R v Heffernan; R v Stephens - [2012] SASCFC 70

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HEFFERNAN; R v STEPHENS
[2012] SASCFC 70
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice Kelly)
15 June 2012
CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR INCONSISTENT STATEMENTS - DIRECTIONS TO JURY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - ADMISSIBILITY GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - GENERAL PRINCIPLES
Appeals against conviction for murder - jury trial - unanimous verdict - the issues on appeal arose from the trial Judge’s summing up - both defendants complained about the adequacy of the direction and redirection as to self-defence - the defendant Stephens also complained about the adequacy of directions given concerning an out of court inconsistent statement made by a prosecution witness - the case of Heffernan was that he acted in self-defence - the case of Stephens was that he went to the aid of Heffernan during the fight - Stephens claimed that he was entitled to rely on Heffernan’s defence of self-defence.
Whether the Judge erred in his directions as to self-defence with regard to addressing the concept of reasonable proportionality - whether the Judge erred in his redirection as to self-defence - whether there was a risk of a miscarriage of justice in the case of Stephens through the Judge not having directed the jury as to the significance of an out of court inconsistent statement made by a prosecution witness.
Held per Gray J (Anderson, Kelly JJ concurring): Appeals dismissed - the jury were at the outset correctly directed as to the defence of self-defence - there was no real risk that the jury would not have understood that when the Judge referred to the word “proportionate” in each of the impugned passages that the Judge was referring to “reasonably proportionate” - in using the expression “in a shorthand way” the jury would have understood that the Judge was providing a reference to his earlier direction on the law of self-defence - the Judge in his redirection made it plain that as far as proportionality was concerned, the second limb postulated a test of “reasonably proportionate” - regarding the out of court prior inconsistent statement, the jury would have been aware of the challenge to the credibility and reliability of the witness - in the circumstances of the present trial the decision by the Judge not to refer to this particular aspect did not involve any error of law and did not render the verdict unsafe or unsatisfactory.
Criminal Law Consolidation Act 1935 (SA) s 15 and s 15B, referred to.
R v Dunn [2012] SASCFC 40; R v Yout [2012] SASCFC 1; Driscoll v The Queen (1977) 137 CLR 517, considered.

R v HEFFERNAN; R v STEPHENS
[2012] SASCFC 70
Court of Criminal Appeal Gray, Anderson and Kelly JJ
GRAY J:

These two appeals against conviction were heard together and are both the subject of these reasons.
Michael John Stephens and Rhys Heffernan, the defendants and appellants, were jointly charged that on 15 August 2009 at Woodville they murdered Edward Rzepnicki. Following a trial in this Court, the jury returned unanimous verdicts of guilty of murder.
The issues on appeal arise from the Judge’s summing up. Both defendants complain about the adequacy of the directions as to self-defence in two respects. Additionally, the defendant Stephens complains about the adequacy of directions given concerning a prior out of court inconsistent statement made by a witness.
As the trial unfolded, it was not in issue that both defendants had been involved in a fight with Mr Rzepnicki. It was not in issue at the trial that the defendant Heffernan, during the course of the fight, inflicted a fatal wound on Mr Rzepnicki by stabbing him with a long bladed knife. It was not in issue that during the fight the defendant Stephens struck Mr Rzepnicki on the head with a hammer. According to Stephens, both defendants went to Mr Rzepnicki’s home with the intent of robbing him. Following the fight they proceeded with the robbery.
The Trial
The Prosecution Case
Mr Rzepnicki had spent the latter part of the evening of Friday 14 August 2009 at the Woodville Hotel. He left the Woodville Hotel in the early hours of Saturday 15 August 2009. Apparently Mr Rzepnicki met the defendants by chance some time after his departure from the Woodville Hotel and eventually the three men made their way to Mr Rzepnicki’s home where they consumed alcohol and smoked cigarettes. At the time Mr Rzepnicki was aged in his late 50s. The defendants were in their late teens to early 20s.
The defendants in the early hours of the morning of Saturday 15 August 2009 were armed with a knife and a hammer and were intending to commit a robbery or robberies. When they went with Mr Rzepnicki to his home, it was their intent to rob him. Neither defendant knew Mr Rzepnicki prior to 15 August 2009. The defendants, however, shared a house and were well known to each other.
