R v Schulz - [2016] SASCFC 150

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SCHULZ
[2016] SASCFC 150
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Lovell)
23 December 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
Appeal against conviction for aggravated causing harm with intent to cause harm. Appellant found guilty by jury. Where prosecution case was that the appellant intentionally struck the victim twice in the head with a machete. Where defence case was that he deliberately struck out with the machete, but without aiming to hit the victim. Where appellant gave evidence. Where trial Judge directed in terms of evaluating the appellant’s evidence by reference to acceptance or rejection of it.
Whether trial Judge erred in his directions to the jury going to the onus and standard of proof, and in particular, the approach to the assessment and use of the appellant’s evidence.
Held per Vanstone J (Blue and Lovell JJ agreeing): Appeal allowed. The relevant directions to the jury were erroneous. The conviction should be set aside and a new trial ordered.
Liberato v The Queen (1985) 159 CLR 507; R v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013; Murray v The Queen (2002) 211 CLR 193; Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086, applied.
R v Woods (2008) 102 SASR 422, not followed.
R v Jeisman [2008] SASC 266, considered.

R v SCHULZ
[2016] SASCFC 150
Court of Criminal Appeal: Vanstone, Blue and Lovell JJ

VANSTONE J: Shane David Schulz appeals against his conviction for aggravated causing harm with intent to cause harm. He was found guilty of that offence after a trial before a Judge and jury in the District Court.
The only ground of appeal concerns the directions given to the jury going to the onus and standard of proof, and in particular, the approach to the assessment and use of the appellant’s evidence.
For the reasons that follow, I consider that the directions to the jury on this topic were erroneous and that this amounts to an error of law. The error goes to the heart of the trial process. I do not consider that the proviso should be applied.
There is also an application for permission to appeal against sentence. Having regard to the disposition of the conviction appeal, it is unnecessary to consider it.
Background
The charge arose from an incident which occurred on 17 September 2014 at Northfield. The appellant and the victim named in the charge, Mr Wahlstedt, were living in Housing Trust premises of which the appellant was the tenant. Mr Wahlstedt had met the appellant at a previous stay at the St Vincent de Paul men’s shelter and later, Mr Wahlstedt approached the appellant and asked whether he could stay with him. Their relationship was not a happy one, the two men being in disagreement over a number of matters.
The prosecution case relied principally on two female witnesses who were seated in a motor vehicle parked nearby. They observed a confrontation between the men which took place at the front of the house. It culminated in Mr Wahlstedt being struck twice to the head with a machete wielded by the appellant. There was no suggestion that Mr Wahlstedt was armed during the incident. Both women described Mr Wahlstedt moving backwards in retreat from the appellant to a position where his back was against a roller door. They described the appellant moving towards him and delivering one or more blows to his head with the machete.
Mr Wahlstedt was taken to hospital where two wounds were sutured. Prior to Mr Wahlstedt giving a statement to police in relation to the matter, he died of unrelated causes.
The appellant was interviewed by police. In essence, he agreed he had struck Mr Wahlstedt with the machete, but he said that he was defending himself. In his evidence at trial, he denied intentionally striking Mr Wahlstedt with the machete, saying that his intention had been only to strike the roller door behind him in an attempt to warn him off. The second wound was described as having resulted from a movement by Mr Wahlstedt deflecting the machete blow upwards and the machete coming back down onto his head.
Consequently, the issues at trial were whether the blows were inflicted deliberately and with the necessary intention, and whether the appellant was acting in self-defence.
Arguments on appeal
The summing up was brief and delivered with a degree of informality.
The usual directions concerning the presumption of innocence and the onus and standard of proof were given in a truncated form. What was said in that regard was correct. It is germane to note that the Judge did not instruct the jury that the accused bore no onus of proof and that, if he put forward a defence, he did not have to prove it.
The appellant’s complaints focus on the directions given in the course of instructing the jury on the elements of the offence. In essence, the complaint is that, in his directions, the Judge repeatedly limited any use of the appellant’s evidence to a situation where they accepted that evidence; that he effectively instructed the jury to set aside the appellant’s evidence unless it was accepted and to proceed to determine the particular issue under consideration without reference to the appellant’s evidence.
