R v Dunn - [2006] SASC 58

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DUNN
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Sulan and The Honourable Justice White)
2 March 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Appeal against conviction for murder - Issue of self-defence left to jury - Possible alternative verdict of manslaughter by excessive self-defence, s 15(2) Criminal Law Consolidation Act 1935 (SA) - No oral direction on how jury might reach alternative verdict of manslaughter by excessive self-defence - Elements of manslaughter included in written memorandum but use of document not explained orally - Consideration of use of written directions - Written directions to supplement and not substitute for oral directions - Whether written directions inconsistent with oral directions - Whether jury misdirected that appellant was guilty of murder if there was excessive self-defence - Whether jury adequately directed on manslaughter by excessive self-defence - Consideration of application of proviso that no substantial miscarriage of justice has actually occurred - s 353(1) Criminal Law Consolidation Act 1935 (SA) - Inadequate directions constituting fundamental error to preclude application of proviso - Consideration of role of appellate court in application of proviso - Unnecessary for appellate court to consider whether guilt of murder was proved beyond reasonable doubt in the circumstances - Appeal against conviction allowed - Appeal against sentence not considered - Conviction and sentence set aside - Re-trial ordered.
Criminal Law Consolidation Act 1935 (SA) s 15(1), s 15(2), s 353(1), referred to.
R v Radford (1986) 133 LSJS 110; R v Petroff (1980) 2 A Crim R 101; R v Hughes (1981) 7 A Crim R 51; Mule v The Queen [2005] HCA 49; Weiss v The Queen [2005] HCA 81, applied.
Wilde v The Queen (1987) 164 CLR 365, discussed.
R v Bourke [2003] QCA 113; R v Zikovic (1985) 17 A Crim R 396; King v The Queen (2003) 215 CLR 150; Mraz v The Queen (1955) 93 CLR 493; Conway v The Queen (2002) 209 CLR 203; R v Hildebrandt (1963) 81 WN (Pt 1) (NSW) 143; R v Henderson [1966] VR 41; R v Couper (1985) 18 A Crim R 1; R v Kerr (No 2) [1951] VLR 239; Antoun v The Queen [2006] HCA 2; R v Romano (1984) 36 SASR 283, considered.

R v DUNN
[2006] SASC 58
Court of Criminal Appeal: Bleby, Sulan and White JJ
BLEBY J:
Introduction

The appellant was convicted by a jury of one count of murder. It was alleged that on 3 December 2003 the appellant drugged her de facto partner, Graham Wilks, and then later hit him on the head at least three times. He died as a result of the head injuries on 12 December 2003.
Apart from an argument based on the failure of the trial Judge to leave provocation to the jury, the grounds of appeal relate to the trial Judge’s direction, or lack of direction, on a possible alternative verdict of manslaughter by excessive self-defence. The complaint is that there was no oral direction to the jury on that topic, that the Judge wrongly directed the jury that the appellant was guilty of murder if there was excessive self‑defence, and that there was inconsistency between the Judge’s oral directions to the jury and a written memorandum wherein manslaughter by way of excessive self-defence was raised.
The prosecution case
On 3 December 2003 Graham Wilks, the deceased, was found by police and paramedics on his bed in his home, unconscious and suffering from serious head injuries. He had no defence injuries of the type that one would expect to see if he had attempted to fend off the attack. The absence of such injuries was explained by the fact that prior to being beaten, the deceased was drugged. An analysis of his blood showed a level of 2.2 mg of Temazepam per litre of plasma, the equivalent of his having taken a minimum of seven 10 mg tablets. The evidence was that the effect of the drug at that level would have been to sedate the deceased heavily and to induce sleep.
The deceased never regained consciousness, and died on 12 December 2003. The cause of death was brain injury caused by at least three blows of quite severe force to the head. It was the prosecution case that the appellant, who was the de facto partner of the deceased, not only caused the injuries but also drugged the deceased in order to facilitate her assault.
Prior to the death of the deceased, he and the appellant had been living together at 14 Westbury Street, Davoren Park for about six months. Prior to that the appellant had lived in a de facto relationship with another man, Greg Havey. It was the prosecution case that part of the motive for the murder of the deceased was that the appellant found herself attracted again to Mr Havey. A significant body of evidence was led to show that prior to 3 December 2003 the appellant was having increasing misgivings about her relationship with the deceased and was indicating a desire to resume her relationship with Havey.
It was the prosecution case that shortly before 3 December 2003 the appellant was attending various doctors’ surgeries requesting prescriptions for Temazepam. On 28 October 2003 and 10 November 2003 the appellant obtained prescriptions for Temazepam from two different doctors. She had one of these prescriptions filled on 27 November 2003 and the second filled the following day at a different chemist. The evidence also established that the deceased was someone who rarely attended a doctor and took no medication stronger than Panadol.
