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 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.
The applicant gave evidence. It is not disputed that he was the person responsible for inflicting the injuries to Mr Strauss. It was his case that the stabbing occurred in circumstances of self-defence.
The applicant said that he returned to Mr Prosser’s residence after he was assaulted by another man earlier that evening. Mr Prosser assisted him by putting a bandage to his head and invited him to sleep the night on the couch. He agreed that he had told Mr Prosser that he was “ticked off” at Mr Strauss, but this was because he had stayed and continued drinking with the person who had assaulted him earlier, not because he had failed to assist him. The applicant said he laid down on the couch at 10.30 pm that night and that Mr Prosser told him not to let anyone into the house, including Mr Strauss. The applicant said that he heard the back door open and saw Mr Strauss walk into the kitchen area and then into the lounge. He said that he got up from the couch and was standing next to it when he first saw Mr Strauss. He told Mr Strauss that he was not supposed to be there, but Mr Strauss said to him “fuck off, you’re not running the show, I’ll do what I like” and said he was looking for his belongings in the house. Mr Strauss walked to the back door and pushed it open. The applicant said that he attempted to lock the door behind him but, as he did so, Mr Strauss spun around and punched him with his right hand and proceeded to throw a flurry of punches at him causing him to be knocked backwards towards the kitchen table. The applicant maintains that he did not strike Mr Strauss at this stage. The applicant said he could see a paring knife at the end of the table which he picked up with his left hand.
During cross-examination, the applicant denied having an opportunity to arm himself with a knife prior to realising Mr Strauss was at the unit. He further denied picking up and concealing a knife in the pocket of his trousers prior to Mr Strauss entering the unit. The applicant pushed Mr Strauss backwards out the back door until they were both standing in the verandah area just outside the door. Mr Strauss continued to throw punches at the applicant and the applicant believed he was struck about 20 times in the head and face. At this time, whilst holding the knife in his right hand, he struck out at Mr Strauss using his right hand in a roundhouse motion, using his left hand to cover his own face. He struck out at Mr Strauss two or three times and said he did so in order to stop him from punching him.
The appeal
The Judge commenced his summing up by telling the jury that he would provide them with three documents as part of his legal directions. The first document set out the topics that would be covered in the summing up. The second was a five page document setting out the elements of the offence of aggravated causing harm with intent (Memorandum A). The third was titled “Memorandum for the jury about self‑defence” (Memorandum B). Memorandum B states the law of self-defence; poses Question 1, relevant to s 15(1)(a) of the Act; Question 2, relevant to s 15(1)(b); and sets out the alternative answers to each question.
The jury therefore received directions with respect to self-defence in three ways: (1) the oral directions; (2) Memorandum A; and, (3) Memorandum B.
The applicant argues that, whilst the Judge did at certain points in the summing up correctly state the burden of proof, overall, the combination of errors gave rise to a miscarriage of justice.
Additionally, the applicant submits that, because of an amendment to Memorandum B, the instructions to the jury became flawed and misleading. The applicant maintains that, even if the balance of both the written and oral directions were correct, there was a risk the jury might have acted on that error in the amended memorandum and ignored the balance of the directions or, at the very least, would have been confused about the directions.
Significantly, the applicant’s trial counsel made no complaint regarding the directions about which complaint is now made. As submitted by the respondent, the absence of complaint is an important consideration in considering whether there is a miscarriage of justice.[1]
[1] La Fontaine v The Queen (1976) 136 CLR 62 at 70; Chamberlain v The Queen (1983) 46 ALR 493 at 501-502; R v Aziz [1982] 2 NSWLR 322 at 331; R v Carbone (No 2) (1976) 14 SASR 28 at 287-288.
In determining whether there is a real risk of a miscarriage of justice occasioned by an error in a direction, the entirety of the summing up must be considered.[2] Individual errors in directions will not automatically amount to a miscarriage of justice, as the summing up, taken as a whole, may not have misled the jury.[3]
[2] R v Tran & Tran (2011) 109 SASR 595.
[3] R v Clothier [2002] SASC 9.
In circumstances where the jury may have been confused due to conflicting statements in the written and oral directions, it is not possible to know which statement the jury was following thereby resulting in a risk of a miscarriage of justice.[4]
[4] R v Burns (2009) 103 SASR 514, [27]-[28].
