R v Muir - [2009] SASC 94

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MUIR
[2009] SASC 94
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Layton)
8 April 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION
Appeal against conviction for causing harm with intent to cause harm - misdirections amounted to a miscarriage of justice - appeal allowed.
Defence case was that the appellant had acted in defence of another - Judge gave oral and written directions - both oral and written directions were confusing.
Davies and Cody v The King (1937) 57 CLR 170; Mule v The Queen (2005) 79 ALJR 1573; R v Tulisi [2008] 306, applied.
R v Dunn (2006) 94 SASR 306; R v Jellard [1970] VR 802; R v Petroff (1980) 2 A Crim R 101, discussed.

R v MUIR
[2009] SASC 94
Court of Criminal Appeal: Sulan, Vanstone and Layton JJ

SULAN J: The appellant was charged with aggravated causing harm with intent to cause harm, contrary to s 24(1) of the Criminal Law Consolidation Act 1935, (‘the Act’). The particulars of the offence are that he, together with Michael Adam King and David James Upton, on 1 July 2006 at Hallett Cove caused harm to John Schneebichler, intending to cause Mr Schneebichler harm. The circumstance of aggravation was that, at the time of the offence, the appellant, King and Upton, were in each other’s company. Section 5AA(1)(h) of the Act provides that an aggravated offence includes an offence committed in company with one or more other persons.
The appellant was found not guilty of the offence charged, but guilty of causing harm with intent to cause harm. The maximum penalty for that offence is ten years’ imprisonment.
The charge against the appellant arose out of an incident which occurred on 1 July 2006 after a football match at Hallett Cove. I will deal with the circumstances later in these reasons but, in short, a fight commenced between Mr King and others. The appellant joined in. On his version, he was defending Mr King, and his actions were not unlawful. The appellant pleaded not guilty to the charge. The appellant’s only ground of appeal is that the trial Judge erred in law in his directions regarding self-defence and defence of another. The trial Judge provided the jury with a written memorandum to which they could refer during their deliberations. The appellant’s ground of appeal is that the trial Judge misdirected the jury, both in the oral directions and in the memorandum.
The appellant was sentenced to two years and three months’ imprisonment for the offence. He also acknowledged three breaches of bond, for which he had received suspended sentences of three months, one month and one month imprisonment, respectively. The Judge ordered that the sentences be brought into effect, to be served concurrently, making a total of two years and six months’ imprisonment. The Judge imposed a non-parole period of 15 months.
The appellant complains that the sentence was manifestly excessive, and that the Judge sentenced on a factual basis which equated the offending to aggravated offending when the jury had acquitted the appellant of aggravated causing harm with intent to cause harm. Further, it is alleged that the Judge failed to give adequate weight to the appellant’s good prospects of rehabilitation, and placed too much weight upon the appellant’s prior history of offending.
For the reasons which follow, the appeal against conviction is allowed and the conviction and sentence is set aside. It is unnecessary to deal with the appeal against sentence.
Background
I now turn to the facts. Much of the background facts were not in dispute. There are differences between the accounts of various witnesses who observed the incident, but the circumstances leading to the appellant’s involvement in the incident are uncontroversial.
The appellant attended a football match in the company of Mr King and Mr Upton. At the conclusion of the football match, Mr King became involved in a fight with a man named Clint Michael Draper. Punches were thrown. Mr Draper sought refuge in a car. Mr King then used his elbow to smash two of the car windows, as a result of which flying glass injured Mr Draper’s eye and caused injuries to his face.
John Schneebichler, the complainant, intervened because his wife and son’s girlfriend were in the car, which was the subject of the attack by Mr King. The two women were terrified by Mr King’s attack upon Mr Draper and upon the car. Mr Schneebichler grabbed Mr King and pulled him away from it. A fight broke out between them. According to Mr Schneebichler, Mr King bit him on the wrist and the face and spat blood into his face. Mr Schneebichler complained that he was then attacked from behind by two other men, being the appellant and Mr Upton, who joined in the fight after Mr King had implored them to become involved. Mr Schneebichler was punched from behind. It was that conduct that was the basis of the Crown allegation against the appellant.
