Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hadchiti v R [2016] NSWCCA 63 Hearing dates: 12 October 2015 Decision date: 27 April 2016 Before: Leeming JA; Hall J; Bellew J Decision: 1. Grant leave to appeal against conviction, confined to ground 1 of the notice of application for leave to appeal filed 28 May 2015. 2. Appeal against conviction allowed. 3. Quash the appellant's conviction for murder on the charge contained in the indictment against him dated 28 October 2013. 4. Order that the matter be remitted to the Supreme Court for retrial. Catchwords: CRIMINAL LAW – appeal against conviction – murder – written directions to jury – "question trail" – whether reversal of onus of proof – whether questions correctly formulated issues for jury – relationship between written and oral directions to jury – whether departure from formulation of "beyond reasonable doubt" – whether error in trial judge's unreliability direction – where no objection taken at trial – whether proviso applicable Legislation Cited: Crimes Act 1900 (NSW), s 23 Crimes Amendment (Provocation) Act 2014 (NSW) Criminal Appeal Act 1912 (NSW), s 6 Criminal Appeal Rules, r 4 Evidence Act 1995 (NSW), ss 38, 128, 165 Jury Act 1977 (NSW), s 55B Jury Directions Act 2015 (Vic), s 63 Cases Cited: Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92 Baini v The Queen [2012] HCA 59; 246 CLR 469 Blackwell v R [2011] NSWCCA 93; 81 NSWLR 119 Budrodeen v R [2014] NSWCCA 332 Darkan v The Queen [2006] HCA 34; 227 CLR 373 Dawson v The Queen (1961) 106 CLR 1 Filippou v The Queen [2015] HCA 29; 89 ALJR 776 FP v R [2012] NSWCCA 182; 224 A Crim R 82 Garcia v National Australia Bank Ltd [1998] HCA 48; 194 CLR 395 Graham v R [2000] TASSC 153 Green v State of Western Australia [No 2] [2014] WASCA 53; 240 A Crim R 73 Green v The Queen (1971) 126 CLR 28 Handlen v The Queen [2011] HCA 51; 245 CLR 282 Hawi v R [2014] NSWCCA 83 Justins v The Queen [2010] NSWCCA 242; 79 NSWLR 544 Kanaan v R [2006] NSWCCA 109 Krakouer v The Queen [1998] HCA 43; 194 CLR 202 Lin v Tasmania [2015] TASCCA 13 McGrath v The Queen [2010] NSWCCA 48; 199 A Crim R 527 Mortada v R [2014] NSWCCA 36 Phillips v The Queen [2006] HCA 4; 225 CLR 303 R v AJS [2005] VSCA 288; 12 VR 563 R v Ayoub [2004] NSWCCA 209 R v Baker [2001] NSWCCA 151 R v Germakian [2007] NSWCCA 373; 70 NSWLR 467 R v Hadchiti (No 3) [2014] NSWSC 257 R v Hillier [2007] HCA 13; 228 CLR 618 R v Jones (1995) 38 NSWLR 652 R v Kerin [2013] SASCFC 56; 116 SASR 316 R v Reeves (1992) 29 NSWLR 109 R v Vu [2005] NSWCCA 266 R v XY [2013] NSWCCA 121; 84 NSWLR 363 R v Youssef (1990) 50 A Crim R 1 RWB v R; R v RWB [2010] NSWCCA 147; 202 A Crim R 209 Siganto v The Queen [1998] HCA 74; 194 CLR 656 Singh v The Queen [2014] NZCA 306 ST v R [2010] NSWCCA 5 Stanton v The Queen [2003] HCA 29; 77 ALJR 1151 The Queen v Holman [1997] 1 Qd R 373 The Queen v Howe (1958) 100 CLR 448 Ward v R [2013] NSWCCA 46 Weiss v The Queen [2005] HCA 81; 224 CLR 300 Texts Cited: G Eames, "Tackling the complexity of criminal trial directions: What role for appellate courts?" (2007) 29 Aust Bar Rev 161 Judicial Commission of New South Wales, Criminal Trial Courts Bench Book, at 3-600 B Martin, "Beyond reasonable doubt" (2010) 10 The Judicial Review 83 New South Wales Law Reform Commission, Report 136: Jury Directions (November 2012) Queensland Law Reform Commission, Report 66: A Review of Jury Directions (December 2009) Category: Principal judgment Parties: Michael Hadchiti (Appellant) Crown (Respondent) Representation: Counsel: T Game SC, L Hutchinson (Appellant) N Norman SC (Crown) Solicitors: SE O'Connor, Legal Aid of NSW (Appellant) C Hyland, Solicitor for Public Prosecutions (Crown) File Number(s): 2011/347089 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2014] NSWSC 257 Date of Decision: 13 November 2013 Before: Schmidt J File Number(s): 2011/347089 HEADNOTE [This headnote is not to be read as part of the judgment] In late 2013, Mr Michael Hadchiti was tried for murder before a judge and a jury of 12. It was common ground at the trial that Mr Hadchiti had inflicted the wound to the deceased's neck from which he died. The issues were Mr Hadchiti's intention at the time, self-defence and provocation. The trial judge gave the jury oral directions over more than a day, and also provided the jury with seven pages of written directions. Before adjourning, the trial judge gave the jury an unreliability warning under s 165 of the Evidence Act 1995 (NSW) in respect of the evidence given by members of the Hadchiti family. No objection was taken at trial to the oral or written directions or the unreliability warning. The jury returned a verdict of guilty of murder. Mr Hadchiti was sentenced to a term of imprisonment of 29 years, with a non-parole period of 21 years, 9 months commencing on 14 October 2013. Mr Hadchiti sought leave to appeal from both his conviction and sentence. The main issues on appeal were: (a) whether the oral and written directions to the jury disclosed error, and (b) whether the trial judge erred in giving an unreliability warning. In the event that the Court found error, the Crown sought to rely on the proviso. Held by the Court, allowing the appeal: First issue: written directions 1. In addressing a complaint as to a jury direction, the court will have regard to the overall impression which the whole summing up would have created in the minds of the jury: at [68]. Lin v Tasmania [2015] TASCCA 13, applied 2. Where a direction to a jury is in part oral and in part written, then to the extent that the written document overlaps with the oral direction, the written document will tend to swamp the force of the oral direction in the jury room: at [70]. Justins v The Queen [2010] NSWCCA 242; 79 NSWLR 544, applied 3. Explanation should not, save in unusual circumstances, be given of the expression "beyond reasonable doubt": at [79]-[82]. Dawson v The Queen (1961) 106 CLR 1; Green v The Queen (1971) 126 CLR 28; Darkan v The Queen [2006] HCA 34; 227 CLR 373, applied 4. The written directions impermissibly equated beyond reasonable doubt with the existence of a reasonable possibility, without linking that possibility to a statement that it was for the Crown to remove or eliminate it, and thus materially departed from the conventional formulation of the standard of proof: at [87], [107]. Second issue: unreliability warning 5. The Court was not persuaded that the unreliability warning amounted to such a departure from the essential requirements of the law that it went to the root of the proceedings. Accordingly, leave under r 4 of the Criminal Appeal Rules was not granted to raise the unreliability warning as a ground of appeal: at [136]. R v Germakian [2007] NSWCCA 373; 70 NSWLR 467, applied Third issue: proviso 6. In a conviction appeal the Crown should provide detailed and substantial assistance in explaining why a guilty verdict was inevitable and how that conclusion can safely be reached, notwithstanding the natural limitations of appellate review: at [140]. Mortada v R [2014] NSWCCA 36, applied 7. In applying the proviso, the task is to decide whether a substantial miscarriage of justice has actually occurred. There is no single universally applicable description of what constitutes a substantial miscarriage of justice: at [142]-[144]. Weiss v The Queen [2005] HCA 81; 224 CLR 300; Filippou v The Queen [2015] HCA 29; 89 ALJR 776; Handlen v The Queen [2011] HCA 51; 245 CLR 282; Baini v The Queen [2012] HCA 59; 246 CLR 469, considered and applied 8. Where a direction as to the standard or onus of proof or the function of the jury is substantially wrong, it will be rare for the weight of evidence against the accused to affect the conclusion that a substantial miscarriage of justice has occurred: at [146]-[151]. Krakouer v The Queen [1998] HCA 43; 194 CLR 202; R v XY [2013] NSWCCA 121; 84 NSWLR 363, appliedBaiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92; R v AJS [2005] VSCA 288; 12 VR 563; R v Kerin [2013] SASCFC 56; 116 SASR 316; Green v State of Western Australia [No 2] [2014] WASCA 53; 240 A Crim R 73; Graham v R [2000] TASSC 153; Lin v Tasmania [2015] TASCCA 13; McGrath v The Queen [2010] NSWCCA 48; 199 A Crim R 527, considered 9. The effect of the written direction was to deny to the appellant the right for the jury to assess whether the Crown has established the four essential issues beyond reasonable doubt, such that this case falls within the category of cases as being incapable of engaging the proviso: at [152]. Krakouer v The Queen [1998] HCA 43; 194 CLR 202, applied 10. In any event, the possibility that the appellant has been denied a chance of acquittal which was fairly open to him could not be excluded beyond reasonable doubt: at [153]. Filippou v The Queen [2015] HCA 29; 89 ALJR 776, applied Judgment 1. THE COURT: In October and early November 2013, Mr Michael Hadchiti was tried before the primary judge and a jury of 12 and convicted of murdering Mr Billy Mack on 30 October 2011. Following a sentencing hearing on 21 February 2014, he was sentenced to a term of imprisonment of 29 years, with a non-parole period of 21 years, 9 months commencing on 14 October 2013: R v Hadchiti (No 3) [2014] NSWSC 257. 