Warne v The Queen - [2020] SASCFC 12

Supreme Court of South Australia
(Court of Criminal Appeal)
WARNE v THE QUEEN
[2020] SASCFC 12
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nicholson, The Honourable Justice Doyle and The Honourable Auxiliary Justice David)
26 February 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION
The appellant was charged with eight offences alleged to have occurred during 2016 and 2017. Counts 1, 6, 7 and 8 were charges of aggravated assault, counts 2 and 3 were charges of aggravated assault causing harm, count 4 was a charge of possessing a firearm without a licence and count 5 was a charge of aggravated threatening life.
The complainant in respect of each of the charges of violent offending was the appellant’s then partner. The assault charges were aggravated by reason that they were alleged to have occurred in contravention of an Intervention Order that had been imposed upon the appellant on 25 July 2016.
Following a trial before a judge and jury the appellant was found guilty on all charges, save that the jury did not find the aggravating circumstance proven in respect of count 1. The verdicts in respect of counts 2 and 5 were by majority; the balance were unanimous.
The appellant pursued four grounds of appeal:
1.       The trial judge erred in failing to direct the jury either at all, or in one case not until his summing up, as to their obligations to decide the case only on the evidence, to not discuss the case with persons other than their fellow jurors, to not make their own enquiries, and to bring to the trial judge’s attention any departure from the above by any member of the jury.
2. The trial judge erred in failing to direct the jury as to self-defence either at all, or in terms that were in conformity with s 15 of the Criminal Law Consolidation Act 1935 (SA).
3.       The trial judge’s directions lacked balance to the extent that they resulted in a miscarriage of justice.
4.       The trial judge erred in failing to adequately direct the jury in relation to the potential implications for the complainant’s credit of the timing of the photographs purportedly showing the injuries alleged to have been sustained during the course of the conduct the subject of count 1.
Held, per Doyle J (Nicholson J and David AJ agreeing), granting permission to appeal in respect of grounds 1 and 2, and allowing the appeal on ground 2, but only to the extent of setting aside the conviction on count 2 and ordering a retrial on that count, and otherwise dismissing the appeal:
1.       The trial judge ought to have given post-empanelment directions to the effect contended for by the appellant. The instructions provided during the jury pool’s induction, the guidance notes in the jury room, and trial judge’s reference in his summing up to the obligation to decide the case on the evidence were not a sufficient substitute.
2.       Despite the trial judge’s failure to give post-empanelment directions to the effect contended for by the appellant, there was no miscarriage of justice. It is speculative to suggest that the jury’s deliberations were infected by extraneous information. The appeal in respect of ground 1 is dismissed.
3.       There was a sufficient evidential basis to require that the trial judge leave self-defence to the jury in respect of the charge the subject of count 2. The trial judge’s directions in this respect were inadequate; they fell short of an accurate and clear articulation of the defence.
4.       There was not a sufficient evidential basis to require that the trial judge leave self-defence to the jury in respect of the remaining counts of violent offending. The appeal in respect of ground 2 is allowed, but only to the extent of setting aside the conviction on count 2.
5.       The trial judge’s directions did not lack balance in relation to the treatment of uncharged acts. His Honour’s treatment of the uncharged acts of the defendant would not have left the jury with the impression that the uncharged acts occurred. In addition, his Honour’s directions adequately identified and emphasised the evidence that revealed the complainant’s own volatile and aggressive behaviour. The appeal in respect of ground 3 is dismissed.
6.       The trial judge’s directions did not lack balance in relation to the potential implications for the complainant’s credit of the timing of the photographs purportedly showing the injuries alleged to have been sustained during the course of the conduct the subject of count 1. The trial judge adequately explained the issues arising out of the discrepancy as to dates, both in terms of the alternatives to which it gave rise, as well as the potential implications for the jury’s consideration of the complainant’s reliability credit as witness in relation to count 1 and more generally. The appeal in respect of ground 4 is dismissed.
Criminal Law Consolidation Act 1935 (SA) s 15, referred to.
R v K (2003) 59 NSWLR 431; R v Skaf (2004) 60 NSWLR 86; R v Thompson [2011] 1 WLR 200; [2010] EWCA Crim 1623; SD v R (2013) 39 VR 487; Zecevic v DPP (1987) 162 CLR ; Viro v R (1978) 141 CLR 88; R v CMM (2002) 81 SASR 300; Flanagan v The Queen (2013) 236 A Crim R 255; R v Barratt [2014] QCA 94; Police v Lloyd (1998) 72 SASR 271; R v Heinicke (1998) 198 LSJS 2; R v Muratovic [1967] Qd R 15; R v Roba (No 2) (2000) 110 A Crim R 253; McKell v The Queen (2019) 264 CLR 307, considered.

WARNE v THE QUEEN
[2020] SASCFC 12
Court of Criminal Appeal: Nicholson and Doyle JJ and David AJ

NICHOLSON J: I agree that the application for permission to appeal and the appeal should be disposed of in the manner proposed by Doyle J and for the reasons his Honour has given. Nevertheless, I wish to emphasise the importance to be attached to the Judge’s imprimatur being given to the standard directions not given by the Judge in this case and, in particular, the direction not to discuss with outsiders and the Thompson direction. Those directions were given as part of the jury induction and, for the reasons given by Doyle J, there has been no miscarriage of justice in the circumstances of this case. That will not always be so. I also am of the view that jury members will be more likely to comply with these directions if they are also given an explanation as to why it is important that they do not discuss the case with others and that they make no independent enquiries and how it is that a failure to observe these directions can lead to unfairness in the trial process.
DOYLE J: The appellant was charged with eight offences alleged to have occurred during 2016 and 2017. Counts 1, 6, 7 and 8 were charges of aggravated assault, counts 2 and 3 were charges of aggravated assault causing harm, count 4 was a charge of possessing a firearm without a licence and count 5 was a charge of aggravated threatening life.
The complainant in respect of each of the charges of violent offending was the appellant’s then partner. The assault charges were aggravated by reason that they were alleged to have occurred in contravention of an Intervention Order that had been imposed upon the appellant on 25 July 2016.
Following a trial before a judge and jury the appellant was found guilty on all charges, save that the jury did not find the aggravating circumstance proven in respect of count 1. The verdicts in respect of counts 2 and 5 were by majority; the balance were unanimous.
The appellant sought permission to appeal on five grounds, but ultimately abandoned the fifth ground. The essence of the first four proposed grounds of appeal was as follows:
1.   The trial judge erred in failing to direct the jury either at all, or in one case not until his summing up, as to their obligations to decide the case only on the evidence, to not discuss the case with persons other than their fellow jurors, to not make their own enquiries, and to bring to the trial judge’s attention any departure from the above by any member of the jury.
2. The trial judge erred in failing to direct the jury as to self-defence either at all, or in terms that were in conformity with s 15 of the Criminal Law Consolidation Act 1935 (SA).
3.   The trial judge’s directions lacked balance to the extent that they resulted in a miscarriage of justice.
4.   The trial judge erred in failing to adequately direct the jury in relation to the potential implications for the complainant’s credit of the timing of the photographs purportedly showing the injuries alleged to have been sustained during the course of the conduct the subject of count 1.
The respondent having conceded permission to appeal on grounds 1 and 2, a judge of this Court ordered all four grounds be referred to this Court for hearing and determination.
It is appropriate to commence by outlining the nature of the case against the appellant in respect of all counts in order to put the matters raised on appeal in their proper context. It will then be necessary to provide some additional context relevant to the individual grounds of appeal.
The case against the appellant
The case against the appellant was based primarily on the evidence of the complainant, and it is sufficient for present purposes to provide a general overview of that evidence.
The complainant was 32 years of age at the time of trial. Her evidence was that she was in a relationship with the appellant from the commencement of 2015 through to February 2017. They lived together for approximately two years, living initially in the complainant’s house in Staude Street in Naracoorte before later moving to an address in Avenue Range, just out of Lucindale.
On the complainant’s evidence their relationship became a very volatile one, punctuated by numerous incidents of verbal and physical aggression. She acknowledged that on some occasions she was the aggressor, or at least that she behaved in an aggressive manner.
