R v Tran & Tran

[2011] SASCFC 51

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v TRAN & TRAN

[2011] SASCFC 51

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Kourakis and The Honourable Justice Peek)

7 June 2011

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - DIRECTIONS TO JURY

Appellants found guilty by a jury of recklessly causing serious harm - whether trial judge reversed onus of proof in his directions to the jury.

Held:  appeal allowed.

Liberato v The Queen (1985) 159 CLR 507; Murray v The Queen (2002) 211 CLR 193, applied.

R v TRAN & TRAN
[2011] SASCFC 51

Court of Criminal Appeal:       Vanstone, Kourakis & Peek JJ

1. THE COURT:  The appellants were charged on information in the District Court for causing serious harm with intent to cause serious harm, with circumstances of aggravation.  After a jury trial occupying three days, each was found guilty of the alternative offence of recklessly causing serious harm, with circumstances of aggravation.  They have not yet been sentenced.

2. They appeal against these convictions on several grounds which include a complaint that the learned trial judge erred in his directions to the jury on the burden of proof.

3. As will be seen, the Court is satisfied that this complaint is made good and that it is necessary to quash the convictions and to order a retrial.  In these circumstances we do not find it necessary to set out the facts of the matter in any detail, or to discuss the other grounds of appeal, which concern matters unlikely to arise upon a retrial.

   Background

4. In brief, the prosecution case was that on an occasion in 2008 the alleged victim, whom we shall call “P”, drove to a house to pick up a friend.  While P was outside the front of the house, the appellant Minh Tuan Tran (whom we shall call “D1”) and the appellant Ngoc Thai Tran (“D2”) attended there.  They were persons whom P had previously known.

5. It was alleged that the three men argued and that the appellants then damaged the motor vehicle which P had driven there and that they then attacked P.  He was brought to ground and then punched and kicked.  He suffered serious injuries, including a fractured skull.  A Doctor Allen gave some evidence about the sort of force that might have caused that injury.

6. D1 did not call any evidence, but D2 gave evidence in his defence.  In essence, he admitted involvement in an incident involving D1 and P, but said, in effect, that P was the aggressor and that he, D2, attempted to calm the situation.  He said some punches were exchanged between himself and P.  He said P tried to headbutt him and that both men fell.  D2 said when P hit the ground, he heard a loud crack.  Shortly afterwards he and D1 left the area.  He last saw P standing up and apparently not suffering serious injury.

7. D2’s defence amounted to a combination of self-defence, defence of D1 and a denial of central parts of P’s account.  Had D2’s evidence been accepted by the jury as a reasonable possibility, then both men would have been acquitted.

8. When the learned trial judge summed up he gave the usual general directions about the onus and standard of proof and the presumption of innocence.  These were given in unexceptional terms.  He directed the jury that each element of the charge had to be proved beyond reasonable doubt by the prosecution.  The judge explained that in his summing up use of the words “proved”, “satisfied”, or “established” would mean proof beyond reasonable doubt.  Other general directions about which no complaint is made were given.  It was when the judge came to deal with the evidence in the case that the directions which are the focus of this appeal were given.

9. In the course of discussing the evidence the judge referred to the two competing versions of the events as “the [P] scenario” and “the [D2] scenario”.  The judge gave the following impugned directions:

   Dr Allen’s evidence is important as to each of the two scenarios to which I have referred because what you make of her evidence may be relevant as to which scenario you find proved, if either, in light of the undisputed fact that [P] suffered a serious head injury …

   …

   I have gone into some detail in respect of the two possible scenarios because different considerations may apply to which scenario you are prepared to be satisfied as having occurred beyond reasonable doubt, if you were prepared to be so satisfied as to any scenario or either scenario.

   …

   As I now give you directions on the elements or ingredients of the crime charged against both accused you will have to consider these directions on the basis of whichever scenario you find proved, if you find either of them proved beyond reasonable doubt.  With all this in mind, I move now to the elements or ingredients of the crime charged.

   After directing on the third element of the charge, being unlawfulness, the judge said:

   However, if you are satisfied that the events occurred as described by [D2] in the [D2] scenario, the defence of lawful self-defence of himself by [D2] needs to be considered by you.

   …

   I return to the question of self-defence.  If you are satisfied of the D2 scenario, then whatever you find [D2] to have done, if anything, … would not be unlawful if it occurred in lawful self-defence.