The trial Judge summarised the prosecution case as follows:[1]
As you also know it is the prosecution case that King was at all times acting aggressively and violently, that John Schneebichler attempted to come to the rescue (of Clint Draper), whereupon King turned on him, attacked him causing some injuries, that the accused joined in after King uttered some words of command or invitation, that from then on the accused and King acted as a team. That from then on each accused punched Schneebichler and in so doing, must have caused some pain to him at the very least. That each of them intended that pain be caused and that they were all doing this together and were thus in company for the purposes of the charge.
[1] Appeal Book, 57.
The defence case was that the appellant had come to the aid of Mr King, who he believed was being bashed by Mr Schneebichler, and that the appellant did no more than was reasonable and necessary in the defence of another.
The trial judge’s direction
Early in his charge to the jury, the trial Judge explained to the jury the elements of the charge of aggravated causing harm with intent to cause harm. He explained to the jury that there is a basic offence of causing harm with intent to cause harm, and he then explained to them the circumstance of aggravation in this case, that is, that it was alleged that King, Upton and the appellant were in company at the time of the offence. He explained the elements of the charge and directed the jury that they must be satisfied beyond reasonable doubt in respect of each element of the charge. He directed the jury that the prosecution must prove beyond reasonable doubt that the accused had acted unlawfully. He referred to a central issue in the trial, being the issue of whether the accused acted with lawful justification or excuse. He said:[2]
It is for the prosecution to prove that the accused were not in fact acting in lawful defence of King or in Upton’s case himself. Thus, ladies and gentlemen, the issues of defence of another in self-defence fairly and squarely arises on the evidence. You will have to consider those issues, and I suggest that in reality they are the most significant issues which have arisen for your determination.
[2] Ibid, 64.
He continued:[3]
… the prosecution must prove that the accused were not in reality acting defensively. As the prosecution bears the onus of proving that the accused were acting unlawfully, the prosecution must prove that the accused were not in reality acting for a defensive purpose.
[3] Ibid, 64-5.
He directed the jury that the principles relating to acting for a defensive purpose required the jury to consider two questions:[4]
First, did the particular accused that you are considering at the time hold a genuine belief that his actions were both necessary and reasonable for a defensive purpose. And if the prosecution do not prove this, the second question is in all the circumstances as the particular accused genuinely believed them to be, when objectively viewed were his actions reasonably proportionate to the threat that he genuinely believed to exist.
[4] Ibid, 65.
That part of the trial Judge’s direction is confusing. He poses the first question in terms of whether the accused held a genuine belief that his actions were both necessary and reasonable for a defensive purpose, but then directs the jury that “if the prosecution do not prove this”, they should consider the second question. In the terms in which the question is framed, a jury might be confused as to what the prosecution must prove or disprove. The question would better have been put in terms of “Has the prosecution proved that the accused did not hold a genuine belief that his actions were necessary and reasonable to defend Mr King?” If the trial Judge had posed the question in that way, then his statement to the jury that “if the prosecution do not prove this” would have been meaningful and there could be no confusion about what the prosecution must prove.
The Judge further directed the jury:[5]
The first question which I have identified is concerned with the issue of whether Muir held a genuine belief that his actions were both necessary and reasonable to defend King …
[5] Ibid.
The Judge then correctly directed the jury that the burden of proof was upon the prosecution to prove that the accused was not acting for a defensive purpose. He then summarised the first question as follows:[6]
So the first question is whether at the time the particular accused caused harm to Schneebichler with the intention so to do. If that is indeed what you have found to be the case, did he genuinely believe that his actions in so doing were both necessary and reasonable for a defensive purpose.
[6] Ibid.
He reminded the jury that that question focussed on the state of mind of the accused. He explained to the jury how they may reason in arriving at an answer to the first question. He said:[7]
If the answer to the first question is ‘yes’, that is to say that you were to be satisfied that the prosecution has proved that the particular accused did not hold a genuine belief that his actions were necessary and reasonable for a defensive purpose, then, and only then, would you be entitled to find that he had not been acting for a defensive purpose and that his actions were, accordingly, unlawful.
[7] Ibid, 66.