The complainant gave evidence of some uncharged acts of violence by the appellant directed towards her. However, it is sufficient to address her evidence of the charged acts.
In relation to count 1 (aggravated assault) the complainant’s evidence was that she and the appellant had an argument in about late July or early August 2016. The argument occurred in the bedroom of the appellant’s house in Union Court in Naracoorte. The appellant shut the door to the bedroom, and the complainant tried to leave the room by pushing past the appellant to open the door. The appellant hit her and she fell to the floor. The complainant screamed and the appellant “stomped” on her head with his right foot. His foot made contact with the left side of her face. She took three photographs of her injuries which she sent to her friend, Ms Northam.
The complainant’s evidence in relation to count 2 (aggravated assault causing harm) was that it occurred on or about 2 October 2016 at their Avenue Range address. The appellant was in the bedroom, lying on the bed. The complainant entered the room and was yelling at the appellant. She was angry because he had been ignoring her, and she was trying to get him to see that she had been treated wrongly. She was carrying an axe, and used it to smash a bedside table that was alongside the bed that the appellant was lying on. After she did this, the appellant got up off the bed, pinned the complainant to the ground and started punching her in the back and side of her head. He said something to the effect of “you fucking whore; I’m going to knock you out.” She said that the appellant hit her over and over again, turning her head into “mush”. The evidence included some photographs that the complainant took of the injuries she sustained, as well as some vision and sound of the event leading up to the commission of count 2 which the appellant captured on his telephone camera.
Count 3 (aggravated assault causing harm) related to an incident that the complainant said occurred on Christmas Day 2016. She was asleep in their Avenue Range house and woke to the sound of the vacuum cleaner that had been left on just outside her room by the appellant. She found him in another room of the house and started yelling at him. The argument that followed included her threatening to phone the police and escalated to the point where the appellant grabbed her throat with his hand. He was trying to grab her phone with his other hand, and in the process stuck his finger in her mouth and pulled her lip, causing her to drop the phone. The appellant grabbed hold of her phone, then threw it to the ground and stomped on it. He then dragged her inside and onto a bed, pulling her by her arms and hair. He then smothered her, hitting her with his fists.
Counts 4 (possessing a firearm without a licence), 5 (aggravated threatening life) and 6 to 8 (aggravated assaults) all arose out of a series of events that the complainant said occurred in early February 2017. The complainant said that she and the appellant were at their house in Avenue Range. She had packed her clothes and personal belongings in an attempt to leave the house. The appellant used his vehicle to block her vehicle, and so she took his car. She drove to an address in Kingston, and then to her parents’ house in Naracoorte. The complainant said that there was a .22 rifle that belonged to the appellant on the front seat of his car (count 4). She hid the firearm at her parents’ house.
The complainant then returned to their Avenue Range address. Upon her return the appellant approached her, saying “where the fuck’s that gun?”. He had armed himself with a .410 shotgun, which he pointed at the complainant’s face from a distance of between about a metre and a half to two metres. The appellant moved closer to the complainant, saying “If you don’t tell me where that gun is, I’ll blow your fucking head off and no one will miss you” (count 5).
On the complainant’s evidence, the appellant then dragged her backwards by the hair into a bedroom (count 6). Once in the bedroom the complainant picked up a chair and threw it at a window. The window did not break. He then threw the complainant onto the bed and smothered her by pushing her face into a pillow (count 7) and jamming his hand into her mouth. The complainant bit the appellant when he jammed his fist into her mouth and the appellant responded by calling the complainant a dog and hitting her with a curtain rod (count 8).
The appellant did not give evidence, however, a transcript of his police interview on 7 February 2017 was received by the Court. In that interview, the police focussed upon the recent events the subject of counts 4-8. The appellant denied possession of the firearm the subject of count 4, suggesting that he had seen the complainant with it. He also denied the events the subject of counts 5-8. He was asked, and answered, some general questions about his relationship with the complainant, but was not asked about the particular incidents the subject of counts 1-3.
Instructions to the jury
The trial of these proceedings took place in the District Court, sitting in Mount Gambier. It commenced on Monday, 25 March 2019 with some legal argument.
The legal argument included an application on behalf of the appellant to excuse any of the potential jurors who came from the Naracoorte or Lucindale area, with defence counsel indicating his understanding that four members of the jury panel fell within this description. In support of the application, defence counsel informed the trial judge that the complainant and her sister had been born and had lived in the Naracoorte area, as had previous generations of their family. Her parents were still alive and living in that area. It was contended that there was thus a risk that any jurors from that area may have had some knowledge or contact with the complainant’s family.
The trial judge declined to excuse jurors in this general way, indicating that he would address defence counsel’s concern by ensuring the jury panel was informed of the names of the people involved in the case, and then inviting the potential jurors to indicate if they wished to be excused.
The jury panel entered the Court just before midday on the Monday. The appellant was arraigned in their presence. The trial judge made some brief remarks to the jury panel, essentially explaining that he would ask the prosecutor to read out the names of the proposed witnesses and some of the other people who would feature in the evidence, and that he would then give some further directions bearing in mind that the alleged offending was said to have occurred in the Naracoorte or Lucindale area, and that the evidence would concern events that occurred in that area.
After the prosecutor read out the names, which included the names of the complainant and her parents, the trial judge said:
Ladies and gentlemen, it is important that you don’t sit on the trial if you know any of the witnesses concerned or if you know the accused of course Leigh Warne, or if you know any of the counsel involved. So that may be a reason why you should apply to me not to sit upon the trial. You have heard a large number of names read out, if you know any of them, if you know the accused, if you know the complainant involved in this case, or her parents, then you should not sit upon the trial either.
The trial judge then addressed some other matters, including mentioning that if the type of alleged offending in this matter meant that a juror could not bring an unbiased mind to bear upon the issues in the case, then the potential juror should seek to be excused.
Defence counsel enquired of the trial judge whether he would extend the list of names to include the complainant’s family more generally, mentioning at that point the maiden name of the complainant’s mother. The trial judge declined, observing to the jury:
Merely to know someone from that family I don’t think would be enough, but I’ll leave it to the consciences of the potential jurors. If they think that knowing the mother or father of a family, or members of that extended family, if they think that knowing those people they may not be able to bring an unbiased mind to bear upon the issues, then they should apply to be excused.
No potential juror applied to be excused, and a jury was empanelled. For reasons not discussed or explained, the trial then proceeded without the trial judge making any of the usual post-empanelment remarks or directions to the jury.
The information before this Court reveals that the jury panel came from a jury pool that had been inducted early in March, and from which juries had been selected for the three trials already heard that month by the same trial judge. The present trial commenced in the last week of the sitting month. On a couple of occasions early in the trial, the trial judge made remarks indicating his understanding or assumption that at least some, and perhaps all, of the members of the jury had sat in previous trials that month. It may be that the trial judge simply assumed that in those circumstances the usual introductory remarks were unnecessary.
However, on this appeal, the respondent quite properly accepted that whatever some jurors may have been told in earlier trials was of no moment in the present case. In any event, the information before this Court does not provide any evidential foundation for any assumption by the trial judge that all jurors had sat in previous trials that month. To the contrary, the information that is available suggests that this was the first trial for at least some of the jurors.

In any event, for whatever reason, the empanelment of jury was followed immediately by the prosecution opening. Neither counsel sought any direction from the trial judge, or otherwise commented upon the trial judge’s failure to give any directions to the jury at that point in the trial.
The trial proceeded over the balance of the Monday and the following few days, with the prosecution evidence concluding during the day on the Thursday. Counsel delivered closing addresses over the course of the Thursday afternoon and into the day on Friday. The trial judge then adjourned the matter for the weekend. His Honour delivered his summing up the following Monday, 1 April 2019. The jury retired to consider their verdicts early on the Monday afternoon, and ultimately delivered their verdicts early that evening.
Prior to the commencement of his summing up, the trial judge had not given any directions of the type that the appellant now complains should have been given. In particular, his Honour did not give any instruction to the jury to decide the case only on the evidence, not to discuss the case with anyone other than their fellow jurors, not make their own enquiries, and to bring to the trial judge’s attention any departure from these obligations by any member of the jury.
