R v Phineasa
[2022] QCA 112
•24 June 2022
SUPREME COURT OF QUEENSLAND
CITATION:
R v Phineasa [2022] QCA 112
PARTIES:
R
v
PHINEASA, Tommy Willie Mauma
(appellant)FILE NO/S:
CA No 233 of 2021
DC No 704 of 2019DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Cairns – Date of Conviction: 9 September 2021 (Fantin DCJ)
DELIVERED ON:
24 June 2022
DELIVERED AT:
Brisbane
HEARING DATE:
9 June 2022
JUDGES:
Bowskill CJ and Morrison and Dalton JJA
ORDER:
Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant pleaded guilty at the commencement of a trial to one count of contravening a domestic violence order (aggravated offence) and was convicted after a trial of one count of rape – where consent was the central issue at trial, specifically, whether consent was freely and voluntarily given and whether the appellant had mistaken belief as to consent – where the appellant appealed on a single ground, that in redirection the jury was misdirected, such that the onus of proof in respect of the defence of mistake of fact pursuant to section 24 of the Criminal Code (Qld) was shifted from the crown to the defendant – where during deliberations, the jury asked two questions which related to the excuse of mistake of fact – where the jury sought clarification of the terms “honestly” and “reasonably” – whether the redirection by the learned judge had the capacity to reverse the onus and there was a reasonable possibility the verdict was improperly affected
Criminal Code (Qld), s 24, s 688E(1A)
COUNSEL:
L D Reece and Z Brereton for the appellant
C W Wallis for the respondentSOLICITORS:
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
BOWSKILL CJ: On 9 September 2021, the appellant was convicted following a trial of one count of rape. The complainant was his former partner. He was also convicted, on his plea of guilty at the start of the trial, of a further offence of contravening a domestic violence order. He appeals against his conviction of rape on the ground that “in redirection, the jury was misdirected, such that the onus of proof in respect of the defence of Mistake of Fact was shifted from the Crown to the Defendant”.
It was not in issue at the trial that sexual intercourse had occurred between the appellant and the complainant. The issues in the trial were, first, whether the jury were satisfied beyond reasonable doubt that the complainant did not consent; and, if so, whether the jury were satisfied, beyond reasonable doubt, that the defendant did not have an honest and reasonable, but mistaken, belief that she had consented.
The appellant and complainant had been in a relationship with each other for about seven years, and have two children together. Over the course of the relationship, they had broken up and reconciled several times. They had broken up about two or three months before the date of the offence, 10 March 2019. On that night, some time before midnight, the appellant came to the complainant’s home. She says that he “asked her for sex” a few times, and she said “no”, because she believed he had been sleeping with other women and she thought he might have a disease. She agreed that the word he used was “whichway”, which was a slang word they used for having sex. She asked him for his phone, and he gave it to her, but then took it back, became angry and threw the phone at the wall, smashing it. At some stage he also kicked or threw a table. The appellant became angry, and said that the complainant had to have sex with him, for breaking up with him and provoking him to break his phone. He then picked up a knife and came towards the complainant and said “I will cut. I will cut you if you don’t have sex with me”. She said “[h]e just stood there in front of me, kept demanding [sex] and then he saw that I was upset, and he went back and sat down and then I went under the veranda for a cigarette”. She said “I was scared for my life”. After about two minutes outside, she “went in the room”, meaning the bedroom, “and then took my clothes off – like, just my shorts and kneeled on the side of the bed and … I let him have sex with me”. While that happened, she said she was scared and crying, but said nothing to the appellant. Once he was finished, the complaint put her shorts back on and left the room. She said she was scared, and “got some money just to get rid of him so I could call the police”. The appellant did leave, and the complainant ran across the road to the pay phone and called triple zero. Her evidence was that she did not want to have sex with the appellant, and only did so because “I really thought that he was going to hurt me”.
The recording of the complainant’s triple zero call was in evidence. In that call, the complainant said to the operator “my ex just came to my place and… he, held, held a knife and threatened me to have sex with him and I had to have sex with him and given him some money to, to leave me alone… could you please hurry up”.