   In dealing with the circumstance of aggravation, the judge said:

   If you are satisfied beyond reasonable doubt that the incident occurred according to the [D2] scenario, you are not likely to find this aggravating circumstance proved …

   In the context of discussing the various alternative verdicts, the judge said:

   … because if you are satisfied that the events occurred on the [D2] scenario, then I have indicated earlier that it is unlikely that you will be satisfied that the offence was aggravated because they will not be acting together.

10. All these directions were erroneous.  They had the effect of placing a burden of proof on the defence.  They invited the jury to choose between the two versions as if the issue for determination were straightforward:  of which scenario was the jury satisfied. 

11. It may be noted that, apart from the general directions to which we have already referred, in other parts of his summing up the judge gave directions on the burden of proof which were also correct.  For example, having concluded his directions on the question of self-defence the judge said:

    It is important for you to appreciate – and I therefore stress – that a person raising self‑defence is not required to prove that he was acting in self-defence.  The onus remains on the prosecution at all times to negative the possibility.  The defence is taken to have been established, unless the prosecution disproves the defence beyond reasonable doubt.

    While the use of the word “established”, which the judge had previously defined to mean established beyond reasonable doubt, was perhaps ill advised in this context, this direction was otherwise correct.

12. Later, when discussing the defence cases, the judge gave this correct direction:

    Of course, by going into the witness box, the accused [D2] does not assume any burden of proof.  The burden of proof still rests on the prosecution.

    Analysis

13. One of the fundamental requirements of a summing up is that it contains clear and correct directions to the jury upon the onus and standard of proof.  A number of cases deal with charges to the jury which have involved both correct and incorrect directions on that topic.  One such case is Liberato v The Queen (1985) 159 CLR 507. There, in the course of a summing up which contained correct directions on the burden of proof, the trial judge had made several references to the jury making a choice between competing versions and to the question of who was to be believed on the whole of the evidence. The convictions were upheld on appeal to the Court of Criminal Appeal on the basis that the entirety of the summing up clearly put the correct position. The majority of the High Court found that there had been no error of approach by the Court of Criminal Appeal to the question of consideration of the summing up as a whole and that it was inappropriate to grant special leave to appeal. In separate dissenting judgments Brennan J and Deane J examined the impugned directions and took the view that the Court of Criminal Appeal should not have allowed the convictions to stand. While this was a minority view, we do not take the general statements made by Brennan J and Deane J to be in question. Brennan J approached the issue in this way (at 515):

    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.

    Like Brennan J, Deane J considered that a judge was entitled to direct the jury in terms which invited it to make a choice between prosecution and defence evidence, as long as such directions were qualified by correct directions on the onus of proof.  He said (at 519):

    Provided that they are accompanied by clear and unequivocal directions about the criminal onus and standard of proof, express or implied references in a summing up to a “choice” between particular witnesses are, no doubt, sometimes unavoidable and commonly unobjectionable.

    His Honour found that it was probable that the orthodox directions given on the standard and onus of proof would have prevailed over the misdirections, but considered that it was impossible to do more than speculate in that regard.  On that basis he would have allowed special leave to appeal and quashed the convictions.

14. In Murray v The Queen (2002) 211 CLR 193 the High Court again considered a summing up containing an invitation to the jury to consider whether it accepted the prosecution or the defence version of events. As to this, Gaudron J, forming part of the majority, said (at 202):

    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 their joint reasons Gummow and Hayne JJ deprecated the judge’s reference to accepting the accused’s evidence or version of events.  They said (at 213):

    … the references [the judge] 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.

15. Kirby J would not have allowed the appeal on this ground.  His Honour found (at 217-218) that in light of the “repeated, strong, clear and correct instructions to the jury” given elsewhere, the impugned directions could be regarded as “transient infelicities”.  His Honour found that notwithstanding that judicial directions on the burden and standard of proof are crucial, they are to be considered in the context of the whole summing up and, seen in that way, these did not involve such error as required intervention.

16. We return to the present case.  In our view, such was the prominence of the misdirections identified in the summing up as a whole that it is difficult to be satisfied that the jury would have understood that the burden of proof remained steadily on the prosecution and that it was not for the appellants to satisfy the jury of D2’s version of events.  As Deane J said in Liberato, in a passage already referred to, it is impossible to do more than to speculate in that regard.  Indeed, counsel for the respondent does not seek to uphold the convictions in the face of the identified misdirections.  There can be no question of applying the proviso.

    Conclusion

17. It is necessary to allow both appeals, set aside the convictions and order a retrial.