While at Mr Rzepnicki’s home, a fight developed and as a consequence, Mr Rzepnicki sustained multiple injuries; one of which led to his death. The injury causing death was a stab wound through the skin on the left side of the chest which extended into the chest penetrating the left and right ventricles of the heart.
Mr Rzepnicki sustained many other injuries. These included what the pathologist described as chop wounds to the head and face, lacerations to the head and face, extensive bruising to the head and face and to the left side of the body, including the chest and back and left lower thigh and left knee.
The substance of the prosecution case was that the defendants were engaged in an attack on Mr Rzepnicki and that in the course of that attack he was struck by the defendant Stephens with a hammer and stabbed by the defendant Heffernan with a knife. Mr Rzepnicki, as noted above, died as a result of the knife wound that penetrated the heart. Immediately following the attack the defendants set about the robbery. The defendant Stephens took Mr Rzepnicki’s wallet from about his body and the defendant Heffernan carried off a television set. Other goods were taken, including items from a refrigerator. Later, the proceeds of the wallet were divided. It was the intention of the defendants to share the other proceeds of their crime. The defendants left the scene with the knife and hammer and on their return home concealed both weapons.
It was the prosecution case that the defendant Heffernan was responsible for the infliction of the fatal wound and that this was part of a joint enterprise with the defendant Stephens to inflict grievous bodily harm on Mr Rzepnicki. The prosecution presented an alternative case that the defendant Stephens aided and abetted the defendant Heffernan in the murder.
The prosecution case against the defendant Heffernan relied on forensic evidence to establish that the defendant Heffernan had been present at Mr Rzepnicki’s home. A DNA profile matching the defendant Heffernan’s DNA was found on a cigarette inside Mr Rzepnicki house. The defendant Heffernan gave evidence in his defence in which he admitted being present.
Jessica Anne Shamroze-Hanson, a woman who was a frequent visitor at the home of the defendants, gave evidence that she saw the defendant Heffernan with the defendant Stephens at their home in the hours shortly before sunrise on Saturday 15 August 2009. She described the defendant Stephens’ demeanour as distraught. She said he had blood on his body and clothes.
On Sunday 16 August 2009, the police attended the home of the defendants where a search located two knives and a hammer hidden in a cupboard next to a stove in the kitchen. Forensic testing of the knives and hammer revealed DNA consistent with DNA located at the home of Mr Rzepnicki.
The prosecution case against the defendant Stephens relied on admissions made of his involvement in the killing of Mr Rzepnicki. On the day following the killing, Sunday 16 August 2009, the defendant Stephens was arrested.
Following his apprehension, the defendant Stephens informed the police that he and “another man” met Mr Rzepnicki by chance. The two decided they were going to rob him. The defendant Stephens admitted to going to Mr Rzepnicki’s home. When at the home, an altercation developed between Mr Rzepnicki and the defendant Heffernan.[1] He said that the defendant Heffernan produced a weapon and Mr Rzepnicki then lunged at the defendant Heffernan. The defendant Stephens said that he hit Mr Rzepnicki on the head with a hammer which he was carrying for the purpose of breaking into cars. He said Mr Rzepnicki fell to the ground. Mr Rzepnicki was bleeding. He described seeing the defendant Heffernan with a knife covered in blood. The defendant Stephens went into another room and could hear the sound of fighting from the lounge room. When he returned, Mr Rzepnicki was not making any noise.
[1] At the time of making the police statement Stephens did not identify Heffernan by name, but it was not in dispute at trial that Heffernan was the man who accompanied Stephens
The defendant Stephens informed the police that he and the defendant Heffernan then stole beer, tobacco, a television set and Mr Rzepnicki’s wallet. The defendant Stephens dumped his bloodstained jacket and a t-shirt en route back to his home. These items were found by police and forensically examined. On the prosecution case the items of clothing had DNA that came from both Mr Rzepnicki and the defendant Stephens.
