Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Iskandar v R [2013] NSWCCA 256 Hearing dates: 5 September 2013 Decision date: 08 November 2013 Before: Macfarlan JA at [1] Hidden J at [34] Latham J at [35] Decision: (1) Refuse the appellant leave under r 4 of the Criminal Appeal Rules to rely upon either of his grounds of appeal. (2) Appeal dismissed. Catchwords: CRIMINAL LAW - murder charge - directions to jury - defence of provocation - direction to be given where only evidence of provocation is evidence of the accused - Liberato v the Queen 159 CLR 507 - whether direction should have been given as set out in the Criminal Trial Courts Bench Book - whether jury should have been directed that if it did not accept appellant's evidence it still had to consider whether the Crown had negatived provocation beyond reasonable doubt Legislation Cited: Crimes Act 1900 Criminal Appeal Rules Cases Cited: Douglass v The Queen [2012] HCA 34; 86 ALJR 1086 Liberato v The Queen [1985] HCA 66; 159 CLR 507 R v Anderson [2001] NSWCCA 488; 127 A Crim R 116 Regina v Niass [2005] NSWCCA 120 Category: Principal judgment Parties: Hazairin Iskandar (Appellant) Regina (Respondent) Representation: Counsel: G Brady (Appellant) C Pickering SC (Respondent) Solicitors: Nyman Gibson Stewart (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2010/48301 Decision under appeal Jurisdiction: 9111 Citation: R v Hazairin Iskandar [2012] NSWSC 1324 Date of Decision: 2012-12-07 00:00:00 Before: Davies J File Number(s): 2010/48301 Judgment 1MACFARLAN JA: After a 13 day jury trial in June 2012, the appellant was convicted of murdering Mr Mohd Shah Saemin at Leichhardt in Sydney on 21 February 2010. The appellant had pleaded not guilty of murder but guilty of manslaughter. He claimed that he had acted under provocation. 2He appeals against his conviction, on the following grounds: "1. The Trial Judge failed to direct the jury in accordance with the [Criminal Trial Courts] Bench Book direction where the appellant gave exculpatory evidence relevant to a critical element in the Crown case, that is, the provocation by the deceased. 2. The Trial Judge erred in directing the jury that there is 'another equally open inference' when directing the jury about an alternate inference available on the evidence". THE CROWN CASE 3The Crown's case at the trial was to the following effect. 4The appellant and his wife were born in Indonesia and have one child, Andrew, who was born in 1990. During 2009, the appellant came to believe that his wife was having an inappropriate relationship with the deceased who was one of her work colleagues. The appellant confronted them both but they denied that they were having an affair. The relationship between the appellant and his wife nevertheless broke down. 5The appellant rented a car and he and his son commenced to spy on the appellant's wife and the deceased. 6The Crown alleged that the appellant and his son formulated a plan to attack the deceased on the night of 21 February 2010 and that they took various preparatory steps to that end. When they encountered the deceased that night in Leichhardt, they attacked and killed him. 7In a police record of interview, the appellant said he had been persuaded to kill the deceased by a stranger whom he had met in a restaurant and to whom he had told his story. After the killing, the appellant told one friend that he had "lost control" and another that he had attacked the deceased for "the dignity of my family". He did not assert in his police interview or to any of his three friends who gave evidence that he had lost control as a result of the deceased saying offensive words to him immediately prior to the attack. THE DEFENCE CASE 8The appellant gave evidence that he decided to confront the deceased and "speak seriously" with him. On the evening of Sunday 21 February 2010, he and his son waited in Leichhardt in the rented car, watching for the deceased. When the appellant saw the deceased's car, he drove his car to hit the rear of that of the deceased. 9When the deceased got out of his car and recognised the appellant, a verbal altercation took place, during which the deceased told the appellant that "you can't look after your woman", and called him a "poofter" and a "betima" which is an insulting word in the Malay language in which the deceased partly spoke. 10The appellant said that these statements caused him to lose control and to attack and kill the deceased. 11The appellant's case at trial was that this conduct of the deceased, when seen against the background of the deceased's allegedly improper relationship with the appellant's wife and their denial of that relationship, constituted provocation which led the appellant to kill the deceased and entitled the appellant to a verdict of manslaughter rather than murder (see s 23(1) Crimes Act 1900). APPEAL GROUND 1: ABSENCE OF DIRECTION IN ACCORDANCE WITH LIBERATO v THE QUEEN 159 CLR 507 AS SET OUT IN THE BENCH BOOK 12The appellant contended that the trial judge should have given a direction in accordance with the observations of Brennan J in Liberato v The Queen [1985] HCA 66; 159 CLR 507 at 515, adapted to the circumstances of the present case. 13Liberato was a decision of the High Court on an application for special leave to appeal. At the trial, there had been a conflict between the evidence of the complainant, MK, and that of the accused. In the course of his summing-up the trial judge had said: "The case may well be one as I have put to you before, where the real question is who do you believe on the whole of the evidence [M.K.] or the accused?" (at 515). 14The majority of the High Court favoured dismissal of the application and did not comment on the point presently at issue. In dissent, Brennan J (with whom Deane J agreed) said (at 515): "The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue". 