In the course of his summing up, the trial judge did give some directions informing the jury of their obligation to decide the matter only on the basis of the evidence at trial. In particular, in describing the role of the jury, the trial judge said:
It is your obligation to bring in verdicts, that is true verdicts, according to the evidence and that means only the evidence that you have seen and heard in this courtroom and nothing else. You should ignore feelings of sympathy or emotional reactions. In essence, you must be clinical, dispassionate, and assess the evidence with complete impartiality. You should also remember that this is a court of law, not a court of morals. Moral views or opinions should not intrude upon your verdicts.
When giving general directions about assessing the evidence and the witnesses, the trial judge also said:
I move now to topic No.8 that relates to assessing evidence and witnesses. I think I have already touched on that in arriving at your verdicts in this case you are required by your duty to be guided only by the evidence given in this court. You give your verdicts in accordance with the evidence and nothing else. You should not allow yourselves to be deflected by sympathy or any other emotion from giving a dispassionate consideration to the issues in this case or from your duty to deliver a verdict or verdicts in accordance with the evidence.
However, his Honour did not otherwise address the related topics that the appellant complains ought to have been addressed.
The jury induction and guidance notes
It is relevant, at least in a background way, to note that the jury pool for the March 2019 sitting of the District Court in Mount Gambier received an induction.
This Court received an affidavit from a Ms Elsegood, the jury support officer responsible for this induction. Ms Elsegood’s evidence was that the induction occurred during the afternoon of Monday, 4 March 2019. It consisted of a speech delivered by her, and then a video presented by a now retired Justice of the Supreme Court. Ms Elsegood’s speech addressed a number of administrative aspects of the role of jurors. However, it also included reference to some matters relevant to their task as jurors in the cases they were to hear. It included words to the following effect warning the potential jurors not to discuss any case in which they were engaged with any person other than their fellow jurors:
It is important that jurors engaged on a trial do not discuss any aspects of that trial with any other persons except their fellow jurors actually engaged on that trial. Do not speak to people generally around the Courts. They could be witnesses or relatives of the accused or the victim and any discussion, however innocent, may cause a mistrial.
Later in Ms Elsegood’s speech to the jury pool, Ms Elsegood said the following in relation to jurors not making their own investigations:
Ladies and Gentlemen, please do not conduct your own investigations into any matters relating to any trial upon which you are officiating. This may sound silly or obvious to you but it is so easy to do unwittingly. It is as easy as not being sure of the meaning of a word heard in court and looking for that meaning in a dictionary. Some words have a variety of meanings and you may select a non intended meaning. Likewise the use of electronic media to research or enquire on particular types of charges or individuals involved in a matter may also provide false or misleading information in relation to the actual matter before the court. In short please do not undertake your own research by whatever means and refer any questions you may have to the trial judge.
Please do not use any type of social media such as Facebook to research anyone connected to the trial. A year or two ago in Adelaide a judge directed jurors on a high profile case not to conduct any investigations. A juror decided to research a witness and told the remaining panel. This was reported to the Sheriff and brought up in Full Court. The jury was discharged, having to start the trial all over again. This cost the state a lot of money, and witnesses had to give evidence again. Those two jurors were charged with contempt of court and fined $3,000. We don’t want to see anyone serving as a juror one week and in the defendant dock the next.
Later in Ms Elsegood’s speech, the jury pool were also notified that copies of the guidance notes for jurors would be present in the jury room. Those notes included the following in relation to the duty of jurors not to discuss the case:
Duty of Jurors not to discuss case
No juror should allow anyone, except other members of that Jury, to talk to him or her about any case upon which he or she is sitting. Jurors empanelled to try a particular case may discuss the case amongst themselves, but must not do so in the presence of others. There is a solemn obligation upon jurors, arising out the need for the free exchange of views in the jury room, not to reveal, in any circumstances, to any person either during the trial or after it is over, any discussions between jurors relating to the trial, nor anything which has occurred in the jury room while the jurors have been considering their verdict.
The equivalent document which is ordinarily placed in the jury room in trials conducted in the District Court and Supreme Court sitting in Adelaide includes a further paragraph instructing jurors not to conduct their own investigations or research into any matters relating to the trial in which they are involved (including not only reference books and materials, but also electronic media), on the basis that this may provide them with false or misleading information about the matter before the Court. However, this paragraph was not included within the version of the guidance notes provided for jurors sitting in the March 2019 sitting of the District Court in Mount Gambier.
The video shown to the jury panel also made reference to some matters of relevance to the present matter, including the jury’s obligation to decide the case on the basis of the evidence presented to the Court, and not what might be reported in the media. However, it did not include any instruction to jurors not to undertake any of their own investigations. While reference was made to the importance of not discussing the case with other persons other than their fellow jurors, this was more in the context of ensuring the confidentiality of the jury’s deliberations rather than the context of ensuring that jurors did not become aware of, or affected by, extraneous information about the case.
Ground 1: adequacy of directions as to the jurors’ obligations
The appellant complains that the trial judge erred in failing to direct the jury either at all, or in one case not until his summing up, as to their obligations to decide the case only on the evidence, to not discuss the case with persons other than their fellow jurors, to not make their own enquiries, and to bring to the attention of the trial judge any departure from the above by any member of the jury.
In my view, directions to the effect of those identified in the preceding paragraph should be given as a matter of course, and at the outset of the trial. I accept, and agree, that the terms in which such directions are given, and in particular the extent to which aspects of those directions may require emphasis or elaboration, remains a matter to be determined by the trial judge having regard to the circumstances of the particular matter. However, there is no good reason to not give the jury any directions in relation to these matters, and sound reasons for routinely giving such directions.
The desirability of such directions is now well-recognised in the authorities. It has always been routine for juries to be informed of the fundamental importance of the requirement that they decide the case solely on the basis of the evidence they have heard in the courtroom. Not only is this requirement an aspect of their sworn duty, but also the reasons for it are obvious. If jurors were to take into account information received through other means, this would be unfair to the parties both because that information may not be accurate, and further and in any event, because that information would not be known to, or be able to be tested by, the parties.
In more recent times, particularly following the intrusion of the internet into our daily lives, it has become common, and in my view desirable, for trial judges to give additional directions expanding upon a corollary of their obligation to decide the case on the basis of the evidence; namely, that jurors must not undertake their own enquiries or research, or otherwise access or have regard to extraneous information. Authorities such as R v K,[1] R v Skaf[2] and R v Thompson[3] support this approach. Indeed, in SD v R,[4] the Court of Appeal in Victoria suggested that in order to increase the prospects that jurors will observe such directions, they should be accompanied by an explanation of why such conduct gives rise to the risk of injustice and an unfair trial.
[1]    R v K (2003) 59 NSWLR 431 at [80], [89]-[90].
[2]    R v Skaf (2004) 60 NSWLR 86 at [278]-[286].
[3]    R v Thompson [2011] 1 WLR 200; [2010] EWCA Crim 1623.
[4]    SD v R (2013) 39 VR 487 at [50]-[52].
The extraneous information to which jurors might otherwise be exposed, or seek to access, may relate to either the people or facts involved in the case, or matters of legal principle. And it may come from various sources, including media publicity, the internet (including the various forms of social media) and discussions with family, friends and other members of the public. The type and source of the extraneous information that is likely to exist or be accessed by jurors will differ according to the case, and so the directions to be given may need to be tailored according to the case.
Given the ubiquitous nature of the internet and the various forms of social media, and the habitual use of internet search engines, there may come a time when our legal system ceases to operate upon the assumption that jurors can be successfully quarantined from extraneous information, and focuses more upon efforts to ensure that jurors are not unduly influenced by that information. However, at least for the time being, our system continues to assume the achievability of, or at least strives towards, quarantining jurors from extraneous information.
In my view, it is also important that the jury be informed of the collective nature of their responsibility to decide the matter only on the evidence. This is a matter emphasised by the Court in R v Thompson.[5]It follows that jurors should be informed of their obligation to bring to the trial judge’s attention any departure from this obligation of which they become aware, and to do so promptly.
[5] R v Thompson [2011] 1 WLR 200; [2010] EWCA Crim 1623 at [6]-[8].