Robert Stephens gave evidence of speaking with his brother, the defendant Stephens, during the afternoon of 15 August 2009. The defendant Stephens told Robert about what had taken place at Mr Rzepnicki’s home. He informed Robert that Mr Rzepnicki had claimed to have molested “kids and mums” and had offered both the defendants Stephens and Heffernan money in return for sex. A struggle ensued between the “the old man” and the defendant Heffernan. The defendant Stephens said that he saw his mate getting attacked with a knife so he struck the man over the head with a hammer. He then informed Robert that the two of them robbed the man of money and a television set and that they shared the proceeds.
Ms Shamroze-Hanson gave evidence that in the hours shortly before sunrise on Saturday 15 August 2009 she was asleep in the lounge room of the defendants Heffernan and Stephens’ home when she was awoken by the defendant Stephens. She claimed that the defendant Heffernan was already home at this time. She described both as being in an emotional state. She recounted that the defendant Stephens told her that he and the defendant Heffernan were in a lot of trouble. He admitted going to a man’s home with the defendant Heffernan. He said there was an altercation, during the course of which he struck the man over the head with a hammer and the defendant Heffernan used a knife to stab the man.
John Gilbert, a forensic pathologist, gave evidence that Mr Rzepnicki had a splitting injury to the top of the head, which was caused by the skin getting wedged between a blunt object and the skull. Such an injury could have been caused by a blunt instrument such as a hammer.
The Defence Cases
The case of the defendant Heffernan was that he acted in self-defence. He gave evidence in his defence. No other witnesses were called.
The defendant Heffernan admitted in evidence that he inflicted the fatal wound to Mr Rzepnicki. He claimed to have acted in self-defence. He said he was involved in a verbal confrontation with Mr Rzepnicki, and that as a result, both men stood up and were facing each other. Mr Rzepnicki produced a knife. The defendant Heffernan grabbed Mr Rzepnicki’s wrists and the men struggled. The defendant Heffernan called out to the defendant Stephens, who came to his assistance and struck Mr Rzepnicki over the head with something. The defendant Heffernan and Mr Rzepnicki then fell to the floor. Mr Rzepnicki fell on top of him. The knife fell to the floor. Mr Rzepnicki was reaching for the knife. At that point, the defendant Heffernan grabbed the knife and stabbed Mr Rzepnicki. He said he did so because he believed Mr Rzepnicki was going to stab him. He claimed he did not intend to kill Mr Rzepnicki or cause him serious harm. He claimed that he acted in self-defence.
After inflicting the fatal wound, the defendant Heffernan acknowledged that he and the defendant Stephens set about the robbery. He and the defendant Stephens intended to share the proceeds of their robbery.
The case of the defendant Stephens was that he went to the aid of the defendant Heffernan during the fight. He claims that he was entitled to rely on the defendant Heffernan’s defence of self-defence. He did not give evidence and called no other evidence in his defence.
The Appeals
The defendant Heffernan submitted that the Judge had erred in his directions as to self-defence and that although providing a redirection as to self-defence, that redirection itself contained further error.
The defendant Stephens submitted that when considering the prosecution case of joint enterprise or the prosecution case of aiding and abetting, the errors in the directions as to self-defence identified by the defendant Heffernan were relevant and, if made out, would provide grounds for setting aside his conviction for murder. The defendant Stephens further submitted on the appeal that there was a risk of a miscarriage of justice through the Judge not having directed the jury as to the significance of a prior out of court inconsistent statement made by Ms Shamroze-Hanson, in which she attributed the conversation that she claimed in evidence to have had with the defendant Stephens to have been a conversation with the defendant Heffernan.
Following the conclusion of submissions on the appeal and of the preparation of these reasons, the defendant Heffernan filed a notice purporting to abandon his appeal. I had reached the conclusion that the defendant Heffernan’s appeal should be dismissed before receipt of his notice of abandonment. Having regard to my reasons and to his abandonment, I would dismiss his appeal. As noted above, however, the defendant Stephens adopts the submissions made by the defendant Heffernan and as a consequence, the issues raised remain to be addressed.
Self-Defence
It was accepted by both defendants that the Judge had, at the outset, correctly directed the jury as to each of the relevant aspects of self-defence and as to the onus carried by the prosecution. However it was submitted that later in the summing up the Judge erred when discussing reasonable proportionality. Attention was drawn to several occasions where the Judge referred to “proportionality” without reference to “reasonableness”. Both defendants accepted that the suggested error of the Judge could be remedied by further direction.