The appellant’s son, Ronnie Irwin and his de facto partner, Tracey Goodrick, lived across the road from the appellant and the deceased at 13 Westbury Street, Davoren Park. On 3 December 2003 Irwin, Goodrick and their friend, Richard Smith, returned home from shopping at about midday. It was the prosecution case that sometime after midday the appellant came to 13 Westbury Street when Irwin, Goodrick and Smith were there. They decided to have coffee, but there was not enough milk. The appellant returned home and came back with some milk. She indicated to the others that the deceased was not happy about her taking the milk, but that she did not care. There was evidence that the appellant spoke about giving the deceased some sleeping tablets in an egg or curried egg sandwich to “knock him out”.
Individual estimates as to the time that various events occurred on that day were, not surprisingly, attended with some uncertainty. There was evidence, however, that at 12.26 p.m. the deceased’s father telephoned the appellant’s house and spoke to the deceased. According to his father, the deceased sounded normal and there was nothing unusual about the way he spoke.
The appellant was said to have returned home from her son’s house at about 1 p.m. There was evidence from Smith that shortly after she went home there was yelling coming from the appellant’s home.
Smith also gave evidence that, as he was walking home to his place, he saw the deceased driving his car to some local shops and get out of the car. He was driving fast and appeared angry and upset.
Ms Krzeminski, a neighbour, heard sounds of a heated argument coming from the appellant’s back yard. She heard a sound like that of someone being beaten and what sounded to her like the sound of a male in pain. She placed this event at about 1.45 p.m. A Ms Fayle also gave evidence of the sound of an altercation from the appellant’s premises which she placed at about 1.30 p.m.
At about 2.03 p.m. the brother of the deceased, Bill Wilks, telephoned him. The appellant answered the telephone and handed it to the deceased. Wilks noticed that when the deceased spoke he appeared to have difficulty in talking, as though he was under the influence of alcohol or drugs. He described him as sounding “pretty pissed”. He made an arrangement with the deceased for him to come and help repair a car. The deceased never kept the arrangement.
Some time shortly after 2 p.m. the appellant returned to her son’s house. She initially asked Irwin to buy her some cannabis but then said that she had hit the deceased because he had tried to choke her. Irwin and Goodrick could see no marks on the neck of the appellant that would support that assertion. To them she seemed stressed and did not seem herself.
Irwin went over to the appellant’s house to check the condition of the deceased. He found him in the bathroom/laundry area of the house dressed only in his shorts or underpants, on all fours on the floor, making incoherent sounds and trying to get up. He appeared to be bleeding from the nose. The deceased’s body and hair were wet and there was water on the floor and in the bath, slightly discoloured. Irwin assisted the deceased, semi-conscious, to his bedroom and placed him on the bed in the recovery position, but not where a large amount of blood was later found on the bed. He then left the house. He did not notice any apparently obvious head injury to the deceased. The accused was present in the house at this time but did not assist. Forensic evidence did not support a hypothesis that the deceased sustained the blows while lying on his bed.
After Irwin had placed the deceased on the bed, he left to purchase some cannabis for the appellant, but was unable to obtain any at the first premises he went to. He returned and saw the appellant outside her house and reported that he had no cannabis. The appellant then drove Irwin in her car to another address where they obtained some cannabis. During the return trip the appellant said to Irwin, “Why couldn’t I defend myself against your father like that?”. She then asked Irwin to help her move the deceased from the bedroom to one of the cars in the back yard, to which he responded that he would have nothing to do with it.
When they returned, he got out of the car and went to his house. About 5 or 10 minutes later the appellant came over to Irwin’s house and told him that the deceased had been bashed. The appellant appeared stressed. Irwin told her to phone an ambulance. At 3.06 p.m. the appellant made a “000” call requesting the attendance of an ambulance.
It was the prosecution case that beginning with the “000” call for an ambulance, the appellant told a number of complex lies about the circumstances of the death of the deceased. She participated in five lengthy police interviews, and during the course of each attempted to blame others for the murder. Her stories were inconsistent, and ultimately she blamed her son for the murder. It was alleged that at a time when no-one knew the toxicology results indicating the level of Temazepam in the deceased’s body, the appellant lied about having obtained Temazepam. In all her statements the appellant maintained that she was out of the house at the time the deceased was assaulted.
It was also the prosecution case that shortly after 3 December the appellant re-established her relationship with Mr Havey, indicating a desire to see and be with him as early as 10 December, two days before the deceased died. There was also evidence that from the time of the assault, the appellant made no effort to visit the deceased to inquire after his welfare.
The defence case
The appellant did not give evidence or call any witnesses. Her defence relied on a hypothesis said to arise from the prosecution case. It is conveniently summarised by the trial Judge in his summing up to the jury:
This is Mr Cuthbertson’s hypothesis. There was an argument heard by the witness, Smith. There was an argument heard by Mrs Krzeminski. She says it was about 1.45 p.m. In the course of that argument, the deceased tried to strangle the accused and took something and hit him in the head in the course of that argument without any intention to kill or cause grievous bodily harm.