15The Criminal Trial Courts Bench Book published by the Judicial Commission of New South Wales gives at [3-620] a suggested direction, based upon Brennan J's observations in Liberato, applicable "where the accused gives or calls exculpatory evidence relevant to a critical element in the Crown case". That direction is in part as follows: "If, after having given consideration to the evidence of the accused [and/or evidence on the accused's behalf] and any evidence which the Crown asks you to take into consideration, you do not positively accept the evidence of [identify the relevant evidence] in support of the accused's case, but that evidence leaves you nevertheless with a reasonable doubt as to whether the Crown has made out its case in respect of any essential matter which it must prove, then you are bound, in law, to bring in a verdict of 'not guilty'. In other words, it is not the position that you have to believe that the accused [and/or his/her witnesses] [is/are] telling the truth before the accused is entitled to be acquitted. As I have previously emphasised to you throughout the whole of this case, it remains the position that the Crown must establish beyond reasonable doubt the charge which it brings against the accused, and it is never for the accused to prove that he or she is not guilty". 16On the appeal, the appellant recognised that this suggested direction, even if otherwise appropriate, required adaptation for use in the present case to reflect the fact that the appellant's evidence was not directed to wholly defeating the Crown's case but to resisting the Crown's attempt to negative, beyond reasonable doubt, the appellant's assertion that he acted under provocation. 17The trial judge gave conventional directions to the jury concerning the elements of the offences of murder and manslaughter, and the burden of proof. The appellant makes no complaint about these. The written directions indicated that the jury could return a verdict of manslaughter if it found that the Crown had failed to negative provocation and identified one of the two questions to be answered by the jury concerning provocation as: "May the deceased's conduct, that is, the things he did or said, or both, have induced (that is, caused) the accused to lose his self-control?" 18They then informed the jury that if it was satisfied beyond reasonable doubt that the answer to that question was "no" then the Crown had negatived provocation. 19In his summing-up, the trial judge emphasised more than once the need for the Crown to prove each element of the offences beyond reasonable doubt and that it was for the Crown to prove beyond reasonable doubt that the accused did not act under provocation. He referred to the appellant's evidence of provocation and said: "If the accused's version of what happened when he collided with the car is possibly true, then you have to consider whether he acted under provocation. ... There must be a possibility that the provocation actually caused the accused to lose his self-control and kill the deceased while deprived of that self-control" (emphasis added). 20In dealing with the defence of provocation, his Honour referred on at least three further occasions to the issue being whether there was a reasonable "possibility" that the appellant lost his self-control by reason of words spoken to him by the deceased. 21The effect of the appellant's submissions in support of this ground of appeal is that the jury would, or may, have been under the misapprehension that if it did not accept the appellant's evidence about what the deceased said, the appellant's defence of provocation failed, whereas in fact it should have been aware that non-acceptance of that evidence would have still required the jury to consider whether the Crown had negatived provocation beyond reasonable doubt. 22I do not accept that the jury could have been under any such misapprehension. The trial judge made it plain to the jury that it needed, not only to consider whether the appellant's evidence should or should not be accepted, but whether it considered the accused's evidence as possibly true. As the trial judge expressly stated, if the jury considered that evidence to be possibly true, it then had to consider whether the appellant acted under provocation. The trial judge made it clear both orally and in writing that, when considering whether the appellant acted under provocation, the Crown bore the onus of proving, beyond reasonable doubt, that he did not. 23This was not a case in which there was a conflict between the evidence of a principal Crown witness and that of the accused where the trial judge directed the jury that the issue for it was which to believe. It is an error to give such a direction (Douglass v The Queen [2012] HCA 34; 86 ALJR 1086 at [12] - [13]). As Liberato indicates, it should be made clear that even if the jury prefers the evidence of the Crown witness, it should not convict unless satisfied beyond reasonable doubt of the truth of that evidence. 