I now set out the Judge’s directions containing the impugned instructions, which have been italicised. For convenience, I have labelled them.
The first concerns what was referred to as the third element of the offence, the matter of deliberation:
a.Now you heard, and I will come back to this again, on more than one occasion from the accused that this incident, the blows that the accused delivered, that they were delivered accidentally. That is not what he told the police or arguably what the two independent witnesses say they saw but that is what he told you in evidence yesterday. So if you were satisfied that what the accused told you in evidence yesterday actually occurred, then it would not have been a deliberate act. He said it was accidental, if you accept him, you accept everything he says, then the prosecution would not have established that ingredient. However, if you are not prepared to accept the evidence of the accused on that issue, you are still required to go on and determine whether the prosecution evidence has satisfied you that the blows that the accused delivered were deliberate as opposed to accidental, and in that respect you will have regard to the evidence of what you saw on the video when the accused was explaining what had happened, you will have regard to the evidence of the two independent witnesses, Ms Magoch and Ms Castelli but ultimately it is a matter for you to say whether you conclude that the blows were delivered accidentally or deliberately.
The next direction was given in the course of explaining the fourth element of the offence, intention to cause harm:
b.Now again on this ingredient, if you were to accept the accused’s evidence in court that he did not intend to inflict harm on Mr Wahlstedt, that the strikes that were inflicted on Mr Wahlstedt were accidental, that they occurred in the way in which the accused told you, then the Crown would not have satisfied you on this element. However, and again as I said a few times this morning, if you do not accept the evidence of the accused on that issue, you will need to be satisfied, based on the evidence of the prosecution witnesses that you accept, that the accused did intend to cause him harm.
The final direction to which attention was drawn occurred in the section of the summing up where the Judge discussed the fifth element, namely that the appellant acted unlawfully:
c.It is arguable on this evidence that the defence of acting in self-defence simply does not arise. It was totally the result of an accident. There is no suggestion that he was trying to defend himself on that evidence and so you would not need to consider the issue of self‑defence but you may, however, as I have already said, not accept his evidence as to how the blows came to be struck. If you were to decide to reject that evidence you still need to decide whether in striking Mr Wahlstedt in the way that was observed, for example, by the two independent witnesses, whether he acted in self-defence.
(The correctness of the directions in a. and c. are open to question on another basis. The appellant’s evidence was that he deliberately struck a blow with the machete, but that he aimed to hit the roller door rather than Mr Wahlstedt. In these circumstances, subject to proof of unlawfulness, he might have been guilty of an offence of basic intention. Since this issue was not the subject of complaint, or argument, it need not be further addressed in these reasons.)
In support of his argument on the approach to the appellant’s evidence, Mr Henchliffe SC, for the appellant, referred to several authorities. The first of those was Murray v The Queen (2002) 211 CLR 193. That appeal arose out of a trial in Queensland in which the appellant was found guilty of murder. The facts of that case have something in common with the present case. The defence there was that discharge of the firearm causing the death was accidental. The vice identified by the High Court, which led to the conviction being quashed, was that the trial Judge posed the question for the jury’s determination in terms of whether it accepted the prosecution or defence version of events. The majority comprised the judgment of Gaudron J, that of Gummow and Hayne JJ and that of Callinan J. Gaudron J identified the error as follows at [23]:
Although the trial judge, in the early part of her directions, correctly instructed the jury with respect to the onus of proof, in the passages set out above, her Honour posed the question for the jury's determination with respect to murder as the question whether it accepted the prosecution's or the appellant's version of events. That was the central or critical direction in her Honour's summing up. And as the issue for the jury was not whether it should accept the appellant’s version but whether the prosecution had negatived it as a reasonable possibility, that direction mis‑stated the issue for determination in a way that relieved the prosecution of proving its case beyond reasonable doubt.
