R v HYLAND - [2015] SASCFC 16

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HYLAND
[2015] SASCFC 16
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Justice Parker)
18 February 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
Applicant found guilty of aggravated causing harm with intent to cause harm contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA) after a jury trial – raised defence of self-defence at trial – Judge agreed to defence counsel’s request to amend the memorandum as to self-defence handed to the jury during the summing up – the amendment resulted in incorrect alternative answers to the question posed in the memorandum with respect to s 15(1)(a) of the Act – neither counsel nor the Judge recognised the need to replace the alternative answers by their converse – no complaint was made at trial about the amended memorandum or any direction – applicant now complains that the amended memorandum and oral directions misstated the law as to self-defence and led to a miscarriage of justice – where oral directions as to self-defence correctly stated the law – where the memorandum was correct until defence counsel requested an amendment
Held: The summing up must be considered as a whole in deciding whether a miscarriage of justice has occurred – no miscarriage of justice has occurred – permission to appeal granted with respect to ground 1 but appeal dismissed – permission to appeal refused on grounds 2, 3 and 4.
Criminal Law Consolidation Act 1935 (SA) s 24(1), referred to.
R v Burns (2009) 103 SASR 514; La Fontaine v The Queen (1976) 136 CLR 62; R v Tran & Tran (2011) 109 SASR 595; R v Clothier [2002] SASC 9; R v Dunn (2006) 94 SASR 177; Chamberlain v The Queen (1983) 46 ALR 493; R v Aziz [1982] 2 NSWLR 322; R v Carbone (No 2) (1976) 14 SASR 28, considered.

R v HYLAND
[2015] SASCFC 16
Court of Criminal Appeal: Kourakis CJ, Bampton and Parker JJ

KOURAKIS CJ: I agree with the reasons of Bampton J and the orders she proposes.
BAMPTON J: The applicant was found guilty, after a trial by jury, of one count of aggravated causing harm with intent to cause harm contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA) (the Act).
The sole issue in the trial was whether the applicant acted unlawfully in stabbing the complainant. The application is for permission to appeal.
It is contended that the trial Judge erred in his directions concerning self‑defence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v HYLAND

Details

AGLC: R v Hyland [2015] SASCFC 16
Case: [2015] SASCFC 16
Decision Date: 18 February 2015

CaseChat Overview and Summary

In R v Hyland, the applicant was convicted by a jury of aggravated causing harm with intent to cause harm under section 24(1) of the Criminal Law Consolidation Act 1935 (SA). The applicant had raised the defence of self-defence at trial. During the summing up, the trial judge, at the request of defence counsel, amended a memorandum handed to the jury concerning self-defence. This amendment resulted in incorrect alternative answers to a question posed in the memorandum regarding section 15(1)(a) of the Act, as the converse of the amended answers was not provided. Neither the judge nor counsel identified this omission at the time, and no complaint was made regarding the amended memorandum or any directions given. The applicant subsequently appealed, arguing that the amended memorandum and oral directions misstated the law on self-defence, leading to a miscarriage of justice.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the trial judge's directions on self-defence, considered as a whole, constituted a miscarriage of justice. Specifically, the court had to determine if the incorrect alternative answers in the amended memorandum, coupled with the oral directions, created a real risk that the jury misunderstood the law or the onus of proof regarding self-defence. The applicant contended that the misstatement of the law in the memorandum and directions led to a miscarriage of justice, despite the oral directions correctly stating the law.

The court held that the summing up must be considered in its entirety when assessing whether a miscarriage of justice has occurred. It was found that the oral directions on self-defence accurately stated the law, and the memorandum was correct until defence counsel requested an amendment. The court reasoned that the jury would have logically substituted the "yes" and "no" answers due to the question being framed with a reverse onus. Furthermore, the court inferred from the fact that neither counsel nor the judge recognised the need for consequential amendments, and no complaint was made at trial, that there was no confusion regarding the onus of proof. The oral directions, Memorandum A, and the introductory direction before Question 1 in Memorandum B all correctly placed the onus on the prosecution to exclude self-defence. Consequently, the court concluded that there was no real risk of the jury misunderstanding the law or the onus of proof, and therefore, no miscarriage of justice had occurred.

Permission to appeal was granted in relation to the first ground of appeal, but the appeal was ultimately dismissed. Permission to appeal was refused on the remaining grounds.

