Reported Decision : 158 A Crim 454 New South Wales Court of Criminal Appeal CITATION: Harris v R [2005] NSWCCA 432 HEARING DATE(S): 6 December 2005 JUDGMENT DATE: 14 December 2005 JUDGMENT OF: Grove J at 1; Studdert J at 6; Whealy J at 66 DECISION: Appeal dismissed. CATCHWORDS: CRIMINAL LAW - admissibility of statement by deceased victim - whether made "shortly after" the asserted fact - whether in circumstances that made it unlikely that the representations a fabrication - Evidence Act s65(2)(b). CRIMINAL LAW - summing up - self defence - whether jury sufficiently alerted as to need for Crown to exclude reasonable possibility of the appellant having acted in self defence. Criminal Appeal Rules, r 4 LEGISLATION CITED: Evidence Act, s 65 Conway v The Queen (2000) 98 FCR 204 Dinsdale v The Queen (2000) 202 CLR 321 Liberato v The Queen (1984-85) 159 CLR 507 R v Ambrosoli (2002) 55 NSWLR 603 R v Burt (2003) 140 A Crim R 555 CASES CITED: R v Ita (2003) 139 A Crim R 340 R v Mankotia (unreported, Sperling J, 27 July 1998) R v Polkinghorne (1999) 108 A Crim R 189 R v Thomson & Houlton (2000) 49 NSWLR 383 Saulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Williams v The Queen (2000) 199 A Crim R 490 PARTIES: Frederick O'Neal Harris v Regina FILE NUMBER(S): CCA 2005/1292 H. Dhanji (Appellant) COUNSEL: D. Frearson SC (Crown) S. O'Connor (Appellant) SOLICITORS: S. Kavanagh (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0064 LOWER COURT JUDICIAL OFFICER: Nield DCJ IN THE COURT OF CRIMINAL APPEAL 2005/1292 GROVE J STUDDERT J WHEALY J Wednesday 14 December 2005 FREDERICK O'NEAL HARRIS v REGINA Judgment 1 GROVE J: I have the benefit of reading the draft of judgment of Studdert J and I wish only to add some brief comment concerning an argument advanced by the appellant in support of Ground 3. 2 In a written submission, it was contended that "a finding of not guilty was not dependent on any finding of fact, but rather the finding that the Crown had failed to exclude a reasonable hypothesis that either the appellant believed that his conduct was necessary to defend himself or that what the appellant did was a reasonable response to the circumstances as he perceived them to be." 3 The submission implies a disjoinder of the jury's fact-finding function from the application of the stated alternative tests. The legal tests are not applied in a vacuum but upon the facts as the jury have found them to be. When the learned trial judge invited the jury to first determine the facts, he would have been understood as doing no more than guiding the jury in the proper application to their task. 4 As Studdert J has demonstrated, the directions in his Honour's charge to the jury made it clear that the burden and standard of proof required the Crown to exclude the reasonable possibility of the appellant having acted in self defence. 5 I agree with the judgment of Studdert J and the order which he proposes. 6 STUDDERT J: The appellant, Frederick Harris, was found guilty by a jury of the manslaughter of Anthony Wright following trial in the District Court. After conviction he was sentenced to imprisonment for seven years six months with a non parole period of four years eleven months. The appellant now appeals against his conviction. 7 The deceased died on 7 October 2002 but the injuries sustained by him and which implicitly the jury found causative of death occurred on 30 September 2002 at the Hurstville RSL Club. The injuries sustained included fractures to the lower outside part of the left eye socket and haemorrhages later detected established traumatic injury to the brain. Dr Duflou, who conducted the post mortem, concluded that the cause of death was a subdural haemorrhage from head injury. 8 The issues at trial were: (i) whether any blows inflicted by the appellant were causative of the death of the deceased; (ii) self defence. 9 Before considering the grounds of appeal, I will review briefly the evidence as to what occurred between the appellant and the deceased. 10 The evidence at trial established that at about 6.30 pm on 30 September 2002 the deceased encountered the appellant when he was in the process of leaving the club with a friend, Andrew Firth. The appellant approached the two men and asked Mr Firth for a cigarette. The request was declined and, according to Mr Firth, the appellant then said, "Okay, fine. Fuck you." The deceased and Mr Firth had barely left the club when the deceased turned and returned to it. According to Mr Firth, the deceased did not respond to his caution: "Tony, don't do it. It's not worth it." Mr Firth said that the deceased proceeded to a position about a foot from the appellant. Mr Firth said he saw the appellant punch the deceased twice in the face, the blows being thirty to forty seconds apart. The deceased's glasses were knocked off and his skin was lacerated under the eye. Mr Firth did not see the deceased being at all aggressive. 