It has been held that where there is a fundamental defect in oral directions, the defect cannot be overcome by written directions that are correct.[5] In R v Burns, Gray and Sulan JJ stated:[6]
It should be noted, however, that the written document is not in lieu of the oral directions a judge is required to give to a jury. The document is not to be used as a substitute for the detailed oral directions. It is to be used as an aide memoire which may assist the jury to recall the various steps which they might follow in arriving at a proper verdict.
…
Ultimately it is the oral directions of the judge which must prevail. …
Justice Kourakis (as he then was) said:[7]
It also follows that if a summing up contains an error of fact or law, that error is not cured by a correct statement of the law or fact appearing in a written instruction, because the written instruction is not part of the summing up.
[5] R v Dunn (2006) 94 SASR 177 at [43].
[6] (2009) 103 SASR 514 at [20]-[22].
[7] (2009) 103 SASR 514 at [74].
Directions regarding self-defence
Early in the summing up the Judge emphasised that:
The burden of proving the charge lies wholly within the prosecution. The accused does not have to prove anything. If an accused person puts forward a defence, he or she does not have to prove it, it is for the prosecution to disprove it or to show it is irrelevant, otherwise the prosecution would not have proved the charge beyond reasonable doubt.
After the Judge had directed the jury regarding the elements of the offence following the script of Memorandum A, he directed them as to “what the law regards as justifiable self-defence”. He drew the jury’s attention to the last pages of Memorandum A saying:
Members of the jury, I just pause to say, these things that I am now dealing with are dealt with in the last two pages that pose the relevant questions for you. I will just read on from p.4. And so you can see there are two aspects or two limbs to self-defence. The first is concerned with the need to use force at all and focus on the accused’s genuine belief that force of that level was needed for a defensive purpose.
The second introduces the concept of proportionality as between the threat faced by the accused and his reaction. It poses the question: was the accused’s reaction to the threat as he genuinely saw it reasonably proportionate to that threat?
Turning on to p.5. This concept of reasonable proportionality does not imply that the force used by a person under attack cannot exceed that used or threatened against him, it can. There may be no other means of defence open to the person being attacked. It is all a question of what is reasonable in the circumstances.
I pause here to say, as you know the accused’s defence in this trial is self-defence. He contends that he acted in genuine self-defence and that what he did was reasonably proportionate to the threat that he faced. If the prosecution has not proved the converse of that; that is, if the prosecution has not disproved that then the accused is not guilty of any offence. On the other hand, if you are satisfied that the accused did not genuinely believe that it was necessary and reasonable to act as he did in self-defence, and there I am referring to the first limb of self-defence, or if you are satisfied that the conduct was not reasonably proportionate to the threat as the accused saw it, that is the second matter, then the question of self-defence disappears from the trial and the element of unlawfulness is proved.
The Judge then took the jury to Memorandum B:
Now, having said those things, members of the jury, I now move on to the last memorandum you have got, the two-page document. The first two numbered points are really something that I have just drawn from what I have just said to you but I will read it out …
The Judge then read Memorandum B to the jury.
The request to amend Memorandum B
After the Judge had given these directions, defence counsel, in the absence of the jury, raised a concern regarding Memorandum B:
[DEFENCE COUNSEL]:   I do raise a matter in relation to the first question in the memorandum to the jury about self-defence, that is the two-page brief summary of what question is the jury ought to be posing to themselves. The first question leaves open the possibility that the jury may conclude it is up to the accused to prove that there is a reasonable possibility that he genuinely believed it was necessary and reasonable to so defend himself. The question ought to have been framed as whether or not it has been proved beyond reasonable doubt that he did not have that belief.
HIS HONOUR:     I don’t think the jury are in any doubt about who bears the onus; do they, Mr Richards?
[DEFENCE COUNSEL]:   When it is distilled as succinctly as your Honour has done in those questions I would request that the court at the very least remind the jury that it is not for the accused to prove that question and as it is framed, it does not incorporate who it is that bears the onus of proof in respect of that question. Whereas the second question your Honour prefaces it with whether the prosecution has excluded the possibility.
HIS HONOUR:     I think that is a reasonable point, I will make that.
When the jury returned, the Judge addressed them as follows:
HIS HONOUR:     Ladies and gentlemen, counsel have suggested the addition of some words for that very last document that I gave you on the questions that I have posed to illustrate the point. Go over the page to question No. 2. The reason why the questions are framed in that way is because it is the prosecution’s job to exclude things as a reasonable possibility for the purpose of these questions and that is why the second question is ‘Has the prosecution excluded as a reasonable possibility’ etc.
