby and Callinan JJ took a contrary view. They were unable to conclude that the appellant had received a fair trial. They considered the application of the proviso. In so doing, they considered the decision in Weiss. They explained that Weiss must be interpreted and understood in the context of the precise issues presented for the Court’s determination in that case. They observed that, once it had been determined that an irregularity had occurred, it is not every case in which the Court will uphold the appeal. Once irregularity has been established, it is for the prosecution to satisfy the appellate court that such irregularity has not caused a miscarriage of justice. They referred to the earlier decisions of Mraz[18] and Stokes[19] and confirmed the principle that the proviso should only be applied if the prosecution can satisfy the appellate court that there is no real possibility that justice has miscarried.
[18] Mraz v The Queen (1955) 93 CLR 493.
[19] Stokes v R (1960) 105 CLR 279.
In considering that question, the appellate court is required to independently assess the evidence, making due allowance for the limitations applying to the appellate processes. Such limitations include the limited ability of the appellate court to assess the credibility of witnesses whom they have not heard or seen. The appellate court is not able to re-create the atmosphere of the trial and must be mindful that, in considering the evidence of witnesses whose accounts may be contradictory, it is difficult to resolve those contradictions simply by reading a witness’ evidence. That is not to say that an appellate court cannot resolve differences, but it should be cautious to make conclusions about a witness’ evidence when there is evidence which contradicts that witness, and the question then arises as to which witnesses’ evidence should be preferred. Kirby and Callinan JJ summarised the position as follows:[20]
Although it is the duty of an appellate court to decide, that is to say, satisfy itself that a substantial miscarriage of justice has occurred before allowing an appeal, it must do that against the background of the much broader discretion that it enjoys than a jury does, for they may only acquit or convict. An appellate court is not bound to decide the case finally. In weighing the possible impact of an irregularity, an appellate court will often be unable to determine whether there has been no substantial miscarriage of justice. In such a case the prosecution can be seen to have failed to establish that the proviso should be applied. This is why an appellate court may order a retrial, as we would do here.
We have undertaken for ourselves the exercise which Weiss reiterates should be undertaken. We have independently assessed the evidence, making due allowance for such natural limitations as apply to appellate processes. But in doing so, necessarily, we have had regard to the complexion that the evidence, counsel’s addresses and the trial judge’s summing up may well have assumed, by reason of the highly inappropriate remarks of the prosecutor, and more, the trial judge’s apparent silent approval of them.
In undertaking this exercise, we are not attempting to predict what a jury may or may not do, but simply to make it clear that we are not convinced that a substantial miscarriage of justice has not occurred.
Weiss is only part of the relevant law on the topic. What the law is presents a question for legal analysis of the relevant statute and of the several authorities which together bear upon it. Weiss was written against the background of, and should be read subject to, almost a century of elucidation of the language of the “proviso” in criminal appeal statutes. It certainly did not cast doubt on the existence of the forensic burden imposed on the prosecution to demonstrate innocuous harmless error once a mistake of law, or observance of the requirements of justice, or an irregularity has been proved to have occurred in a criminal trial. That is the position here. Weiss holds that in undertaking its assessment, the appellate court must keep in mind that the jury has returned a verdict of guilty. The relevance and force of that consideration are capable of immense variation according to the degree of irregularity in the conduct of the trial. [footnotes omitted]
[20] Libke v R (2007) 230 CLR 559 at [49] – [52].
More recently in Cesan[21] the High Court had occasion to reconsider the decision in Weiss. French CJ observed:[22]
[21] Cesan v The Queen [2008] HCA 52; (2008) 83 ALJR 43.
[22] Cesan v The Queen [2008] HCA 52; (2008) 83 ALJR 43 at [79]-[81].
Weiss is authority for the proposition that the question whether an appellant may have lost a fair chance of acquittal is one to be considered under the proviso. It is not a necessary condition of the conclusion that there has been a "miscarriage of justice" as that term is used in "the dragnet ground" in s 6(1). Observations about the necessity of such a condition have been made in earlier cases and must be seen in the light of the approach taken by the whole Court in Weiss.[23]
[23] Mraz v The Queen (1955) 93 CLR 493 at 513 per Fullagar J; Driscoll v The Queen (1977) 137 CLR 517 at 524-525, 51 ALJR 731 per Barwick CJ; R v Storey (1978) 140 CLR 364 at 376, 52 ALJR 737 per Barwick CJ; Wilde v The Queen (1988) 164 CLR 365 at 375-376, 62 ALJR 100 per Deane J; TKWJ v The Queen (2002) 212 CLR 124 at [25]-[26], 76 ALJR 1579 per Gaudron J.