In the joint judgment at [57] occurs the following passage which encapsulates the approach of Gummow and Hayne JJ to what was done:
Although at the start of her directions about murder her Honour told the jury that it was for the prosecution to prove that the appellant had intended to kill or do grievous bodily harm, the references she made, ... to the jury accepting the accused’s evidence or version of events were apt to mislead the jury about the decision they had to make. The choice for the jury was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant.
Callinan J expressed his view of the issue by reference to the dissenting judgment of McPherson JA in the Court of Appeal. Quoting McPherson JA, his Honour said, at [132]:
The defect in this formulation is that it invited the jury to acquit if (and, by inference only if) they made an affirmative finding that the appellant’s intention was to frighten [the victim] and drive him out of the house. So to direct the jury was incorrect because in law it was sufficient to attract a verdict of acquittal that the appellant’s testimony, considered alone or with other evidence at the trial, raised in the minds of the jury a reasonable doubt about his intention at the time the shotgun discharged.
In these passages the Justices making up the majority on this topic made clear that the issue in a criminal trial where the defence calls evidence is not whether that evidence is to be accepted or preferred to the contrary version. Rather, it is whether the prosecution has proved its case beyond reasonable doubt notwithstanding that evidence.
In Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086 at [12], the High Court specifically approved the passage set out above from the reasons of Gummow and Hayne JJ.
In the present appeal the appellant also relied on R v Woods (2008) 102 SASR 422, a decision of this Court in which convictions for drug offences were quashed by the majority, comprising Gray J, who wrote the leading judgment, and Sulan J concurring. The impugned directions regarding Woods’ evidence were found to have placed an onus on him to raise a reasonable possibility consistent with innocence, and to have deflected the jury from the critical question whether the prosecution had proved its case. David J, dissenting, held that the directions were intended to make plain to the jury that Woods’ evidence amounted to a defence; and were clear and correct.
At his trial Woods was convicted for taking part in the production of cannabis and possessing methylamphetamine for sale. He was present at a house when police raided it. Among other items they found growing cannabis, drying cannabis material, methylamphetamine in the refrigerator, and large quantities of cash in the house and in the appellant’s car. The prosecution case was that the appellant was the caretaker of the plants and drugs.
In his evidence at trial, Woods said that he had only come to the house in the last few days at the invitation of a friend and, having placed his belongings there, had spent most of his time elsewhere. He said he realised the cannabis was in the house and had seen the drug in the refrigerator, but otherwise had nothing to do with any of it. Therefore his defence was that he was not in possession of the methylamphetamine and did not play any role in planting or tending the cannabis plants.
The Judge directed the jury on the elements requiring proof of the nature of the drugs (and plants) and on proof of possession relevant to the methylamphetamine charge. Those directions need not be mentioned further. When the Judge referred to the mental element of the charges, his directions followed a pattern. It is sufficient to set out one example. Having referred to Woods’ evidence, the Judge said the following, which is set out at [15] of Gray J’s judgment:
The third element requires that it be proved that the accused took part in the production of cannabis knowingly.
…
The prosecution must prove that the accused
- knew that what was being produced was at least an illegal drug; and
- intended to be part of the process.
Put another way, the taking part must be accompanied by an awareness and an intention. The accused must be proved to know of and intend to be part of the process of producing an illegal drug.
…
In this case, the accused himself admitted in his evidence, what must have been clearly obvious to him; namely, that the cannabis, an illegal drug, was being produced in those two southern bedrooms. As to whether he then intentionally took part in that production, the prosecution ask you to infer from all the circumstances surrounding his presence in the house that he was intentionally part of the process of production.
On the other hand, the defence contend that the accused was merely present and, whilst he was aware of the hydroponic production, he did not intend to participate in what was happening in those two bedrooms.
I tell you immediately, in relation to this element, if you consider:
• that that is correct; or
• if you consider that it is a reasonable possibility that he did not so intend; or
• you are unable to say one way or the other;
then you will have effectively concluded that the mental element has not been proven beyond reasonable doubt.
