R v HYLAND

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.