The earlier case of TKWJ v The Queen[24] concerned a decision by defence counsel not to adduce evidence as to the good character of an accused nor to seek an advance ruling as to the admission of adverse evidence in response. There was no defect in the instructions to the jury nor in the procedures followed at trial. As Hayne J pointed out, the question of "miscarriage of justice" in that case directed attention to the result of the trial.[25] Counsel's decision was significant only if it affected the result of the trial. The case is not authority for the proposition that the loss of a chance of acquittal is a necessary condition of the existence of a miscarriage of justice.
[24] TKWJ v The Queen (2002) 212 CLR 124, 76 ALJR 1579.
[25] TKWJ v The Queen (2002) 212 CLR 124 at [103], 76 ALJR 1579.
Weiss involved the admission of irrelevant but prejudicial evidence. In that context the Court in Weiss defined the task of criminal appeal courts applying the proviso. The task so defined requires their consideration of the whole of the record to reach an independent conclusion on whether the appellant was guilty beyond reasonable doubt of the offence on which the impugned verdict has been reached. There may be cases, nevertheless, in which there is a process failure of such significance that, whatever the apparent weight of the evidence against the accused person, it cannot be said that there has not been a substantial miscarriage of justice. That may be because the process failure has deprived the appeal court of the capacity to assess whether the appellant may have lost a fair chance of an acquittal. That proposition is supported by dicta in Simic v The Queen.[26]
French CJ concluded:[27]
It could not be said in this case that there was no substantial miscarriage of justice within the meaning of the proviso to s 6(1). The judge's conduct had a discernible distracting effect on the jury. The reaction of some of the jury members raised a real question about the extent to which they would have attended to the evidence and accorded to the judge's directions the respect and attention they required. The Court of Criminal Appeal was in no position to assess these imponderables. The nature of the miscarriage of justice which occurred put such inquiry beyond its reach. Further, this is a case in which the miscarriage of justice was substantial because it created the appearance of injustice which could not be cured by the Court of Criminal Appeal forming the opinion that a reasonable jury would have convicted the appellants in any event.
However, notwithstanding the above observations, Hayne, Crennan and Kiefel JJ reaffirmed Weiss:[28]
In Weiss v The Queen,[29] the Court said that it was neither right nor useful to attempt to lay down absolute rules or singular tests to govern the application of the proviso beyond three fundamental propositions. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Second, that task is an objective task which is not materially different from other appellate tasks. Third, the standard of proof is the criminal standard. The Court rejected[30] the use of expressions, like loss of a real chance of acquittal, as substitutes for the statutory language. Rather, the Court held[31] that no single universally applicable description of what constitutes "no substantial miscarriage of justice" can be given.
…
In Weiss, the Court pointed out[32] that, in considering the application of the proviso, an 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" (emphasis in original). But in undertaking that task an appellate court must be conscious of the "natural limitations"[33] that exist in the case of an appellate court proceeding wholly or substantially on the record of the trial.[34]
In many cases where the proviso is to be considered, the fact that the jury returned a guilty verdict will indicate rejection of any explanation proffered by the accused in evidence. In the present cases, however, the relevant hypothesis is that the jury did not pay attention to all of the evidence led at trial. In particular, the jury was distracted when one of the two accused persons was giving his evidence. In those circumstances, it is not possible, in these cases, to place any weight upon the fact that the jury returned its verdicts of guilty.
[26] Simic v The Queen (1980) 144 CLR 319; 54 ALJR 406.
[27] Cesan v The Queen [2008] HCA 52; (2008) 83 ALJR 43 at [97].
[28] Cesan v The Queen [2008] HCA 52; (2008) 83 ALJR 43 at [123], [128]-[129].
[29] Weiss v The Queen (2005) 224 CLR 300 at [42]; 80 ALJR 444.
[30] Weiss v The Queen (2005) 224 CLR 300 at [33]; 80 ALJR 444.
[31] Weiss v The Queen (2005) 224 CLR 300 at [44]; 80 ALJR 444.
[32] Weiss v The Queen (2005) 224 CLR 300 at [43]; 80 ALJR 444.