2. Mr Hadchiti seeks leave to appeal from both his conviction and the sentence imposed by the Court. For the reasons which follow, we have concluded that his appeal against conviction must be allowed, and that there must be a retrial. Background 1. The deceased was the boyfriend of the appellant's sister, Ms Marian Roumanos, who was separated from the father of her two young children. Ms Roumanos gave evidence that her parents were unhappy about her separation from her former husband. 2. On Sunday 30 October 2011, Ms Roumanos' children had been staying in the Hadchiti family home, which was located on a large semi-rural block in Londonderry in outer northwestern Sydney. The appellant, who was then aged 20, lived there with his parents George and Sonia, and brothers Mehriz and Rabih. Another son, John, lived with his wife and children in a granny flat at the back of the block. Without conveying any disrespect, we will refer to the members of the Hadchiti family by their given names. 3. On the evening of 30 October 2011, the deceased drove to the Hadchiti residence in order to collect Marian's children. With him in the car were Marian and the deceased's niece, who cannot be identified because she was then aged 14, whom we shall call TB. 4. The evidence permitted the timing of the critical events to be placed with some precision. At 8.50pm, the deceased purchased two bottles of soft drink and a bottle of water from a store in North Richmond. A call lasting 94 seconds was made by the deceased to Sonia at 9.07pm, shortly before he arrived at the Hadchiti family home. (There was evidence that it would take around 8 minutes to drive from the store to the Hadchiti residence.) The first "000" call was made by Sonia at 9.17pm, and police arrived at 9.29pm. When the police arrived, the deceased was lying face down on the grassed area at the front of the house. There was a large amount of blood. The appellant was sitting near the deceased with a brown-handled knife between his feet. His shoes and hands were stained with blood. 5. While the events that took place between 9.07pm and the arrival of the police at 9.29pm were the subject of conflicting evidence at trial, the following facts are uncontroversial, save where otherwise indicated. 6. The deceased stopped the car outside the Hadchiti premises, and walked into the front yard alone to collect the children. There was no street lighting outside the Hadchiti residence. Marian and TB remained outside the property. 7. At around 9.15pm, Marian and TB were let into the house of two near neighbours, who lived around three houses along the street, although that was "[a]pproximately 500 metres or so" along the street. The neighbours knew Marian. One gave evidence that Marian said: "My phone is flat. Can I use your phone? I need to ring the police. They are going to kill Billy." The calls to "000" did not connect, but Marian did eventually speak to the local police. The neighbour said that Marian also tried to call her mother, and the deceased, without success. Telephone records showed two short calls (of 8 and 5 seconds' duration) from the neighbours' landline to the deceased's mobile phone at 9.27pm and 9.29pm. The neighbour gave this evidence: "A. She didn't get through to her mother or Billy but then she rang the home phone and she got through to somebody. I heard her scream at the top of her lungs: 'Where is Billy?' I don't know who she was talking to at the time and she started talking in Lebanese. I didn't understand the conversation and then she hung up. Q. Did you speak to her and ask her who she was speaking to? A. Yes I did. I asked her who she spoke to and she said: 'That was my father I spoke to.' Q. Did she say what he said? A. Yes she did. She said that he told her to 'eat shit'." 1. Sonia made two "000" calls that night. Both were recorded, and transcripts were tendered at the trial. In the first, at 9.17pm, she asked for the police. She said "he had a knife in his hand please hurry he attacked me." The second, made at 9.22pm, was to the ambulance. She said "please hurry someone tried to stab me … someone is injured and the guy who stabbed me had a knife please hurry". 2. A brown coloured steel chair frame was found by the police in the front yard of the Hadchiti premises. It was photographed by police, resting on its side. Underneath it were the black sunglasses the deceased had been wearing, and his car keys and a swipe pass. Numerous blood stains were also found on the steel chair frame. There was an injury to the middle of the deceased's back at the level of the T3 vertebra, in the shape of a 23 mm x 23 mm square, which corresponded to the edge of the chair frame. 3. Two knives were recovered from the property. One was a brown handled pocket knife, with the blood of the deceased on it. Another was a "Columbia" brand knife, which also contained the deceased's blood. 4. The autopsy showed that although the deceased had suffered many wounds to his head and chest, including a punctured lung, and two wounds to the back of his head, one of which fractured his skull, the cause of his death was a broad slicing 16 x 7 cm transversely aligned horizontal gaping incised wound to the front of his neck. An expert forensic pathologist gave evidence that the knife had severed both sternomastoid muscles (the thick muscles on the side of the neck) as well as the right common carotid artery and the adjacent right internal jugular vein. On the right side of the neck was a "fish tail" like appearance. The forensic pathologist gave evidence that: "by far the most common means by which such an appearance is caused in an incised wound is by a to-ing and fro-ing motion of the knife. In other words a single slice of the knife should not cause multiple defects in the skin so it is much more likely it is a cut one way followed by being brought back at the same level. A sawing motion if you like." 1. However, the pathologist conceded in cross-examination that he could not exclude as a possibility that the wound had been inflicted in a face-to-face struggle. 2. It was common ground at trial that the appellant had inflicted the wound to the deceased's neck from which he died. The issues were his intention at the time, self-defence and provocation. The defence case was that the deceased had attacked Sonia with a knife, that the appellant had gone to her aid, struggled with the deceased and killed him while struggling for control of the knife. 3. A yellow t-shirt which had been worn by Sonia was torn and the deceased's DNA was found on its left sleeve. 4. The appellant had blood on his hands, his shoes and his clothes when the police arrived (photographs taken of him that evening were tendered at the trial). He told police at the scene that "He stabbed me, I didn't have a choice". 5. The appellant had suffered a wound to his left wrist. A director of the police Clinical Forensic Unit, who had seen photographs of the wound, gave the following evidence of that wound: "The injury to the left wrist is clearly an incised wound resulting from a sharp instrument such as a knife. It is probable that the injury was a result of an assault described by the subject but self-inflicted injury cannot be excluded definitely [sic, definitively]". 1. The deceased had a background involving violence, including violence to women involving a knife. The jury was told of his antecedents, including matters for which he was not convicted. He had been charged with assaulting a woman outside her home in 2001 (and was not convicted), he was charged in 2002 with two counts of common assault including upon a previous girlfriend with whom he had a child, but was not convicted. He was apprehended by police in 2003 after throwing a knife to the footpath, and he confronted a woman in 2007 with a large bread knife and said "I'm going to cut your throat". Both of these matters resulted in convictions. In June 2008 he had entered the Blacktown Methadone Clinic with a large knife; this did not result in a conviction. Finally, on 5 August 2008, when asked by police to stop a car he was driving whose registration had expired, the deceased reversed the car into the police vehicle. It collided heavily with the front of the police car. The police alighted with firearms drawn, but the deceased drove away. Eventually he was arrested. The evidence was not clear as to whether he was convicted. The course of the trial before the primary judge 1. The Crown called (amongst many others) Marian Roumanos, George, Sonia, Mehriz, and Rabih Hadchiti, and Mr Amin (an unrelated family friend who was visiting that evening). Each was advised of their rights under s 128 of the Evidence Act 1995 (NSW). In each case, application was made under s 38 of the Evidence Act for a determination that they were unfavourable witnesses. In each case, the application was unopposed. TB also gave evidence, by a DVD played to the jury, which recorded an interview commencing just after 11am on the day following the events at the Hadchiti residence. 