Counsel have suggested similar words be inserted in question No. 1 and I think that is a reasonable point to make, bearing in mind that it is for the prosecution to exclude things. So question No.1 would read ‘At the time when the accused stabbed Brandon Strauss has the prosecution excluded, at least as reasonably possible –’, etc. Again, it is the insertion of the words ‘Has the prosecution excluded, at least as reasonably possible that the accused’ – etc. That is the addition and, indeed, the emphasis that has been suggestion for question 1 which I think is quite a reasonable suggestion.
As can be seen, the Judge referred to the change as a suggestion from counsel that he described as ‘reasonable’. He did not direct the jury to alter their copy of the document.
As pointed out by the respondent, prior to the amendment, Memorandum B was in the same terms as the written direction considered in Burns and correctly states the law as to self-defence. Prior to the amendment, Memorandum B stated:
The law provides that the accused does not commit the crime charged if the prosecution fails to exclude as a reasonable possibility that he genuinely believed that the conduct to which the charge relates was necessary and reasonable to defend himself and, two, that the conduct was, in the circumstances as the accused genuinely believed them to be, reasonably proportionate to the threat that the accused genuinely believed to exist. …
The question posed under the heading Question 1 and the alternative answers to that question were as follows:
At the time when the accused stabbed Brandon Strauss is it at least reasonably possible that the accused genuinely believed that it was necessary and reasonable to do so in order to defend himself?
[In answering this question you must consider what the accused himself genuinely believed was necessary and reasonable in all the circumstances in which he found himself, including Strauss’s words and actions, the accused’s belief about how much Strauss had had to drink, and how much Strauss had in fact drank. You do not answer this question by considering what some imaginary reasonable person would have believed. This stage of the enquiry is concerned with the accused’s own belief, given the actual situation in which he was at the time.]
If the answer to this question is “No”, the question of self-defence disappears from the trial.
If the answer to this question is “Yes”, then you must go on to consider Question 2.
Following the amendment, Question 1 and the answers read:
At the time when the accused stabbed Brandon Strauss has the prosecution excluded, at least reasonably possible (sic) that the accused genuinely believed that it was necessary and reasonable to do so in order to defend himself?[8]
[In answering this question you must consider what the accused himself genuinely believed was necessary and reasonable in all the circumstances in which he found himself, including Strauss’s words and actions, the accused’s belief about how much Strauss had had to drink, and how much Strauss had in fact drank. You do not answer this question by considering what some imaginary reasonable person would have believed. This stage of the enquiry is concerned with the accused’s own belief, given the actual situation in which he was at the time]
If the answer to this question is “No”, the question of self-defence disappears from the trial.
If the answer to this question is “Yes”, then you must go on to consider Question 2.
(Emphasis added)
[8] As the written direction is amended in the document that appears at AB101 the words “Has the prosecution excluded” appear immediately after “Strauss” and the words “is it” are crossed out. It is unclear whether this is the Judge’s copy. At AB79, it appears that the jury were being told to insert the words the words added (and in italics above) at the beginning of the question (in the same fashion as those words appear in question 2). It does not matter if they are inserted at the beginning as set out in here or in the middle of the question as suggested in the handwritten amendment at AB101; the effect is the same.

The problem following the addition of the words “has the prosecution excluded” was that the alternative answers to the question posed for the jury’s consideration should have been replaced by their converse. It would appear that neither counsel nor the Judge turned their minds to the need for these amendments. This may be indicative of the fact that everyone understood what was meant by the Judge and there was no confusion regarding where the onus lay.
The grounds of appeal
It is logical to consider the impugned directions in the order they were given by the Judge. Accordingly I will consider grounds 2, 3 and 4 before ground 1.
Ground 2 – The trial Judge erred in his characterisation of s 15(1)(a) of the Act in his written and oral directions to the jury on self-defence.
The applicant asserts that the Judge failed to properly direct the jury regarding the subjective aspect of s 15(1)(a) of the Act. Section 15(1)(a) provides that it is a defence if “the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose”.
The applicant complains that the italicised sentence in the following passage is a misdirection:
When a person is subjected to, at or genuinely fears an attack, he may use force to defend himself. The law entitles that, for him to do what is reasonably necessary for self‑defence. In a moment I will more precisely define what it is that the law allows but let me first make some general comments.
The Judge went on to explain that a person who claims to have been acting in self-defence must have acted and believed himself to have been acting in self‑defence.