Of course, if that is the case, because all the elements need to be proven beyond reasonable doubt, you will not be able to reach a verdict of conviction in respect of that first count.
That is all I wish to say about that third element.
[Italics are those of Gray J.]
The error in the directions identified by Gray J at [16] was the failure to direct the jury that, even if they totally rejected the defence evidence, there was still a need to consider whether, on all the evidence, the prosecution had proved its case. That alternative was said to be a necessary adjunct to the alternatives already posed by the trial Judge, namely, that the jury accepted the appellant’s evidence, or considered that it was reasonably possible, or that the jury was unable to say one way or the other. Errors of the same nature were identified by Gray J in the Judge’s directions on circumstantial evidence and the assessment of all the witnesses in the trial. For my purposes it is unnecessary to deal with those, similar, directions.
In his dissenting reasons, David J pointed out that the general directions on the onus and standard of proof were correct and often repeated. He said that it was necessary for the trial Judge to explain to the jury how the appellant’s evidence addressed the prosecution case. His Honour found that the directions did not have the effect of reversing the onus of proof.
As I understand the majority decision, it is that, even if the jury rejected out of hand Woods’ denials of involvement, it would still need to consider whether the prosecution case – assisted as it was by the important concessions made by Woods in his evidence – satisfied them of his participation in growing the plants. This must mean that the jury – having rejected Woods’ evidence that he, whilst being aware of the cannabis crop, did not participate in its growing – were required to contemplate and grapple with other circumstances, necessarily theoretical and contrary to Woods’ case, in which he might not have participated in growing the plants. At least since R v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013, it is clear that, once a jury has rejected an accused person’s evidence, it is not obliged to cast around and speculate as to other possible circumstances which, if in existence, might have provided the accused with a defence. There, the High Court said that, the jury having rejected Baden-Clay’s evidence, it was wrong to treat the case as one in which he had not given evidence at all: [58]. “The issues and available lines of argument to be pursued were narrowed by the way the case was conducted at trial”: [63].
It is hard to imagine what other circumstances might have existed such as to lead to a reasonable possibility that Woods had no involvement in producing the plants. The rejection of his evidence as a reasonable possibility left no room for any other hypothesis. If, following the Judge’s directions, the jury rejected as a reasonable possibility that the accused did not intend to participate in growing the plants, surely that meant that the jury found that he did intend to participate. Similarly, in respect of the methylamphetamine, if the jury did not entertain a reasonable possibility that Woods did not intend to exercise control or dominion over it (as the Judge put it) then what other conclusion could there be but that he did intend to do so?
While the disposition of the present appeal does not necessitate a reconsideration of the decision in Woods, there is a real question as to whether the decision in Baden-Clay effectively overrules it.
The complaint in the present case is encapsulated by the often quoted passage of Brennan J in Liberato v The Queen (1985) 159 CLR 507 at 515. The terms of this passage provide a bridge between directions on the evaluation of evidence and the correct application of the onus of proof. This passage was referred to with approval in Douglass v The Queen [2012] HCA 34 at [13]. Brennan J said:
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
The point relevant to this appeal is that the jury must be made to understand that the force of any defence evidence is not spent merely because the jury does not “positively believe” (or here “accept”) it. To put it another way, acceptance of an accused person’s evidence is not an essential preliminary to a not guilty verdict.
Consideration

It was conceded by Mr Henchliffe that the directions impugned in the present case must be considered in the context of the entire summing up. It was said in R v Jeisman [2008] SASC 266, that a reference in the summing up to accepting the evidence of the accused is not, itself, an error provided it is complemented by directions on the other possible situations which may pertain; so that the directions as a whole put the position properly: at [35] – [36].
In my opinion, the directions given in the present case were erroneous. As Mr Henchliffe argued, the Judge left to the jury a dichotomy involving either acceptance or rejection of the appellant’s evidence. Furthermore, the Judge instructed the jury that, if they did not accept the appellant’s evidence, then they should put it aside and consider the balance of the evidence – that is, only the prosecution evidence – to determine whether the prosecution had proved its case. Both vices are present in directions a. and b. set out earlier; only the first vice is present in direction c. The directions had the effect of obliging the appellant to satisfy the jury that his evidence should be accepted as a pre-requisite to using it at all. In other words, the jury were steered away from having any regard to the appellant’s evidence if they did not categorically accept it.