At trial, counsel sought a further direction which the Judge agreed to provide to the jury. It was accepted that the Judge in this further direction referred to “reasonable proportionality”. However, it was complained that the Judge did not inform the jury that he was correcting an error, but instead told the jury that he was providing a further direction because “a couple of matters are a little bit difficult because of a matter of style”. It was also claimed that in the course of the further direction, the Judge had misstated other aspects of the defence of self-defence.
Counsel for the Director of Public Prosecutions joined issue with these submissions. He submitted that the Judge at the outset of summing up provided a correct direction as to the law of self-defence and that later discussion did not relevantly detract from that direction.
It should be noted that in an earlier passage in the summing up, the Judge informed the jury that they were bound to follow his directions as to the law and in particular to the following:
Ladies and gentlemen, it is now my task to sum up to you. The task of a judge in summing up to a jury is a two-fold task. Firstly, it is my job to explain to you what the law is and counsel have mentioned that, and, in explaining to you what the law is, you will take my directions. You have no alternative. However, as counsel have also said to you, it is also my task to sum up the facts of the case. Do not be frightened of that. We will not be going through the whole case again but I will just remind you of the salient facts for your consideration.
The Director challenged the submission of the defendants that the Judge was bound to follow the precise wording of the section when assisting the jury with the application of the statutory provision to the evidence in the trial. The Director accepted that the terms of section 15 of the Criminal Law Consolidation Act 1935 (SA), which addresses self-defence, raised matters of some complexity. In the Director’s submission the impugned passages of the summing up were no more than statements by the Judge designed to assist the jury in their understanding of the import of section 15.
It is appropriate at this stage to refer to the terms of section 15: [2]
[2]    In R v Dunn [2012] SASCFC 40 at [39]-[47], I reviewed the history of section 15. I incorporate by way of reference paragraphs 39 to 47 of that judgment.
(1)    It is a defence to a charge of an offence if—
(a)     the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b)     the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist¹.
(2)    It is a partial defence to a charge of murder (reducing the offence to manslaughter) if—
(a)     the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but
(b)     the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.²
(3)    For the purposes of this section, a person acts for a defensive purpose if the person acts—
(a)     in self defence or in defence of another; or
(b)     to prevent or terminate the unlawful imprisonment of himself, herself or another.
(4)    However, if a person—
(a)     resists another who is purporting to exercise a power of arrest or some other power of law enforcement; or
(b)     resists another who is acting in response to an unlawful act against person or property committed by the person or to which the person is a party,
the person will not be taken to be acting for a defensive purpose unless the person genuinely believes, on reasonable grounds, that the other person is acting unlawfully.
(5)    If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
Notes—
1     See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, this paragraph will be inapplicable.
2     See, however, section 15C. If the defendant establishes that he or she is entitled to the benefit of that section, the defendant will be entitled to a complete defence.
Section 15B of the Criminal Law Consolidation Act is also relevant and provides:
A requirement under this Division that the defendant's conduct be (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist does not imply that the force used by the defendant cannot exceed the force used against him or her.

When discussing the elements of the offence, the Judge addressed unlawfulness and directed the jury that the burden lay on the Crown to prove beyond reasonable doubt that the acts of the defendants were not in self-defence. The Judge repeated the substance of this direction on several occasions during the summing up:
Ladies and gentlemen, it is for the Crown to prove beyond reasonable doubt that the stabbing was unlawful. In other words, they must prove beyond reasonable doubt that it was not in lawful self-defence and I will talk more about that in a moment.