The Judge told the jury that it was for the prosecution to prove that the accused acted unlawfully and that he was not acting in self-defence. He explained that, in speaking of the law of self-defence, he did not wish:
… to imply the accused bears any onus of proving that his actions measured up or met the requirements. The onus remains on the prosecution to prove beyond reasonable doubt that his actions were not in self-defence.
and he reiterated that:
As I have said the prosecution has to exclude self-defence, it is to prove the accused’s conduct was unlawful.
The Judge correctly directed the jury with respect to s 15(1)(a) saying it is:
… concerned with the need to use force at all and [focuses] on the [applicant’s] genuine belief that force of that level was needed for a defensive purpose.
and that the prosecution had to exclude as a reasonable possibility that the applicant “genuinely believed that the conduct to which the charge relates or was necessary and reasonable to defend itself [sic]”.
Read in its proper context, the impugned sentence is not a misdirection.
The applicant further argues that the following passages, which I have highlighted, in the italicised direction that followed Question 1 in Memorandum B are misdirections:
[In answering this question you must consider what the accused himself genuinely believed was necessary and reasonable in all the circumstances in which he found himself, including Strauss’s words and actions, the accused’s belief about how much Strauss had had to drink, and how much Strauss had in fact drank. You do not answer this question by imagining what some imaginary reasonable person would have believed. This stage of the enquiry is concerned with the accused’s own belief, given the actual situation in which he was at the time].
(Emphasis added)
The applicant contends that the passages are expressed in objective and not subjective terms, and, instead of referring to the threat and circumstances as perceived by the accused, refer expressly to the “actual situation” he was in at the time. He argues that the reference to how much Mr Strauss in fact had had to drink might also mislead because how much Mr Strauss had to drink is not the issue. It is how much he believed he had drunk, and how intoxicated he believed Mr Strauss to be, along with how aggressive he believed Mr Strauss to be, and how much harm he believed Mr Strauss was liable to inflict on him if he did not act. He says the circumstances also include how injured he already was and his heightened fear of a second severe beating.
The applicant argues that the risk in relation to this part of the written directions, and the oral directions, is that the jury may have applied s 15(1)(a) objectively and when they came to applying s 15(1)(b) they may also have applied that limb entirely objectively rather than determining the reasonable proportionality of the conduct against the subjectively perceived threat, in the perceived circumstances, as required by s 15(1)(b).
In directing the jury regarding s 15(1)(a), the Judge suggested that the jury consider all of the circumstances in which the applicant found himself, including:
-Mr Strauss’ s words and actions;
-what actually occurred;
-the applicant’s belief about how much Mr Strauss had had to drink; and,
-how much Mr Strauss had in fact had to drink.
As submitted by the respondent, the reference to belief about how much Mr Strauss had had to drink and how much he had in fact drunk was favourable to the applicant as he gave no evidence of his subjective belief as to how much Mr Strauss had to drink. How much had in fact been consumed was an objective fact.
The Judge summarised the defence case saying:
I move to consideration in much the same fashion as to the defence case. As you are well aware, the accused does not dispute that he stabbed Strauss and he was trying to harm Strauss so he could get him, Strauss, to stop punching the accused. The accused says he did not realistically have any other option because of the speed and accuracy of Strauss’ punches.
In essence, the accused says he was not acting unlawfully because he was defending himself against a drunk and angry man who, despite the amount he had to drink that day and evening, was well able to fight and was getting the better of it.
Members of the jury, at this stage I will make some suggestions about some of the topics you will need to explore in your deliberations and then I will come back to the points made by Mr Richards.
Perhaps one of the things you will need to consider is this, how much had Strauss had to drink that day and evening and how was he at the time he went to Prosser’s unit at about midnight? In that sense, members of the jury, intoxication or alcohol is important in this case. If at the end of the day, at the end of your deliberations, if you are unsure about what happened inside the unit then the prosecution will not have proved its case beyond reasonable doubt and part of that uncertainty that you may or may not find but it is a question for you, is the amount of alcohol that Strauss even on his own story had to drink.
So you should keep that aspect of alcohol or intoxication, as lawyers would say, in the forefront of your mind when you are considering Strauss’ evidence and how he may have well have reacted at the time he got in to Prosser’s unit and on the accused’s story was told in no uncertain terms to leave.
(Emphasis added)
The applicant complains that the highlighted passage in this excerpt from the summing up is a misleading direction regarding the impact of intoxication on self-defence. This passage is not a direction, but part of a summary of the defence case.
