Special Bulletin 32 — May 2016

Directions — onus of proof —

Decision Restricted [2016] NSWCCA 63

This decision emphasises the need for trial judges to make clear in written directions and/or question trails when the Crown carries the legal onus of proof. It is available as a restricted NSWCCA judgment on JIRS.

The appellant was charged with murder. It was not in issue that the appellant had stabbed the deceased. The central issue was whether the prosecution had proved the ingredients of murder beyond reasonable doubt and, if not, whether the appellant was guilty of manslaughter. The issues included whether the appellant had stabbed the victim deliberately and had the requisite intention for murder. Self-defence and provocation were left to the jury. The Crown was required to negative beyond reasonable doubt that the appellant did not act in self-defence or commit the act under provocation: ss 419 and 23(4) (as it then stood; see now s 23(7)) Crimes Act 1900.

The judge gave the jury oral directions and seven pages of written directions in the form of a question trail (MFI 19). The document is an annexure to the appeal judgment. Paragraph six of MFI 19 stated that the Crown had to establish beyond reasonable doubt: that the stabbing was deliberate; that the accused intended to kill or to inflict grievous bodily harm; and, that the accused was not acting in self-defence.

MFI 19 then posited eight questions for the jury’s consideration. Each question was framed in terms of whether a “reasonable possibility” existed for the issues listed above but did not state that the prosecution had the onus to remove or eliminate each. In oral directions the judge also referred to the concept of a “real possibility” in explaining the self-defence and provocation scenarios (see extracts at [48]–[49]).

Counsel for the appellant argued that the jury directions reversed the onus and standard of proof.

The court did not make an affirmative finding as to whether the directions reversed the onus and standard of proof but it did accept that the directions were erroneous and contrary to law: at [112]. The court said it was important that MFI 19 made clear that the legal onus was on the Crown to eliminate any reasonable possibility: “[T]he directions in MFI 19 contravened well-established principles by which juries in criminal trials must be directed concerning the legal onus upon the Crown”: at [112]. The court declined to apply the proviso and ordered a new trial.

On the use of the expression “reasonable possibility” the court confirmed the longstanding authorities of R v Youssef (1990) 50 A Crim R 1 and R v Jones (1995) 38 NSWLR 652. Where the Crown is required to negative an issue beyond reasonable doubt it can be appropriate to frame a direction in terms of whether the Crown has eliminated it as a reasonable possibility: at [108]. However, the written direction in this case was not framed in those terms: at [108].

Earlier in its reasons the court made reference to the direction at [3-600] in the onus and standard of proof section of the Criminal Trial Courts Bench Book: at [44]. The court viewed the sentence “Is there any reasonable possibility that the accused is not guilty?” as an attempt to explain the expression beyond reasonable doubt contrary to the authorities on the subject. The court added, however, that “merely by reading from the passage in the Bench Book” would not be a misdirection: at [44].

Amendments to the Bench Book

The Bench Book direction at [3-600] will be amended shortly. The sentence “Is there any reasonable possibility that the accused is not guilty?” will be deleted and replaced with the square bracketed text below:

[Where the Crown must negative a defence/issue to the criminal standard a long accepted direction which can be given (after making clear that the Crown must prove all ingredients of the charge beyond reasonable doubt) is as follows:

“Has the Crown eliminated any reasonable possibility that the accused acted in self-defence/ was extremely provoked/ acted under duress, etc?”]

The reference in the last paragraph of [3-600] to “a reasonable possibility” will also be amended for abundant caution so that it reads “the Crown has failed to eliminate a reasonable possibility”.

A new Note 3 will also be added after the direction at [3-603]:

“If a judge gives the jury written directions it is essential that the directions make clear where the legal onus is on the Crown: Decision Restricted [2016] NSWCCA 63 at [106], [112].”