2. The appellant gave evidence, and admitted that he had inflicted the wound to the deceased's neck. However, he denied that he intended to kill the deceased or cause him serious injury. 3. On the 10th day of the trial, Friday 8 November 2013, the trial judge provided some draft written directions, which became MFI 17, to counsel. The appellant's case concluded shortly thereafter. In the absence of a Crown case in reply, the Court almost immediately adjourned. On the morning of Monday 11 November 2013, the primary judge circulated a further draft of the proposed written directions as MFI 18. Addresses by the Crown and defence occupied the whole of the Monday, following which defence counsel raised (in the absence of the jury) some minor changes to parts of MFI 18. 4. The closing address by the defence concluded on the Tuesday, following which the trial judge addressed the jury for the balance of that day, handing to them the final version of the written direction which became MFI 19. Her summing up was made by reference to that document. The summing up occupied 75 pages of transcript on the Tuesday (by which time her Honour had reached "Issue 4 – Provocation"), and a further 18 pages of transcript on Wednesday. It will be necessary in what follows to deal in detail with both the oral and written directions to the jury, which are the subject of ground 1 of the appeal against conviction. 5. Before adjourning on Friday 8 November 2013, the trial judge had raised the possibility of a warning under s 165 of the Evidence Act in respect of the evidence given by members of the Hadchiti family with the Crown, who agreed. The warning given in relation to the jury's acceptance of the exculpatory evidence of those witnesses is the subject of ground 2 of the appeal against conviction. 6. The jury retired at 10.36am on Wednesday 13 November 2013, and returned a guilty murder verdict some five hours later. Ground 1 – the directions to the jury 1. The first ground of appeal in the conviction appeal was that "[t]he directions to the jury reversed the onus and standard of proof". Some parts of the appellant's written and oral submissions extended beyond that ground. This occurred without any objection from the Crown, who responsibly took the view that it was appropriate to address the totality of the complaints about the directions to the jury on their merits. The written direction 1. The written direction occupied seven pages. It is reproduced in its entirety as an annexure to this judgment. The first page, accurately and, it might be said, conventionally, directed the jury that they would find that the crime of murder had been committed by the accused if they concluded that the Crown had established beyond reasonable doubt each of the following four elements: "(i) that the accused deliberately stabbed Billy Mack in the neck, causing his death; and (ii) that the stabbing was done with an intention to kill Billy Mack or to inflict grievous bodily harm upon him (grievous bodily harm means really serious physical injury); and (iii) that the stabbing was not carried out in self-defence; and (iv) that the accused was not acting under provocation." 1. The first page then identified the elements of manslaughter in a similar fashion. 2. Allowing for the inclusion of the defence of provocation which was left to the jury, the first page of the document substantially corresponds with the model written direction appended to this Court's decision in R v Jones (1995) 38 NSWLR 652 at 663 which Hunt CJ at CL considered would greatly assist the jury to follow the summing up. 3. The following six pages identified five issues and asked eight questions over 42 numbered paragraphs. They amount to what has been described as a "question trail". It was these pages to which the submissions on appeal were principally directed. 4. As originally formulated on page 1, the issues were framed in terms of whether the Crown had established a matter beyond reasonable doubt. However, the questions relating to the elements of murder posed on the following pages did not – save for two exceptions – refer to beyond reasonable doubt at all. This was the principal objection to the directions advanced by Mr Game SC, who appeared for the appellant, although not at trial. 5. For example, the first issue, whether the Crown had shown that the stabbing was deliberate, involved the following question and chain of steps: "10. Question 1 – Is there a reasonable possibility that the accused did not deliberately stab Billy Mack in the neck? 11. If the answer to this question is yes, then the accused is not guilty of murder and the question of manslaughter does not arise. The proper verdict is then not guilty of murder. 12. If the answer to this question is no, then you must consider question 2." 1. "Issue 2" was "did the accused have the relevant intention?" and involved the following chain: "13. Question 2 – Is there a reasonable possibility that the accused stabbed Billy Mack in the neck, neither intending to kill him, nor intending to cause him really serious physical injury? 14. If the answer to this question is yes, then the accused is not guilty of murder. You must then consider whether he is guilty of manslaughter. (Go to issue 5). 15. If the answer to this question is no, then you must consider issue 3." 1. That is to say, the existence of a reasonable possibility that the appellant did not deliberately stab the deceased in the neck was equated to a failure by the Crown to discharge its onus of establishing beyond reasonable doubt that the appellant deliberately stabbed the deceased in the neck. The existence of a reasonable possibility that the appellant did not intend to kill or inflict grievous bodily harm upon the deceased was likewise equated to a failure by the Crown to discharge its onus of establishing that intent beyond reasonable doubt. 2. The exceptional use of "beyond reasonable doubt" in a question in the written directions arose in relation to self-defence and provocation. The questions in relation to self-defence were framed as follows: "20. Question 4: Is there a reasonable possibility that stabbing Billy Mack's neck was a reasonable response to the circumstances as the accused perceived them? 21. If the answer to that question is yes, then the accused is not guilty of murder and the question of manslaughter does not arise. 22. If the answer to this question is no, because you conclude that the Crown has shown beyond reasonable doubt that the accused's response was excessive, then the accused is not guilty of murder, but guilty of manslaughter." 1. That formulation appears to proceed, once again, on the basis that the existence of a reasonable possibility is the converse of the Crown establishing beyond reasonable doubt. If that were not so, then a negative answer to "Question 4" would not be fully dealt with by the question trail. That is to say, paragraph 22 proceeds on the basis that a negative answer to "Question 4" equates to a conclusion that the Crown had shown beyond reasonable doubt that the accused's response was excessive. Similar reasoning demonstrates that the words "because you conclude that the Crown has shown beyond reasonable doubt that the accused's response was excessive" were redundant in the direction. 2. We will turn to the written directions concerning provocation when dealing with the appellant's submissions on that issue. The oral summing up 1. As noted above, the primary judge's oral summing up followed MFI 19. When dealing with "beyond reasonable doubt", her Honour said: "Repeated mention has been made of the Crown's obligation to prove that the accused is guilty, beyond reasonable doubt. This expression 'proof beyond reasonable doubt' is an ancient one, which does not need further explanation from the trial judges. The words are words of ordinary everyday usage. You should thus ask yourself, 'Is there a reasonable possibility that the accused is not guilty?' If you conclude on the evidence that there is such a possibility, then you will conclude that the Crown has not proven the charges which the accused faces." 1. Mr Game described this as a "serious misdirection". He did so for two main reasons. The first was that notwithstanding that the trial judge correctly stated that the expression "beyond reasonable doubt" should not be explained further, that was precisely what her Honour went on to do, in the very next two sentences, which once again equate beyond reasonable doubt to the absence of a reasonable possibility. 