The appellant was interviewed by police, for about an hour from just before midnight on 10 March 2019. The record of that interview was part of the evidence at the trial. The appellant’s version of what occurred that evening was consistent with the complainant’s in a number of respects. He said that “I asked her, you know, because I thought we were still together and I asked her, yeah, I didn’t force her or anything, I asked her for sex. She said yes, we walked in the room, she took her clothes off first before, I don’t see how that, that is rape… Then we had sex. And then she gave me a little bit of money, I took off down the road…”. He agreed that he had smashed the phone, and said he smashed “about three” phones, by hitting them against a wall. He also accepted that he had threatened the complainant, saying “I started threatening her, I started swearing at her, threaten I want to punch her. I want to kill her. I said all them things”. He agreed that he had picked up a knife and told the complainant he was going to kill her “because she’s fucking everything up”. He said he asked her three, four or perhaps five times for sex, and that “she never said nothing. She just sat quiet. She saying like she can’t trust me or anything”. He said while she was on the verandah smoking a cigarette, he thinks he “bring up the sex thing again”, and when she came back in she said “yeah, come on then. Oh, God”. When asked why did he keep asking her for sex, the appellant said “because she’s my woman. Why you think?”.
The appellant did not otherwise give evidence at the trial, although tendered one exhibit which was a printout of Facebook messages said to have been posted by the complainant, a couple of weeks before the incident, in response to an indication that the appellant was in a relationship with another person, which could be described as abusive.
The prosecution case at the trial was that the complainant did not consent to having sexual intercourse with the appellant, because she did not give her consent freely and voluntarily, but rather gave in out of fear of being hurt by the appellant.
The trial judge gave detailed, and unassailable, directions to the jury in the course of her summing up about the elements of the offence of rape, in particular consent, and about the defence of honest and reasonable mistake of fact under s 24 of the Criminal Code. Her Honour’s summing up also included the requisite repeated statements about the burden and standard of proof.
The summing up commenced at 9.21 am on Thursday, 9 September 2021. At the start of the summing up, in the context of referring the jury to the fact that the appellant had pleaded guilty to the other charge, of contravening a domestic violence offence, but not guilty to the rape, the trial judge directed the jury that:
“You must not use the fact that he pleaded guilty to that separate charge of contravention of a domestic violence order to infer that he is also guilty of the charge of rape. In respect of that remaining charge of rape, the prosecution always retains the responsibility of proving the defendant’s guilt beyond a reasonable doubt.”[1]
[1]AB 56.
Later in the summing up, the trial judge said:
“As you have heard, the burden rests on the prosecution to prove the defendant’s guilt. There is no burden on a defendant to establish any fact, let alone his innocence. He is presumed to be innocent. He may be convicted by you only if the prosecution establishes that he is guilty of the offence charged. For the prosecution to do that, it must prove to you beyond reasonable doubt that he is guilty. That means that in order to convict the defendant, you must be satisfied beyond reasonable doubt of every element that goes to make up the offence charged. I am going to explain those elements shortly. It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offence. And any other matter I tell you, you have to be satisfied of before you could find the defendant guilty. If, after considering all the evidence, you are left with a reasonable doubt whether he is guilty or not, your duty is to acquit him. That is, to find him not guilty. If you are not left with a reasonable doubt, your duty is to convict him. That is, to find him guilty.”[2]
[2]AB 59.
That was followed closely, after the direction about the standard of proof beyond reasonable doubt being the highest standard known to law, by the further reminder that “the Prosecution must prove the defendant’s guilt beyond reasonable doubt”.[3]
[3]AB 60.
Before commencing the directions about the elements of the offence, the trial judge handed to the jury, as an aid, a document setting out the charge, elements of the offence and written directions about mistake of fact as to consent.[4] No complaint is made about the accuracy of what is contained in this handout. In relation to the “elements”, the handout states:
“The prosecution must prove beyond a reasonable doubt that the defendant:
1.Had carnal knowledge of or with the complainant [followed by an explanation of what that means].
2.Without her consent [followed by an explanation of what that means].
If you are satisfied beyond reasonable doubt that the Complainant did not consent, there is another matter you must consider. Turn to page 2.”
[4]AB 63; 387-389.
Page 2 is headed “Mistake of Fact as to Consent”, and includes the following:
“Remember however the onus of proof. It is not for the defendant to prove that he honestly and reasonably believed the complainant was consenting but for the prosecution to prove beyond reasonable doubt that the defendant did not honestly and reasonably believe that the complainant was consenting.