The directions I have mentioned should be given at the commencement of the trial, or at least as early in the trial as is convenient. The reason for this is obvious, namely to ensure the jurors are aware of their obligations at a time when they are able to then avoid being exposed to extraneous information. Once exposed to such information there is a risk that it may operate on a juror’s mind, even if only at a subconscious level, despite any subsequent directions that the trial judge may give.
Finally, I mention also the importance of the contemplated directions being given by the trial judge rather than relying solely upon the communication of the jurors’ obligations through an induction process or guidance notes. I do not mean to discourage communication of these matters in this way. To the contrary, it can only assist to have the jury forewarned of the importance of these obligations, and the reasons for them. However, in my view, in order to appropriately address the risk of jurors being exposed to, or influenced by, any extraneous information it is critical that these obligations be communicated with the authority and immediacy of directions made in the court room and by the trial judge.
Turning to the present case, I consider that the trial judge ought to have given post-empanelment directions to the effect contended for by the appellant. I do not consider that the instructions provided during the jury pool’s induction, or in the guidance notes in the jury room, were a sufficient substitute. Nor was the trial judge’s reference in his summing up to the obligation to decide the case on the evidence sufficient. Not only did this direction not address the related matters to which I have referred, but it was also too late in time to be sufficient.
However, even accepting, as the respondent concedes, that it would have been preferable for the trial judge to have given the contemplated post-empanelment directions, it does not necessarily follow that the failure to do so occasioned a miscarriage of justice warranting the intervention of this Court. The respondent contends that there is no basis for inferring any miscarriage in the present matter; that speculation as to the possibility of extraneous information infecting the jury’s deliberations is not sufficient for that purpose.
The appellant accepts that this is not a matter where there had been any media publicity about the matters in issue at the trial. Nor has the appellant identified any information of significance that might have been available through any internet searching. Rather, in support of his contention that there was more than a merely speculative risk of a miscarriage in the circumstances of the present case, the appellant relies upon the combination of the trial having occurred in a regional court, the often controversial nature of allegations of domestic violence, and the fact that the alleged conduct occurred over a relatively lengthy period of time and involved a complainant from a family that lived in the area. Counsel for the appellant contended that as a result of this combination of circumstances, and the fact that the trial continued for a week (and over a weekend), there was a real, rather than merely fanciful, risk that one or more jurors would have been exposed to information relevant to the issues or people involved in the trial through their communications (whether in person or through social media) with their family, friends or other members of the local community. The genuineness of the appellant’s apprehension of this risk of jurors being infected by information that might have been circulating in the local community is consistent with his (unsuccessful) application prior to the commencement of the trial that the trial judge excuse any jurors who came from the Naracoorte or Lucindale area.
Given these features relied upon by the appellant, I regard the matter as finely balanced. I repeat my view that the directions contemplated by the appellant’s submission on appeal should have been given by the trial judge, and at an early point in the trial. They should have been given so as to minimise the risk of any mistrial or miscarriage of justice. However, despite the trial judge’s failure to give these directions, I am not ultimately satisfied that a miscarriage of justice has occurred. While I can understand a level of unease on the part of the appellant as to the risk that the jury’s deliberations may have been infected by extraneous information, it remains speculative to suggest that any such infection occurred. I am not persuaded that the degree of risk of it having occurred is sufficient to conclude that the trial miscarried.
I would grant permission to appeal on ground 1, but would dismiss the appeal on this ground.
Ground 2: failure to direct as to self-defence
The appellant’s second proposed ground of appeal involves a contention that the trial judge erred in failing to direct the jury as to self-defence either at all, or in terms that were in conformity with s 15 of the Criminal Law Consolidation Act 1935 (SA). The appellant’s submissions on appeal included a contention that the trial judge should have left the issue of self-defence to the jury in respect of each of the alleged instances of violent offending, although as will become clear the focus of the argument was ultimately upon the potential application of this defence to the conduct the subject of count 2.
Principles governing a trial judge’s obligation to leave self-defence to the jury
The operation of self-defence is governed by s 15 of the Criminal Law Consolidation Act. Under s 15(1), it is a defence to a charge of an offence if (a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a ‘defensive purpose’,[6] and (b) the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist. These two limbs are often referred to as the subjective and objective limbs respectively. And under s 15(5), if a defendant raises a defence under s 15, it is taken to be established unless the prosecution disproves the defence beyond reasonable doubt.
[6] Defensive purpose is defined in s 15(3) in terms that include self-defence.
A trial judge should leave self-defence to the jury where it arises on the evidence; that is, where there is evidence upon which a reasonable jury might decide the issue favourably to the defendant.[7] Put another way, the trial judge should leave self-defence when, upon a consideration of the evidence as a whole, and taking the version of that evidence most favourable to the defendant, a jury acting reasonably might not be satisfied beyond reasonable doubt that the prosecution had negatived self-defence.[8] In determining whether to leave self-defence, the trial judge must consider whether there is a sufficient evidential basis for both the subjective and objective limbs of the defence,[9] because the defence will fail if the prosecution has negatived either of those limbs.
[7]    Zecevic v DPP (1987) 162 CLR 645 at 657, 662; Viro v The Queen (1978) 141 CLR 88 at 118.
[8]    R v CMM (2002) 81 SASR 300 at [40].
[9]    Flanagan v The Queen (2013) 236 A Crim R 255 at [78]-[93]; R v Barratt [2014] QCA 94.
While the possibility of self-defence may not rise above mere speculation or assertion in a case where the defendant does not give evidence, the evidence as a whole may nevertheless give rise to self-defence even in the absence of evidence from the defendant.[10] As the success of the defence is ultimately a matter for the jury, the obligation to direct the jury in relation to self-defence may arise even in the absence of any request or suggestion to that effect by counsel,[11] and even in circumstances where the trial judge regards the defence as weak or tenuous.[12] Conversely, and while acknowledging that the attitude and submissions of counsel (and, indeed, the manner in which a trial has been conducted more generally) will often be influential in a trial judge’s consideration of the directions to be given, these matters are not determinative of the trial judge’s obligations to direct in relation to self-defence.
[10] Police v Lloyd (1998) 72 SASR 271 at 275; including, but not limited to, situations where self-defence arises from out of court statements of the defendant that are in evidence (R v Heinicke (1998) 198 LSJS 2).
[11] Flanagan v The Queen (2013) 236 A Crim R 255 at [80].
[12] R v Muratovic [1967] Qd R 15 at 20; R v Roba (No 2) (2000) 110 A Crim R 253 at [39].
The evidence and trial context

In the present case the issue of self-defence was mentioned by both the prosecutor and defence counsel. In his opening address the prosecutor, after explaining the legal elements of the offence of aggravated assault causing harm for the purposes of counts 2 and 3, mentioned that the issue of whether there was a lawful excuse might be raised, and that there would be a lawful excuse if the accused was acting in self-defence. He added that the prosecution case was that the defence did not arise because, even though the complainant was at times volatile or angry, this did not mean that her behaviour warranted the appellant’s response; he could have walked away.
As the trial unfolded it became apparent from the manner in which defence counsel conducted the case that the defence case involved both a challenge to the veracity of significant aspects of the complainant’s evidence, as well as a suggestion that she was herself a physical aggressor within their relationship.
As to the latter, the complainant accepted in her evidence that she and the appellant had a volatile relationship, and that she often behaved in an angry and verbally aggressive manner. However, there was very limited evidence of any physical aggression on the complainant’s part. She accepted that from time to time she would attempt to push past the appellant in order to try and leave the room, as she described in the context of the incident the subject of count 1. She admitted smashing a window of the Union Court house where they lived, and a spotlight that belonged to the appellant. And in the context of the incident the subject of count 2, she accepted that she used an axe to smash a bedside table.
While I have earlier summarised the complainant’s evidence in relation to count 2, given the submissions made on appeal, it is appropriate to set it out in full. In her evidence in chief, the complainant described the incident in the following terms:
Q.    Did something happen on about 2 October 2016.
A.There was - every time we would argue the, like the repercussions like, my punishment would get worse, it would accumulate, the hidings would get worse so, yes, when - I had an argument in October where I felt I was provoked that much that I was screaming and arguing and biting and I lashed out smashing the bedside table with an axe.
Q.How did it come to be that you were smashing a bedside table with an axe. Where was Mr Warne when you did that.