2. The second reason for his criticism was that the explanation by her Honour involved the jury reaching a conclusion that there was a "reasonable possibility" of innocence, which amounted, so it was said, to a reversal of onus. 3. The Crown observed, correctly, that the passage reproduced above resembled the model direction on standard of proof in the Bench Book prepared by the Judicial Commission. The Court was told that the present form of the passage in the Bench Book had remained unchanged since at least 2007. The passage (at [3-600]) is as follows: "Standard of proof The Crown must prove the accused's guilt beyond reasonable doubt. That is the high standard of proof that the Crown must achieve before you can convict the accused. At the end of your consideration of the evidence in the trial and the submissions made to you by the parties you must ask yourself whether the Crown has established the accused's guilt beyond reasonable doubt. In other words, you should ask yourself, 'Is there any reasonable possibility that the accused is not guilty?'" 1. The passage correctly refers, in a note, to "longstanding authority for the proposition that, except in certain limited circumstances, no attempt should be made to explain or embellish the meaning of the phrase 'beyond reasonable doubt'". 2. Mr Game's submission was as follows: "[W]e would say that Bench Book is wrong. And we would say it's actually also quite different to say once, shall we say, in passing. But then to turn it into an entire kind of template or to talk about it in the terms of exclusion of reasonable hypotheses consistent with innocence ..." 1. With great respect to the authors of the passage in the Bench Book, we have some difficulty reconciling the note (which correctly states the law that no attempt should be made to explain the expression) with the last sentence of the passage (which purports to explain the expression). However, that is not to say that a judge who summed up to the jury in terms taken from the Bench Book would necessarily be committing error, or even that the judge would probably be committing error. As Mr Game made clear in the passage reproduced above, the focus in this appeal is not so much equating proof beyond reasonable doubt to the existence of reasonable possibility of innocence, but the repetition of the latter terminology throughout a written direction designed to be the document against which the jury's deliberations were to be conducted. To be clear, nothing in these reasons should be taken to support the proposition that merely by reading from the passage in the Bench Book there will have been a misdirection of the jury. 2. Mr Game was also, very properly, at pains to point out that there were many occasions where her Honour correctly addressed on onus and standard. Moreover, that very often occurred immediately before or after (or both before and after) an erroneous explanation of "beyond reasonable doubt" was given or the need to identify a reasonable possibility of innocence was referred to. Mr Game accepted: "There is no doubt at all that at certain point[s] going through the summing up, you will find the directions correctly given. I am not trying to get away from that. You have to look at the whole thing and decide ..." 1. Later, he added: "[N]one of the submissions for or against the propositions I put should be taken in isolation. It has to be taken as given. There are things I am arguing about that if they just appeared on their own in a summing up, I probably wouldn't be arguing about it. You have to look at the whole thing to see what comes of it, good or bad." 1. There were some additional criticisms made by Mr Game. 2. First, although her Honour mostly used the language of "reasonable possibility", on some occasions her Honour referred to a "real possibility". For example, when dealing with the beginning of the question trail, her Honour said: "Turning then to issue one; was the stabbing deliberate? There is no issue that Billy Mack died or that the accused stabbing him in the neck caused his death. What is in issue is whether the stabbing was deliberate. If you conclude that there is a real possibility that the stab to Bill Mack's neck was an involuntary, unintended act of the accused, then it was not his deliberate act." 1. Another example was in relation to provocation. The primary judge instructed: "If you believe that there is a real possibility that the accused did lose his self-control as a result of provocation by the deceased ..." 1. Secondly, Mr Game emphasised that most of the questions required, in order for the jury to proceed on a path to read a not guilty verdict, a positive finding of the existence of a reasonable possibility, even in circumstances where there was no complexity in framing the issue. Her Honour said in summing up: "If, however, you[r] answer to question 2 'Is there a reasonable possibility that the accused stabbed Billy Mack in the neck neither intending to kill him nor intending to cause him really serious physical injury' is 'yes', then you must turn to consider issue 3 which is self-defence." 1. Mr Game said of this: "[Y]ou have to get through two negatives to be [found] not guilty here. The accused to get off has to establish that there is a reasonable possibility that '[he] neither intended to kill [him nor intended to cause him really serious physical injury]'. It's very simple to state that as a positive. 'The accused intended to do grievous bodily harm', it's said thousands of time, full stop. It's not complicated. It is, in a way, the persistence and insistence of these directions we ... rely on." 1. Thirdly, Mr Game said that the written direction should be regarded as having primacy over the oral address, even though her Honour clearly stated that the written directions were "a guide for your deliberations but are not intended to replace or alter anything I said to you in the summing up". Her Honour's summing up followed the structure and order of MFI 19. For example when proceeding to deal with manslaughter, her Honour said: "I must emphasise that the only way in which you can arrive at a verdict of not guilty of murder but guilty of manslaughter is by a process of reasoning which follows the written directions." 1. More fundamentally, Mr Game pointed to the fact that it was the written direction which the jury actually took into the jury room. 2. Fourthly, Mr Game added a discrete point in that respect, on the strength of Stanton v The Queen [2003] HCA 29; 77 ALJR 1151. Contrary to what was there held, the jury was told they were not permitted to consider manslaughter first. Mr Game came close to conceding that this point was not one that could stand alone ("I probably wouldn't be making it if that is all there was in this case"). 3. Fifthly, Mr Game levelled a series of submissions against the directions as to provocation (in the form s 23 of the Crimes Act 1900 (NSW) took prior to the commencement of the Crimes Amendment (Provocation) Act 2014 (NSW)). The written direction correctly identified at paragraph 24 that the Crown would exclude provocation if it established beyond reasonable doubt any one of three matters (essentially, that there was no loss of self-control, that the loss of self-control was not induced or caused by the deceased, or that a reasonable person would not have lost self-control). However, the questions posed in MFI 19 were as follows: "25. Question 5: Is there a reasonable possibility that the things Billy Mack did or said, or both, induced, that is caused, the accused to lose his self control? 26. If the answer to that question is yes, then you must consider question 6. 27. If the answer is no, then the accused is guilty of murder. 28. Question 6: Is there a reasonable possibility that Billy Mack's conduct could have caused an ordinary person in the position of the accused to have so far lost self control as to have formed an intent to kill, or inflict grievous bodily harm on him? 29. If the answer to this question is no, then the accused is guilty of murder. 30. If the answer is yes, the accused is not guilty of murder, but guilty of manslaughter." 1. Once again, it was submitted that there was an equation of beyond reasonable doubt with the existence of a reasonable possibility. It was also submitted that the onus of the Crown to exclude beyond reasonable doubt the elements of the defence of provocation was, in questions 5 and 6, translated to a requirement that the jury positively find the existence of a reasonable possibility in order to avoid a guilty verdict. This was said to amount to a shifting of onus. 2. The shifting of onus which was said to have occurred in the directions was, so it was submitted, confirmed by what the jury was told orally. Mr Game put the matter in oral submissions as follows (the page references are to the pages of transcript of the oral summing up, which addressed provocation on Wednesday morning, at pages 80-91): "Back to onus on [page] 83, 'To answer yes, you must find that there is [a possibility that Billy Mack's provocation] actually caused the accused [to lose his self-control and kill Billy Mack wile deprived of his self-control]'. To get a positive answer you have to make a finding of actual possibility, of actual cause, and that's wrong. Then we see, 'It is not enough [that the accused simply lost his temper but he must have lost his] self-control'. Further down, 'In determining whether there is the possibility ...'