Accordingly if you find that the complainant was not in fact consenting, you must ask yourself ‘can I be satisfied beyond reasonable doubt that the defendant did not have an honest and reasonable belief that she was consenting?’
If the prosecution have satisfied you beyond reasonable doubt that the defendant did not have such a belief you must find the accused guilty.
If you are not so satisfied, even though the complainant was not consenting, you must find the defendant not guilty.”
Then on page 3 of the handout, the following was set out:
“For the offence, the prosecution must exclude mistake of fact by proving beyond reasonable doubt that the defendant did not honestly and reasonably believe that the complainant was consenting.
Are you satisfied beyond reasonable doubt that:
·the defendant did not honestly believe that the complainant was consenting in the circumstances as you find them?
(An honest belief is one which is genuinely held by the defendant.)
or
·the defendant did not reasonably believe that the complainant was consenting in the circumstances as you find them?
(To be reasonable, the belief must be one held by the defendant, in his particular circumstances, on reasonable grounds.)
If “yes” to either one of those two questions, you must convict the defendant; that is, find him Guilty.
If ‘no’ to both questions, you must acquit the defendant; that is find him Not Guilty.”[5]
[5]Emphasis in the original.
In the trial judge’s oral directions to the jury, as she went through this document with them, she reiterated the burden and standard of proof on a number of occasions.
Having given detailed directions in relation to consent, and before turning to the issue of mistake, the trial judge gave appropriate directions about the evidence adduced by the appellant (the Facebook messages) and the appellant’s record of interview, again in this context reiterating there was no burden on the defendant to prove anything, and that “the prosecution always retains the burden of proving the elements of the offence beyond reasonable doubt”.[6]
[6]AB 70.
The trial judge then turned to giving directions about mistake of fact as to consent, referring to page 2 of the handout. In that context, again, the trial judge emphasised to the jury:
“Remember, however, the onus of proof. The defendant does not have to prove anything. It is not for the defendant to prove that he honestly and reasonably believed that she was consenting. The prosecution in this case has to prove beyond reasonable doubt that [the appellant] did not honestly and reasonably believe that [the complainant] was consenting.
So if you find that [the complainant] did not give consent, you still have to ask yourself, can I be satisfied beyond reasonable doubt that the defendant, [the appellant] did not have an honest and reasonable belief that she was consenting. If the prosecution have satisfied you beyond reasonable doubt that he did not have an honest and reasonable belief that she was consenting, you must find him guilty. If you are not satisfied of that, then you must find the defendant not guilty.
Just turn to page 3, where I have tried to frame these questions to help you apply them. So again, the prosecution has to prove this. It has to convince you that mistake of fact does not apply. It has to prove beyond reasonable doubt that the defendant did not honestly and reasonably believe the complainant was consenting…”[7]
[7]AB 73.
The trial judge then went on to direct the jury about the evidence relevant to the question of mistake of fact.
There was a break at 10.48 am, and then the summing up continued at 11.12 am, with the trial judge summarising the competing arguments of the prosecution and defence counsel. The jury retired to consider their verdict at 11.49 am.
There were no requests for redirections.
At 2.18 pm, the court was reconvened, as a note had been received from the jury.[8] The note (marked “J” for identification) was in the following terms:
“Document - Elements of The Offence.
Could we please get clarification on the
-terms honestly & reasonably
-paragraph 7 page 2
-All of page 3
-Clarify the process if we are not – if we cannot reach a unanimous decision.”
[8]AB 91-92.
After hearing submissions from the legal representatives, the following redirection was provided, in response to those questions:
“Thank you. What I am going to do first, ladies and gentlemen of the jury, is assist you, I hope, by answering the question in your note. I see that you have handed, through the bailiff, another note. I am not going to look at that until I have first addressed you on this. You have provided a note which I have marked for identification letter J for Juliet. It is headed Document Elements of the Offence. And I will just read it out to you to remind you what it says. It says:
Could we please get clarification on the terms ‘honestly’ and ‘reasonably’?
Paragraph 7, page 2 –
this is of the jury handout –
all of page 3 and clarify the process if we cannot reach a unanimous decision.
So the first three parts of that question are really about mistake of fact as to consent. So I am going to direct you on that now, and then I will talk to you about the second issue, about a unanimous decision. And I will do the best I can to assist you with this. And it is not an easy concept to reason through, which is why I have had to put it in the handout.