There is no dispute that, in telling the jury that “if the answer to the first question is ‘yes’”, the trial Judge was in error. The question he had posed was whether the accused genuinely believed that his actions were both necessary and reasonable for a defensive purpose. The trial Judge was in error when he suggested that if the answer was ‘yes’, the conduct would be unlawful. It is only if the answer to that question was ‘no’ that it would have been correct to conclude that conduct would be unlawful.
The balance of the statement that followed the answer to the question is a correct statement of the law. Nevertheless, by answering the question in the affirmative, which was an error, the direction is confusing.
The overall direction contained both an error and a correct statement of the law, and its overall effect appears to be confusing.
The trial Judge continued:[8]
However, ladies and gentlemen, if it remained a reasonable possibility that the accused might have held the genuine belief that his actions were necessary and reasonable for a defensive purpose, then the first question would have to be answered in the accused’ [sic] favour.
That direction is correct. However, the trial Judge then said:[9]
If the answer to this first question is ‘No’, that is to say, if you were not satisfied that the prosecution had proved that the particular accused did not entertain a genuine belief that his actions were necessary and reasonable for a defensive purpose, then the accused’s actions would not reasonably have been proved to be unlawful and you would then move on to consider the second question.
[8] Ibid.
[9] Ibid.
Again, this paragraph is confusing. The statement, “If the answer to the first question is ‘No’”, is incorrect when considering the question the Judge posed in the preceding direction. If the first part of the sentence up to the answer ‘no’ is deleted, then the balance of the direction is correct.
The trial Judge then turned to the second question, which he posed as follows:[10]
The second question is whether in the circumstances, as the particular accused genuinely believed them to be, was his conduct reasonably proportionate to the threat that he genuinely believed to exist.
[10] Ibid.
He directed the jury that the second question focuses on proportionality. He continued:[11]
If the second question arises and if the answer to it is ‘No’, that is to say that you are satisfied that the prosecution has proved that the accused’s actions were not reasonably proportionate to the threat which he genuinely believed to exist, then you would be entitled to find his actions were unlawful.
[11] Ibid, 67.
That direction is correct. The trial Judge repeated the two steps that the jury was required to consider in deciding whether the appellant had acted for a defensive purpose. That explanation put the position correctly to the jury.
The trial Judge then amplified the explanation as follows:[12]
And to expand on that, in relation to the first question, you need to look at the particular accused state of mind and ask whether it has been proved that he did not genuinely believe that it was both necessary and reasonable to do what he did for a defensive purpose.
If the answer to this question is ‘Yes’, then it would have been proved that the accused was not in reality acting for a defensive purpose and he would have thus been proved to have been acting unlawfully.
If the answer to this first question is ‘No’, then you have go to on and consider the second question, stand back and look at what the accused did in the circumstances as he genuinely believed them to be and ask whether it has been proved that what he did was in the circumstances as he genuinely believed them to be, unreasonable and disproportionate to the threat which he believed to exist. If this question arises, and if the answer to it is ‘Yes’, then it would have been proved he was acting unlawfully.
Before I leave the topic I repeat and emphasise again that the accused do not have to prove they were acting for a defensive purpose, the prosecution have to prove that they were not.
[12] Ibid.
The manner in which the trial Judge then put the issue to the jury and the questions he posed were expressed in a different way from the earlier questions. His later posing of the questions correctly stated the position, whereas the earlier questions were incorrect. This cumulative combination could have led to the jury being confused.
The memorandum
The above problem was exacerbated in the written memorandum provided to the jury. The part of the memorandum provided to the jury relating to self-defence was expressed in the following terms:[13]
[13] Ibid, 151-2.
The law recognises that there are situations where a person ought not to be held criminally responsible for his actions if he was doing no more than he thought was necessary in the circumstances to defend someone else.
The issues of defence of another and self defence fairly and squarely arises on the evidence. The expressions “defensive purpose” or “defensively” incorporate both defence of another and self-defence.
The prosecution bears the onus of proving that the accused were acting unlawfully. The conduct of either accused would not be unlawful if the [sic] they were acting for a defensive purpose.
Neither accused has to prove that he was in fact acting defensively. It is for the prosecution to prove beyond reasonable doubt that the accused were not acting defensively.
The relevant principles require you to consider two questions.