. I don't mean to be critical of the judge, but my impression is the judge actually thinks that these things are interchangeable and that's why the directions are so framed. Top of page 84, 'So you have to consider whether there is a reasonable possibility [that] the accused did lose his self-control ...'. It's the reverse. The Crown has to prove beyond reasonable doubt that the accused didn't lose his self-control. It's a result of a provocation." 1. There were other, subsidiary, submissions made in relation to the instructions to the jury. On the view we take it is unnecessary to take the appellant's criticisms of the directions to the jury any further. 2. The Crown advanced two submissions in response to the appellant's principal point. First, the Crown emphasised that the oral summing up "was replete with her Honour directing the jury that the Crown bore the onus and that that was an onus that needed to be satisfied beyond reasonable doubt". As noted above, it is true that the primary judge had almost invariably referred in conventional terms to the burden and onus either immediately before, or immediately after, or both before and after, each of the passages to which Mr Game took objection. Indeed, the fact that her Honour did so supported the appellant's submission that her Honour regarded the expressions as interchangeable. 3. The Crown's second submission, advanced by reference to the Bench Book and three decisions of this Court, was that "certainly there is passage of time and some appearance in authorities that indicates [references to a reasonable possibility] is not controversial ... times do move on and there has been some earlier consideration in the cases I have taken your Honours to that there is other terminology that can be used". In respect of the Bench Book, the Crown accepted that the passage on the standard of proof "is just a model direction". 4. The Crown relied on R v Ayoub [2004] NSWCCA 209, Kanaan v R [2006] NSWCCA 109 and Ward v R [2013] NSWCCA 46, drawing attention to the following passages. 5. In Ayoub at [4], Howie J said, with the agreement of Grove J, that: "There is nothing wrong with a submission to the jury that, if there is a reasonable or real possibility that the Crown case had not been made out, they should acquit the accused. That submission is merely a different formulation of the standard direction that the jury cannot convict the accused unless they are satisfied of the offence beyond reasonable doubt. If a real or reasonable possibility exists that, for whatever reason, the Crown's contention in support of the charge is not true, it follows that the jury cannot be satisfied beyond reasonable doubt that the Crown has made its case." 1. In Kanaan at [144]-[145], the joint judgment of Hunt AJA, Buddin and Hoeben JJ stated: "We would add that the direction sought … is not an easy concept for the jury to follow, and in our view it would be more likely to confuse rather than assist the jury. In our opinion, as stated earlier (at par [133] supra), a trial judge must at all times emphasise that the jury has to be satisfied beyond reasonable doubt by the Crown that it was the accused who committed the crime charged. Where an issue arises on the evidence as to whether some other person may have committed that crime, the judge should make it clear to the jury that they cannot be satisfied by the Crown beyond reasonable doubt that the crime was committed by the accused if there remains a reasonable possibility that the crime was committed by someone else. An appropriate direction would be that the Crown must remove or eliminate any such possibility, as well as satisfy the jury, on the evidence on which it relies, that beyond reasonable doubt the accused committed the offence. This Court recently stated that, when an alibi is raised, an appropriate direction to the jury would be that the Crown must establish beyond reasonable doubt that the accused was at the scene of the crime at the relevant time, that the Crown cannot do so if there is any reasonable possibility that he was somewhere else at that time as asserted by the alibi evidence, and that the Crown must therefore remove or eliminate any reasonable possibility that the accused was at that other place at the relevant time and also persuade the jury, on the evidence on which the Crown relies, that beyond reasonable doubt he was at the scene of the crime at that time: Regina v Kanaan at [134]–[135]. A similar direction is appropriate in cases where self-defence or provocation is raised, where the onus of proof remains on the Crown." 1. In Ward, McClellan CJ at CL (Latham and Adamson JJ concurring) rejected a ground of appeal based on misdirection to the jury where the following explanation was given: "Another way of doing it is to ask yourself, is there any reasonable possibility that when she drove at the deceased on the second occasion she did not intend to drive at him? If that reasonable possibility exists the Crown does not satisfy you that her version, in effect, in the record of interview could not possibly be true then the Crown has failed to prove beyond reasonable doubt that [sic] the charge of murder. It is the same way of looking at it. Am I satisfied beyond reasonable doubt, means the same thing as saying, has the Crown convinced me that the opposite could not possibly reasonably be true? The easiest way to think about it, as I say, is in relation to the accused's record of interview. The Crown must satisfy you to the charge of murder that account could not reasonably be true. She does not have the proving that it is, or could possibly be true [sic]. The Crown ... for the charge of murder has to make it clear to you that you would reject it as a possible account, as a possible scenario." 1. His Honour observed at [50]: "[C]ritical to a conclusion that a direction which is not confined as required by Green has caused a miscarriage of justice will be whether or not the direction which has been given had the effect of diminishing the standard of proof[:] FP v R [2012] NSWCCA 182 at [178]." 1. In response to the submissions based on Stanton, the Crown pointed to Hawi v R [2014] NSWCCA 83 at [452] and Blackwell v R [2011] NSWCCA 93; 81 NSWLR 119 at [86]-[94], to illustrate how a jury's deliberations could be regulated. On the view we take, it will not be necessary to resolve this point, which as has been noted was regarded by the appellant as relatively minor. However, it will be noted that paragraph 2 of MFI 19, which provided that "You must first consider whether the Crown has established beyond reasonable doubt that the accused murdered Billy Mack", was squarely contrary to what was said by the High Court of a materially identical direction in Stanton at [35]. Consideration of ground 1 1. We have concluded that the submissions made in connection with this ground have been made out, for the following reasons. 2. First, the task when addressing a complaint as to a jury direction is as stated by Porter J, with the agreement of Wood and Pearce JJ, in Lin v Tasmania [2015] TASCCA 13 at [108]: "[I]t is important for the Court to have regard to the overall impression which the whole summing up would have created in the minds of the jury: R v Ho (2002) 130 A Crim R 545 at [32]; R v Daniel (2010) 207 A Crim R 449 at [25]; R v Thomas [2015] SASCFC 55 at [79]. Small snippets from a summing up should not be wholly divorced from their context; questions of whether particular parts invalidate an otherwise proper summing up raise matters of fact, degree and general impression: R v Calides (1983) 34 SASR 355 at 357." The submissions of both counsel on appeal accorded with that approach. 1. We do not consider that the oral summing up, correctly emphasising the Crown's obligation to prove beyond reasonable doubt, displaced the force of the seven page written direction. It is not necessary to express a concluded view, but if the oral direction were considered alone, then we would very much doubt that the errors to which Mr Game pointed would have been sufficient to detract from the jurors performing their task in accordance with law. The weight of the address, considered as a whole, reiterated the obligation borne by the Crown to establish the elements of the offence beyond reasonable doubt. We would accept the Crown's submission to that effect. 