24In the present case, there was no conflict between the evidence of a principal Crown witness and that of the appellant, and the only evidence capable of supporting a finding of provocation was the evidence of the appellant himself. If the jury did not consider that that evidence was, to use the words of the trial judge in his summing-up, "possibly true", the defence of provocation had to fail. It would not have assisted the appellant for the jury to be told, as the appellant now contends it should have been, that if it did not believe the appellant, it should put his testimony to one side and consider whether the Crown had negatived provocation beyond reasonable doubt. In a case where the only evidence of provocation was the accused's oral testimony, it was accurate, and less likely to confuse the jury, to direct it that it only had to consider whether the appellant acted under provocation if it considered the appellant's version of events to be "possibly true". As in Regina v Niass [2005] NSWCCA 120, the direction given "prevented any likelihood that the jury obtained the impression that it was only if they believed the appellant's evidence to be true that it could give rise to a reasonable doubt as to his guilt" and the trial judge did not suggest that the jury had to choose whether to believe a Crown witness or the appellant (at [29]; see also R v Anderson [2001] NSWCCA 488; 127 A Crim R 116 at [25] - [28]). 25This ground of appeal suffers from the further fundamental difficulty that the appellant's counsel at the trial did not request the trial judge to give any direction of the type now under consideration. The absence of such a request is a further indication of the fairness of the directions that the trial judge gave. For the reasons I have given, there was no error in the trial judge not giving the direction now identified. A fortiori no miscarriage of justice flowed from it not being given. As a result, I would refuse to grant leave under r 4 of the Criminal Appeal Rules to raise this ground of appeal. APPEAL GROUND 2: DIRECTION CONCERNING "ANOTHER EQUALLY OPEN INFERENCE" 26During a break in the trial judge's summing-up, the appellant's counsel sought two additional directions. The one which is now in issue was, after discussion with his Honour, described by the appellant's counsel as follows: "Perhaps your Honour could simply put to them that the circumstances that you have referred to earlier [that] the Crown relied on as evidence of a plan to kill and the defence submission in respect of that was that it was equally consistent with either a plan to sneak up and confront the deceased or sneak up and attack him" (emphasis added). 27After the jury returned, the trial judge gave as follows a further direction consistent with the appellant's counsel's request: "The second thing, and this is an important matter which I should have said to you at the time, whilst the Crown contends that the inference that you would draw from all of that material is that the accused planned to kill the deceased, what Mr Trevallion said to you and the defence case is, that there is another equally open inference, that these matters were done, if you find they were done, in order to sneak up and scare and perhaps to threaten the deceased, but not with the intention to kill him. In other words, there is another inference of planning. Sure, they were going to do these matters, but it was not in order to kill him but to surprise him that night, so that the accused could then confront him and scare him. You will remember what I said to you about drawing inferences, that if you are going to draw an inference against the accused it must be the only rational inference that is available from the material. So you will have to consider each of those submissions. The Crown says the only inference you would draw is that those matters lead to the inference that he planned to kill. Mr Trevallion says no, there is this other inference, that he had just planned to scare and surprise him" (emphasis added). 28The appellant's counsel on the appeal, who did not appear at the trial, recognised that the trial judge's additional direction reflected the appellant's trial counsel's request but nevertheless submitted that the direction was erroneous because it placed "an onus on the appellant to prove that the inference contended for was 'equally open' on the evidence, rather than simply 'reasonably open'". 29I reject this submission. In referring to "another equally open inference" the trial judge expressly stated that he was referring to what had been put in the appellant's case ("what [the accused's counsel] said to you and the defence case is"). This accurately reflected the following part of the appellant's counsel's address: "[The Crown Prosecutor] has told you this was the plan. The plan was to wait, sneak up, I think the words that the Crown has said were ambush. Is ambush consistent with wanting to attack him and kill him, as the Crown suggests, or wanting to confront him and have it out with him? It's equally consistent, so if he's in control at that point, what's changed?" (emphasis added). 30Moreover, the trial judge immediately thereafter repeated his earlier direction that any inference to be drawn against the appellant "must be the only rational inference that is available from the material" (see [27] above). He also said that the Crown referred to the relevant inference as the "only inference". 31The trial judge thus made it clear to the jury that the inference for which the Crown contended was to be rejected if there was an alternative rational inference available, not just if the alternative inference was considered to be equally available. The jury could not reasonably have thought that it had to find that the appellant's competing inference was "equally available" in order to reject the inference for which the Crown contended. It was told clearly that the Crown's inference had to be "the only rational inference". 32Again, there is in my view no reason to grant the appellant leave under r 4 of the Criminal Appeal Rules to raise this ground of appeal. ORDERS 33For the above reasons, I propose the following orders (1)Refuse the appellant leave under r 4 of the Criminal Appeal Rules to rely upon either of his grounds of appeal. (2)Appeal dismissed. 34HIDDEN J: I agree with Macfarlan JA. 35LATHAM J: I agree with Macfarlan JA. ********** 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. Decision last updated: 08 November 2013