Orders

Orders of the court

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Background

Background to the litigation

It is contended that the trial Judge erred in his directions concerning self‑defence in both his oral and written directions.Background The prosecution alleged that at approximately midnight on 4 March 2013, the applicant intentionally caused harm to Brandon Strauss by stabbing him with a knife three times. The alleged assault occurred at the home of Derek Prosser, a mutual acquaintance of the applicant and Mr Strauss. At trial, the prosecution contended a motive for the offending was that the applicant was upset at Mr Strauss because he did not assist him during a separate incident earlier in the day where the applicant was assaulted by someone else. Mr Prosser gave evidence that he saw the applicant and Mr Strauss having drinks together at his unit when he returned home at 7.30 pm or 8.30 pm that night and that they were still there when he went to bed between 8.30 pm and 9.30 pm. This version was disputed by both Mr Strauss and the applicant during their evidence. Mr Strauss gave evidence that he remained at another person’s home until close to midnight. The applicant’s evidence was that he first became aware of Mr Strauss’s re-attendance at the property after Mr Prosser had gone to bed and shortly before the altercation with him occurred. Mr Strauss’s evidence was that he saw the applicant at about 10.30 pm at another friend’s home that night and the applicant asked him to come back and have a drink with him at Mr Prosser’s unit. Mr Strauss said that he would come back later and the applicant left. Mr Strauss said that he had consumed between 18 and 20 alcoholic drinks by the time he left to go to meet the applicant. Mr Strauss described himself as “pretty drunk” and conceded that he would have been slurring his words and staggering. However, he maintained that he had not forgotten anything regarding the circumstances surrounding the offending. Mr Strauss returned to Mr Prosser’s unit. He intended to sleep on the couch but had also decided to attend because of the applicant’s offer to have a drink with him. Mr Strauss went into the property, knocked on the back door and then went inside. Upon entering, he saw the applicant standing in the dining room. The applicant asked him, “what the fuck are you doing here” or “what are you doing here, just fuck off, go away”. Mr Strauss said he returned outside via the back door and went to pick up his shoes and bag. As he was bending over, he was punched in the face by the applicant. Mr Strauss punched the applicant in the face using his right hand causing the applicant to stumble backwards. Mr Strauss saw the applicant reach into his right pant pocket. Believing the applicant was going to get something out of the pocket, Mr Strauss lunged at the applicant and continued to punch him. He punched the applicant a further four times and the applicant struck him in the torso area three or four times. Mr Strauss then noticed that he was bleeding profusely and realised he had been stabbed.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The logical approach the jury would have taken would be to simply substitute the “yes” and “no” answers due to the question being framed in the reverse onus.Conclusion The Judge’s directions considered in the context of the overall summing up correctly stated the law of self-defence. In my view, there is no real risk that the jury may have misunderstood or have been confused as to where the onus of proof lay. This is not a matter where the Court is left speculating as to the jury’s understanding.[10][10] R v Tran & Tran (2011) 109 SASR 595. The alternative answers to Question 1 posed in Memorandum B with respect to s 15(1)(a) of the Act were incorrect only upon the memorandum being altered in accordance with defence counsel’s request. Memorandum B was correct in its entirety when the Judge guided the jury through it during the course of his oral directions. The jury were taken to the memorandums setting out the written directions after the Judge had explained that what they should take as his directions was what he told them orally. It must be remembered that neither counsel nor the Judge recognised the need for the consequential amendments and there was no complaint about any of the directions to the Judge. This leads to the irresistible inference that there was no confusion regarding where the onus lay. Further to this is the illogicality of the jury believing that self-defence would not be available, if the prosecution had not discharged the onus, against all that they had provided to them orally and in writing. The oral directions, Memorandum A and the introductory direction before Question 1 in Memorandum B all correctly stated that the prosecution bore the onus to exclude the defence of self‑defence. No risk of a miscarriage of justice arises out of the failure to advert to the consequential amendment to the alternative answers to Question 1 in Memorandum B. I would grant permission to appeal with respect to ground 1 but dismiss the appeal. I would refuse permission to appeal on grounds 2, 3 and 4. PARKER J: I agree with the reasons of Bampton J and the orders she proposes.

Ratio Decidendi

Legal Principle Established

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