To understand the complaint about the Judge’s directions in respect of self-defence, it is necessary to extract a lengthy passage from the summing up. The Judge in the course of his summing up addressed the jury in the following terms:
However, I am not quite finished with that because I have not dealt with the question of self-defence. That is a little more complicated and I want to go back and give you some directions about that. Remember, self-defence is the third element that we are talking about. Was it unlawful? Let me talk generally about self-defence because that has been raised very clearly in this case in the evidence of Mr Heffernan. In some situations it is lawful to use force against another person. Force used in self-defence is an example of that. When a person is subjected to or genuinely fears an attack, he may use force, even lethal force, to defend himself. The law entitles him to do what is reasonably necessary for the purposes of self-defence. However, generally speaking defence for this purpose means defence. A person who claims to be acting in justified self-defence must have acted and believed himself to be acting in defence. To engage willingly in combat is not acting in self-defence. Self-defence can never be a cover-up for aggression. Self-defence can never be called in aid to justify retaliation or revenge. If the danger that the person perceived he was facing was over and the occasion for self-defence was at an end he cannot keep going. Then again on the other side of the coin a person, who according to the circumstances as he understands them, genuinely believes that he was threatened with attack is not obliged to wait until the attack begins.
Ladies and gentlemen, they are just general remarks about self-defence but let me turn more specifically to what the law regards as justifiable self-defence and let me be clear and direct you that although the defence of self-defence is raised by the defendant and you heard it raised in the evidence of Mr Heffernan, he was the one who told you why he stabbed the deceased and he said it was because it was in self-defence, because he raises it that does not mean that there is an onus upon him to prove it. Once it is raised as it has been here the prosecution have to prove beyond reasonable doubt that it does not apply. If it does not do that, then his actions would have been lawful. The prosecution has to prove that they are unlawful. In other words, the prosecution has to exclude beyond reasonable doubt self-defence to prove that the accused’s conduct was unlawful. So in anything I say about self-defence you must remember the overarching principle that the onus is upon the Crown to disprove that self defence exists. It is not for the defence to prove.
Ladies and gentlemen, putting that aside now, let me just direct you about self-defence in relation to this case. It is a complete defence to the charge of murder if two things exist. One, the accused genuinely believed that the act which killed the deceased was necessary and reasonable in his own defence. That is the first situation that has to exist, bearing in mind that he does not have to prove it, it is for the Crown to disprove it. That is the first thing. So it looks into the mind of the accused. Secondly, if the first situation exists bearing in mind the onus of proof, that the conduct in the circumstances as the accused genuinely believed to exist was reasonably proportionate to the threat which he believed he faced. If both of those situations exist, that is a complete defence to murder. When I say both of them exist, it is for the Crown to prove beyond reasonable doubt they do not exist. There is no onus on the defence.
Let me go back. The first limb requires the Crown to disprove that the accused genuinely believed that the act, namely the stabbing which killed the deceased, was necessary and reasonable in his own defence. Looking at that aspect it is what we call a subjective test. We look into the mind of the accused at what he genuinely believed. If the Crown prove to you beyond reasonable doubt that there is no such genuine belief or proves to you beyond reasonable doubt he was not telling the truth when he gave that version, then you need go no further, you need not think about the second limb as far as self-defence is concerned, it just does not apply, therefore the act would be unlawful. If, however, you found that it is reasonably possible that the accused is telling the truth and that the accused himself genuinely believed that the act that killed the deceased was necessary and reasonable in his own defence, you will then go to the second limb and that is: Was the conduct that caused the death in the circumstances as the accused genuinely believed them to be reasonably proportionate to the threat which he believed he faced? That is an objective view. It is for you to assess whether his actions were proportionate to the threat bearing in mind the situation which he believed he faced putting yourself in his shoes. You decide whether what he did was reasonably proportionate, was it a fair thing in the circumstances. Ladies and gentlemen, that is a matter for you objectively looking at the situation as the defendant faced to decide. In other words, it is for you to assess the situation as to whether it was proportionate to the threat the actions he took as I said in the light of the position that he was in and as he saw the situation. If the prosecution also fails to prove beyond reasonable doubt that it was not proportionate, then that is a complete defence. In other words, both situations exist, that is a complete defence. So he had to have the genuine belief and what he did had to be proportionate to the threat that he faced.
The defendants accepted that at the outset of the above directions, the Judge correctly addressed each of the elements of self-defence as set out in section 15. However, it was said that in the latter part of the final paragraph extracted above, the Judge used the word “proportionate” on three occasions without using the word “reasonably”. It was claimed this was a misdirection. It was further complained that for the Judge to say – “[y]ou decide whether what he did was reasonably proportionate, was it a fair thing in the circumstances” – misstated the terms of the section.
The defendants also complained about four further alleged misstatements in the following three paragraphs in the Judge’s direction.