[33] Dearman v Dearman (1908) 7 CLR 549 at 561.
[34] Weiss v The Queen (2005) 224 CLR 300 at [41]; 80 ALJR 444; Fox v Percy (2003) 214 CLR 118 at [23]; 77 ALJR 989.

In considering the evidence in the present case, counsel for the Director submitted that, on the defendant’s evidence alone, there was more than sufficient evidence for the jury to conclude that the defendant did not believe he was acting in self‑defence when he hit the complainant. In order to conclude that self-defence would fail and for this Court to dismiss the appeal, we must be satisfied that a substantial miscarriage of justice has not occurred.
We have considered the defendant’s evidence and the evidence of the witnesses who were called by the prosecution. The defendant gave inconsistent accounts about exactly what had occurred. Witnesses for the prosecution gave accounts that, if their evidence is believed and the description of what occurred given by the complainant is accepted, then the defence of self-defence must fail. Nevertheless, having considered all the evidence, we are unable to conclude that the prosecution has proved beyond reasonable doubt that the defendant did not act in self-defence. However, we are unable to conclude that, if the trial Judge had correctly directed the jury, it could not have influenced the result. For the foregoing reasons we would, therefore, allow the appeal.
Fresh Evidence
It is unnecessary for us to finally determine whether the failure of counsel to fully consider the relevance of the evidence has led to a miscarriage of justice, as we have concluded that the appeal must be allowed for the reasons stated earlier. We do not think it is appropriate to decide the question of the relevance of the evidence of post-offence conduct, as that will be a matter for the trial Judge and the trial Judge’s discretion upon the re-trial. If counsel seeks to cross-examine the complainant, or to lead the evidence of post‑offence conduct, then the trial Judge will be better placed to determine its admissibility. The question of whether, by cross-examining the complainant about the post-offence conduct, the cross-examination goes beyond credit and whether, as a consequence, the defendant has placed his character in issue are matters to be determined by the trial Judge.
For the reasons which have been given, it is unnecessary for us to consider whether the fresh evidence sought to be adduced before us should be received.
Conclusion
For the foregoing reasons, we allowed this appeal, set aside the conviction and remitted the matter to the District Court for retrial.
KOURAKIS J:
Written directions
The practice of providing a written note to a jury is now well accepted.[35] In R v Dunn[36] Bleby J said:
As the authorities to which I have referred show, it is a matter for the trial judge to decide how directions to a jury should be given. Judges are becoming increasingly aware of the benefit of written and technological aids in effective communication of their message to juries. I would not wish to discourage the wise and sensitive use of such aids. It may be that for a particular direction of some complexity a trial judge will wish to rely solely on the words written in an aide memoire without further elaboration. However, it would be an error merely to hand the written direction to the jury without more, without reading and perhaps repeating the words written down.
One cannot assume, even in our relatively well-educated society, that all jurors are literate, and judges should ever be alive to the reaction of members of the jury to a difficult direction and to the possible need of further explanation or repetition of it. More importantly, however, when a direction on the law of the nature of that in question is given, it is incumbent on the judge to ensure that the jury understands how that direction on the law relates to the facts, and to identify the evidence that is relevant to the application of that particular direction. That cannot be done merely by supplying the jury with a particular set of words comprising a direction on the law without relating that to the facts.
There may be some circumstances where a written memorandum may cure "minor verbal infelicities" in the judge's oral directions, but they cannot be used to cure a fundamental omission in the oral direction and on the assumption that the jury will properly relate that direction, without assistance, to the relevant facts.[37] (footnotes omitted)
[35] R v Dunn (2006) 94 SASR 177 at 185, [36].
[36] (2006) 94 SASR 177.
[37] R v Dunn (2006) 94 SASR 177 at 187, [41]-[43].
Nonetheless, it is a rule of common law that in a criminal trial the trial judge must give the jury oral directions. That rule has not been modified by judicial authority, nor has it been abrogated by statute. It is for that reason that a written communication to juries can be no more than an aide memoire.[38] In R v Petroff[39] Nagel CJ at CL held that the jury should be left under no misapprehension that a document provided to a jury was “any addition to or in lieu of the oral directions that they had been given”.[40] Similarly, in R v Bourke[41] Williams JA said:
Whilst it is clearly desirable that some express words to the effect that the document is not to be used in substitution for oral directions should be used, the real question will always be whether the jury were left under a misapprehension that the document was in addition to or in lieu of oral directions.[42]
[38] R v Petroff (1980) 2 A Crim R 101 at 115-6.