Mr Cuthbertson puts it to you, ladies and gentlemen, that that is an hypothesis which cannot be excluded as not being a reasonable possibility.
He says that after the argument and after the deceased was hit, the deceased went to the bathroom to clean himself up. It is after that time or during that time, that his brother Bill rings up and the deceased is talking in a somewhat blurry way. The accused is worried, goes across the road to her son and says that she has hit him because he was trying to strangle her.
Mr Cuthbertson put it to you that all this happened after the accused had been beaten on the head.
In relation to the lies told by the accused, it is put by the defence that there is an explanation other than the fact that she is telling lies out of a consciousness of guilt …
The focus of the defence address as it unfolded was therefore that it was reasonably possible that the appellant had no intention of killing or of inflicting grievous bodily harm or that it was reasonably possible that the appellant acted in self-defence when she hit the deceased. Those two points became the two foundations on which the jury was asked to acquit. It would appear that there was no question in the mind of counsel or the trial Judge but that self-defence should properly be left to the jury and that a direction on self-defence was necessary. That, of necessity, also required a direction on the possible alternative verdict of manslaughter by reason of excessive self-defence.[1]
[1] See s 15(2), Criminal Law Consolidation Act 1935.
The trial Judge’s summing up
The trial Judge began his summing up shortly after midday on Thursday, 11 August 2005. Subject to a lunch break and two other breaks during the course of the afternoon, the summing up continued until 4.30 p.m. and resumed for approximately 20 minutes the next morning before the jury retired to consider their verdict.
During the first afternoon session the Judge explained the four elements to be proved to establish the crime of murder. While discussing the element of intention the Judge raised the possibility of an alternative verdict of manslaughter by unlawful and dangerous act. In the course of that discussion the Judge said:
Manslaughter is always an alternative verdict open to a jury in a prosecution for murder. There is no need for it to be included as an alternative charge in the information.
What is manslaughter? In a word, it is the unlawful killing of another person that falls short of murder. It can take different forms but in this trial it can arise either in the way I’m about to set out for you or it can arise in relation to self-defence which I will explain later.
Although the Judge later dealt at some length with self-defence, he did not, in his oral summing up, say anything about the alternative verdict of manslaughter in the context of self-defence.
Having discussed the alternative verdict of manslaughter by unlawful and dangerous act the trial Judge turned to discuss the elements of self-defence in the context of what he had described as the fourth element of murder, namely the unlawfulness of the accused’s conduct, explaining that the conduct could not be unlawful if it occurred in lawful self-defence. The Judge mentioned on more than one occasion that conduct could not be unlawful if it occurred in lawful self‑defence. He explained to the jury that the direction on self-defence was necessarily complicated and that they would be assisted by a document that he would give them later.
The Judge explained the two aspects of self-defence which the prosecution must negate, namely first that the defendant genuinely believed that her conduct was necessary and reasonable for a defensive purpose, and secondly that the conduct was, in the circumstances as she genuinely believed them to be, reasonably proportionate to the threat that she believed to exist.[2] In discussing the second aspect the Judge referred to the objective nature of the proportionate amount of force as, in layman’s language, “overstepping the mark”. He said:
If you think that some measure of defence is warranted but you think she overstepped the mark, then her conduct is not reasonably proportionate and what she did is unlawful.
[2] Section 15(1) Criminal Law Consolidation Act 1935.
The Judge then summarised the effect of the two aspects and concluded that part of his summing up by saying:
If it is reasonably possible this she did act in self-defence, having regard to those two requirements that I have taken you through, the prosecution would not have proved the charge beyond reasonable doubt.
The Judge then indicated that at the next adjournment he would give the members of the jury the summary document to which he had earlier referred, and then proceeded to discuss the evidence and how the jury might approach it.
Immediately before the first afternoon break the Judge indicated that he would arrange for the Sheriff’s Officer to provide members of the jury with a copy of the foreshadowed document. However, after the jury left the Court, counsel raised a number of questions concerning the document and it was not distributed. When the jury returned the Judge apologised for that and explained that the document was being altered. He then continued with a discussion of the evidence until the next break, immediately before which the Judge said:
I will ask that you be given the document which, as you will see when you retire, I have tried to set out for you in very simple terms, because of the complexity of some of these things. The elements of murder I do not think you will have too much trouble about, but I will put them to you again, and notes about the way in which the fourth element and self-defence works, and then on the second page I have put in there for you how I think you might approach the question of manslaughter, if that arises, and how it could arise in one of two possible ways.
So, hopefully that helps, and that will be handed out to you now as you retire. We will resume in 10 minutes.
The document then handed to the jury was in the following terms:
[Page 1]
MEMORANDUM TO THE JURY
ELEMENTS OF MURDER AND MANSLAUGHTER
The prosecution must prove each element of either crime beyond reasonable doubt. ‘Satisfied’ means satisfied beyond reasonable doubt.