The complaint advanced on appeal was that, notwithstanding the correct directions of the Judge at the outset, later references were the subject of incorrect or incomplete statements. It was said that, as a consequence, the jury would or may have been misled in their consideration of the defence cases.
I consider that the jury were adequately directed. The jury were at the outset correctly directed as to the defence of self-defence. The impugned passages followed the Judge’s correct reference to the terms of the statute addressing self-defence. They were an explanation to the jury about the application of the statutory provisions. I do not consider that there was any real risk that the jury would not have understood that when the Judge referred to the word “proportionate” in each of the impugned passages, the Judge was referring to “reasonably proportionate”. To my mind, the use of the phrase – “was it a fair thing in the circumstances” – did not mislead the jury. It was a way of inviting the jury to objectively address reasonable proportionality. I do not consider there was any risk that the jury would have been distracted from the Judge’s earlier direction as to the elements of self-defence.
Thereafter in the course of summing up, the Judge from time to time used the word “proportionate” or a similar expression unconnected to the word “reasonably” or “reasonable”. The Judge made it plain that he was expressing himself in a shorthand manner:
Now I am about to make a comment which I think you will all agree with, ladies and gentlemen, that is confusing, however let me try to make it as simple as possible. There are two limbs to the defence of self-defence. The first limb is that: Did he genuinely believe that what he did when he killed the deceased was necessary and reasonable in self-defence? That is the first limb. The second limb is: If that is so, was it proportionate to the threat he faced? That is putting it in a shorthand way. The onus is upon the Crown in relation to the existence of both of those limbs. If the first limb exists, namely he believed he had a problem but it was out of proportion, the verdict will be manslaughter. If the first limb existed and the second limb existed, namely it was not out of proportion, he will be not guilty of anything. Is that clear, ladies and gentlemen? As I say, it is confusing but that is the situation and that goes to the question, the element as to whether the acts which killed the deceased were unlawful or not. So, ladies and gentlemen, they are my directions to you concerning the question as to whether one person is involved.
[Emphasis added.]
I consider that in using the expression “in a shorthand way” the jury would have understood that the Judge was providing a shorthand reference to his earlier direction on the law of self-defence. As Vanstone J observed in Yout when discussing the adequacy of summing up concerning self-defence:[3]
I do not consider that any error was involved in the use of the shorthand term “reasonable self-defence”. As I have said, the judge gave more expansive directions on self-defence both in his oral directions and in the memorandum provided to the jury. The jury could have been under no misapprehension that these were other than shorthand references to the definition of self-defence given in the oral and written directions. …
[3] R v Yout [2012] SASCFC 1, [15].
At the conclusion of the summing up, counsel for Heffernan raised with the Judge a concern that when the Judge had referred to proportionality without express reference being made to reasonable proportionality, the jury may have been misled as to the elements of the defence of self-defence. The Judge agreed to raise the matter with the jury together with other matters by way of a further direction. The Judge’s further direction to the jury included the following terms:
Sorry, ladies and gentlemen, a few things I have to raise with you. Counsel have quite properly pointed out a couple of matters that are a little bit difficult that I want to not correct but it is a matter of style. Let me deal with this thorny self-defence thing. Do you remember I gave you the four elements that have to be proved before murder is made out 1, 2, 3, 4, the fourth of which there has to be the intention to cause grievous bodily harm. The third, that it has to be unlawful, brings in self-defence. Do you remember that? Right. If the fourth has not been proved, that is an intention to cause grievous bodily harm, then that brings in the question of manslaughter. Do you remember I told you that? You need consider manslaughter. When you consider manslaughter, the elements of manslaughter, a couple of them are the same as the elements for murder, namely there was a deliberate killing and, secondly, it had to be unlawful. The unlawfulness for manslaughter is, in a sense, the same as the unlawfulness for murder, do you understand? So if manslaughter is in self-defence the same as murder is in self-defence it is a defence except for one thing. Remember I told you with murder that if the two limbs are satisfied, there is a complete acquittal, namely, he thought that he had to do it and (b) it was reasonably proportionate. You remember that, there had to be an acquittal. If one of them is satisfied it drops from murder to manslaughter. You remember I told you that? If he thought he had to do it, it was in his own mind it had to be self-defence but it was not reasonably proportionate then it is brought from murder to manslaughter. We have got that? If the fourth element of murder has not been proved so you are looking at manslaughter when you are looking at the unlawfulness if the two limbs exist you don’t, he’s off altogether, not guilty of anything, the same as murder. If one of them exists there is nothing for you drop it down to. You cannot go from murder to manslaughter because we are talking about manslaughter. What happens is then he is guilty of manslaughter, the offence of manslaughter is made out. Is that clear?