[39] (1980) 2 A Crim R 101.
[40] R v Petroff (1980) 2 A Crim R 101 at 115.
[41] [2003] QCA 113.
[42] R v Bourke [2003] QCA 113, [22].
Once it is accepted that the procedural rule of the common law is that the trial judge must sum up, and sum up orally, the status of an aide memoire provided to the jury can properly be understood. If there is a statutory or common law requirement that the jury be directed on a particular matter, that rule will not be satisfied by the provision of written instructions on it. To hold otherwise would be to elevate written instructions from an aide memoire to an integral part of the summing up. That would effect an amendment to the common law requirement that the summing up be given orally. It also follows that if a summing up contains an error of fact or law, that error is not cured by a correct statement of the law or fact appearing in a written instruction, because the written instruction is not part of the summing up.
If an error of fact or law were to be made in the note provided to the jury, the question will be whether the right direction given in the summing up has been negated. If there is a real risk that the jury acted on the erroneous statement in the note or that the jury was left confused by the inconsistency between the note and the summing up, a court of criminal appeal may conclude that there has been a miscarriage of justice.[43] Equally, where there is some ambiguity or imperfection in the summing up itself, a court of criminal appeal may have regard to the aide memoire in determining whether or not there has been a miscarriage of justice. However, in these cases the oral direction must remain the primary consideration.
[43] R v Radford (1986) 133 LSJS 110 at 118.
If written notes are to be given any greater status it can, I think, only be achieved by statutory amendment. I doubt that it is now appropriate for the common law to depart from its oral traditions by integrating written notes into the summing up. Too much should not be assumed about the levels of English literacy of the Australian population. A shift to a greater reliance on documents in jury trials could have the undesirable consequence of excluding some sections of the community from serving as members of what is an important common law institution. Because the issue raises competing policy considerations, if there is to be any reform, it is best left to the legislature.
I agree for the reasons given by Gray and Sulan JJ that the jury were misdirected when the trial Judge posed the question: did the defendant genuinely believe that his conduct was necessary and reasonable to defend himself? At the very least there is a substantial risk that the jury would have been distracted from the correct application of the general directions on the onus of proof to the critical issue at trial; self-defence. The correct statement of the onus of proof in the memorandum cannot cure the omission to give the oral directions, which were necessary, on that issue.
There has therefore been a miscarriage of justice.
Flight
The formulation of the directions that should be given to a jury in the case of flight cannot be undertaken without first identifying why evidence of flight is probative. Once its probative value is determined, the prejudicial effect that such evidence may have can also be assessed. Directions given to a jury should explain the former and warn against the latter.
The fact that an offender flees the scene of a crime or attempts to evade apprehension is an item of circumstantial evidence. Its capacity to support an inference of guilt is drawn from human experience. Wigmore explained it in this way:
276 (4) Flight, escape, resistance or concealment Flight from justice, and its analogous conduct, have always been deemed indicative of a consciousness of guilt. ‘The wicked flee, even when no man pursueth; but the righteous are bold as a lion.’ In our primitive system of law, the accused who fled, whether innocent or guilty, suffered forfeiture and escheat; though this was rather a mode of deterring him from refusing to appear for judgment than an evidential rule.
It is universally conceded today that the fact of an accused’s flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself. …
(b) It has sometimes been said that an unexplained flight is the admissible evidence. But this is obviously unsound. The prosecution cannot be expected to negative beforehand all conceivable innocent explanations. The fact of flight is of itself significant; it becomes most significant when after all no explanation is forthcoming.[44] (emphasis added, footnotes omitted)
[44] Chadbourn, Wigmore on Evidence, Evidence in Trials at Common Law (Vol 2, 1979) s 276(4) at 122-9.
The following propositions can be taken from that passage.