Murder
The elements of the crime of murder are:
(1)     that the accused caused the death of the deceased;
(2)     that she did so by an act or acts performed voluntarily and deliberately;
(3)     that she intended by that act or acts to cause death or grievous bodily harm to the deceased;
(4)     that the act or acts which caused death were unlawful.
An act or acts done in self-defence, as the law defines it, are not unlawful.
Note:It is the prosecution which must prove that the accused did not act in self‑defence.
Therefore, if it is reasonably possible that the accused acted in accordance with (a) and (b) below, she is not guilty of anything.
If it is reasonably possible that she acted in accordance with (a) but not (b), see Manslaughter below.
An act or acts are done in self‑defence if:
(a)The accused genuinely believed that her conduct was necessary and reasonable to defend herself; and
(b)her conduct was, in the circumstances as she genuinely believed them to be, reasonably proportionate to the threat that she believed she faced.
[Page 2]
Manslaughter
In this case, manslaughter could arise in two ways:
1.    More than proportionate force used in self-defence
If you were satisfied of elements (1), (2) and (3) of Murder, and you thought it reasonably possible that the accused believed that her conduct was necessary and reasonable to defend herself, but you were satisfied that her conduct went beyond what was reasonably proportionate to the threat she believed she faced, then she is guilty of Manslaughter.
2.    Unlawful and dangerous act
If you were satisfied beyond reasonable doubt of elements (1), (2) and (4) of Murder, but not satisfied of (3), that is, not satisfied even of intention to cause grievous bodily harm, you would go on to consider manslaughter by unlawful and dangerous act.
In that event (and assuming you were satisfied of elements (1), (2) and (4) of Murder) if you were satisfied that the act or acts of the accused were dangerous in the sense that a reasonable person, in the position of the accused, would have realised that her conduct would expose the deceased to an appreciable risk of serious injury, then manslaughter is proved.
[Original emphasis]

The only other reference to the document in the Judge’s charge to the jury was immediately before the close that afternoon when he said:
I hope you have a chance to look at that document and hopefully that will assist you in clarifying any misunderstandings or confusion that you would quite reasonably have in relation to that area of the law.
There was no other reference in the principal charge to any aspect of the written direction, its status, or how the jury could properly use the document, and there was no explanation of what was on the second page. In particular, there was no explanation of the first possible way that manslaughter could arise.
On the following morning, immediately before the jury retired, the Judge gave some final general directions reminding the jury of the onus and standard of proof, during the course of which he said:
If at the end of your deliberations with respect to either the charge of murder, or the alternative charge of manslaughter, you are not satisfied as to all of the elements of the offences of murder or manslaughter as I have explained them to you, or if you are just unable to say where the truth of the matter lies, in either of those two instances the prosecution will not have discharged its onus and the accused will be entitled to a verdict of not guilty. [Emphasis added]
After a brief repetition he said:
If, however, having considered all of the elements relevant to each charge, you are satisfied beyond reasonable doubt as to all of those elements, then in that case, it would be your duty to return a verdict of guilty to the particular charge which you have considered.
I remind you that the crime of manslaughter by an unlawful and dangerous act is an alternative verdict to the crime of murder. [Emphasis added]
There was no reference at that point to manslaughter by reason of excessive self‑defence.
The only other reference at all to the written direction was during the course of a redirection after the jury had retired and the Judge, at the request of counsel, referred to the word “conduct” at the bottom of the first page and the bottom of the second page. He then gave an explanation to the jury as to what was meant by that word.
There is no complaint about the content of the written summary. The complaint relates to its use to justify the conviction for murder in the context of the oral summing up.
The use of written directions
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[3] where King CJ said:[4]
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.
[3] (1986) 133 LSJS 110.
[4] Ibid at 117; see also Olsson J at 137-138.
Courts have been at pains to point out the need for such written directions to be supplementary to and not in substitution for oral directions. In R v Petroff[5] Nagle CJ at CL[6] approved the use of a written direction on the footing that the jury “would have been under no misapprehension that the document was any addition to or in lieu of the oral directions that they had been given. In his directions his Honour was at pains to disabuse the jury of any such idea”.[7] His Honour then cited with approval the following oral direction given by the trial Judge:[8]
I should emphasise that you must not use that document as a substitute for the detailed oral directions I gave you yesterday. It is intended as no more than aide memoire which may assist you to recall the various steps which you must follow in arriving at a proper verdict on each of the charges in this trial. It was in no way intended to be a complete summary of all the matters of law to which I referred yesterday. As I told you yesterday you are bound to apply the principles of law upon which I directed you to the facts of the case as you eventually find them to be. That document will, I hope, refresh your recollection of the various options open to you but it must at all times be interpreted in the light of the directions of law I gave you yesterday.
[5] (1980) 2 A Crim R 101.
[6] With whom Street CJ agreed.
[7] Ibid at 115.
[8] Ibid at 116.
In R v Bourke[9] Williams JA said:[10]
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.