So first of all, your question, the terms “honestly” and “reasonably”. Those are ordinary English words. They are not defined in our Criminal Code, so they bear their everyday meaning. You all know what ‘honest’ means, and you all know what ‘reasonable’ means. But by way of example, an honest belief is a belief that is genuinely held by someone, that is, that he truly believed that. He truly and honestly believed that. That would be an honest belief. He genuinely, in his heart, believed that, or in his mind, believed this thing. That would be an example of an honest belief.
‘Reasonable’, that is, the part of this question which requires you to think about whether he held the belief on reasonable grounds – I will say this about the meaning of the word ‘reasonable’. But I will give you some more direction about this in a moment. ‘Reasonable’ really means logical, guided by reason, having a proper basis, having some sound basis to it, based on sound judgment or good sense. So if we come back to the question of mistake of fact, I will take it from the top and talk to you about it, and hopefully this will assist with it.
You only get to mistake of fact if you are satisfied beyond reasonable doubt that the complainant, the woman, did not, in fact, consent to sex. And of course, she says she did not consent to sex. She gave in out of fear because she was worried he was going to hurt her. So if you are satisfied she did not consent, then you do have to consider this question of honest and reasonable mistaken belief. You have to consider whether the defendant, [the appellant], believed that she was consenting to sex. And there are two components to this, two parts to it.
You have to consider first whether he honestly and genuinely believed – whether he truly did believe - that she was consenting to having sex with him. Now, if you just thought, well, actually, he did not even think about it. He was reckless to it, he did not care less whether she consented or not, he just did it, that would not be an honest belief. So that is the first question, think about: did he honestly believe that she was giving her consent to sex with him? The second component of it is, was his belief – if you think – if you are satisfied he did honestly believe that – he did honestly and genuinely believe it – you have to consider, was his belief based on reasonable grounds?
When you think about that second component, was his belief based on reasonable grounds, you have to think about that based on the information available to him, and the circumstances as he perceived them. So was his belief, based on the information available to him and the circumstances as he perceived them, held on reasonable grounds? Put another way, was it reasonable for him, the defendant, in his circumstances, having done and said the things that he accepts that he did that night, to believe that she would believe that she would consent to sex with him, and was, in fact, consenting at the time.
So you have to consider the circumstances in which he found himself, and the information available to him. And the relevant circumstances, when you think about whether his belief was reasonable or not, might include these. Was it reasonable for him to think that she was consenting, in circumstances where there was a history of domestic violence in relationship; he had turned up at her unit, unannounced and uninvited at night; she was not expecting him; they had an argument in which he smashed his phone by throwing it at the wall; he smashed two other phones; he threatened to throw a table towards her; he threatened to punch her; he threatened to cut, or stab, her; he picked up a knife and threatened to kill her. Was it reasonable for him to believe that, after having a cigarette for a minute or two, she then gave her free and voluntary consent to having sex with him in those circumstances?
Now, there are other circumstances you would take into account. They would include that she had said ‘no’ to sex when he first raised it. That there was no evidence that the complainant had said anything to him to indicate, previously, that she had any interest in having sex with him at all. Other circumstances you would take into account include that, after she had the cigarette, he says he asked her for sex again. He said, ‘which way, Kate?’ And in response to that, she said, ‘I’m going –’ words to the effect, ‘I’m going to the room.’ That she went into the room, he followed her, she removed her shorts, got up on the bed, kneeled. He said he did not want to have sex like that, he told her to lie on her back, and he had sex with her, and he then finished, got off, she put her shorts on, went outside, got money, gave it to him, and he immediately left.
So those are the two components you have to think about. Did the defendant honestly, truly believe that she was consenting to sex at the time? And if he did, was his belief, based on the information available to him, and the circumstances in which he found himself, held on reasonable grounds?
So the onus is on the Crown to disprove mistake of fact. The onus is not on the defendant to prove anything. So if the Crown can prove, to your satisfaction, one of two things, either one, they only have to prove one of them – then mistake of fact will not apply, and you must find him guilty.
So if the Crown proves to your satisfaction beyond reasonable doubt – either one – that the defendant did not honestly and genuinely believe she was consenting – if you are satisfied he did not honestly believe that at all, then you would convict him, find him guilty.