First, it is the evidence of flight itself that is admissible. Secondly, the fact of flight is admissible “as evidence of consciousness of guilt” because “the wicked flee”; it is not a condition of the admissibility of the evidence that it shows that the particular accused on trial fled because he was conscious of his guilt. The reason, based on human experience, that flight has probative value cannot be transformed sensibly into a pre-condition for its use in a particular case. Thirdly, the existence of an alternative explanation for flight in any particular case merely affects the strength of the inference that can be drawn from it, and does not negate completely its probative force.[45]
[45] The circumstantial use of post-offence conduct was explained in a similar way to Wigmore by Cardozo J in People v Galbo, 218 NY 283, 112 NE 1041 (1916):
‘The man who secretes a body and lies about it, may be found in most cases to be concealing his own crime and, therefore, to be the murderer. That is so because personal guilt, unless the circumstances point to some other connection, is the reasonable inference.’
Like any other item of circumstantial evidence, flight is relevant and probative even if it cannot, alone, support a conclusion of guilt beyond reasonable doubt.[46] It is not a condition of the admissibility of any item of evidence that it prove (without more) an intermediate fact, an element of the offence or the offence itself. It is sufficient that it is relevant to a fact that is in issue in the proceedings, in the sense that it has a tendency or capacity to prove that fact.
[46] Shepherd v The Queen (1990) 170 CLR 573.
It follows that a direction that flight is only probative if it, of itself, reveals that the accused was conscious of his or her guilt, is not required by any principle of logic or common human experience. Indeed, as a logical proposition it is completely circular. A jury can only be satisfied that the flight of a particular accused manifests a consciousness of guilt if it finds that there is no possible innocent reason for it; that finding is in effect a finding of guilt. It is not a complete answer to the criticism that the reasoning is circular to say that the consciousness of guilt so found is merely an item of evidence that the jury may or may not, with the other evidence in the case, find sufficient to prove guilt, because the jury could not be satisfied that the flight does indeed exhibit a consciousness of guilt without first finding that the accused is guilty. Of course, the direction is not circular if all that is meant by exhibiting a consciousness of guilt is that the fact of flight is indicative of guilt. The use of evidence of flight in that way is to treat it as any other item of circumstantial evidence. If however, the jury is directed that it must be satisfied that the evidence of flight exhibits a consciousness of guilt before it can use it, then the evidence of flight itself can play no part in reaching that conclusion. The circularity involved therefore denies the evidence of flight its very nature as an item of circumstantial evidence.
Furthermore, a direction to the jury that evidence of flight is only of probative force if it shows that the accused was conscious of his or her guilt is not required by any authority. The High Court considered the related issue, namely the inference that can be drawn from evidence of an accused’s lies, in Edwards v The Queen.[47] It has often been acknowledged that evidence of lies raises similar issues to those raised by evidence of flight, and for that reason a consideration of the reasoning in Edwards is useful for the purposes of this case.
[47] (1993) 178 CLR 193.
The majority in Edwards proceeded on the basis that a lie is probative of guilt only insofar as it amounts “to an implied admission of guilt” because it springs “from a realisation or consciousness of guilt”.[48] However, they explained that “an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof”.[49] In that respect there is no difference between the approach of the majority and that of Brennan and McHugh JJ. Both Brennan and McHugh JJ accepted that false statements were capable of being corroborative, even if they did not amount to an implied “admission of guilt” but were merely corroborative of other evidence.[50]
[48] Edwardsv The Queen (1993) 178 CLR 193 at 208-9.
[49] Edwards v The Queen (1993) 178 CLR 193 at 210.
[50] Edwardsv The Queen (1993) 178 CLR 193 at 201 per Brennan J and at 215 where McHugh J said:
However, the lies were not relied on as an admission of guilt but as corroboration of the complainant’s evidence. It is settled doctrine in this Court that it is ‘not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt.’ (footnote omitted).
Prejudicial effect
Because the probative weight of lies, like flight, may vary greatly, it has often been said that there is a real risk that a jury may give evidence of either more weight than it deserves. In Edwards the majority explained the risk in this way:
Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.[51] (footnote omitted)
[51]Edwards v The Queen (1993) 178 CLR 193 at 211.
With respect to evidence of flight, the Supreme Court of Canada considered the risk as follows:
[T]he danger exists that a jury may fail to take account of alternative explanations for the accused’s behaviour, and may mistakenly leap from such evidence to a conclusion of guilt. In particular, a jury might impute a guilty conscience to an accused who has fled or lied for an entirely innocent reason, such as panic, embarrassment or fear of false accusation. Alternatively, the jury might determine that the conduct of the accused arose from a feeling of guilt, but might fail to consider whether that guilt relates specifically to the crime at issue, rather than to some other culpable act.[52]
[52] R v White (1988) 125 C.C.C. (3d) 385 at [22] per Major J.