2. But it was the seven pages of MFI 19 which were taken into the jury room. It is to be presumed that since they commanded the jury to approach their task in a particular way (for example "If the answer to this question is no, then you must consider question 2") the jurors paid close regard to the document at the very time that they reached their verdict. That is after all what the trial judge instructed the jury to do in terms. Moreover, and decisively, to our minds, is the common-sense consideration that it would be the written document in the jury room which would decisively frame the jurors' deliberations, as opposed to the jurors' recollections of a lengthy oral address. We would respectfully adopt what Simpson J said of the effect of a written direction in Justins v The Queen [2010] NSWCCA 242; 79 NSWLR 544 at [242]: "[I]t must also be remembered that a jury will have the written directions in the jury room long after the oral directions have concluded. It will be written directions to which the jury will have resort, perhaps repeatedly. And the force of the written word will be likely to override the recollection the jury has of the oral directions." 1. Written directions to juries are authorised by s 55B of the Jury Act 1977 (NSW) and are undoubtedly useful in clarifying the issues for the jury and assisting their understanding of the structure of a summing up and the issues of fact left for them to determine. There is much to be said for a summary of issues, especially if (as Hunt CJ at CL contemplated in Jones) it occupies a single page, so that the jurors can appreciate the structure of the issues for determination at a glance. 2. However, this was far from being a straightforward trial. There were a number of defences and partial defences open on the evidence. The strength of the Crown case lay in a great deal of circumstantial evidence, and the challenge made – not without force – to the testimonial evidence of members of the Hadchiti family. As will be seen when dealing with ground 2 below, the challenge to the reliability of their evidence was very powerful. Central to the jury's verdict were questions such as whether they were satisfied beyond reasonable doubt as to who had initiated, and how many people had participated in, the struggle between the deceased and the appellant. It was essential that the jury not evaluate the evidence piecemeal, but rather assess the various possibilities in light of the whole of the evidence: see R v Hillier [2007] HCA 13; 228 CLR 618 at [46]-[48] and the authorities there cited. Indeed, the critical questions of intention, self-defence and provocation were inter-related, and very much dependent upon the assessment by the jury of the facts. Considerations such as those might tend to suggest that this was a trial where a series of questions such as those in MFI 19 might not assist the jury in reaching their verdict. 3. There is a further point. In New Zealand, a jurisdiction where "question trails" of the nature of pages 2 to 7 of MFI 19 are more common, emphasis has been given to the importance of avoiding unnecessary length and complexity: Singh v The Queen [2014] NZCA 306 at [8], [27] and [30]. In Budrodeen v R [2014] NSWCCA 332 at [3] and [24] this Court emphasised the care that needs to accompany a question trail. We respectfully agree, and would add that it is important to bear in mind, especially if it be proposed to give a relatively lengthy written direction, an inevitable consequence of written directions as has been noted above. Where a direction to the jury is in part oral and in part written, then to the extent that the written document overlaps with the oral direction, the written document will tend to swamp the force of the oral direction in the jury room. It will do so because of (a) the power of the written word, (b) the fact that it is with the jury at the critical time, and (c) unlike the oral directions, it is apt to be read repeatedly. 4. Secondly, we do not consider that the correct and traditional formulation of issues on the first page displaces the effect of the remaining pages. The document is to be read as a whole. What was the jury to do? To apply the first page, and convict only if they were satisfied the Crown had established each of the four elements beyond reasonable doubt? Or to apply the following 39 paragraphs, largely framed by reference to mandatory questions in a particular order? 5. On a natural reading of the document as a whole, pages 2 to 7 of the document prescribed how the issues stated on page 1 were to be approached, and the order in which they were to be approached. It cannot be thought that the jurors would have approached their task in any other way. 6. The same considerations lead us to conclude that when the jury came to address provocation, they would have relied on the questions as formulated in paragraphs 25 to 30, rather than the summary at paragraph 24. 7. Thirdly, the natural force of the questions contained in pages 2 to 7 is to equate beyond reasonable doubt with the existence of a reasonable possibility. In this country, that is wrong. 8. Many countries which have inherited a common law system have departed from the traditional "beyond reasonable doubt" formulation of the criminal standard. The appellate decisions in footnote 83 of the joint judgment in Darkan v The Queen [2006] HCA 34; 227 CLR 373 record the extent to which this has occurred in England, New Zealand, Canada and the United States of America. Some Australian judges, writing extra-judicially, have suggested that some explanation of the traditional formulation be given: see (for example) B Martin, "Beyond reasonable doubt" (2010) 10 The Judicial Review 83 at 116 and G Eames, "Tackling the complexity of criminal trial directions: What role for appellate courts?" (2007) 29 Aust Bar Rev 161 at 179-183. The New South Wales Law Reform Commission was of the same view: NSWLRC Rep 136, Jury Directions (November 2012) pp 62-73. But the issue is a divisive one. The Queensland Law Reform Commission concluded in 2009 that there should be no significant change: Report 66, A Review of Jury Directions, Volume 2, para 17.46. The New South Wales Law Reform Commission proposed consideration of a range of alternative formulations, suggesting that each should be empirically tested, and not recommending any. 9. The varying opinions expressed by Law Reform Commissions and in professional literature may be put to one side, because the position for all Australian courts below the High Court is very clear. Explanation should not, save in unusual circumstances, be given of the expression "beyond reasonable doubt". It was not suggested that this case was an exception to the general rule (examples where an explanation should be given include when the defence propounds possibilities which are fanciful, and in some cases in response to a juror's question: see RWB v R; R v RWB [2010] NSWCCA 147; 202 A Crim R 209 at [49]-[50]; and s 63 of the Jury Directions Act 2015 (Vic)). 10. In Dawson v The Queen (1961) 106 CLR 1 at 18 Dixon CJ said: "[I]n my view it is a mistake to depart from the time-honoured formula. It is, I think, used by ordinary people and is understood well enough by the average man in the community. The attempts to substitute other expressions, of which there have been many examples not only here but in England, have never prospered. It is wise as well as proper to avoid such expressions." 1. In Green v The Queen (1971) 126 CLR 28 at 32, a unanimous High Court, after reproducing that passage, as well as passages to similar effect from judgments of Barton ACJ, Kitto J and Windeyer J, said: "Those quotations are but some of many admonitions to judges presiding over criminal trials to adhere to and not to attempt needless explanations of the classical statement of the nature of the onus of proof resting on the Crown. It is thus remarkable that in this instance the learned trial judge, undeterred by the failures of illustrious predecessors, has made a new endeavour to explain that which requires no explanation and to improve upon the traditional formula. So far from succeeding where they did not, he has, in our opinion, not only confused the jury but has misdirected them. In consequence there must be a new trial ..." 1. The position was confirmed (in obiter dicta) by all members of the High Court in Darkan at [69] and [131]. 2. The history of alternative formulations such as those employed by the primary judge was considered by Macrossan CJ in The Queen v Holman [1997] 1 Qd R 373, a case which bears some resemblance to this appeal. Mr Holman was convicted of attempted murder, and self-defence was left to the jury. As in the present appeal, the focus was on the summing up to the jury, which in part followed the conventional course, but which also repeatedly referred to the existence of a reasonable possibility. For example, the trial judge said "it is sufficient for the purpose of the accused if you think that there is a reasonable possibility that he stabbed Mr Page in self-defence". Macrossan CJ reproduced (at 376-377) a series of similar statements made during the course of the summing up. 3. Macrossan CJ then said at 378: "It seems that his Honour's references to 'reasonable possibility' may be traceable to observations made in the Court of Criminal Appeal in New South Wales." 