[9] [2003] QCA 113.
[10] Ibid at [22], McMurdo P and Philippides J agreeing.
In a case such as the present, the words of Lush J in R v Hughes[11] are apposite:
It is not the function of an appellate court to dictate to a trial judge what method he must use for communicating the necessary consequences of a construction of the evidence to the jury. It is its function to be vigilant to see that the jury is placed, finally, in a position in which it understands the decisions it must take and the verdicts which emerge from those decisions.
[11] (1981) 7 A Crim R 51 at 53, Murphy and O’Bryan JJ agreeing, a passage cited with approval by the Victorian Court of Criminal Appeal in R v Zikovic (1985) 17 A Crim R 396 at 404.
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,[12] 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.
[12] Mule v The Queen [2005] HCA 49 at [21].
There may be some circumstances where a written memorandum may cure “minor verbal infelicities” in the Judge’s oral directions,[13] 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.
[13] King v The Queen (2003) 215 CLR 150, Kirby J at 175.
Adequacy of the direction
The issue of self‑defence having been raised, it was necessary that the jury be adequately directed on that issue. That included a direction as to the possible alternative verdict of manslaughter by reason of excessive self‑defence. The trial Judge gave an adequate oral direction as to the onus being on the prosecution to disprove self‑defence and what the prosecution had to prove beyond reasonable doubt if the accused was to be convicted of murder. In his oral direction to the jury the Judge failed to give any directions as to how, in relation to self‑defence, the jury might reach an alternative verdict of manslaughter by reason of excessive self‑defence. In that respect, the oral direction, considered alone, was deficient and amounted to a misdirection.
The alternative verdict of manslaughter by reason of excessive self‑defence was accurately summarised in the written direction. However, when the jury retired to consider their verdict they had no directions as to the use to which they could put the written direction, its status in relation to the Judge’s oral directions or how it might properly relate to the relevant facts. There was no explanation for the appearance of the first paragraph on page 2. The document, in that respect, was not supplementary to but was an unexplained but significant addition to the Judge’s oral directions. Any likely confusion was compounded by the clear oral direction given concerning the second aspect of self‑defence, namely that if the jury thought that the appellant had “overstepped the mark” then her conduct was unlawful. That direction, in the context in which it was given, could only be understood to mean that if the jury was satisfied that the appellant had overstepped the mark, the fourth element of murder (unlawfulness) would have been proved, thereby requiring a verdict of guilty of murder if the other elements of murder were proved. The jury had no assistance in reconciling that direction with the written direction concerning manslaughter by way of excessive self‑defence. Any confusion was further compounded by the fact that the final instruction before the jury retired to consider their verdict was that the only apparent alternative to a conviction for murder was manslaughter by unlawful and dangerous act.
In all those circumstances it cannot be said that the jury was placed “in a position in which it understands the decisions it must take and the verdicts which emerge from those decisions”.[14]
[14] R v Hughes (1981) 7 A Crim R 51, Lush J at 53.
The respondent argued that the fact that no complaint about the direction was made by senior counsel who appeared for the appellant at the trial supported the proposition that it was clear to all who were present in the courtroom that the memorandum was to be read in conjunction with the oral direction. However, counsel’s omission is equally consistent with the explanation given in an affidavit sworn by the appellant’s trial counsel. That was based on a number of factors. The trial Judge had said earlier in his summing up that he would return to the matter of manslaughter arising by way of self‑defence, thereby allaying any fears at that stage. From the first afternoon break on the Thursday afternoon there was a need for counsel to focus on the draft written direction. That had only been provided to them for the first time during that break. That draft apparently contained errors, which was the reason for the delay in handing out the document until much later that afternoon. It was obviously a document that had to be reviewed with some care. It is not surprising that counsel’s attention to what the Judge was saying or not saying in his oral direction was diverted by attention to the late delivery of the draft and re‑draft of the written direction.
Many cases have stressed the need for counsel to be given an adequate opportunity to comment on any proposed written directions. That opportunity can only be afforded if the draft is provided in a timely fashion well before the oral summing up is commenced. Had that been done on this occasion the Judge’s omission might have become obvious as the summary was compared with what the Judge was saying.
It follows that in my opinion there was a material misdirection by the trial Judge and the jury were not adequately instructed as to the possible alternative verdict of manslaughter by way of excessive self‑defence.
The proviso
The respondent argued, nevertheless, that in the circumstances of the case no substantial miscarriage of justice has actually occurred.[15] The respondent argued that self‑defence was readily negated by a compelling prosecution case and that any evidence of self‑defence was thin. The defence hypothesis was inconsistent with the substantial body of evidence relating to the drugging of the deceased.
[15] Proviso to s 353(1), Criminal Law Consolidation Act 1935.