A.    Sitting up on the bed.
Q.    How did it come to be that you had an axe in your hand.
A.    Because I was out cutting wood.
…
Q.What was it that caused you to lash out, and I'm talking about with the axe in October 2016.
A.Because he would ignore me, for days. For days, he had left for a couple of days and came back, wouldn't talk to me, wouldn't ask me, wouldn't tell me if I had done something wrong, basically that I wasn't ... laugh and smile and then carry on as if I wasn't there.
Q.    What did you do on the day of the axe.
A.I went into the bedroom, screaming, crying and trying to get him to see that the way that he was treating me was wrong and he can't treat me like that.
Q.    So you had an axe in your hand when you went in the bedroom, did you.
A.    Yes, I did.
Q.    You smashed a bedside table.
A.    Yes, I did.
Q.    What happened then.
A.Then he got up and pinned me down on the floor, sat on my back with his knee in my back and started punching me.
Q.    Where did he punch you.
A.    In the back and the side of the head.
Q.    Did he say anything to you.
A.    Something like 'You fucking whore, I'm going to knock you out'.
Q.    As a result of him punching you, did you suffer any injuries.
A.    Yes, I did.
Q.    What were they.
A.    Basically he turned my head to mush from hitting me over and over again.
Q.    When you say 'Turned my head to mush', what do you mean.
A.When he was hitting me I remember thinking to myself 'If he doesn't stop I'm going to die, he's going to kill me'. I just - I can remember like when I got up I could feel my whole head was, had blown up and it was all soft.
The complainant was cross-examined about this incident. Her evidence was as follows:
Q.    The question was: what were you doing inside your house with an axe in your hand.
A.    I was threatening Leigh with it.
Q.    So you picked it up from outside, is that correct.
A.    I went outside and picked it up.
Q.    And then went back inside to threaten him with the axe.
A.    To scare him.
Q.    He hadn't assaulted you that day prior to that, had he.
A.    Not physically, no.
Q.    Well, how did he assault you some other way.
A.Well, by disrespecting me. By pretending that I wasn't alive and ignoring me for days.
Q.So your response to that is to pick up an axe and go inside the house into the bedroom where he's lying on the bed, is that right.
A.    Yes.
Q.    To, what, attack him.
A.    I wasn't going to attack him.
Q.    Or to frighten him.
A.    Yeah.
Q.    Because he wasn't giving you any attention, is that what you are saying.
A.    Because, yes, because he wasn't giving me any attention.
Q.    You went into his bedroom and busted an axe, busted a table with the axe.
A.    That's correct.
Q.    Hit it a number of times, didn't you, not just once.
A.    I remember I only had to hit it once.
Q.    Depends how good you are. I suggest you hit it a number of times.
A.    I beg your pardon?
Q.    I suggest you hit the table a number of times, smashed it -
A.    Okay.
Q.    Did you smash it into bits.
A.    I smashed it to bits.
Q.    And you were furious, weren't you.
A.    Yes, I was.
Q.    You had been angry for quite some time, if videos are correct.
A.    I wasn't angry. I was upset. I was hurting.
Q.So you didn't smash the table with an axe because you were angry but because you were upset, is that what you are saying.
A.    No, I smashed the table because I was angry and upset and hurt.
Q.It is not the first time you have smashed property belonging to Mr Warne with an axe, is it.
A.    Actually that table belonged to me.
Q.    Okay, it is not the first time you have smashed property with an axe.
A.    No, it's not.
Q.    A couple of other occasions have there been before that.
A.    Yes.
Q.    Can you relate those to the jury.
A.    Would you like to?
Q.    No, I am happy for you to do it. You hadn't mentioned it before so I am asking you-
A.Leigh came to my house in Straude Street and took the keys to my car, took them with him and I messaged him for the whole long weekend to bring back my keys and he didn't and he wouldn't. So, I went to his house and I smashed his spotlight that was in the shed.
…
Q.    You also smashed a laundry window, didn't you.
A.    I don't remember.
Q.    Do you agree you told the police you smashed a window.
A.    Yes, I agree.
Later in her cross-examination there was also the following exchange:
Q.On the day you took the axe into the bedroom and smashed the bedside table, do you agree that you started the violence.
A.    No.
Q.    You weren't trying to hit him.
A.    No, I don't agree.
Q.    You weren't trying to attack him with the axe, were you.
A.    If I was, I wouldn't have hit the bedside table, I would have hit him.
Q.    Maybe you missed.
A.    I wouldn't think so.
Q.    You wouldn't think so.
A.And you said yesterday that I hit the bedside table numerous times, smashing it to pieces so I'm not just going to -
Q.    But you said you only hit it once.
A.    I said I didn't remember.
Q.No you didn't, you actually said you only hit it once and that was enough. Anyway, you were in frenzied attack swinging an axe in a small bedroom, weren't you.
A.    If I smash up a bedside table, does that give him a reason to beat my head to a pulp?
Q.The accused was lying on a bed, you came in with an axe and started swinging that axe and breaking up furniture and yelling at him, screaming abuse and telling him you wanted to kill him, words to that effect.
A.    I never said I wanted to kill him. Please don't put words in my mouth.
Q.We'll play the video in a minute, maybe you didn't, but you came in swinging - it wasn't an axe, it was a log splitter, wasn't it.
A.    I don't remember.
Q.- swinging an axe in his direction, smashing a table only a few millimetres or centimetres away from where he was and you were completely out of control.
A.    I wasn't completely out of control.
Q.    What happened after you smashed the table.
A.    He got up and beat me.
Q.    You had the axe or log splitter in your hand.
A.    And?
Q.    What happened to that.
A.    It doesn't - it won't - it doesn't stop anything.
Q.    The question is what happened to the axe or log splitter.
A.    I dropped it. I don't know.
Q.    Did you swing it at him.
A.    No.
Q.    Did he have to take it away from you.
A.    No.
Q.    Did you hit him.
A.    I was never going to hit him with the axe. I didn't hit him.
Q.    Did you hit him with your hands.
A.    No.
Q.    I put to you on that occasion you attacked him.
A.    That's incorrect.
Q.And that any injuries you received took place during the course of your attack upon him.
A.    That is incorrect.
Q.    Are you saying you wouldn't attack somebody.
A.    I'm saying I never physically attacked him.
Q.    Ever.
A.No, during October when my head got pulverised, no, I did not physically attack him.
In addition to this evidence from the complainant, the evidence also included a recording (vision and sound) of this incident. Throughout the recording the complainant can be seen and heard just inside the doorway of the bedroom. She is clearly angry and yelling at the appellant. She is holding an axe in her hand, but with it hanging towards the floor rather than being wielded in an aggressive way or towards the appellant. It appears that the appellant was filming the incident from his phone by holding it out in front of his face as he sat up in bed. All that can be seen of the appellant is his outstretched legs on a bed, making it plain that he was lying relatively motionless on the bed, watching the complainant. He appears to have remained calm, and certainly was not yelling back at the appellant. While the recording does not include vision of the complainant swinging the axe, it includes a sound that is consistent with the bedside table being struck and smashed with the axe. The complainant can then be heard yelling at the appellant, with the appellant responding by saying, and repeating several times, the words “nice axe.” The recording stopped at that point.
As the appellant did not give evidence at trial (and did not attribute any physical violence to the complainant in his police interview), the above was the limit of the evidence in support of any physical aggression on the part of the complainant.
When it came to closing addresses, the prosecutor foreshadowed that it might be suggested by defence counsel that the complainant was the aggressor in their relationship, and that he had had to defend himself. The prosecutor challenged the plausibility and basis for any such suggestion. He suggested that the complainant was a relatively small woman,[13] and the appellant a large man. He acknowledged the aspects of the evidence to which I have referred above, but contended that these did not mean that the complainant was the aggressor in the particular incidents the subject of the assault charges against the appellant, and in which the evidence suggested he had given her quite severe hidings.
[13] The complainant gave evidence by video link, and so this submission was based upon how she might have appeared to the jury in the video link, and in the footage of her that had been taken on the appellant’s phone and was in evidence.