I suspect that the possibility that there may be innocent explanations for flight would be readily apparent to most jurors. Nonetheless, the passages identify the prejudicial effect of evidence of flight against which a jury must be warned. It is to the way in which a jury should be directed that I now turn.
The Directions
The directions that should be given about evidence of lies, at least in the particular class of case there considered, was authoritatively laid down in Edwards, where the majority held that the following directions should be given where a lie is relied upon to prove guilt:
A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas (Ruth), because of ‘a realization of guilt and a fear of the truth’. [53] (underlining added, footnotes omitted)
[53] Edwardsv The Queen (1993) 178 CLR 193 at 210-11.
It is clear from the terms of that passage and the context in which it appears that the majority are there addressing cases where a lie is relied on as an indispensable link in the chain of evidence to prove guilt or, to put it in another way, as in itself evidence of guilt.[54] It is in that sense that McHugh J used the phrase “admission of guilt” in the passage cited in footnote 50 above. Experience suggests that such cases are quite rare. It also follows from the reasons of the majority, as subsequent cases have made clear, that the directions which they identify should also be given where there is a real risk that the jury will reason to guilt from the evidence of lies alone, even if that is not the prosecution case. Although there are probably more cases where that risk exists, I doubt that most cases present that problem. In most cases, evidence of lies, and flight, is led as just one part of a complex mosaic of evidence on which the prosecution relies, and it is unlikely that a jury would reason to guilt from that evidence in isolation.
[54] See the passage in R v Kanaan (2005) 157 A Crim R 238 at 279, [129] reproduced in [96] below.

The directions suggested in Edwards appear to be the result of three quite separate concerns. An understanding of the underlying concerns can assist in identifying the cases involving flight or lies in which the directions must be given.
The first is that lies or flight may be put to the jury not just as evidence of guilt but also as corroboration of other evidence. The use of lies as corroboration no longer has the importance it once had with the abolition of many of the rules of law and practice that required the evidence of particular witnesses, children and victims of sexual offences for example, to be corroborated. However, when, for whatever reason, evidence of a lie is tendered as corroboration of other evidence, it must have a probative value independent of that evidence. That has led naturally, albeit unnecessarily, to a focus on whether a conclusion can be independently made that the lie was told out of a consciousness of guilt. However, although the rules of law and practice to which I have referred required corroborative evidence before a jury could safely convict, those rules never required proof of the corroborative fact to any particular standard.[55]
[55] Edwardsv The Queen (1993) 178 CLR 193 at 215 per McHugh J citing Doney v The Queen (1990) 171 CLR 207 at 211.
The next two concerns arise from the common form appeal provision. An appeal will be allowed if there has been a miscarriage of justice. There will be a miscarriage of justice if there is a material risk that a jury has given some evidence more weight than it actually has. I have already referred to the historical concern that juries may infer guilt too readily from evidence of lies or of flight. For that reason, juries must be alerted to the fact that there is only probative value in such evidence if the lie is deliberate and relates to a material issue or, in the case of flight, if it is related to the offence. For that reason too the law emphasises the need to alert juries to the other reasons which may motivate a person to lie or to flee.
The third concern is that juries will concentrate on the evidence of flight or lies to the exclusion of all other evidence. If the jury were to determine guilt on the basis of evidence of flight or lies alone then it is right to say that they must be satisfied, beyond reasonable doubt, that the only explanation for the flight or lies in question was a consciousness of guilt. For that reason, only in the unusual case of the post-offence conduct constituting, almost exclusively, the prosecution case, the jury must be directed that it must be satisfied beyond reasonable doubt that the only explanation for that conduct is guilt.
The decision of the Court of Appeal of New South Wales in R v Kanaan[56] provides a good example of the use of evidence of flight and lies as part of a circumstantial case. The appellant was convicted of two counts of murder by shooting arising out of an argument outside a hotel in the western suburbs of Sydney. The appellant’s defence was one of alibi. The evidence against Kanaan was given by an acquaintance, who gave evidence under the pseudonym Rossini. He said that he was involved in the fight outside the hotel and at one point saw the appellant firing at people as he ran around the street. The car in which the appellant and others fled the scene was de-greased to remove fingerprints and attempts made to tamper with the locks. The appellant had his hair cut the following day and stayed for about a week thereafter at the home of an acquaintance about two and a half hours drive from Sydney. The New South Wales Court of Criminal Appeal held that the failure of the trial Judge in that case to give a direction fashioned on Edwards with reference to consciousness of guilt did not result in a miscarriage for the following reasons:
It is clear that the jury were not directed that the appellant’s conduct in question was relied on by the Crown as an admission that he was the shooter. It was not used as conduct which was of itself probative of guilt. A direction based on Edwards v R was therefore not required.[57]
[56] (2005) 157 A Crim R 238.