Since this appeal was argued, the High Court, in Weiss v The Queen[16] has given a timely reminder of the correct approach of an appellate court to the application of the proviso. As the decision in that case shows, in order to determine whether the proviso should apply, it is inappropriate to ask whether this jury or a reasonable jury properly instructed might have reached a different conclusion. That question posed in this case would perhaps suggest the answer that they might, or at least that it was open to a jury to do so. If that were the appropriate test, the proviso would not apply. Likewise, by asking the question whether the appellant has lost a chance of acquittal which was fairly open to her[17], the proviso might well not apply.
[16] [2005] HCA 81 (15 December 2005), Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ.
[17] Mraz v The Queen (1955) 93 CLR 493.
However, the High Court has emphatically reminded us that no such test can properly be substituted for the words of the proviso itself:[18]
This Court has repeatedly emphasised the need, when applying a statutory provision, to look to the language of the statute rather than secondary sources or materials. In Fleming v The Queen, the Court said that "[t]he fundamental point is that close attention must be paid to the language" of the relevant criminal appeal statute because "[t]here is no substitute for giving attention to the precise terms" in which the relevant provision is expressed.
Many statements are to be found in the decided cases that describe the task presented by the proviso as being to decide whether conviction was "inevitable". Other cases ask whether the accused was deprived of a "chance which was fairly open … of being acquitted" or a "real chance" of acquittal.
These expressions attempt to describe the operation of the statutory language in other words. They must not be taken as substitutes for that language. They are expressions which may mask the nature of the appellate court's task in considering the application of the proviso. [Footnotes omitted]
[18] [2005] HCA 81 at [31]-[33].
The Court then proceeded to discuss the correct approach of an appellate court to the proviso. It referred to three fundamental propositions that must not be obscured:[19]
First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt.
It considered that the statutory task of deciding whether a substantial miscarriage of justice has actually occurred –
is to be undertaken in the same way an appellate court decides whether 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. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty.[20]
[19] Ibid at [39].
[20] Ibid at [41].
When this approach is taken to the circumstances of this case, the answer may well be that the Court might be persuaded that the case for a verdict of guilty of murder was proved beyond reasonable doubt. However, for reasons which follow, it is unnecessary to embark on that exercise, and as I take the view that a re-trial is necessary, it would be undesirable to express any such view at this stage.
The High Court then drew attention to some matters to which particular attention should be drawn in an appellate court’s undertaking of the process of reviewing the record. The reasons then continued:[21]
[N]o single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.
It is unnecessary in this appeal to examine that issue further, or to consider the related question whether some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso. [Footnotes omitted]
[21] Ibid at [45]-[46].
I take the last sentence to mean that the High Court says nothing to qualify the continuing authority of those cases which establish that some errors in a trial will be so fundamental that the proviso cannot be applied.
The authorities cited in Weiss[22] which establish that proposition require examination. Principal among these is Wilde v The Queen.[23] The accused was charged with two counts of sexual assaults of women in their houses and with the theft of money from each woman. The events occurred within two days of each other. The accused was acquitted of the charges relating to the first incident and convicted of those relating to the second. The New South Wales Court of Criminal Appeal held that the trial Judge had wrongly directed the jury concerning the use which they might make of what occurred on each of the two occasions and that there ought to have been separate trials. The appeal was dismissed by the Court of Criminal Appeal upon the application of the proviso. A majority of the High Court held that it was open to the Court of Criminal Appeal to apply the proviso. In the course of their joint majority judgment Brennan, Dawson and Toohey JJ said:[24]
However, it was submitted that the question whether a reasonable jury would inevitably have convicted does not arise where the error in the conduct of the trial is fundamental. In such a case, it was submitted, it does not matter what the strength of the prosecution case or the weakness of the defence case was. Reliance was placed upon what was said by Gibbs J in Quartermaine v. The Queen:
“Ordinarily, when there has been a misdirection of law, the proviso to s 689 [Criminal Code (WA)] will be applied if the Crown establishes that if there had been no misdirection the jury would (or must) have come to the same conclusion. However, Wickham J, who delivered the judgment of the Court of Criminal Appeal in the present case, recognized that even if this were established ‘there might still be a substantial miscarriage of justice if the trial was so irregular that no proper trial had taken place, in that “there had been a serious departure from the essential requirements of the law”’. The Court of Criminal Appeal was right in taking that view of the law . . .”
This view is undoubtedly correct, for the proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being “plunged into outworn technicality” (the phrase of Barwick CJ in Driscoll v The Queen); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see Reg. v Hildebrandt; Reg. v Henderson; Reg. v Couper.
There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted. There are those cases which identify irregularities which are sufficient to vitiate a trial and afford a basis for a writ of venire de novo. They are concerned more with the form of the trial but even in that area they provide no real touchstone for determining when an irregularity is so serious as to cause a mistrial: see Cooke, “Venire de Novo” Law Quarterly Review, Vol. 71 (1955) 100, at p 128; Reg. v Rose; and, in the House of Lords. But the wording of the proviso is quite general and it is clear that it may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence. In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances. [Footnotes omitted]
[22] Ibid at [46] footnote 60.