The error which attended this summing up occurred because the Judge spoke of the possibility that the jury might ‘accept’ the appellant’s evidence. Both Mr Henchliffe, and Ms Telfer SC for the prosecution submitted, in line with Jeisman, that there is nothing intrinsically wrong with using that word in relation to an accused person’s evidence; but if it is used, then care must be taken to describe the other positions which the jury might reach, short of accepting that evidence.
In Woods, Gray J spoke with approval of a direction dealing with the consequence of the jury accepting the defence case. He said at [27]:
A trial judge, when directing a jury, in circumstances where an accused advances a positive case, has to balance carefully what is to be said about that evidence. Plainly it is appropriate for the judge to direct a jury that if they accept the defence case, then they will acquit. But beyond that, the question to be answered is whether, having regard to the whole of the evidence, the prosecution has proved guilt beyond reasonable doubt.
[Italics added.]
However, in Murray, in the passage already quoted, Gummow and Hayne JJ tended to deprecate reference to ‘accepting’ the accused’s evidence. As their Honours pointed out, the choice for the jury is “not to prefer one version of events over another. The question [is] whether the prosecution [has] proved the relevant elements of the offence beyond reasonable doubt”. This, it was said, requires “no comparison between alternatives other than being persuaded and not being persuaded” of guilt.
As mentioned, this particular passage in Murray was specifically approved in Douglass. It seems to me that this amounts to strong advice to trial judges to avoid discussing an accused person’s evidence in terms of acceptance of it. Much depends on the structure of the summing up and the way in which the Judge discusses the defence case. If there is a reference to the possibility of “accepting” the defence evidence, then plainly the full spectrum of other possibilities must be put as well. However, it would appear to be a better course to simply direct the jury to consider the defence evidence, direct them as to proof of which element is put in issue by it, and instruct them that the question for decision is whether, on the whole of the evidence, and notwithstanding the defence evidence and argument, the prosecution case has been proved.
In my opinion, the directions given in this trial vitiate the appellant’s conviction. It must be quashed. There need be no consideration of an application of the proviso since the directions went to a fundamental matter. Indeed, the respondent did not argue against either the quashing of the conviction, or the order that there be a new trial.
Conclusion
I would quash the conviction and order a new trial. In those circumstances, I would not deal with the application for permission to appeal against sentence. It falls away.
BLUE J: I agree that the appeal should be allowed, the conviction quashed and a new trial ordered.
Subject to the qualification below, I agree with the reasons of Vanstone J and with the elaboration by Lovell J.
I prefer to express no opinion on the desirability of a reconsideration of the correctness of this Court’s earlier decision in R v Woods[1] as the appeal is to be allowed regardless of that decision. For the reasons given by Lovell J, all of the circumstances and the entirety of the summing up need to be considered in any individual case to determine whether the directions on or relevant to the burden of proof involve an error of law or give rise to a miscarriage of justice.
[1] [2008] SASC 335
LOVELL J: I agree with Vanstone J.
How a judge structures a summing up will be dependent on a number of factors. Matters which influence the structure of a summing up include the nature of the charge or charges, the number of charges, whether there are alternative charges to be determined, whether there are uncharged acts, the number of witnesses and of course the way in which the issues are joined at trial. Importantly, in a case in which the accused gives evidence, the directions on the burden of proof are liable to vary depending on whether the case is essentially oath against oath or circumstantial case against oath or a combination. While I agree that in many cases the preferable course will be to avoid discussing an accused’s evidence in terms of acceptance of it, there will be some cases where such a direction will be unavoidable. In such a case it will be necessary for a judge to direct on the full spectrum of possibilities as discussed in R v Liberato[2] and R v Murray.[3]
[2] (1985) 159 CLR 507.
[3] (2002) 211 CLR 193.