But if you are satisfied beyond reasonable doubt, he actually did believe that, he genuinely and honestly thought that, then you have to consider the second component; was his belief based on reasonable grounds? If the Crown satisfies you, beyond reasonable doubt, that his belief was not reasonable in all of the circumstances, when you take into account everything that had occurred, then mistake of fact does not apply, you must convict him. That is, find him guilty.
Put another way, as I said, it is sufficient for the Prosecution to prove either one of two things; either to prove that he did not genuinely and honestly believe she was consenting to sex at all, that he just had sex with her, regardless of whether he believed she consented or not, or it is enough for the Crown to prove that it was not reasonable for him to believe she was consenting to sex, because of all these other things that had happened beforehand. That is all I am going to say about mistake of fact.
On the question of what to do if you cannot reach a unanimous verdict, my answer is: it is far too early to be thinking about that. You have only been deliberating for – in the scheme of things – a relatively short time. At this point, Judges always say to jurors you have a duty to listen carefully to the views of all of your fellow jurors. You should be weighing up each other’s opinions about the evidence, testing them by discussion. That often leads to a better understanding of the differences of opinion which you have, and they may convince that your original or preliminary opinion was wrong, so I encourage you to do that.
Now, I am just going to read into the record the second note, because it is really related to the first note, and it may be that what I have just told you answers that. The second note, which will be marked for identification letter K for kilo …
HER HONOUR: Reads this:
If she had to make him think she gave consent in order to get rid of him, then hasn’t he honestly and reasonably thought she’s given consent?
The answer to that is ‘no’. Now, she has not given evidence that she made any effort to make him think she was giving her consent. Her evidence is she said words to the effect, ‘I am going to the room now.’, she took off her shorts, got on the bed, on her knees, and let him have sex with her. That is her evidence. The other part of the question comes back to whether he honestly and reasonably thought she had given consent, and I hope the direction I have already given you answers the rest of that question. Even if he honestly thought she was – you have to decide whether he, really, honestly thought she was consenting or not, or whether he did not even really think about it.
If you are satisfied, beyond reasonable doubt, he truly, honestly did believe she was consenting, then that is not enough. You still have to consider, was his belief based on reasonable grounds? Even if he thought that, was it reasonable in the circumstances, given everything which had occurred up to that point?
That is all I am going to say about that issue. Please return to the jury room now, and continue your deliberations.”[9]
[9]AB 95-98. Emphasis (bold and underlined) added – bold emphasis reflects the appellant’s submissions.
The jury retired again at 2.42 pm.
After the jury had retired, the prosecutor asked the trial judge to repeat the last note (marked K). Her Honour read it out, and then said:
“I said no, because it is based on a wrong premise. First of all, she did not have to make him think she gave consent at all. She never says that she took any steps to convince him she was consenting. That is not the right question to ask, and that is why I said no. And then they have conflated that with an honest and reasonable belief, so I have then tried to remind them that honesty and reasonableness are separate components, and they have to consider them separately, etcetera.”[10]
[10]AB 98-99.
The trial judge asked defence counsel if he had anything to say arising from that and he said no.
About 40 minutes later, at 3.22 pm, the jury indicated they had reached a verdict, and found the defendant guilty of rape.
For the appellant, it is submitted that in redirecting the jury, in response to their note marked “J”, the trial judge “clearly and impermissibly reversed the onus of proof”, at least “fleetingly”. Counsel for the appellant emphasised all the parts in bold above, but particularly the words “[b]ut if you are satisfied beyond reasonable doubt, he actually did believe that, he genuinely and honestly thought that” on page 9 above saying the submission “hinged” on this part. Although it was submitted the other emphasised passages also had a tendency to confuse the issue for, and were prone to mislead, the jury.
Further, in relation to the redirection in response to the separate question, in the note marked “K”, the appellant submitted the trial judge mis-stated the evidence, effectively ruled out a line of reasoning the jury were entitled to engage in and, in her Honour’s final comments to the jury (the words emphasised at the end of the quote on page 10 above), left them with the impression that the onus was on the appellant, or at least had a tendency to confuse the jury as to where the onus lay.
It is fair to say that in the parts of the redirection emphasised in bold there is some fleeting failure to pose the question(s) in the negative. However, taken as a whole, including by reference to the jury handout, I do not consider that the jury could have been at all confused about where the onus of proof lay – that is, always with the Crown.