[23] (1987) 164 CLR 365.
[24] Ibid at 372-373.

That important reservation was made by the majority who held in that case that no substantial miscarriage of justice had occurred. The judges in the minority, not surprisingly, also recognised such a reservation where the proviso could have no application. Deane J, dissenting, said:[25].
There is ample scope for the effective operation of such a proviso in cases where the particular court of criminal appeal is satisfied that the relevant misdirection, error or unfairness could not properly be seen as depriving the trial of the overall character of a fair trial according to law. It is in such cases that the strength of the prosecution case and the unimportance, in all the circumstances and in so far as the charges of which an accused was convicted are concerned, of the effect of the particular misdirection, impropriety or unfairness may justify the conclusion by a court of criminal appeal that, in the result, there has been no substantial miscarriage of justice. Such a conclusion is, however, not open in a case such as the present where the uncorrected and persisting cumulative effect of the improper joinder in the indictment of charges, the wrongful exposure of the jury to prejudicial evidence which was inadmissible in relation to the charges of which the applicant was convicted and the misdirection to the effect that the members of the jury were entitled to take that evidence into account in relation to those charges, is that the applicant has been found guilty of the alleged offences relating to H without there having been a relevantly fair trial according to law. That being so, justice has substantially miscarried and a proviso such as that contained in s 6(1) does not authorize a court of criminal appeal to disregard or overcome that substantial miscarriage of justice by holding that the applicant should be denied what the law says that he shall have for the reason that he had no real defence anyway: see Couper v The Queen. [Footnote omitted]
[25] Ibid at 377-378.
Gaudron J, also in dissent, said:[26]
With respect to those who hold a contrary view, I am unable to accept that the question which arises when there has been an error of law in the course of a trial resulting in a wrong statement of the legal principles relevant to the jury’s consideration of its verdict or the receipt of inadmissible evidence or the rejection of admissible evidence is ever to be answered by reference to an appellate court’s view as to the strength of the prosecution case. …
However, unless it can be said that notwithstanding the error the law was correctly applied, it is not possible to say that the accused person has received what the law guarantees, viz. the verdict of a jury arrived at by correct application of the relevant legal principles. If that cannot be said then it cannot be said that there has been no substantial miscarriage of justice. The possibility that an accused person may have been denied that which the law guarantees cannot, in my view, be made good by an appellate court’s assessment that the evidence warranted a conviction, even if that assessment be expressed, as in the present case, in terms of inevitability.
[26] Ibid at 382 and 385.
Also cited without disapproval by the High Court in Weiss was a passage from the judgment of Kirby J in Conway v The Queen:[27]
Sometimes in a criminal trial a mistaken direction is so significant that the “trial” is regarded as “fundamentally flawed”. The “irregularity” in such a case is treated as sufficiently serious to warrant the conclusion that the accused has not had a proper “trial” at all. In such an event, without considering other matters, there will be judged to have been a substantial miscarriage of justice. The present is not a case of that kind. [Footnote omitted]
[27] (2002) 209 CLR 203 at 241.
Kirby J cited, in connection with that passage, as did the High Court in Weiss, the decisions of the New South Wales Court of Criminal Appeal in R v Hildebrandt[28], the Victorian Full Court in R v Henderson[29] and the New South Wales Court of Criminal Appeal in R v Couper.[30]
[28] (1963) 81 WN (Pt 1) (NSW) 143.
[29] [1966] VR 41.
[30] (1985) 18 A Crim R 1.
In R v Hildebrandt the misdirection to the jury was that they must be satisfied of the guilt of the accused “to a point of reasonable certainty”. It was held that that was not the same as satisfaction beyond reasonable doubt and that the error was a fundamental one which could not give rise to the operation of the proviso. Herron CJ said:[31]
The proviso does not mean that an accused person must show that he ought not to have been convicted. It means that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury. Justice is justice according to law and it miscarries where the appellant has not had what the law says that he shall have: Mraz v The Queen (1954) 93 CLR 493.
[31] (1963) 81 WN (Pt 1) (NSW) 143 at 148.
In R v Henderson there had been an error in the process of presentment for trial such that the appellant was unable to place before the trial Judge certain material in mitigation of sentence. The Victorian Full Court held that that was not an error which invalidated the conviction, but it did justify granting leave to appeal against sentence. Winneke CJ[32] identified the principles governing the matter as applied in R v Kerr(No 2)[33] as being that “if there had been a serious departure from the essential requirements of the law, or some irregularity which should be regarded as going to the root of the case, then a substantial miscarriage of justice would occur, and that if such an irregularity takes place it is not appropriate to consider the effect it may have had upon the verdict of the jury”.
[32] [1966] VR 41 at 43.
[33] [1951] VLR 239.