1. After referring to two decisions of Hunt CJ at CL (R v Reeves (1992) 29 NSWLR 109 and R v Jones (1995) 38 NSWLR 652), the Chief Justice observed that Hunt CJ at CL was: "adverting to special considerations which he saw as arising in a certain category of case where the Crown had to exclude particular defences, eg alibi, provocation, self-defence, duress, and the like. Even there Hunt CJ at CL saw the need to keep the emphasis on the Crown's obligation to prove beyond reasonable doubt." 1. Macrossan CJ then stated at 378: "With all due respect to the judge in New South Wales and the phrase which he suggests as suitable for use (although admittedly only in a limited category including self defence cases), a danger will intrude when the word 'reasonable' is detached from the word 'doubt' and attached to 'possibility of innocence'. It is better as a continuing reminder of the underlying onus to leave 'reasonable' attached to 'doubt' where it enshrines the fundamental concept to be applied by the jury. The firm objective of the law in this area is to preserve a standardised expression of the onus. Different phrases may strike different chords in people's minds and provide encouragement to a jury to follow an inappropriate path. Accordingly, however much a particular judge may, in addition, wish to suggest to a jury that they give attention to this or that part of the evidence as important in the consideration of the case, he must be careful to ensure that there is firmly fixed in their minds the fundamental overriding onus summed up in the time honoured phrase. If the possibility of error is to be avoided even when dealing with 'defences' which the Crown is obliged to exclude, it is suggested that it would be wiser to direct the jury to ask themselves, 'Has the Crown to your satisfaction beyond reasonable doubt excluded the possibility that the accused acted in self defence?', rather than, 'Do we think there is a reasonable possibility that the accused acted in self defence?'." 1. It will be seen that, repeatedly, in the document taken into the jury room at the time of the jury's deliberations, the notion of reasonable doubt was equated to the existence of a reasonable possibility. That is contrary to the authorities referred to above. It contrasts with the question trail reproduced in part by RA Hulme J in FP v R [2012] NSWCCA 182; 224 A Crim R 82 at [127]. 2. Fourthly, we would firmly reject the Crown's qualified reliance on the formulation having been "for some considerable period of time in the Bench Book" and things having "moved on". Until the High Court or the Legislature determines otherwise, this Court must apply the High Court authorities referred to above: Garcia v National Australia Bank Ltd [1998] HCA 48; 194 CLR 395 at [17]; Phillips v The Queen [2006] HCA 4; 225 CLR 303 at [60]. 3. Fifthly, we do not consider that the Crown's reliance on the passages from Ayoub, Kanaan and Ward is a sufficient answer to the appellant's submissions when attention is focussed, as in our view it must be focussed, on the written directions in MFI 19. The way in which instructions to the jury posed in terms "Is there a reasonable possibility that ..." have been considered in those cases is as follows. 4. In Ayoub the appellant appealed his conviction for the offence of maliciously inflicting grievous bodily harm with intent upon the victim. The trial judge in the District Court interrupted defence counsel's closing address in which counsel asked the jury to consider whether it thought "there's a possibility that [Walsh] has done it or that any of the other persons have actually done the stabbing …". The judge interrupted and said that that was not a proper submission and it confused the question of reasonable doubt. 5. On appeal, Howie J observed that there was nothing wrong with the submission to the jury that if there was a reasonable or real possibility that the Crown case had not been made out they should acquit. His Honour said it was a different formulation of the standard direction that unless they were satisfied of the offence beyond reasonable doubt they must acquit. He said that if a real or reasonable possibility existed, such that (for whatever reason), the Crown's contention in support of the charge was not true, it followed that the jury could not be satisfied beyond reasonable doubt that the Crown had made out its case: at [4]. 6. His Honour also observed at [6]: "The only possible danger with putting the standard of proof in this way is that it might suggest that the accused has an onus of raising the possible scenario that is inconsistent with the Crown case. But I do not believe that a jury would have the slightest difficulty understanding that it is not for the accused to prove that such a possibility exists, especially where it is made clear that the accused has to prove nothing by way of defence to the charge …" (emphasis added). 1. On one view this latter observation may be said to operate to support the directions in MFI 19. However, on the other hand, it specifically cautioned as to a possible danger of putting the standard of proof in that way. As to whether such a "danger" existed would, as his Honour indicated, however, have to be considered in light of whether it was clear to the jury that the accused did not have to prove such a possibility exists. 2. In Kanaan the Court addressed cases where an issue arises on the evidence as to whether some other person may have committed the crime charged. The Court at [144] stated: "… the judge should make it clear to the jury that they cannot be satisfied by the Crown beyond reasonable doubt that the crime was committed by the accused if there remains a reasonable possibility that the crime was committed by someone else. An appropriate direction would be that the Crown must remove or eliminate any such possibility, as well as satisfy the jury, on the evidence on which it relies, that beyond reasonable doubt the accused committed the offence" (emphasis added). 1. Thus the relevant "reasonable possibility" was linked to the statement that it was for the Crown to remove or eliminate it. 2. In Ward the trial judge (Howie J) gave a comprehensive direction in relation to the standard of proof. In the course of doing so his Honour referred to the defence case which was, in effect, that the appellant did not intend to drive at the victim. It is important to observe that Howie J linked discussion of the existence of a "reasonable possibility" specifically to the Crown's onus of proof. His Honour stated: "Another way of doing it is to ask yourself, is there any reasonable possibility that when she drove at the deceased on the second occasion she did not intend to drive at him? If that reasonable possibility exists the Crown does not satisfy you that her version, in effect, in the record of interview could not possibly be true then the Crown has failed to prove beyond reasonable doubt that [sic] the charge of murder. It is the same way of looking at it. Am I satisfied beyond reasonable doubt, means the same thing as saying, has the Crown convinced me that the opposite could not possibly reasonably be true? The easiest way to think about it, as I say, is in relation to the accused's record of interview. The Crown must satisfy you to the charge of murder that account could not reasonably be true. She does not have the proving that it is, or could possibly be true [sic]. The Crown … for the charge of murder has to make it clear to you that you would reject it as a possible account, as a possible scenario. So that is how the onus of proof works" (extracted from the judgment of the Court of Criminal Appeal at [48], emphasis added). 1. The emphasised words are significant. 2. In assessing the significance of the written directions in MFI 19, it is necessary to consider the legal onus upon the Crown in the particular framework and evidence in this case. By way of example, in R v Youssef (1990) 50 A Crim R 1, the appellant was convicted of manslaughter after a motor vehicle that he was driving struck and killed a pedestrian. His defence was that as part of the collision he suffered an epileptic seizure causing automatism. The ground of appeal was that the judge was wrong in excluding sane automatism as being available to the appellant. 3. Hunt J observed that the Crown must remove any reasonable possibility that the act of the accused was accidental or that it was involuntary as a result of a state of automatism or as a result of duress. 4. His Honour observed that the Crown must bring evidence to meet every such "defence" which could possibly arise in relation to the offence charged. In every case, however, his Honour observed that the accused bears an evidentiary onus to point to or produce evidence (or material in an unsworn statement) from which it could be inferred that there is at least a reasonable possibility that, for example, the act of the accused was accidental, or that it was provoked or done in self-defence (at 3). 