[Emphasis added.]
It is to be observed that the Judge made it plain that as far as proportionality was concerned, the second limb postulated a test of “reasonably proportionate”. The defendants accepted on appeal that the redirection correctly addressed the legal position but contended that because the Judge did not say that a correction was being made that the jury would not have understood this to be the case. In my view, this submission is without substance. The jury were referred to the Judge’s earlier directions which were accepted to be accurate. Had there been any earlier inadequacy in the Judge’s use of the word “proportionate”, then the matter was corrected in the Judge’s further statement to the jury.
It is convenient to now turn to the remaining complaint about the further direction concerning self-defence. It was said that in the further direction, as extracted above, the Judge misdirected the jury by using the expression “he thought that he had to do it and (b) it was reasonably proportionate”. It was complained that this misstated the terms of section 15. I do not consider there is any substance in this submission. The reference to “it” in the impugned passage was a reference to the conduct of the defendant Heffernan. I consider that this is how the jury would have understood the Judge’s remark. This was not a misdirection.
Prior Out of Court Inconsistent Statement
As earlier mentioned, the remaining complaint advanced by the defendant Stephens was that the Judge failed to provide adequate directions to the jury concerning a prior out of court inconsistent statement made by Ms Shamroze-Hanson. Ms Shamroze-Hanson was cross-examined about an earlier out of court statement in which she attributed the conversation that she claimed in evidence to have had with the defendant Stephens to have been a conversation with the defendant Heffernan. This was an important matter as statements being attributed to the defendant Stephens had in the out of court statement been attributed to the defendant Heffernan.
In the within proceeding, Ms Shamroze-Hanson did not accept the truth of her prior out of court inconsistent statement. She maintained the account given in evidence. In these circumstances, the evidence of the prior out of court inconsistent statement could not be used as evidence of the truth of matters contained in that statement. Its legitimate use was to undermine the credibility and reliability of her evidence.
In this respect it is instructive to have regard to the observations of Gibbs J in Driscoll:[4]
… it is clearly settled that the previous statement is admitted merely on the issue of credibility, and is not evidence of the truth of the matters stated in it: Taylor v. The King; Deacon v. The King; and Reg. v. Pearson. Since the jury, if uninstructed, are not likely to be aware of the limited use to which the previous statement may be put, it is essential that this should be made clear to them by the trial judge. As to the second question, the whole purpose of contradicting the witness by proof of the inconsistent statement is to show that the witness is unreliable. In some cases the circumstances might be such that it would be highly desirable, if not necessary, for the judge to warn the jury against accepting the evidence of the witness. From the point of view of the accused this warning would be particularly necessary when the testimony of the witness was more damaging to the accused than the previous statement. In some cases the unreliability of the witness might be so obvious as to make a warning on the subject almost superfluous. It is possible to conceive other cases in which the evidence given by a witness might be regarded as reliable notwithstanding that he had made an earlier statement inconsistent with his testimony. For these reasons I cannot accept that it is always necessary or even appropriate to direct a jury that the evidence of a witness who has made a previous inconsistent statement should be treated as unreliable. …[I]t cannot be accepted that in cases where a witness has made a previous inconsistent statement there is an inflexible rule of law or practice that the jury should be directed that the evidence should be regarded as unreliable. …
[Emphasis added. Footnotes omitted.]
[4] Driscoll v The Queen (1977) 137 CLR 517, 536-537.
The Judge when summing up made no reference at all to the prior out of court inconsistent statement of Ms Shamroze-Hanson. Counsel for the Director accepted that there was an important inconsistency between the out of court statement and the evidence of Ms Shamroze-Hanson. It was accepted that it would have been preferable for the Judge to have drawn attention to this inconsistency and to have explained its relevance to the jury. They were left without assistance on this important topic.