[57] R v Kanaan (2005) 157 A Crim R 238 at 279, [129].
The distinction between the use of post-offence conduct as part of a circumstantial case, and its use to prove guilt directly, because the nature of the conduct and its surrounding circumstances do not allow for any reasonable explanation consistent with innocence, is helpfully explained and discussed by Ormiston JA in R v Franklin.[58] The subsequent decision of the Victorian Court of Criminal Appeal in R v Chang[59] is a good example of the latter, and of the great difficulty that can be caused if a trial judge attempts to artificially constrain the use that a jury can give such evidence in the hope of avoiding an Edwards type direction. Nonetheless, I would like to think that in most cases where the evidence of post-offence conduct is led “merely as part of a circumstantial case”,[60] a direction which ensures a fair trial can still be given without requiring all of the elaboration of an Edwards type direction.
[58] (2001) 3 VR 9 at 50-54, [122]-[130].
[59] (2003) 7 VR 236.
[60] CF R v Franklin (2001) 3 VR 9 at 53-54, [130] per Ormiston JA.
For myself I doubt that there is anything particularly special about flight or lies that would tempt a jury to decide a case on that evidence alone. In most cases it would be plain that the evidence of post-offence conduct can only realistically be used as an item of circumstantial evidence. In any event, a simple direction that the evidence is just one part of the prosecution’s case can be fashioned. In most cases it would be appropriate to warn a jury that although it is a matter for it, the evidence of post-offence conduct alone is unlikely to satisfy the criminal standard. The jury can also be directed about the possibilities that affect the strength of the inferences arising from the post-offence conduct in the circumstances of the particular case.
If the directions mandated by the majority in Edwards are applied to cases where lies are but one part of a circumstantial case, then there is, with respect, much force in the sentiment expressed in R v Mazur[61] by Brooking JA:
But we seem to have allowed a jurisprudence of lies and consciousness of guilt to develop and to obscure what is a very old, very simple, very sound and very important notion, as I try to point out in Chan, and as was recognised in Bandiera and Licastro. In Victoria, Renzella is perhaps the high watermark of the rising tide of complexity. But of late the tide has turned in this State as this Court has emphasised the need for an approach which, while grounded in principle, is pragmatic and simplified.[62] (footnotes omitted)
[61] (2003) 113 A Crim R 67.
[62] (2000) 113 A Crim R 67 at 72-3, [20].
In Zoneff v The Queen[63] the High Court recognised the difficulties arising from the rigid application of the decision in Edwards to all cases where evidence of lies was led, and restricted the occasions on which the directions identified in that case need be given. Gleeson CJ, Gaudron, Gummow and Callinan JJ said:
The meaning of the phrase "consciousness of guilt", the risk that its use by the trial judge may itself suggest guilt, which circumstances call for the giving of an Edwards-type direction, and the difficulty in distinguishing between lies going to credibility and those indicating guilt have been matters of some controversy. The Court of Appeal in Victoria in a series of cases, R v Morgan, R v Renzella, R v Laz, R v Erdei, R v Cervelli and R v Konstandopoulos has sought to grapple with the problems. But as Hayne JA in Morgan suggests, rigid prescriptive rules as to when and in what precise terms an Edwards-type direction should be given cannot be comprehensively stated.
There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, "the accused knew that the truth ... would implicate him in [the commission of] the offence" and if, in fact, the lie in question is capable of bearing that character.[64] (footnotes omitted)
[63] (2000) 200 CLR 234.
[64] Zoneff v The Queen (2000) 200 CLR 234 at 244, [15]-[16] per Gleeson CJ, Gaudron, Gummow and Callinan JJ.
In my respectful opinion, the type of case there identified as an appropriate one in which to give an “Edwards-type direction”, is the rare case where the lie is of a nature that it is capable, in itself, of proving guilt.