In my view, the extracts about which the applicant complains under this ground do not, when read in context in the summing up, contain any misdirection on the application of s 15(1)(a) of the Act.
Ground 3 – the trial Judge erred in his characterisation of s 15(1)(b) in his written and oral directions to the jury on self-defence.
The applicant argues that, as the prosecution case was that the use of the knife was not proportionate to a fistfight, the Judge’s direction as to what was ‘reasonably proportionate’ was in error.
Section 15(1)(b) provides that if the prosecution does not establish beyond reasonable doubt that the applicant did not genuinely believe that the conduct was necessary and reasonable for a defensive purpose then the prosecution must establish that:
… 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.
The applicant provided to the Court a summary of what he asserted were correct and incorrect statements pertaining to s 15(1)(b) extracted from the summing up. For the sake of brevity, I set out the following passages from the summing up where each impugned statement can be read in its context, as heard by the jury. The statements about which the applicant takes issue are highlighted.
The second introduces the concept of proportionality as between the threat faced by the accused and his reaction. It poses the question: was the accused’s reaction to the threat as he genuinely saw it reasonably proportionate to that threat?
Turning on to p.5. This concept of reasonable proportionality does not imply that the force used by a person under attack cannot exceed that used or threatened against him, it can. There may be no other means of defence open to the person being attacked. It is all a question of what is reasonable in the circumstances.
I pause here to say, as you know the accused’s defence in this trial is self-defence. He contends that he acted in genuine self-defence and that what he did was reasonably proportionate to the threat that he faced. If the prosecution has not proved the converse of that; that is, if the prosecution has not disproved that then the accused is not guilty of any offence.
Once each statement about which complaint is made is considered in context in the summing up, it is clearly not an incorrect statement of the law.
Further when the following highlighted statements are read in context, it is evident that they are part of a summary of the prosecution case; not directions or statements of law:
I will try to put the prosecution case in a few sentences for you. The prosecution case is the accused stabbed Brandon Strauss with the intention of causing him harm and that there were no circumstances that gave rise to a self-defence situation. Even if there were such circumstances, the use of a knife in that way was out of all proportion to the threat faced by the accused.
…
Then when Strauss fought back and the accused was getting his second hiding for the day, the accused either being forearmed or getting a knife quickly, used it quite unreasonably against Strauss out of all proportion to the fisticuffs that was taking place.
…
On the prosecution case Strauss then staggered off, dripping blood all the way, to his parents’ place. The prosecution submit that this was not a self-defence situation. It was made in nastiness and aggression by the accused and when the going got tough because Strauss walked back despite his drunkenness, the prosecution case is that he unjustifiably and unreasonably pulled a knife and stabbed Strauss in the way alleged.
The Judge clearly stated that s 15(1)(b) required consideration of whether the “conduct was in the circumstances as the accused genuinely saw them, reasonably proportionate to the threat he believed he faced”. The Judge discussed the concept of proportionality and posed the question “was the accused’s reaction to the threat as he genuinely saw it reasonably proportionate to that threat?”. The jury were told that self-defence would not exist if they were satisfied “that the conduct was not reasonably proportionate to the threat as the accused saw it”.
In summarising the defence case, the Judge reminded the jury that the applicant’s claim was that he had stabbed Mr Strauss because he was being punched and there was no option because of the nature of the attack.
The Judge reminded the jury that the applicant said he had been told not to allow Mr Strauss inside, told him to leave and it was open to find that he had been punched many times and injured by Mr Strauss and that Mr Strauss’s intoxication might impact upon the likelihood that he might behave as alleged by the applicant. The judge fairly summarised and properly directed the jury regarding the defence case.
In my view, both the oral and written directions were correct and in accordance with s 15(1)(b) of the Act.
Ground 4 – the trial Judge erred in failing to direct the jury as to the threat which the applicant believed he faced and the circumstances as he perceived them on the defence case.
The applicant submits that the Judge incorrectly summarised the defence case on self-defence in objective terms:
[The applicant] contends that he acted in genuine self-defence and that what he did was reasonably proportionate to the threat he faced.
…
[The applicant’s case is that he] was doing no more than was proper, proportionate self‑defence.
The applicant complains that the Judge’s directions remove the subjective context for his case being “proper and proportionate” self-defence and are incorrect statements. He argues that this is a crucial error as the Judge did not sum up this version of the facts when dealing with the prosecution’s case against him on self-defence.
The applicant submits that there is a significant risk that the jury would be left overall with an understanding that the question regarding self-defence becomes: (1) did the applicant start it; and, if not, (2) “is punch up vs knife fight proportionate”?