First, did the particular accused hold a genuine belief that his actions were necessary and reasonable for a defensive purpose, and, if he did genuinely hold such a belief,
Secondly were his actions in all of the circumstances reasonably proportionate to the threat that he genuinely believed to exist.
The first question is concerned with whether the accused held a genuine belief at the relevant time that his actions were both necessary and reasonable for a defensive purpose.
If the prosecution prove that the particular accused did not hold a genuine belief that his actions were necessary and reasonable to defend King or himself, then he would not have been acting for a defensive purpose and thus would have been acting unlawfully.
However, if it remained a reasonable possibility that the accused might have held the genuine belief that his actions were necessary and reasonable to defend King or himself, then the first question in relation to self-defence would have to be answered in the accused’s favour.
A person who defends himself cannot be expected to weigh precisely the amount of defensive conduct which is both necessary and reasonable.
A person would not have a genuine belief that his actions were necessary and reasonable for a defensive purpose he willingly engaged in a fight or if he used force by way of retaliation to some earlier provocation or violence after the threat had passed.
In determining this question, you can take into account and have regard to any alternatives that you might find were available to him at the time. However, there is no duty to avail oneself of any alternative courses of action with [sic] might have been available before defensive purpose can be invoked.
You must take into account all of the circumstances which you find to be relevant when weighing up in your minds the genuineness or otherwise of the particular accused’s belief in the necessity and reasonableness of his actions.
If the answer to the first question is “yes” then the prosecution would have proved that the accused was not acting defensively and was thus acting unlawfully. If the answer to this question is “No”, then you would have to consider the second question.
The second question is whether, in the circumstances as the accused genuinely believed them to be, were his reactions reasonably proportionate to the threat which he genuinely believed to exist.
The terms of this question do not imply that the force which the accused used cannot exceed the force which was used against King.
If this second question arises and if the answer to it is “Yes” then the accused will have been proved not to have been acting for a defensive purpose and thus to have been acting unlawfully. [highlighting mine]
The trial Judge poses the first question as “… whether the accused held a genuine belief at the relevant time that his actions were both necessary and reasonable for a defensive purpose”. The memorandum states:[14]
If the answer to the first question is “Yes” then the prosecution would have proved that the accused was not acting defensively and was thus acting unlawfully.
[14] Ibid, 152.
The direction is incorrect. The memorandum should have stated, “If the answer to the first question is “No” …..”.
The trial Judge posed the second question as “… whether, in the circumstances as the accused genuinely believed them to be, were his reactions reasonably proportionate to the threat which he genuinely believed to exist”. In directing the jury in the memorandum that, if this second question arises and the answer to it is ‘Yes’, then the accused will have been proved not to have been acting for a defensive purpose and, thus, to have been acting unlawfully, the trial Judge was in error. The Judge should have directed the jury that if the answer to the question is ‘No’, then the accused would have been proved to have been acting unlawfully.

The jury was therefore in the following situation. The Judge in his oral summing up had posed questions in one form, which were incorrectly answered. Later, however, those questions, when posed differently, were answered correctly. Sometimes both an error and a correct formulation were contained within the same part of the direction.
Later when a memorandum was provided to the jury, it also contained a similar mix of error and accuracy.
The fact that the error was contained in answers to posed questions, gave prominence to the error. The questions and their related answers appeared to provide a simple process for the jury to follow in taking the necessary steps in their reasoning. Therefore the fact that in some instances the directions were correct does not appear to overcome the inherent conflicts contained in the directions as a whole. The end result is that the jury might have been confused.
The adequacy of the directions both oral and written
The jury had to be correctly directed about the law concerning the lawful defence of another.
When a direction on the law is given, “it is incumbent on the Judge to ensure that the jury understands how that direction on the law relates to the facts, and to identify the evidence that is relevant to the application of that particular direction”.[15]
[15] R v Dunn (2006) 94 SASR 177, [42] applying Mule v The Queen (2005) 79 ALJR 1573, [21].
It is now commonplace to use written directions as an aid to a Judge’s oral summing up. They prove particularly helpful when a legal direction is complicated such as in the case of self-defence and defence of another. It is also beneficial where there are a number of possible alternative verdicts to be considered by the jury. The written directions cannot be used as a substitute for oral directions. They are to be used in conjunction with and by way of supplement to oral directions.