11 Graeme Stepto was sitting with his friends, Desmond Parnell and Dimitri Kaye, a short distance away from where the deceased was when he was punched. The appellant approached their group for a cigarette. According to Mr Stepto, he looked out of the corner of his eye and saw a man, who he described as "black coloured", throw a punch at the deceased. (There is no issue but that he was endeavouring to describe the appellant.) Mr Stepto was aware that the deceased walked up to the appellant and said something but he did not know what it was that he said. Mr Stepto saw the appellant throw a second punch and then run from the club. When asked, he said that after the first blow the deceased just stood there stunned but he fell to the ground after the second blow. In cross examination Mr Stepto said that the deceased seemed aggressive and spoke loudly. In re-examination, Mr Stepto was asked what he observed that led him to say that the deceased was aggressive towards the accused. The response (T 46) was in these terms: "He just seemed angry when he come back inside, when he – when he come over after the guy had asked me for a cigarette. He just seemed – just the way – I could hear his voice. I can't recall what he said but he just seemed angry." 12 Mr Parnell said he heard the dark man say "Can you leave me alone. F…ing leave me alone." He said, "The next thing I looked around and some fellow's on the floor and that was it." The fellow on the floor, he said, was the deceased. 13 Mr Kaye said that the deceased's assailant had his back to Mr Kaye and he could not see the deceased, nor did he hear anything said. However, he saw the appellant punch the deceased twice and the deceased then fell before being assisted into a chair. When asked specifically whether he could see what the deceased was doing immediately before he was hit, he said he did not because the appellant was between the deceased and himself. He did say that after the deceased was punched the first time he raised his head again and then he was punched a second time. 14 The duty manager at the club was John Truman. On the day after the incident which the above witnesses described, he said that he saw the appellant enter the club and he asked him to leave. The appellant spoke to him about what had happened the previous evening. According to Mr Truman, the appellant said to him: "Man, you know me. I'm a friendly guy. He just kept hassling me, man. Then he just called me 'Boy' and I just snapped. He might as well call me nigger or slave… I saw these guys leave and one of them had a Sharkies jumper on and I'm a Sharkies fan. I said to him that 'I'm a Sharkies fan, man.' I asked the bloke for a cigarette and he said, 'No, I've only two left.' The other bloke said, 'We don't have to give you fucking anything.' I told him to get fucked. I went back inside the club and went to a table with another five blokes and I said 'Good evening gentlemen of the round table, how are you? I then asked one of them for a Winnie. Whilst I was in there talking to them, this bloke came back inside and touched me from behind. He started to say something and I said 'Hey man, just fucking leave me alone.' He called me 'boy' and I just snapped." 15 When spoken to by Constable Chaplin on 1 October 2002 the appellant said: "I had a run-in with another man. He got in my face and called me 'boy'. I snapped and hit him." 16 The appellant was then placed under arrest and participated in an electronically recorded interview. In the course of that interview, he said that the word that "just made me snap was he called me 'a boy'. That's as bad as…calling me a nigger or a slave. I am not a racist person. I do not like racist people." 17 The appellant said in the ERISP that the deceased was standing a foot away from him. He said he hit him twice in the face with a closed fist. Towards the end of the ERISP the appellant was asked: "Do you believe you were acting in self defence?" He responded: "Absolutely, and not only that. I'm, I'm, I'm, I'm yeah, I'm acting in self defence and I'm acting you know against racism. Q. …How do you justify the punches there being self defence? Were you in any physical danger? Did you feel… A. I don't know… Q. Threatened? A. I, hey, I felt that I was threatened big time. I mean I don't know what his intentions were. Why he came up to me to harass me or anything. All I knew is that I had to do something because of the fact is he had no reason to come up to me like that, sir, had no reason whatsoever. Q. Did he make any physical gestures? Did he say for instance, raise his fists, did he have anything in his hands that you felt that with… Did he threaten you with any physical harm? Did he say anything? A. Oh, he… he might have. Like I said, you know, I did not catch every word that he was saying. The only thing that…that made me snap was that word. The only thing that that made me snap was that word. I know that he was aggressive and I know that, um, you know… even the management knows that he is a problem…" 18 The deceased was taken to hospital on 30 September 2002 but not admitted. A CAT scan was ordered and eventually performed on 2 October 2002, but before that scan the deceased attended the Hurstville Police Station at about 6.30 pm on 1 October 2002 and made a statement, which he signed and which reads as follows: "1. This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable for prosecution if I have wilfully stated in it anything which I know to be false, or do not believe to be true. 2. I am 61 years of age. 3. On the 30th of September 2002 I was with a friend of mine Andrew Firth at the Hurstville RSL. About 6.30pm we were walking out through the front foyer of the club to leave. A man approached myself and Andrew and said, 'We go for the same team, give us a cigarette.' Andrew said, 'I've only got a few to last me the week.' The man said, 'Fuck off.' He then turned around and walked back into the club. 4. At this stage Andrew and I were standing at the top of the stairs. I said, 'Just a minute, I will be back.' I turned and walked back into the R.S.L. to try and defuse the incident that had just happened. I