That point was emphasised to the jury repeatedly throughout the summing up. It was also emphasised clearly in the handout. The note marked “J” posed questions by reference to the handout – referring to “paragraph 7, page 2” and “all of page 3”. The answer provided by the trial judge was also given by reference to the handout.
In particular, the part of the redirection on which counsel for the appellant said the submission “hinged”, when read with the handout, makes this clear. Page 3 of the handout correctly poses the two questions, and then says “if ‘yes’ to either one of those two questions”, the jury must convict the defendant; and “if ‘no’ to both questions” they must acquit (see paragraph [14] above). Keeping in mind that the jury asked their question by reference to the handout, and that the trial judge in redirecting the jury is also referring to the handout, the words which are underlined, before and after the part emphasised by the appellant (set out on page 9 above) neutralise any possibility of the jury being confused or misled as to the onus of proof. Immediately before the emphasised part, the trial judge correctly posed the question – has the Crown proved to your satisfaction beyond reasonable doubt that the defendant did not honestly and genuinely believe she was consenting. Her Honour then says, in effect, if you are not satisfied of that, you have to consider the second question. It is true that in saying that, her Honour slightly misspoke, by saying “[b]ut if you are satisfied beyond reasonable doubt he actually did believe that, he genuinely and honestly thought that [she was consenting]”. But read in context – of the whole passage, including the two paragraphs before and after that – there could not have been any confusion. Her Honour immediately goes on to refer, in the context of the second question, to the Crown satisfying the jury beyond reasonable doubt that the appellant’s belief was not reasonable. This is then reiterated in the next paragraph, also underlined above, commenting “[p]ut another way…”.
I do not consider the earlier emphasised parts of the redirection lead to any different conclusion.
Turning then to the response given to the question in the note marked “K”. As is apparent from what the trial judge said, after the jury had retired, when the prosecutor asked for the question to be repeated, the trial judge interpreted the jury’s question literally, and answered it literally. That was a logical and correct approach. The question the jury asked in the note marked “K” was, in effect: if we reach the conclusion that [the complainant] “had to make him think she gave consent in order to get rid of him”, then isn’t that the end of the [honest and reasonable belief] matter? That is, we can conclude – from the fact that she “had to make him think she gave consent in order to get rid of him” – that he “honestly and reasonably thought she’s given consent”, without going through the process you have outlined to us.
The trial judge answered that question correctly by saying “no” – in essence, “no, that’s not the end of the matter” – reminding the jury of the complainant’s evidence, in an abbreviated way (having earlier, in the summing up and in the redirection referred to the evidence in some details) and then reminding the jury that they did have to consider the questions of honest and reasonable mistake.
I am not persuaded that the trial judge mis-stated the evidence in her response to this question. Nor do I accept the appellant’s submission that, by the trial judge’s answer, her Honour incorrectly “ruled out the reasoning the jury appear[ed] to be engaged in”. On the contrary, her Honour was correct to direct the jury that they could not, in effect, assume an honest and reasonable mistake of fact had been made, if they reached the view the complainant “had to make him think she gave consent in order to get rid of him”; that they still had to consider the matters of honest and reasonable mistake, in accordance with the directions already given.
Again, it is fair to say that in the last part of the redirection (emphasised in bold, on page 10 above) there was another slip, in the sense of a failure to pose the question(s) in the negative. However, for the reasons already given, having regard to the summing up as a whole, the handout and the whole of the redirection given, I do not consider the jury could have been under any misunderstanding about the onus of proof remaining on the Crown.
It is to be noted that defence counsel did not seek any further redirection, including after the jury had retired again and the prosecutor asked the trial judge to repeat the note marked “K”. Whilst that fact alone would not have affected the outcome of this matter, had I formed a different view in relation to the appellant’s arguments, it does reinforce the view that I have formed, as defence counsel who was present plainly did not consider there had been any (fleeting or otherwise) reversal of the onus in what the trial judge said to the jury by way of redirection.
For those reasons, I would dismiss the appeal.
MORRISON JA: I have had the advantage of reading the reasons for judgment of Bowskill CJ. I agree with those reasons and with the order proposed by her Honour.
DALTON JA: I agree with the reasons of Bowskill CJ and with the order she proposes.
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