Later in his closing address, when summarising the prosecution case in respect of the various counts, the prosecutor mentioned the issues of lawful excuse and self-defence in the context of counts 1, 2 and 3. In the context of count 1, he mentioned lawful excuse, adding that it might be suggested that what occurred was in self-defence; that the complainant was always attacking the appellant and he had to defend himself. The prosecutor invited the jury to use their common sense. While acknowledging the complainant’s evidence that she pushed into the appellant in an attempt to leave the bedroom of their Union Court address in the context of count 1, the prosecutor asked rhetorically whether it could be self-defence, particularly for a man of his size, to respond to this by stomping on the complainant’s head. He said that the appellant could have just pushed her away. In the context of counts 2 and 3, the prosecutor again mentioned self-defence, but was even more dismissive of any suggestion that the defence might apply.
Following the conclusion of the prosecution closing address, and in the absence of the jury, the trial judge enquired of defence counsel whether he proposed to submit to the jury that his client was acting in self-defence, given that any such submission needed to be based on the evidence. Defence counsel indicated that he did intend to make such a submission, referring to the complainant’s use of an axe in the context of count 2. He added that while this was only one incident, it coloured the nature of her behaviour throughout the relationship. He contended that the evidence raising the defence as a reasonable possibility did not need to come from the appellant, and that in his view there was sufficient evidence to raise the defence, and hence to require a direction from the trial judge that the prosecution must disprove it.
In his closing address, defence counsel challenged the credibility of the complainant’s evidence, both generally and by reference to various issues of detail that had arisen in the evidence. He also put a submission that the evidence suggested that she was the aggressor in a toxic relationship, or at least that there was a reasonable possibility that this was so.
Defence counsel then turned to the incident the subject of count 2. He described the sound and vision captured from the appellant’s phone as suggesting that she was behaving in an anxiety-ridden and frenzied manner, ultimately culminating in her smashing the bedside table with the axe she was holding. He challenged her evidence that she was not intending to attack him, but in any event pointed to the circumstance that they were in a relatively small room and she had just swung an axe close to where he was lying. While he had remained stationary and apparently calm to that point, defence counsel suggested that sometimes doing nothing and staying out of the way was the best thing to do. But defence counsel submitted that once the complainant had swung the axe, the appellant could not be expected to simply lie there and wait for the next swing of the axe; that given the complainant’s level of anger, it would not be surprising that he might try and get the axe from her, and that injuries might have been caused to her.
Defence counsel then continued:
But the question for you is: was that an assault, were the injuries caused in the course of an assault, or was it a reasonable possibility that [the appellant] was acting in self-defence? Now, clearly, she was acting violently. Each of us have the right to defend ourselves from violence. That defence has to be proportionate to the violence and the situation. The prosecution, the prosecutor, have to disprove self-defence if you find that if - and his Honour will direct you that exists in the circumstances.
I suggest that this is a self-defence situation and that the bruising shown by [the complainant] … is entirely consistent with a struggle to stop an angry and frenzied person from continuing an attack armed with a weapon. It's up to you, ladies and gentlemen. And please remember that this is not the first time she's used a weapon. On Anzac Day 2016, she admitted that she broke a spotlight - I don't know if it's on his car or the house, and his house window with an axe. She admitted this in her statement of May 2016.
[The prosecutor] said that all that doesn't mean that she was the aggressor in other instances, but my submission to you is that those kinds of admissions and that kind of evidence - and you can see with your own eyes - makes it more likely, much more likely, or at least a reasonable possibility that she was the aggressor rather than [the appellant]. And she admitted, in that same statement, she would get angry, lose her temper, go off - I can't remember the exact words - and she admitted that she was guilty of assaults upon [the appellant] …
You will note [the appellant’s] record of interview where he said she was a very strong woman who worked in the abattoirs for 10 years. [The prosecutor] made a reference to her size but, ladies and gentlemen, we didn't see her. One doesn't know how tall she is or how strong she looks.
Turning to the trial judge’s summing up, his Honour mentioned self-defence, or at least the requirement of unlawfulness, on a few occasions. When outlining the elements of the assault offences, his Honour said the following:
I want to deal briefly with the aspect that I said I would of unlawfulness or without lawful excuse. That applies to all of the assault charges, be they aggravated assault like count one or aggravated assault causing harm which are counts two and three. As I have said to you, the prosecution must prove that the accused did the acts and in doing so, did so unlawfully, which means without lawful excuse. The prosecution must prove beyond reasonable doubt that the accused did not have a lawful excuse for any force used by him. There is a need for the prosecution to rebut lawful excuse as part of the prosecution's proof that the accused’s use of force was unlawful.
I just mentioned some aspects of that that may be relevant upon the evidence. It is not unlawful to restrain someone who is attacking you. It is not unlawful to use force against someone who is attacking you. So you can restrain them, you can actually then use force against someone who is attacking you. It is not unlawful to use pre-emptive force if you are about to be attacked. But force cannot be used as a cover for retaliation and aggression. If there is use of force it must be proportionate to the threat. It must be reasonable. When considering whether or not the use of force at all or proportionate force or reasonable force can be used in that process, you are entitled to consider other options available to the person who is applying the force and obviously the defence say the accused in this case. You look at other options that he has available to him, namely just hightail it out of there would be one fairly obvious one.
I also direct you that if the victim or alleged victim sustains an unintended injury whilst being restrained or attempted to be restrained, that is not an assault and the injury can't be laid at the blame of the accused person. I hope those directions assist you members of the jury. What was being suggested fairly obviously is that any injuries sustained by [the complainant] you would need to consider whether or not they were sustained by her in the process of the accused restraining or acting in some defensive manner by virtue of her conduct, and that fairly obviously is something that you will need to consider and the prosecution needs to prove that any conduct on his part was without lawful excuse.
During a subsequent break in the summing up, and in the absence of the jury, defence counsel took issue with the trial judge’s directions in relation to self-defence. He complained that the trial judge had suggested that there was some duty on the appellant to retreat. The trial judge disagreed that he suggested any more than that the opportunity to retreat was a factor to consider, and added that in any event there was no evidence of self-defence, which was why he had given the directions in terms that it was for the prosecution to prove that the assaults were unlawful. The trial judge added that he did not consider that in the circumstances of this case, and in particular in the absence of any evidence from the appellant that he acted in self-defence, that he was required to make express reference to ‘self-defence’. Defence counsel disagreed, contending that there was an evidentiary foundation for the defence, and that it ought to be the subject of directions.

Later in his summing up, when addressing count 2, the trial judge returned to the issue of unlawfulness. His Honour said:
One of the other major matters raised by [defence counsel] was that there is evidence independent of [the complainant] that suggests that she can be the aggressor and irrational in her behaviour, such that if she needed to be restrained, it would not be surprising that she may be unintentionally injured or any injury was with lawful excuse and therefore, not unlawful. I remind you that the prosecution must prove as part of its case that the accused's actions were unlawful. The submission made by [defence counsel] relied upon [the complainant] smashing a spotlight of the accused, I think maybe a door or something like that but more particularly it is said the videos in October 2016 leading up to her coming in with the log splitter and smashing the bedside table, support the submission that she was both aggressive and irrational in her behaviour.
That was being relied upon that it was submitted to you that these show that aggression, show her doing the attacking and raises the question whether any observed injuries were as the result of fending off such aggression ...
So that is a matter you will need to give consideration to, members of the jury, because it has been raised on behalf of the accused. So I really just go back in one sense to square one. The prosecution must prove that any use of force by an accused person is unlawful. That means without lawful justification or excuse. I gave you some directions earlier about the use of force and how things are not unlawful if you think you are about to be assaulted you can use force, you can be pre-emptive, if you think force or violence is about to be used against you then you are entitled to resist it and you are also entitled to use force so as to resist the force that is being exacted or trying to be exacted upon you.
Consideration
I am satisfied that there was a sufficient evidential basis to warrant, and indeed require, that the trial judge leave self-defence to the jury in respect of the charge of aggravated assault causing harm the subject of count 2.
On the complainant’s own evidence, and consistently with what could be seen and heard from the recording captured from the appellant’s telephone camera, the alleged assault was immediately preceded by an episode of verbally and physically aggressive conduct by the complainant. On the complainant’s evidence, she was holding an axe when she entered the bedroom. She variously described herself as angry and upset, and as screaming, crying and arguing. She was standing close to the door of what was a relatively small room. The appellant was lying on the bed in that room, with the complainant between him and the door. While denying any intention to hit the appellant with the axe, the complainant acknowledged her intention to threaten and scare him with it. And, of course, she ultimately swung the axe in a manner that resulted in the bedside table not far from the appellant being “smashed to bits”.