wanted to talk to the man to let him know that he should calm down and not be so aggressive. Andrew said, 'Don't worry about it.' 5. I walked back in through the front doors of the club and approached the man who had asked us for the cigarette. He was standing near a table of men. I went to him and stood about a metre from him. I said, 'You should not ask for favours from people and then get angry when you [are] refused. Especially when you don't know them.' The man did not say anything back to me. 6. I looked at the table of men and then I felt a blow to my face. My head was rocked backwards and I saw a fist out of the corner of my eye. I felt another punch land on my face and I fell back a little. I noticed that my glasses had been smashed on my face and the frame was on the ground. I noticed blood was dripping from my face and onto my shirt. The left side of my face felt a little numb. This shocked me as I have never been involved in anything like this before. 7. I saw the man that had hit me walking out the front doors of the R.S.L. I tried to find my glasses on the ground. I was approached by several people who tried to help me. John, the supervisor came up to me and told me that the ambulance was on it's way. 8. The man that hit me was about 30 years old, he was dark skinned and had an accent. He was of lean build and about 185cm tall. 9. I was taken to St. George Hospital where I was treated for my injuries. As a result of this assault I have received a fractured cheek bone, a cut under my left eye and several cuts to my upper lip. Also, my glasses were smashed and I would like compensation for them. 10. I did not give any person any permission to assault me in any way." 19 This brings me to the grounds of appeal, the first two of which concern the admission into evidence of the above statement of the deceased. Ground 1: A miscarriage of justice was occasioned by the failure of the learned trial judge to provide reasons for admitting into evidence the prior representations contained in the statement of the deceased 20 At the time that the grounds of appeal were filed and, indeed, at the time counsel for the appellant prepared written submissions, the appellant did not have a copy of the reasons of the trial judge for allowing into evidence the statement made by the deceased. 21 The ruling allowing the introduction of the statement of the deceased was a significant ruling. At the time of making that ruling, his Honour indicated he would state his reasons for it later. 22 The appellant was entitled to have reasons for the ruling given in the application of the fundamental principle that justice must only be done but must manifestly be seen to be done: see R v Thomson & Houlton (2000) 49 NSWLR 383 per Spigelman CJ at [42]. See also Saulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 per McHugh JA at 280. See also Dinsdale v The Queen (2000) 202 CLR 321 and the joint judgment of Gaudron and Gummow JJ at [21]. 23 By the time of the hearing of the appeal, his Honour's reasons were available, so Ground 1 was not pursued. The reasons why it was admitted into evidence require consideration under Ground 2. Ground 2: The learned trial judge erred in admitting into evidence the prior representation contained in the statement of the deceased, Tony Wright 24 The Crown tendered the statement of the deceased, relying upon s 65 of the Evidence Act and in particular on s 65(2)(b) and (c). 25 Section 65(1) provides: "This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact." 26 Part 2 para 4 of the Dictionary defines "unavailability of persons" and provides relevantly here: "For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: (a) the person is dead" 27 Section 65(2) makes provision for the admissibility of evidence of previous representations in the following terms: "The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was: (a) made under a duty to make that representation or to make representations of that kind, or (b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) made in circumstances that make it highly probable that the representation is reliable, or (d) against the interests of the person who made it at the time it was made." 28 The ruling at the trial which attracts attention in the present context was made after extensive argument. Counsel appearing at the trial for the appellant acknowledged (T 121, 2 September 2004) he did not join issue with the majority of what was said in the statement, but proceeded: "What our objection is really aimed at here are those particular asserted facts that really go to negative the aspect of his aggression or ill temper." 29 Doubtless this objection was taken because of the issue of self defence. Of course, at the time that the judge determined that the statement was admissible, the appellant had not given evidence at his trial but the ERISP had been introduced and the issue of self defence was raised there. 30 His Honour's reasons for admitting the statement of the deceased into evidence are short and were as follows: "1. The Crown Prosecutor tendered the statement made by the deceased to police at Hurstville Police Station on 1 October 2002 and asked that the statement be admitted into evidence. He relied on paragraphs (b) and (c) of sub-section (2) of s.65 of the Evidence Act for admission of the statement into evidence. 