In R v Couper the appellant’s criminal record had been raised in evidence in general terms concerning the relevant history he had given on consultation with two psychiatrists. Prosecuting counsel cross-examined the appellant to bring out the full criminal record. It was recounted by the trial Judge with no direction to the jury as to the manner in which it touched on the determination of the issues before the jury. Street CJ said:[34]
It is regrettable that, in the face of such a strong Crown case and such a weak defence case – indeed, almost no defence case – the processes of the criminal law need to be set in motion afresh. It is even more regrettable that this should have resulted from what seems to be an unnecessarily provocative line adopted at the trial by senior counsel for the appellant and what seems to be an unnecessarily vigorous response by the Crown. The highly prejudicial details of the appellant’s criminal record were reiterated in the summing up. I do not feel that so extreme an irregularity can or should be countenanced by withholding appellate intervention.
[34] (1985) 18 A Crim R 1 at 7-8.
Finally, it should be noted that in Antoun v The Queen[35], a case involving trial by judge alone in which a finding of apprehended bias was made and in which the proviso was not argued, despite an overwhelming prosecution case, Kirby J observed[36] that if the proviso had been relied on the Court “would have been obliged to address the question whether the ‘proviso’ applied to a case of this kind, involving alleged disqualification and fundamental error”, citing
[35] [2006] HCA 2.
[36] Ibid at [49].
Weiss at [46].
In my opinion there is nothing said by the High Court in Weiss which qualifies the authority of these cases for the proposition that where there is an irregularity, including a misdirection, so fundamental that it goes to the root of the proceedings, there can be no application of the proviso. The question in this case is whether the misdirection is of such a character.
Opinions will differ, in the case of a misdirection, as to when there is such a departure from the essential requirements of the law that the defect goes to the root of the proceedings. That is apparent from the two dissenting judgments in Wilde itself.
As I have already noted, one of the two fundamental mainstays of the defence case at trial was that the prosecution had failed to prove beyond reasonable doubt that the appellant had not acted in self‑defence. There was no argument on appeal that the appellant was entitled to have her case on self‑defence left to the jury. It was the duty of the trial Judge to direct the jury on the correct application of the law to the case. A failure to do so in relation to such a key issue amounted, in my opinion, to a fundamental error leading to a miscarriage of justice. The trial, insofar as it concerned that issue, was not a trial according to law. The appellant, subject to a mandatory sentence of life imprisonment on conviction of murder, might justifiably feel aggrieved that one of her key defences had not properly been put to the jury and that she had therefore not had a fair trial.
In my opinion it was essential, in those circumstances, that the jury be properly directed on the alternative verdict of manslaughter by excessive self‑defence. A failure to do so resulted in the trial being fundamentally flawed. The error was such that it went to the root of the proceedings. There was a substantial miscarriage of justice.
It follows that, in my opinion, the proviso could have no application, and that it is not necessary for this Court to review the evidence and to form an opinion as to whether the appellant was nevertheless guilty, beyond reasonable doubt, of murder. Accordingly, in relation to the grounds on which leave to appeal was given, I would allow the appeal and order a re‑trial.
Provocation
By ground 4 of the appellant’s notice of appeal the appellant also sought leave to appeal on the ground that the trial Judge erred in failing to direct the jury in regard to provocation. Leave to appeal on this ground was refused by a single judge. The appellant made further application to this Court for leave to appeal on that ground. Adopting the test propounded by King CJ in R v Romano[37], the appellant argued that there was “evidentiary material which, if accepted, is capable of producing in the minds of a reasonable jury a reasonable doubt as to whether the killing of the deceased by the accused did not occur in consequence of a sudden and temporary loss of self‑control brought about by words or conduct of the deceased and as to whether those words or conduct might not have caused an ordinary person to lose his self‑control and to do what the accused did”.
[37] (1984) 36 SASR 283 at 286.
This application can be dealt with relatively briefly. The appellant did not give evidence. While there was evidence from which a jury might infer that there had been some form of altercation between the appellant and the deceased at the relevant time, and evidence of some animosity between them on earlier occasions, there was no evidence at all on which a jury could even consider whether the words or conduct of the deceased might have caused an ordinary person to lose self‑control. That is not proved by the fact that there was an argument. There was insufficient evidence to leave to the jury the question whether there was any conduct of the deceased which might have induced such loss of control, let alone whether there had in fact been a loss of self‑control on the part of the accused.
The appellant’s application for leave to appeal on this ground should be refused.
Appeal against sentence
Following the imposition of the mandatory sentence of life imprisonment, the trial Judge subsequently fixed a non‑parole period of 20 years commencing on the date the appellant was taken into custody, namely 21 April 2004. She appeals by leave against that sentence on the ground that it is manifestly excessive. Because I would set aside the conviction, the sentence must also be set aside. However, in the circumstances it would be inappropriate to make any comment on the ground of appeal, and I decline to do so.
SULAN J: I agree with the reasons of Bleby J. I would allow the appeal, set aside the conviction and sentence, and order a retrial.
WHITE J: I agree with the orders proposed by Bleby J. I also agree with his reasons. There is nothing which I wish to add.