The recording of the incident taken from the appellant’s telephone camera supported these aspects of the complainant’s evidence. On the other hand, it also suggested that the appellant remained calm at least up to the point that the complainant swung the axe and the recording ceased.
It is true that on the complainant’s evidence, if accepted without significant qualification, the appellant’s response to her show of aggression went well beyond self-defence. Even if there was a reasonable possibility that the complainant’s use of an axe gave rise to a genuine belief on the part of the appellant that some response was necessary to defend himself, her description of his response went well beyond what might have been necessary and reasonably proportionate to the threat she posed, particularly if, as she suggested, she had dropped the axe after using it rather than it having to be taken off her by the appellant.
In this sense, the trial judge would have been justified in viewing the defence as having only relatively weak prospects of success. However, I consider that there was nevertheless a sufficient evidential foundation for the defence to require that it be left to the jury. In my view, in circumstances where the complainant had chosen to confront the appellant, was angry and screaming at the appellant, had armed herself with an axe, and then swung the axe into a piece of furniture not far from the appellant, a reasonable juror taking a sceptical view of the complainant’s evidence as to the nature and extent of the appellant’s response might not have been satisfied that the prosecution had negatived self-defence.
Having concluded that the trial judge was required to leave self-defence in respect of count 2, I am also satisfied that the trial judge’s directions in this respect were inadequate. It would have been perfectly appropriate and orthodox for the trial judge to give the necessary directions as to self-defence while addressing the element of unlawfulness. However, when self-defence is raised the directions must reflect the content of the defence in s 15 of the Criminal Law Consolidation Act. While the directions need not reflect the precise words of that section, they should at least reflect the substance of the two limbs of that defence.
Here, while the trial judge’s directions under the rubric of unlawfulness ultimately touched upon most aspects of the defence, they fell short of an accurate and clear articulation of the defence.
The respondent at one point contended that even though the trial judge’s directions did not accurately and clearly reflect the terms of s 15, there was nevertheless no miscarriage of justice. However, it became clear in the course of argument that this submission was predicated upon the Court having accepted the primary contention of the respondent that it was not necessary for the trial judge to leave self-defence at all, with the result that there was no miscarriage when the trial judge did so (albeit in deficient terms). But as I have rejected the respondent’s primary contention, the contention that there was no miscarriage falls away.
In my view, the appeal must thus be allowed to the extent of setting aside the conviction on count 2. However, I am not persuaded that the appeal should be allowed in respect of the other convictions. I do not accept that there was a sufficient evidential basis for self-defence in respect of the remaining counts.
In particular, I do not accept that the evidence as to the generally volatile nature of the parties’ relationship, and instances of aggressive behaviour by the complainant on other occasions (including her use of an axe in the context of the incident leading to count 2), provided a sufficient evidential foundation for self-defence in respect of the balance of the counts of violent offending with which the appellant was charged. The terms of s 15 of the Criminal Law Consolidation Act require a focus, in considering both the subjective and objective limbs of the defence, upon the conduct of the defendant alleged to constitute the relevant offence, and any threat that the defendant might have perceived at the time of engaging in that conduct. While evidence of a general background of violent or threatening behaviour by a complainant may well be relevant, there must be evidence capable of giving rise to the requisite subjective need for, and objective proportionality of, the charged conduct.
Putting the incident leading to count 2 to one side, there was no evidence of any conduct by the complainant that was capable of giving rise to self-defence in the context of the remaining counts of violent offending. In the case of count 1, the complainant acknowledged that she had tried to push past the appellant in order to leave the room they were in. While this may well have involved some physical contact, it was not contact of a nature capable of giving rise to an occasion for any response by way of self-defence, let alone a response in the form of the charged conduct. There is an equivalent lack of evidence in relation to the balance of the counts of violent offending.
For these reasons, I would grant permission to appeal on ground 2, and would allow the appeal on this ground but only to the extent of setting aside the conviction in respect of count 2.
Grounds 3 & 4: other complaints about the trial judge’s directions
The appellant’s counsel addressed grounds 3 and 4 together on the basis that they both involved an overarching complaint that the trial judge’s directions lacked appropriate balance. While at times his submissions were expressed in more general terms, the appellant’s counsel ultimately focussed upon two aspects of the trial judge’s summing up said to manifest a lack of balance.
The first was the trial judge’s treatment of the uncharged acts relied upon by the prosecution. The appellant’s contention was that the trial judge’s directions on this topic were unbalanced in that they assumed, or created the impression, that the acts had occurred, rather than making plain that whether they occurred was a matter for the jury.
I do not accept that there is any force in this submission. I do not accept that the trial judge’s directions in relation to the uncharged acts would have left the jury with the impression that the uncharged acts occurred. They would have understood that whether or not these acts occurred was a matter for them to determine.
The trial judge introduced the topic of the uncharged acts by telling the jury that “[t]he prosecution case against the accused is that he was sometimes violent and aggressive” towards the complainant. It is true that in the passages of his summing up that immediately followed, in which the trial judge explained the permissible and impermissible uses of the evidence of those acts, his Honour at times spoke in terms of the accused’s “conduct” rather than merely alleged conduct, or evidence of conduct. But I do not think the jury would have been misled into assuming the uncharged acts occurred. Indeed, the trial judge at other places in the same passages referred to “the evidence of the uncharged acts”, and to the uncharged conduct being criminal in nature “if proved”. Importantly, the trial judge also concluded the impugned section of his summing up by saying “[s]o they are the proper uses of that evidence and you can only make use of that other evidence if you accept that it occurred”.
I should add that during a break in the summing up, defence counsel did raise his concerns about the terms in which the trial judge had described the uncharged acts, submitting that his Honour’s directions would have left the jury with the impression that he had accepted that those acts occurred. For the reasons I have set out, I do not accept that there was any force in this submission. But in any event, when the trial judge came later in his summing up to address the evidence as to some of the individual uncharged acts, his Honour commenced by observing that “as I have said you must not act upon any uncharged act unless you are convinced that that actual conduct by the accused occurred.”
In addressing the trial judge’s directions in relation to the uncharged acts, the appellant also complained that that the trial judge’s directions on this topic lacked balance in that they tended to focus upon the alleged violence of the appellant within their relationship, and did not adequately address the violence on the part of the complainant. In my view, there is also no merit in this complaint. It was appropriate for the trial judge to address the uncharged acts alleged against the appellant separately because of the need for the jury to be given quite specific directions about the permissible and impermissible uses of this evidence of discreditable conduct. And in addition to this, having read the trial judge’s summing up as a whole, I consider that the trial judge adequately identified and emphasised the evidence that revealed the complainant’s own volatile and aggressive behaviour.
The second aspect of the trial judge’s summing up that the appellant contended illustrated a lack of balance was his Honour’s directions in relation to an issue that emerged during the trial as to the timing of the conduct alleged to constitute count 1.
The particulars of the count 1 allegation of aggravated assault were that the assault occurred between 24 July 2016 and 1 September 2016. The particular of aggravation was that the assault occurred in breach of an Intervention Order imposed upon the appellant by the Magistrates Court on 25 July 2016.
Earlier in these reasons I outlined the complainant’s evidence in relation to this count. In short, it involved a complaint that the appellant had stomped on the side of her face. I mentioned also the complainant’s evidence that she took three photographs of her injuries as a result of this incident, and sent them to her friend. The photographs became part of exhibit P1 (being photographs 1, 2 and 3). Consistently with the particulars of count 1, the complainant’s evidence in chief was that the incident occurred in late July or early August 2016.
However, during the course of the trial some evidence emerged to suggest that the incident may have occurred earlier in the year. In particular, one of the police officers called by the prosecution gave evidence to the effect that she believed she had been shown the photographs which were photographs 1, 2, and 3 from exhibit P1 when interviewing the complainant on 18 May 2016 in connection with her application for an Intervention Order, and that the complainant had attributed the injuries depicted in those photographs to an incident that had occurred a few weeks earlier, on or about Anzac Day 2016.