2. The accused's counsel objected to the admission of the deceased's statement into evidence. He submitted that the statement should be rejected because: (a) it was a statement of one of the two 'protagonists' involved in the incident; (b) it was not made 'shortly' after the incident; (c) it was not made in circumstances that made it unlikely that the representations contained in it were fabrications; and (d) it was not made in circumstances that made it highly probable that the representations contained in it were reliable. 3. I decided to admit the deceased's statement into evidence because: (1) the fact that it was a statement of one of the two people involved in the incident is not a reason (in my view) to refuse admission of it into evidence; (2) as it was made within 24 hours after the incident, it was made (in my view) shortly after the incident; (3) the circumstances in which it was made, namely a statement made to police in a police station as to what had occurred in an incident, which statement was likely to be the basis of the possible charging of the accused with an offence, made it unlikely that the representations contained in it were fabrications, and made it highly probabl[e] that the representations contained in it were reliable; (4) the representations contained in it were relevant; (5) the representations contained in it were highly probative; and (6) although the accused's counsel did not rely upon ss. 135(a) or 137 of the Act, the probative value of the representations contained in the deceased's statement was not outweighed, substantially or otherwise, (in my view) by the danger that those representations might be unfairly prejudicial to the accused, as, particularly, there is little difference between what the deceased told police in his statement and what the accused told police when he was interviewed." 31 Mr Dhanji submitted that the statement ought not to have been admitted under s 65(2)(b) because (i) it had not been made "shortly after" the events described, (ii) the circumstances in which it was made were such as did not render it unlikely that what was said was a fabrication. 32 Section 65(2)(b) imposes time restraints on the admissibility of evidence. Those restraints are expressed alternatively. The representation under consideration is to be made when the asserted fact occurred, or it is to be made "shortly after" that occurred. 33 There has been no attempt in the statute itself or in the cases to which the Court was taken to define what is meant by "shortly after". In Conway v The Queen (2000) 98 FCR 204, the introduction of the words "shortly after" was seen as a significant departure from the position prior to the introduction of the Act. In their joint judgment, Miles, von Doussa and Weinberg JJ said (at p 239-241 [123], [133]) "[123] The word 'when' in s 65(2)(b) of the Act encompasses this notion of strict contemporaneity. The introduction of the expression 'shortly after' is, however, a significant departure from traditional doctrine… [133] The primary objective which underlies the requirement in s 65(2)(b) of the Act that the representation be made 'when' or 'shortly after' the asserted fact occurred seems to be to ensure that the matters conveyed are either strictly contemporaneous or, if narrative of a past event, still fresh in the mind of the person recounting that narrative. The expression 'shortly after' makes it clear that there need not be anything like the strict contemporaneity required at common law to render the evidence admissible as res gestae." 34 In R v Mankotia (unreported, 27 July 1998) Sperling J considered the expression: "The phrase 'shortly after' is not defined. The legislature has chosen not to specify a time. That implies that a normative judgment is to be made dependent on the circumstances of the case. For a judgment to be made, considerations of some kind or other have to be taken into account but - as in the, case of normative judgments generally - it may be difficult or impossible to articulate in a precise way what they are. I think the predominant factor in the phrase 'shortly after' must be the actual time that has elapsed and whether that fits the ordinary usage of the expression 'shortly after' in the circumstances of the case. The judgment should, however, be influenced by the policy behind the provision. That is to put a brake on evidence being given of a recollection which may have faded in its accuracy with the passage of time. The judgment may therefore be influenced by the subject matter of the event and by how long the memory of such an event is likely to have remained clear in the mind." 35 Levine J cited the above observation in R v Polkinghorne (1999) 108 A Crim R 189, and the approach of Sperling J and Levine J was considered to be correct in Conway ((supra) at 241 [135]). 36 In Williams v The Queen (2000) 119 A Crim R 490 s 65(2)(b) was again addressed. After considering the cases to which I have referred above, Whitlam, Madgwick and Weinberg JJ said (at 502 [47]-[48]): "[47] Thus, it is principally a concern to exclude concocted evidence that informs the meaning of the phrase 'shortly after'. As noted by Sperling J in Mankotia, at [10], s 65(2)(b) ought not be regarded as simply importing a test of: ' ... reliability at large. It is a narrower test ... [I]t is the unlikelihood of concoction to which the paragraph is directed. Whether the representor might have been honestly mistaken is immaterial.' [48] For these reasons, it would be a mistake, in determining whether a statement has been made 'shortly after', to over-emphasise such matters as whether the events in question were 'fresh' in the memory of the person making the statement. The rationale for the exception to the hearsay rule contained in s 65(2)(b) is not based only upon the necessity to ensure that the events in question may be easily recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is that the statements be made spontaneously during (when) or under the proximate pressure of (shortly after) the occurrence of the asserted fact…" 37 In referring to "proximate pressure" in the above passage, plainly their Honours had in mind again the question of temporal restraint. In Williams their Honours considered the lapse of five days took the representations "outside the likely temporal realm of statements that may be considered to be reliable because made spontaneously during, or under the proximal pressure of events" (at 502 [49]). 