In a case where there is evidence of a lie or lies but that evidence is not relied on to, in itself, prove guilt, and the issues to which the evidence is relevant are not identified by the prosecutor, the majority suggested a form of direction which has now come to be referred to as the Zoneff direction:
A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms:
‘You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.’[65]
[65] Zoneff v The Queen (2000) 200 CLR 234 at 245, [23].
It is to be observed that the direction leaves it to the jury to determine the significance of the lies “in relation to the issues in the case”.
The probative value of flight
The probative value of evidence of flight will vary greatly from case to case. The evidence of flight in R v Power,[66] where the accused fled the jurisdiction and only returned after making a telephone inquiry that reassured them that it was safe to return, is an example of evidence of flight that had substantial weight. Similarly, evidence that an accused was seen running from a building in which a burglar alarm was ringing would be strong evidence that an accused was the offender. Alternative explanations for that conduct may affect the strength of the inference that can be drawn, but the accused’s flight would remain an item of circumstantial evidence that could be weighed together with other evidence. Again, the strength of the probative evidence in the case of Power and the one that I have postulated does not need to be understood through the prism of “consciousness of guilt”. As a matter of human experience, the fact that the accused in Power fled the jurisdiction after the police told them they were investigating their involvement in an armed robbery meant that they had acted in a way in which common sense would suggest the offender would act if so told. An offender is more likely to leave the jurisdiction than an innocent person, because the offender will naturally fear that the investigation of the offence will result in the discovery of his or her involvement in that offence. The fact that the accused in Power fled therefore showed that they acted in a way that the offender would have acted, and it was therefore an item of circumstantial evidence that increased the likelihood that Power was the offender. Evidence of some other reason for leaving the jurisdiction, for example to visit a sick relative, will detract from the strength of that inference. That, however, is purely a matter of weight for the jury to consider. The role of the trial Judge is to warn the jury against assuming guilt from flight and alert the jury to those matters which reduce the weight of the evidence. In short, it is for the trial Judge to explain the limits on the probative weight of the evidence in the circumstances of the particular case.
[66] (1996) 87 A Crim R 407.
Application to this case
The first point that needs to be made about the directions in this case is that a “consciousness of guilt direction” of the sort given in Edwards was not appropriate. It was not the prosecution case, and the jury was never likely to focus on, the evidence of flight as proving, in itself, the appellant’s guilt.
Secondly, there were many reasons in this case for Mr Burns to flee the scene, even if he had acted in self-defence. If he had stayed he was at risk of reprisal. Moreover, Mr Burns may have thought that if he were to remain in the area it was more likely that the police would be called and that he would be spoken to. There are many reasons why a person in his position might not wish to be spoken to by police, even if he was guilty of no wrong-doing. High on the list of those reasons is the fact that the police may have doubted his story that he acted in self-defence, precisely because he was ultimately the victor. The jury should have been directed that although the appellant may have fled because he knew he had gone too far, his flight may have been motivated by reasons such as these.
Thirdly, in all of the circumstances the evidence of flight in this case was very weak. It could certainly not have safely supported a conclusion that it was motivated by a consciousness of guilt and for that reason amounted to an implied admission of guilt. The jury should therefore have been warned not to follow a process of reasoning to the effect that just because Mr Burns was shown to have fled he was guilty. The jury should have been directed that having regard to the many innocent reasons for flight to which I have referred, and the explanation given by Mr Burns in his evidence, the evidence of flight was unlikely to help them much on the issue of self-defence.
In my opinion, the failure to direct the jury on the very limited probative value of the evidence of flight in the circumstances of this case has resulted in a miscarriage of justice.
Proviso
It will seldom be possible to apply the proviso where there has been a misdirection on the onus of proof in a case which depends on the resolution of conflicting testimony. This is not one of those rare cases. The misdirection on the onus of proof as it relates to self-defence means that this Court cannot be satisfied that the jury’s guilty verdict reflects its satisfaction that the prosecution evidence, and the testimony of the alleged victim, Mr Evans, in particular, disproved self-defence beyond reasonable doubt. It is not possible for this Court to come to that conclusion on the transcript and for that reason the proviso cannot be applied. Nor is it possible to say that the jury gave the evidence of flight no more weight than it could properly carry. For that reason too the proviso cannot be applied.
Conclusion
I would allow the appeal.