In Petroff,[16] Nagle CJ approved the following oral direction which had been given by the trial Judge:[17]
I should emphasise that you must not use the document as a substitute for the detailed oral directions I gave you yesterday. It is intended as no more than aide-memoire which may assist you to recall the various steps which you must follow in arriving at a proper verdict on each of the charges in this trial. It was in no way intended to be a complete summary of all the matters of law to which I referred yesterday. As I told you yesterday you are bound to apply the principles of law upon which I directed you to the facts of the case as you eventually find them to be. That document will, I hope, refresh your recollection of the various options open to you but it must at all times be interpreted in the light of the directions of law I gave you yesterday.
[16] R v Petroff (1980) 2 A Crim R 101.
[17] Ibid, 116.
In Tulisi,[18] the memorandum dealt in detail with the prosecution case, but failed to deal adequately with the defence case. Duggan J stated:[19]
The possible effect of this deficiency must, however, be considered by reference to the circumstances of the trial generally. In his oral summing up the trial Judge adequately summarised the appellant’s evidence on the conspiracy count and provided the jury with a detailed summary of the arguments and criticisms advanced by the appellant’s counsel in respect of that count. No criticism was made of the treatment of the defence case in the oral summing up. As a result I have reached the conclusion that no substantial miscarriage of justice occurred by reason of this matter when considered in the context of the summing up as a whole.
[18] R v Tulisi [2008] SASC 306.
[19] Ibid [58].
He observed:[20]
… the potential for jurors to focus on written directions in the course of their discussions must be borne in mind. A written summary is a permanent record which, in a case such as the present, may be before the jury for many hours.
[20] Ibid [55].
A written direction or memorandum can be particularly useful to assist a jury to focus on the elements of the charge and the questions that must be answered in arriving at a verdict. It is a matter for the Judge to determine whether the Judge will provide the jury with a written memorandum, and the content of the memorandum. The Judge should ensure that the language of the written memorandum is consistent with the oral directions. As Duggan J observed, the potential for jurors to focus on the written directions must be borne in mind. I would add that, in cases in which the directions are complex and the steps which the jury are required to take in arriving at their verdict are numerous, there is every likelihood that the jury will focus on the written directions and follow the steps set out in those directions. It is desirable that, in drafting the written directions, the judge should clearly set out each question in logical order, so that the jury will not be confused in its deliberations. It is desirable that the directions be limited to the law and that they do not descend into a discussion of the facts, or a direction upon the process the jury might follow in arriving at its conclusion.
The Judge must ensure that a jury is well equipped to reach a verdict. The jury must be placed in a position in which it understands the decisions to be made to reach a verdict. This requires a clear direction to be given on the law.
The directions to a jury on self-defence are difficult directions. They can lead to confusion, particularly when the judge directs the jury in the negative form, rather than the positive. The directions are difficult because it is essential that it be made clear to the jury that the Crown bears the onus of proof of establishing that the accused did not hold a belief that it was necessary and reasonable to act in the way in which he did to defend himself. If it is a reasonable possibility that he did hold such a belief, then the jury must be directed that the prosecution must prove beyond reasonable doubt that his conduct was not reasonably proportionate, taking an objective view of the conduct from the position of a person placed in the position in which the accused was placed.
In the present case, any likely confusion in the memorandum was compounded by confusion already created by the earlier identified errors in the oral summing up. Despite the Judge’s direction not to substitute the memorandum for the oral directions, one cannot be sure that the jury did not substantially rely on the written account. This is particularly the case where the jury may have been confused by the directions given during the Judge’s oral directions.
In this case, the errors contained in both the oral directions and the written directions may well have led to confusion. If the jury answered the questions as posed by the Judge, without further consideration, then they would have arrived at an incorrect result.
A miscarriage of justice
A miscarriage of justice occurs, not only in cases where it is clear on the evidence that an appellant may be innocent, but it will have occurred whenever it appears unjust or unsafe to allow a verdict to stand. In Davies and Cody,[21] the High Court (Latham CJ, Rich, Dixon, Evatt and McTiernan JJ) said:[22]
From the beginning, that court (the English Court of Criminal Appeal) has acted upon no narrow view of the cases covered by its duty to quash a conviction when it thinks that on any ground there was a miscarriage of justice, a duty also imposed upon the Supreme Court of Victoria. It has consistently regarded that duty as covering not only case where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court’s view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.