38 Mr Dhanji submitted that it was not open to the judge in the present case to determine that the statement of the deceased, made as it was some twenty-four hours after the event, was made "shortly after" the event the deceased described. I am not persuaded by that submission. 39 Mr Dhanji did not seek to argue that "shortly after" meant "immediately after". No attempt has been made in the decided cases to prescribe the words "shortly after" by the passing of any defined period of time. Each case has to be considered having regard to its own particular circumstances. For example, as Mr Dhanji properly acknowledged in the course of his able argument, a statement made by a person recovering consciousness five days after an event may well be considered to have been made "shortly after" that event. 40 I have come to the conclusion that it was open to the judge in the circumstances of the present case to determine that what the deceased told the police was conveyed "shortly after" the incident he described. 41 In R v Ambrosoli (2002) 55 NSWLR 603 it was determined that the circumstances upon which s 65(2)2(b) and (c) focussed were the circumstances of the making of the previous representation. Mason P, with whom Hulme and Simpson JJ agreed, said this at [34]: "It would therefore appear that R v Mankotia, Conway and R v Williams are at one in: • focussing upon the circumstances of the making of the previous representation to determine whether it is unlikely that the representation was a fabrication or highly probable that the representation was reliable; and • excluding evidence tending only to prove the asserted fact. [35] In my view this is a correct approach to s 65(2)…" 42 In this case, of course, there were no prior or later statements made by the deceased that might have had any bearing upon the reliability of the circumstances of the making of the statement admitted into evidence. 43 It was submitted that it could not be said that the statement was made in circumstances that made it unlikely that the representations contained in it amounted to a fabrication. In particular, these matters were adverted to: (i) that the deceased had been drinking and may have had as many as seven schooners; (ii) that the deceased's version was inherently unlikely in that he asserted he was going back "to diffuse the incident", although the incident was for all practical purposes over by the time the deceased first left the club; (iii) the deceased had an interest in seeing that the appellant was charged at the time he made the statement; (iv) that he wanted to present himself as the victim and not the aggressor. 44 The Crown urged the contrary considerations: (i) the level of intoxication was mild according to the ambulance officer, Christopher Roach, who attended upon the deceased at the club immediately after the attack. Ambulance Officer Roach's assessment was that the deceased was "still quite aware of his faculties"; (ii) the deceased's version was not inherently unlikely; (iii) the statement given to the police officer was a formal statement which commenced in the usual way: "This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable for prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true." (iv) in making his statement, the deceased would have appreciated that there were witnesses in the club that the police would interview concerning what had occurred; (v) the statement was made after the deceased had had some treatment at the hospital but before the CAT scan and hence before he was in a position to appreciate the nature and extent of his injuries. 45 In my opinion, there is substance in the submissions advanced by the Crown and summarised above concerning those circumstances which made it unlikely that the representations in the statement were fabricated. 46 In my opinion, having regard to those circumstances and the reasons expressed by the judge, no error has been shown in the decision to admit the statement into evidence pursuant to s 65(2)(b). 47 As his Honour's reasons illustrate, his Honour did have regard to s 135 and s 137 of the Act. It was not sought at trial, nor in this Court, to submit that the evidence ought to have been excluded under either of those sections, as his Honour found the representations in the statement were relevant and probative. Plainly they were, having regard to the issues and the evidence I have earlier reviewed. 48 Having concluded that the statement was admissible under s 65(2)(b), it becomes unnecessary to consider whether it was also admissible under s 65(2)(c). As Mr Dhanji acknowledged in the course of argument, if the judge was correct in admitting the statement under s 65(2)(b), there is no need to consider s 65(2)(c), and the latter sub-paragraph was not addressed in oral argument on this appeal. 