The evidence given by the applicant was relevant to his subjective belief with respect to the threat and the circumstances as he believed them to be.
The applicant’s evidence was that when Mr Strauss entered Mr Prosser’s unit, the applicant told him that he was not supposed to be there. He said Mr Strauss went to the fridge and said that he would do what he liked. Mr Strauss went to leave the house but then turned and punched the applicant a number of times causing him to be knocked backwards. The applicant, at this point, picked up the paring knife at the end of the kitchen table and pushed Mr Strauss outside the back door. Mr Strauss continued to punch him in the head and face. The applicant said he then struck out at Mr Strauss using the knife in his right hand while covering his own face with his left hand.
As submitted by the respondent, in his final address, the applicant’s counsel outlined matters beyond those referred to by the applicant as being relevant to these issues. Counsel directed the jury’s attention to the time of night, the applicant’s pre-existing injury and the intoxication of the complainant. These matters did not need to be repeated by the trial Judge as being relevant to subjective belief of the applicant as they were objective considerations the applicant did not give evidence about. The Judge put the applicant’s case in a more favourable light than was required.
Ground 1 – the trial Judge erred in his written directions to the jury by further oral directions inadvertently misleading the jury as to how to apply their findings as to Question 1 of the written directions.
Ground 1 arises out of the amendment to Memorandum B.
The respondent concedes that permission to appeal should be granted with respect to this ground and argues that the key aspects of Memorandum B remained correct even after the erroneous amendment.
The issue that arises is whether there is a real risk that the jury acted on the error in Memorandum B or that the jury were confused by the amended memorandum against the background of all that they had been told and had in writing, such that there has been a miscarriage of justice.[9]
[9] R v Burns (2009) 103 SASR 514 at [75] (Kourakis J, as he then was).
When the amended Memorandum B is looked at in isolation, the question the jury would ask is “has the prosecution excluded at the time when the accused stabbed Brendan Strauss is it (sic) at least reasonably possible that the accused genuinely believed that it was necessary and reasonable to do so in order to defend himself?”. Following the script of Memorandum B, the alternative answers were:
·If the jury determined the answer to the question was “no” following the script of Memorandum B, the question of self‑defence disappeared.
·If the jury determined the answer was “yes”, then they need to consider the question of proportionality, that is, they needed to “go on to Question 2”.
As can be seen, the answers to the question should also have been amended to read as follows:
If the answer to this question is “yes”, the question of self-defence disappears from the trial.
If the answer to this question is “No”, then you must go on to consider Question 2.
The jury were instructed by the Judge that his oral directions took precedence over the written memorandum:
What you should take as my directions are what I tell you orally, here and now the document that I provided to you is really an aid to you understanding the ingredients of the offence.
The question is whether the error in the amended Memorandum B is negated by both the correct oral directions and the balance of the written directions. The question is to be considered in circumstances where the jury were asked to amend an aspect of Memorandum B which rendered the alternative scenarios that follow the amended question incorrect, presumably did so, and then had that memorandum available during their deliberations in the jury room.
I accept the respondent’s submission that it is inherently unlikely that the jury would have thought that if the prosecution failed to exclude as a reasonable possibility that the applicant had a genuine belief that it was necessary and reasonable to defend himself that they would have thought that the question of self-defence disappeared from the trial.
Such an approach would not have been logical. It would have been inconsistent with the repeated directions the Judge gave as to the onus of proof in the context of self-defence. It would also have been inconsistent with the correct statement of law at the beginning of Memorandum B.
In other words, to have acted by reference to the error in Memorandum B or to have been confused by it, the jury would have had to ignore all that had been said to them orally and everything else that they had in writing before them. The error, therefore, considered in the context of the whole of the summing up, does not, in my view, give rise to the confusion contended by the applicant.
It is clear from the Judge’s oral directions delivered prior to the amendment that he was conscious of the fact that the way the question was framed had implications for the way it would be answered. In his oral directions in relation to Question 1, he said:
You will need to be careful about the form of the question in working out what is the answer in working out your deliberations.
The Judge continued in relation to Question 2 by saying:
Again, you have to be careful about your answer. If the answer to this question is ‘No’, then the prosecution has failed to prove its case against the accused then your verdict should be not guilty. If the answer is ‘Yes’, yes, the prosecution has excluded that as a reasonable possibility, then your verdict should be guilty, assuming all other matters are proved beyond reasonable doubt.
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.