[21] Davies and Cody v The King (1937) 57 CLR 170.
[22] Ibid, 180.
Davies and Cody was an identification case. However, the principle is of general application.
In Jellard,[23] the appellant was found guilty of culpable driving causing death. The trial Judge directed the jury without attempting to relate the law regarding the offence to the evidence that had been given, or to the various scenarios which may have been open on the evidence. Smith J, with whom Winneke CJ and McInerney JJ agreed, said:[24]
Now it is, of course, a matter of speculation what went on in the jurors’ minds and their deliberations; but this court’s power to set aside convictions is not confined to those cases in which it is clear to demonstration that error and injustice have occurred.
[23] R v Jellard [1970] VR 802.
[24] Ibid, 805.
He then quoted the passage from Davies’ case. He considered that the case fell within the principles enunciated in that case.
If a jury may have reached its conclusion on a mistaken or misleading view of either the facts or the law, then that is sufficient to set aside the verdict as a miscarriage of justice.
The present case also falls within the principle. This Court cannot speculate upon the matters which the jury considered to be important in their deliberations. The Court must have regard to the directions of the trial Judge and assume that the jury understood and followed the directions in arriving at its verdict. The directions were confusing and may have led to different results, depending upon the manner in which the jury understood the directions of the trial Judge. There is a real risk that the jury was confused or, alternatively, that if the jury answered the questions, as posed by the Judge, their verdict was based upon wrong answers to the questions posed. The jury was not placed “in a position in which it understands the decision it must take and the verdicts which emerge from those decisions”.[25]
[25] R v Hughes (1980) 7 A Crim R 51, 53.
Accordingly, I consider that the conviction is unsafe.
In the course of argument, the question was raised whether s 24(1) of the Act creates one or two offences. Section 24(1)(a) provides that for a basic offence, the maximum sentence is imprisonment for ten years. Section 24(1)(b) provides that for an aggravated offence, the maximum penalty is 13 years’ imprisonment.
The Court invited counsel to submit written submissions. The Director made a submission. No submission was made by the appellant. It is not necessary to determine that question to resolve the appeal. As full argument on the point has not been presented, I have not expressed a view.
In the present case, the jury was asked to enter a verdict on the charge of aggravated causing harm with intent to cause harm. The jury returned a unanimous verdict of not guilty of that offence, but found the alternative charge of causing harm with intent to cause harm proved beyond reasonable doubt.
The appeal is allowed, the conviction and sentences are set aside and the matter is remitted to the District Court for retrial.
VANSTONE J: I agree that this appeal must be allowed for the reasons given by Sulan J.I add some more general comments of my own.
The judge’s summing up in this matter was long and, as expressed, extremely complex. A degree of complexity was dictated by the fact that there was more than one accused, that the charges arose from what ended up being something of a brawl, and because directions on self-defence needed to be given.
The appeal focused on the self-defence directions. The critical parts of these directions have been set out in the reasons of Sulan J. It is acknowledged by the respondent that there were three explicit errors in the summing up as regards these directions. The judge referred to the two limbs of self-defence in terms of two questions. At various parts of his summing up he referred back to those questions and directed the jury as to what would flow from particular answers to those questions. Unfortunately he made the three errors mentioned. However, his directions continued, on the same topic, for quite a number of paragraphs. In the subsequent paragraphs the positions were correctly put. In other words, the answers to the two questions were correct. In addition, earlier passages which did not contain references to the onus of proof were supplemented by directions which incorporated the jury’s task in terms of the onus on the prosecution. For the jury to have understood the significance of the incorrect answers to the questions posed, it would have to have absorbed the two questions as first stated.