49 For the above reasons, Ground 2 fails. Ground 3: The learned trial judge erred in his directions to the jury in that he directed the jury that they must first determine the facts before applying the test of self defence 50 In considering this ground it will be necessary to review closely all the instructions that the judge gave in the course of the summing up. However, the complaint relates to the final redirections which were given. It is contended that the effect of them was to distract the jury from the onus upon the Crown of excluding the relevant possibilities. Reference was made to the decision in Liberato v The Queen (1984-85) 159 CLR 507, and in particular the dicta of Brennan J at 515 and of Deane J at 519-520. The jury was not to be invited to see their task as essentially one of making a choice between the evidence relied upon by the Crown and the evidence relied upon by the accused. 51 The trial judge directed the jury on the issue of self defence at SU 28-31 in the following terms: "As you would expect, the law recognises the right of a person to act in self defence against an attack or the threat of an attack from another person. This right arises where the person believes that his or her use of force is necessary in order to defend him or herself against the attack or the threat of an attack by another person or other people and where that person, in defending him or herself against that attack or the threat of it, uses a reasonable response in the circumstances as he or she perceives them to be. I must tell you that, although the word 'defence' appears in the phrase or expression 'self defence', the exercise of the right of self defence is not something that the accused person must prove. Rather it is something that the Crown must convince the jury to reject. In other words, the burden, onus or obligation, to use those interchangeable words, does not lie on the accused to prove it, it lies upon the Crown to eliminate it. The Crown may eliminate it by proving one or other or both of two things. In this trial the accused does not have to prove that he acted in his self defence against an attack or the threat of it from the deceased. The Crown must convince you beyond reasonable doubt to reject self defence. The Crown may convince you that the accused was not acting in self defence by proving beyond reasonable doubt, one or other or both of two things. Those things are, one, that the accused did not believe, at the time of doing what he did, that it was necessary for him to so act in order to defend himself; in other words, that the accused did not believe that he had to punch the deceased twice to defend himself against an attack or threat of it by the deceased; and, two, if it is reasonably possible that he had such a belief, in other words if it is reasonably possible that the accused believed that he had to do what he did in his own self defence, then nevertheless the accused's acts were not a reasonable response to the attack upon him or the threat of it as he perceived it to be at that time. If the Crown fails to prove both of those two things, then the Crown has failed to convince you to reject self defence. Now, as to the accused's belief and his response, I tell you these two things. Firstly, as to the accused's belief that he had to do what he did in order to protect himself against the deceased's attack or the threat of it as he perceived it, you must consider the circumstances as the accused perceived them at that time. So, you will, as it were, stand in the shoes of the accused when he was confronted, if I may use that word, by the deceased. It is the accused's perception that must be considered in determining whether what he did was a reasonable response to those circumstances. And the circumstances should not be looked at with the benefit of hindsight, but in the realisation that calm deliberation and decision cannot be expected in a situation such as that which the accused said he found himself to be in. If you find that the accused had or that it is reasonably possible that he may have had that belief, it does not matter that his belief was mistaken. If, however, the Crown has established beyond reasonable doubt that the accused did not believe that his acts were necessary for his self defence, then the Crown would have eliminated self defence . Secondly, as to the accused's response, if you are satisfied that the accused had or it is reasonably possible that he had the belief that his acts were necessary for his self defence, then you must consider the question whether the Crown has nevertheless proved beyond reasonable doubt that the conduct of the accused was not a reasonable response to the circumstances as he perceived them to be. As to this question, even if the accused was mistaken in his perception of the relevant circumstances, if you are satisfied as to his belief in relation to those circumstances, and that his response was reasonable in those circumstances, the Crown will have failed to eliminate self defence. However, if the Crown has satisfied you beyond reasonable doubt that the accused's response was not a reasonable response in those circumstances, then the Crown has eliminated self defence ." 52 On the following morning of the trial, the jury asked this question: "Can the jury please have the definition of self defence?" 