It would obviously follow that if the photographs did depict the injuries from the incident the subject of count 1, and did exist as at 18 May 2016, then the incident causing those injuries must have occurred prior to the Intervention Order being made. This would have been fatal to the allegation that the assault was aggravated.
The appellant complains about the manner in which the trial judge directed the jury in relation to the above issue as to the timing of count 1. After summarising the circumstances in which the issue about dates arose in terms similar to the above, the trial judge instructed the jury as follows:
Now, members of the jury, I just want to mention something quite specifically here. [The prosecutor] said during the course of his address to you that dates do not matter. Now, in one sense, that is right, and in one sense, that is wrong. In terms of proof of a charge, what is critical is the occasion: are you satisfied that the events as described by the witness occurred? So in that sense, the date does not matter. It does not matter whether it occurred between the dates that are referred to or it occurred back on Anzac Day, 25 April 2016, so in that sense, it does not matter.
But it does matter to [defence counsel] because what he was saying was that she cannot be telling the truth about count 1 with these photos because some of those same photos were shown to [the police officer] sometime in May 2016, so [defence counsel] used that discrepancy to highlight what he submitted to you was her unreliability, not simply in respect of count 1, but just simply across the board.
Now [the complainant] was asked about that in cross-examination about that difference and she said during the course of cross-examination that she was unsure about when the photos, that is photos 1-3 in Exhibit P1 were taken and she was unsure when those injuries as shown there occurred. Now that is a difference on the evidence, members of the jury, that you will need to grapple with. But can I just say this? There seem to be two main options. If the injuries occurred in April, that is Anzac Day in April or thereabouts then the aggravating feature of the conduct being contrary to an intervention order cannot be right because the intervention order was not in place in April of 2016. So that is one possibility that if the injuries occurred then, then count 1 cannot be right in the sense that it cannot be in contravention of an intervention order that did not exist at that particular stage.
Another option is that the injuries occurred as she said in late July to September but these are not the photos from that occasion. Now [defence counsel] would say there was another option, namely that all of this is made up and that in respect of count 1 there is such a serious discrepancy that you can have no reliance upon what she said during the course of her evidence.
So I need to give you this direction, members of the jury. If you are satisfied, that is satisfied beyond reasonable doubt that the unlawful assault occurred as [the complainant] said but in April then the verdict would be guilty of assault but without the aggravating feature of the intervention order because it was not in place at that time. So in respect of count 1 if you are satisfied the conduct occurred, the occasion occurred as she said but in April then it would be open to you if this was your view to convict the accused not as charged but just simply of assault.
If you are satisfied the unlawful assault occurred in July to September which would mean that she is mistaken about when the photos were taken, the verdict would be guilty as charged. Again, I am concentrating on the conduct. If you are satisfied that the unlawful assault occurred in July to September which might mean or would mean that she is mistaken about when the photos were taken the verdict would be guilty as charged.
So in respect of count 1 I say this. When my associate asks for your verdict in respect of count 1 she will ask you first of all do you find the assault proved. If the answer is no that is the end of it. If the answer is yes you will then be asked another question and it is a separate question whether the aggravating feature was present. So the aggravating feature cannot be present if the assault occurred as charged in April but the aggravating feature can be present if you take the view notwithstanding the difficulties about the dates for the photographs, that nonetheless it occurred in July to September.
So that is the way in which the verdict for count 1 and only count 1 will be taken from you. So the question will be initially are you satisfied beyond reasonable doubt about the assault. If the answer is no then that is the end of it completely, that count. If the answer is yes you will then be asked whether you find the aggravating feature present and that will depend upon when you are satisfied the events occurred, if you are so satisfied.
The trial judge later returned to the same topic, giving the following additional directions to similar effect:
I return briefly to that aspect of dates that I referred to earlier. The date of an offence is not part of the ingredients of the offence. What is important so far as the prosecution is concerned, is whether or not the events as described on that occasion occurred and whether the prosecution has proved that but as I indicated to you earlier on, also, dates do matter particularly with respect to count one because it is submitted that if you have trouble matching the photos to a particular incident, then that significantly damages [the complainant’s] credibility across the board on all counts. That matter was developed in submissions by [defence counsel]. He submitted to you that what [the complainant] said about the injuries sustained in count one, what I will refer to as the stomping incident, are to be seen in the first three photographs of Exhibit P1. That is, as having occurred in late July, early August 2016 at a point after the intervention order was imposed.
I remind you as did [defence counsel] that [the complainant] said that the footmark or boot injuries of the type to be seen in those three photographs were occasioned on one occasion only. There was only one instance of an injury of that type. [The complainant] said that she sent those photos to [her friend] but she did not know when. As you know from the agreed facts, it is recorded that [her friend] saved those photos to her phone on 4 August 2016. However, when [the complainant] spoke with woman police officer Pimlott on 18 May 2016, she described the incident on Anzac Day 2016, whereby she sustained a black eye and shoe scrape marks on her forehead.
[Defence counsel] highlighted that the woman police officer Pimlott said that [the complainant] showed her photos on her phone and that those photos are to be seen in P1 and are photos 1, 3 and 7. She said that those photos in Exhibit P1 were photos of the injuries received or sustained on the Anzac Day occasion or thereabouts. So that's what she's telling Pimlott and [defence counsel] is highlighting the fact that that cannot be right because she said that they occurred in response or as a result of the first count on the information. So it was submitted to you and the question was posed, was she lying about that or was she mistaken. It was submitted to you that if she was lying about that and that is the nature of the injuries and the taking of the photographs, could she be lying about anything and everything else and can she be relied upon.

The appellant makes no complaint about the accuracy of the trial judge’s summary of the evidence, or the logic and legal principles underpinning the various alternatives to which the discrepancy about the date gave rise. Rather, the appellant’s complaint on appeal is that the trial judge failed to adequately explain to the jury the potential significance or implications of the discrepancy about dates for their consideration of the complainant’s evidence.
Again, I do not think there is any force in this complaint. In my view, the judge adequately explained the issues arising out of the discrepancy as to dates, both in terms of the alternatives to which it gave rise, as well as the potential implications for the jury’s consideration of the complainant’s reliability and credit as a witness in relation to count 1 and more generally.
The trial judge had earlier given relatively standard general directions as to the assessment of witnesses. Further, in relation to the complainant’s evidence he added:
You should scrutinise the evidence of [the complainant] with care. Her truthfulness, accuracy and reliability are fundamental if the prosecution is going to prove its case beyond reasonable doubt as to these charges.
Unless you are satisfied about her truthfulness, accuracy and reliability in relation to particular counts under consideration you would acquit on that count or counts.
Then, in the passages which I have extracted from the trial judge’s summing up in relation to the discrepancy of dates, the trial judge made express reference to the potential implications for the complainant’s credit. I refer in particular in this regard to the second paragraph in the first passage, and the first and third paragraphs in the second passage.
When taken to these references to the potential implications for the complainant’s credit, the appellant’s complaint became a submission that it was not sufficient for the trial judge to make these observations through the prism of a summary of the submissions made by defence counsel; that this tended to downplay their potential significance. I do not accept this submission. In my view, it was perfectly appropriate and sufficient for the trial judge to outline the parties’ competing positions in relation to the potential significance of the discrepancy in relation to the date of the incident the subject of count 1. Indeed, I consider that the trial judge would have risked transgressing the principles in McKell v The Queen[14] if he had lent his imprimatur to the defence position in relation to this issue.
[14] McKell v The Queen (2019) 264 CLR 307.
I do not accept that the appellant has demonstrated any lack of balance in the trial judge’s summing up. I would dismiss the application for permission to appeal on grounds 3 and 4.
Conclusions and orders
For the reasons I have given, I would grant the application for permission to appeal in respect of grounds 1 and 2. I would allow the appeal, but only to the extent of setting aside the conviction on count 2, and ordering a retrial on that count. I would otherwise dismiss the application for permission to appeal and the appeal.
DAVID AJ: I would grant permission to appeal on grounds 1 and 2. I would allow the appeal on ground 2. I would refuse permission to appeal on grounds 3 and 4. I agree with the reasons of Doyle J and the orders he proposes.