Listening to directions contained in a summing up and absorbing the detail of them is difficult. Relating a positive “yes” or “no” answer back to an oral question framed some moments ago is difficult. Later, the introduction of the correct onus of proof slightly changed the format of the questions. I think the directions were apt to bring home to the jury that two issues were at stake, namely the accused’s genuine belief that the use of force was necessary and reasonable and then, that the force employed was reasonably proportionate to the threat faced. In my view, the jury, having listened to the whole of the directions on unlawfulness, would have understood that it could only convict if it was satisfied that the accused did not have the required genuine belief as to force being necessary and reasonable, or, it was not satisfied that the force employed was reasonably proportionate to the threat.
I am fortified in that view by the fact that none of the counsel at the bar table raised any question as to the correctness of the oral directions. If, when listening to the directions, any unease as to whether the issues were being correctly framed came to counsel, then it must have been assuaged by the subsequent directions.
However, the issue is complicated by written directions which were given to the jury. In a document running to some nine pages, the judge chose to provide, by way of what he called an aide mémoire, a summary of the elements of the offence, the directions on self-defence, the principles of joint enterprise and aiding and abetting, the circumstance of aggravation, the alternative results depending on findings, and the verdicts.
This document also contained errors as to the relevant questions. Here, though, when absorbing the thrust of the document, the jury had, in writing, before it, the two questions as framed by the judge. The jury was in a position to refer back to the questions when it considered his instruction as to the result of reaching a particular answer to a question and the impact that such an answer had on the question of guilt.
As has been seen in the excerpts reproduced in Sulan J’s reasons, the language employed in the written memorandum reflects that used in the oral directions. It is not easy to immediately comprehend. In addition, the document is lengthy. The fact that it contained errors similar to those contained in the oral directions leads me to a view that there is a real risk that the law on self-defence and defence of another was not clearly understood, at least by some of the jurors.
It is true, as counsel for the respondent said, that no corrections were suggested by counsel. That might be a function of the length and complexity of the document as a whole. Nor did the jury point out to the judge his errors, as sometimes happens. It may well be that the jury identified the errors and disregarded them, but I cannot feel sure of that.
Further it is true that the judge told the jury that any inconsistency between his oral and written directions should be resolved in favour of the oral directions. However, having regard to the complexity of the topic and the time that it takes to absorb and apply the rules relating to self-defence, I doubt the jury was in a position to recall the vital differences and to apply the correct law. In any event, as seen, the written memorandum perpetuated the errors.
Some 20 years ago King CJ, in R v Radford (1986) 133 LSJS 110, sounded a note of caution as to the use of written memoranda, whilst acknowledging the judge’s discretion to do so. Olsson J was more receptive to the idea that such a memorandum could be of assistance to the jury. In the intervening years memoranda have been used a great deal, partly in response to research of juries tending to demonstrate that they are found to be helpful. Recently in R v Tulisi [2008] SASC 306 Duggan J had this to say about their use:
54As the complexity of directions in modern criminal trials has increased, the practice has developed of providing written directions to juries as aide‑mémoires to assist the jurors in recalling oral directions. No criticism can be made of this helpful practice which is often regarded as a necessity. The practice is frequently used to provide summaries of the elements of offences and an explanation of relevant defences.
55However, difficulties can arise if written directions summarising the facts and the arguments in the case are provided to the jury. The main difficulty stems from the importance of providing a fair and balanced summary. Of course this is a factor which arises in the oral summing up. However, the potential for jurors to focus on written directions in the course of their discussions must be borne in mind. A written summary is a permanent record which, in a case such as the present, may be before the jury for many hours.
No doubt each judge will have his or her own style in terms of the provision of a memorandum. Some judges will prefer not to use any at all. If a document is to be provided, the more lengthy it is, the longer it will take to discuss with counsel and to make any changes thought to be necessary. My own view is that such a document should be kept to only a couple of pages and should contain, in the barest terms, the relevant legal requirements. If it is more than that, then the factual issues and questions of balance may creep in; in which case the document becomes more like a summing up in its own right.
Again, I acknowledge that any direction on the law related to self-defence or the defence of another is necessarily difficult, because of the inherent complexity of the topic. That puts a premium on clear expression of the principles.
In summary, I cannot be satisfied that the jury would have understood the issue of unlawfulness and would have properly applied the law to the facts as it found them to be.
I agree with the orders proposed by Sulan J.
LAYTON J: I agree the appeal should be allowed. I agree with the orders proposed by Sulan J and with his reasons.