53 Having heard both counsel, the judge redirected the jury (SU 47-50) in more or less the same terms as those of his earlier directions on the issue of self defence. Then, two further notes came from the jury. 54 The first of these read: "Can an attack or threat of an attack as outlined in self defence relate to a wholly verbal attack, tirade (as said) or abuse if there is no perceived threat, belief or apprehension of physical contact or impending physical contact?" 55 The second note read: "Can the jury be provided with alternative wording for the phrase 'reasonable response under self defence' for the benefit of jury members who use English as a second language?" 56 Once again the judge listened to the submissions of counsel and then gave the following instruction (SU 55-59): "Before I answer the questions that you have asked, I want to remind you of something that I said in my summing-up. I said that you consider all of the evidentiary material and decide the facts as you find them to have been at this time on this day in Hurstville RSL Club involving the deceased and the accused. I said that once you have decided the facts, you will find, I expect, that as night follows day that your verdict would flow from the facts. So the first thing you have to do, as the tribunal of fact, is to decide the facts which satisfy you within the evidentiary material, so that you make a decision as to what happened between the deceased and the accused in the Hurstville RSL Club. Once you decide the facts, you then consider whether, having regard to those facts, the Crown has disproved – convinced you to eliminate – self defence. Now, members of the jury, the accused in his evidence – and I am referring only to his evidence, not to the statements that he made to Mr Truman or to the police – the accused in his evidence said that when he was tapped on the shoulder by the deceased a number of things happened. One of the things was that he was abused. Another was that the deceased made a clenched fist. Another was that the deceased poked him, the accused, with a finger. Another was that the deceased stepped to block his movement when he stepped to his right to go around the accused. Another was the deceased called him a 'boy'. Another was that the deceased, after being punched the first time, came back towards him with a clenched fist. And he told you that he had struck the deceased because he thought that the deceased was going to strike him. The learned Crown prosecutor put to you that, except for the accused saying that the deceased call him a boy, the accused had not mentioned any of the other matters or factors when speaking with Mr Truman or the police. And the learned Crown prosecutor put to you that in relation to those matters or facts – that is, those other than that the deceased called him a boy – the accused had lied about them. As I said to you in my summing-up, you have to decide for yourselves what transpired, what happened, between the deceased and the accused. Once you have decided that – that is, once you have decided what happened between the deceased and the accused – you then consider whether, having regard to your decision of what happened, whether the accused believed that he had to do what he did in his own self defence and whether, in doing what he did, he responded reasonably to what he perceived. So that is to tell you, without considering the other evidence, just considering the accused's evidence, what the Crown asks you to do in relation to the accused's evidence. Now, it is not for any one of us to suggest to you how you go about deciding the facts. You have go[t] to make the decisions yourselves. You have heard the witnesses. You have heard the accused. It is for you as the judges of the facts to decide within the evidentiary material what happened between the deceased and the accused in the club. Having decided what happened, you then ask yourselves, in relation to your decision about what happened, did the accused in those circumstances believe that he had to do what he did in his own defence? And you have to ask yourselves whether, in those circumstances, his response was a reasonable one. Remember, the accused does not have to prove anything. He does not have to prove that he acted in self defence. The Crown must convince you to reject self defence. In other words, the Crown must convince you beyond reasonable doubt that either the accused did not believe that he had to do what he did in his own defence, or that what he did was not a reasonable response to the situation as he perceived it to be . Now, at the risk of further adding to what I have told you about self defence, I want to read something to you. 'The questions to be asked by the jury are: (1) Is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend him or herself, and (2) If there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them to be?' The answer to the first question, 'Is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend him or herself?' is determined from a completely subjective point of view, considering all of the personal characteristics of the accused at the time he or she did what he or she did. And that is why I said to you when you assess the situation in which the accused found himself, you stand in his shoes, viewing the situation with his eyes. That is what is called the subjective test. The second question, a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them, is determined by an entirely objective assessment of the proportionality of the accused['s] response to the situation in which he or she subjectively believed him or herself to be. The Crown will negative self defence. In other words, eliminate it, which was the