The Director submitted that no risk of a miscarriage of justice arose. It was said that the inconsistency would have been plain to the jury as it had been the subject of considerable emphasis during cross-examination and was reinforced by counsel for the defendant Stephens during his final address to the jury. The Judge had, it was pointed out, directed the jury to consider all of the evidence and the addresses.
In any event the Judge had directed the jury to scrutinise very carefully the evidence of Ms Shamroze-Hanson when they were considering her reliability:
Ladies and gentlemen, we then heard evidence of witnesses [including Ms Shamroze-Hanson] from the house in which the two accused lived at 118 Woodville Road. I give you this warning about their evidence, ladies and gentlemen. I do not think any of those witnesses at that time were in particularly good shape in describing how they had spent their day drinking alcohol and ingesting marijuana and you might treat their evidence and scrutinise it very carefully when you are considering the reliability of what these people had to say.
You remember the evidence of Joel Petterson, Jessica Shamroze-Hanson, the former girlfriend of Mr Stephens and John Murray. The upshot of their evidence seems to be that there was a lot of alcohol drunk on the night before the alleged murder took place. There was marijuana smoked and Ms Shamroze-Hanson gave evidence of the conversations she had with Mr Stephens on the Saturday after the alleged murder.
Let me read to you that evidence, p.259, line 15. This is just a reminder of her evidence on that topic of that conversation which has been referred to by counsel. The prosecutor asked this question: ‘Can I just ask you to try and use as close to the words he used as possible - this is talking about a conversation - ‘Okay, I’ll try. My memory about that part of it is not good. I believe he said they went to this person’s house -’
This is of course talking about Mr Stephens and of course this cannot be used against Mr Heffernan - ‘- I believe he said that to begin with this person actually let them in so it was a friendly visit to begin with, I believe. Somewhere between that drinking with this person Rhys and Michael started to get quite violent towards this person, I believe they started to hit with a hammer, started to punch him, kick him. One was doing this - I believe Michael was doing this while Rhys was going around the house searching for things to steal, things to rob.
Q. Did they say that the man had said anything - and I said he shouldn’t lead - was anything further said - that’s what the prosecutor said.
A. Michael had told me that at the end of everything Rhys stabbed this guy in the back with a knife, Michael tried to get him to stop but he would not listen and then they pretty much just left the house, they didn’t know if this person was alive or dead at the time. This is just a basic outline of what Mr Stephens said, because I cannot recall the exact words, but that is a basic outline of the conversation.’
Ladies and gentlemen, that can only be used as evidence against Mr Stephens. She also gave evidence on the Saturday morning when the two accused came back to the house, both were covered in blood.

There can be no doubt that the jury were well aware that Ms Shamroze-Hanson’s evidence was the subject of challenge and that her credibility and reliability were at issue. The Judge at the outset of the summing up had informed the jury that the assessment of witnesses was a matter for the jury.
In the passage extracted, it is to be noted that the Judge warned the jury that they should scrutinise the evidence of Ms Shamroze-Hanson very carefully. To my mind, the jury would have been well aware of the attack on her credibility and reliability. As noted earlier, defence counsel had drawn attention to the cross-examination of the witness on her prior out of court inconsistent statement and the topic was the subject of explicit comment in his final address.
It is to be accepted that it would have been preferable for the Judge to have made reference to Ms Shamroze-Hanson’s prior out of court inconsistent statement and to have directed the jury in accordance with the observations in Driscoll. However, as pointed out in Driscoll, this was a matter that remained in the discretion of the trial judge. In the circumstances it may be inferred that the Judge considered that the direction to scrutinise with care was sufficient.
My review of the proceeding satisfies me that the jury would have been aware of the challenge to the credibility and reliability of Ms Shamroze-Hanson and that in the circumstances of the present trial the decision by the Judge not to refer to this particular aspect did not involve any error of law and did not render the verdict unsafe or unsatisfactory.
Conclusion
I would dismiss both appeals.
ANDERSON J. I agree that both appeals should be dismissed for the reasons given by Gray J.
KELLY J: I agree that both appeals should be dismissed for the reasons which Gray J has given.