words I used in my summing-up, if it proves beyond reasonable doubt either, (1) that the accused did not genuinely believe that it was necessary to act as he or she did in his or her own defence, or (2) that what the accused did was not a reasonable response to the danger as he or she perceived it to be . Now, it is not for a presiding judge in a criminal trial to define words that are in everyday use. The jury's interpretation of the words that are in everyday use is for the jury's interpretation. So, it is not appropriate that I define 'reasonable' and 'response', except to say, when considering whether a response is reasonable, as I have said to you, you consider the proportionality of the accused's response to the situation perceived by him at the time. And response means reaction. So, members of the jury, as I have said, I hope that I have not added another layer to an explanation of self defence. Remember, you first decide the facts. And only you can decide the facts. You have been given all of the evidence and, as I have said to you already, there are six versions of the incident. You have to decide, having regard to the six versions of the incident, what transpired, what happened, what occurred between the deceased and the accused in the RSL Club. Having decided what happened, what occurred, you then apply the questions related to self defence. Is there anything more I should add, Mr Crown? CROWN PROSECUTOR: No, your Honour. HIS HONOUR: Mr Gilson? GILSON: Your Honour, I only wanted to address your Honour in relation to what your Honour said to the jury about the facts, basically accepting which version. I didn't what your Honour to be seen to be taking the position that the jury must decide one or the other, that obviously the whole point is if they have doubt about some particular aspect of the facts, then that's a matter for them. HIS HONOUR: That is true. Now, I hope the jury understands that it is not for me, any more than it is for the learned Crown prosecutor or learned counsel for the accused, to decide the facts. You have been presented with the facts. You twelve comprise the tribunal of fact. You make all decisions about the facts, but you have got to decide on the facts what happened between the deceased and the accused in the RSL Club. Having decided the facts, you then apply the directions of law that I have given you to those facts. In the hope that I have clarified but not confused, please return to the jury room and continue your deliberations." 57 No further direction was sought and the jury returned with its verdict nearly twenty-four hours later. 58 Early in the summing up the jury had been instructed that the appellant was not required to prove anything and that the onus was upon the Crown. At SU 14-15, his Honour gave this instruction after referring to the significance of the accused having given evidence at the trial: "The second thing about an accused person giving evidence is that, by giving evidence, the accused person does not take upon him or herself any burden, onus or obligation, and those words are interchangeable, to prove anything. In this trial the accused gave evidence. He, like the witnesses before him, entered the witness box. He, like the witnesses before him, swore an oath on the Bible or gave an affirmation to tell the truth. By giving evidence, he became the sixteenth of the sixteen witnesses in his trial. His evidence is not any better or any worse because he is a witness in his trial. His evidence is to be considered by you in the way you consider the other witnesses' evidence, and I will have something more to say about the witnesses evidence generally in a minute. By giving evidence, he did not take upon his shoulders any burden, onus or obligation to prove anything. In this trial the burden, onus or obligation to prove the guilt of the accused rests on the Crown from beginning to end…" 59 In the passages I have earlier recorded on the issue of self defence, and in particular in those passages to which emphasis has been added, the judge directed the jury that it was for the Crown to convince the jury to reject self defence and that the Crown had to convince the jury beyond reasonable doubt that either the accused did not believe that he had to do what he did in his own defence or that what he did was not a reasonable response to the situation as he perceived it to be. 60 It seems to me that the directions made it clear to the jury that the burden of proof and the standard of proof required the Crown to exclude the reasonable possibility of the appellant having acted in self defence. 61 In R v Burt (2003) 140 A Crim R 555 Wood CJ at CL said: "An appeal is not to be approached as a microscopic examination of everything which was said by a trial judge in an attempt to find a technical omission or error." 62 His Honour went on to cite what had been said in the Court of Criminal in R v Ita (2003) 139 A Crim R 340 concerning r 4 of the Criminal Appeal Rules. That rule is, to my mind, enlivened here. 63 I do not consider that there exists any real risk that the jury misunderstood the burden or the nature of the burden imposed upon the Crown on the issue of self defence having regard to the totality of the instruction given by the trial judge. 64 In my opinion, ground 3 fails. 65 I therefore propose for the reasons stated that the this appeal against conviction should be dismissed. 66 WHEALY J: I agree with the reasons of Studdert J and the order that he proposes. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.