5. His Honour continued: "The authorities make it clear that such a reasonable possibility must be shown by admissible evidence. … [M]ost Australian authority, are … more in accordance with principle and logic, when they say that there must be evidence from which it could be inferred that there is the reasonable possibility that the act of the accused was of such a nature" (at 3, emphasis in original). 1. His Honour referred to The Queen v Howe (1958) 100 CLR 448 at 459 in which Dixon CJ said that the legal onus was placed upon the Crown to remove any reasonable doubt in relation to any issue "once a ground is disclosed by the evidence upon which a plea of self-defence may arise". 2. Returning to the facts underlying this appeal, the appellant's account to police was that in the initial stage of events he was attacked by the deceased which then led to a violent struggle between the two men. 3. The Crown had the legal onus to prove the elements of the offence of murder beyond reasonable doubt. The appellant had an evidentiary onus to point to or produce evidence from which there is at least a reasonable possibility that the act of stabbing by him was carried out by him in self-defence: R v Youssef (1990) 50 A Crim R 1 at 3. This he initially did by making a statement to police and later giving evidence at the trial. In these circumstances the onus fell upon the Crown to remove any reasonable doubt in relation to the "reasonable possibility" raised by the defence, ie, the ground of self-defence disclosed by the evidence: Howe at 459. 4. The accused in this case discharged the evidentiary onus as to a reasonable possibility of self-defence (and an attack by the deceased). In those circumstances the question at trial became whether the jury believed and accepted his account. 5. But the central point is that the "reasonable possibility" established by the evidence was one that the Crown had to eliminate or remove as part of its onus of proof. It was important that the directions in MFI 19 made that clear. 6. This was not a case where, in relation to the elements which the Crown had to negate beyond reasonable doubt, MFI 19 instructed the jury that the Crown must "remove or eliminate any reasonable possibility" (cf Kanaan at [145]) or that if any reasonable possibility remained, the jury must acquit (cf Ayoub at [4]). There is nothing wrong with such formulations. But to our minds there is a critical difference between what will necessarily result in an acquittal and what is sufficient to reach a guilty verdict. There is a critical difference between an instruction to the effect that the Crown must remove a reasonable possibility in order for a guilty verdict to be available and an instruction that turns on whether the jury has found there to be a reasonable possibility in order to avoid a guilty verdict. This is essentially the point made by Macrossan CJ in Holman and may be seen in the passages from Ayoub, Kanaan and Ward considered above. 7. Sixthly, a deal of the force in Mr Game's submissions, to our minds, was that there was no occasion for much of the elaboration in the "question trail". The first issue was whether the Crown had proved beyond reasonable doubt that the accused deliberately stabbed the deceased in the neck. The second issue was whether the Crown had proved beyond reasonable doubt that the accused intended to kill or cause grievous bodily harm to the deceased. Of course, as Hunt CJ at CL pointed out, there is a potential for confusion when the Crown must negative a defence to the criminal standard, for which reason it has long been accepted in this State that in relation to negative elements, it can be appropriate to ask whether the Crown has eliminated any reasonable possibility that the accused, say, acted in self-defence: see Jones at 659-660. But the written direction was not framed in those terms even in respect of the elements which the Crown had to negative. MFI 19 treated identically the positive and negative elements which the Crown had to prove beyond reasonable doubt. 8. We regard the departure from the conventional formulation to be material. One way of explaining why is as follows. If the answer to "Question 1" was affirmative, such that there was found to be a reasonable possibility that the appellant did not deliberately stab the deceased in the neck, then it is plain that the Crown case was not made out and a not guilty verdict should have been returned. But that is not the only way in which the Crown could fail on that issue. The Crown could fall short of establishing beyond reasonable doubt that the appellant deliberately stabbed the deceased in the neck, even if the jury were unable to conclude that there was a reasonable possibility that the appellant did not do so. We think that a jury would be unlikely readily to grasp the nuances here, between the reasonable possibility which is sufficient for an acquittal but the absence of which is not necessary for a guilty verdict. 9. We are strengthened in that conclusion by the direction relating to provocation. Although paragraph 24 of the written directions correctly identifies the legal issues, we conclude that the jury would have applied the questions in paragraphs 25 to 30 on the following page of MFI 19. As will be seen in more detail below, provocation was very much alive on the evidence: the deceased had a history of attacking women with knives, there was evidence that he had threatened Marian's estranged husband, and there were tears on Sonia's shirt as well as the DNA of the deceased. The defence case was that Sonia was attacked by the deceased, which caused the appellant to attack him with a knife in order to protect his mother. We consider that it is quite possible that the framing of questions 5 and 6 in terms of there being a reasonable possibility could have distracted the jury from their task of determining whether the Crown had negatived provocation beyond reasonable doubt. 10. In the particular facts of this trial, where there was great uncertainty as to exactly what occurred in the critical minutes after 9.07pm, we have concluded that the departures from what the High Court requires should not be regarded as immaterial. 11. Ground 1 as advanced in written and (especially) oral submissions essentially challenged the directions in MFI 19 as erroneous and contrary to law. For reasons given above, we have concluded that the challenge has been made good. Although the ground as drafted is that the directions reversed the onus and standard of proof, it has not been necessary to make an affirmative finding in that respect. The focus of Ground 1 in submissions was the question as to whether the directions in MFI 19 contravened well-established principles by which juries in criminal trials must be directed concerning the legal onus upon the Crown. The ground has, accordingly, been determined on the latter basis. 12. The trial judge gave more than ample notice to the parties of the form of the proposed written direction, and acceded, on two occasions, to relatively minor changes to it. No objection to the directions was taken by counsel appearing. The consequences are that her Honour did not receive the assistance to which she was entitled from the parties in this respect, and the appellant requires leave, pursuant to r 4 of the Criminal Appeal Rules, to advance on appeal a complaint about a written direction which was not taken at trial. 13. It is trite that "[t]he requirements of r 4 do not constitute some mere technicality which may simply be brushed aside": R v Germakian [2007] NSWCCA 373; 70 NSWLR 467 at [10]. Further, as the Court added at [13] (citations omitted): "Generally speaking, leave under r 4 will only be granted where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings ..." 1. For the reasons upon which we will elaborate below, when dealing with the proviso, we have concluded that the written direction goes to the root of the proceedings in the sense described in Germakian, such that there should be a grant of leave. We note that an appeal against conviction was allowed on the ground of a misdirection elaborating on reasonable doubt in Lin v Tasmania [2015] TASCCA 13, despite the fact that no exception was taken to the misdirection at trial: see at [136]. 2. Before considering the operation of the proviso, we turn to address the second ground of the appeal against conviction. Ground 2 – the unreliability warning 1. Ground 2 in the appeal against conviction was that the trial judge erred "in giving an unreliability warning in respect of the Hadchiti family because there were 'good reasons for not giving the direction'". 2. The primary judge gave a relatively lengthy warning against the reliability of the evidence of George, Sonia, Mehriz, Rabih and Mr Amin. (Her Honour did not mention the other son who was called to give evidence, John, but although her failure to do so was briefly criticised in oral submissions on appeal, it was not challenged that he was in a "granny flat" the entire evening; indeed he was not challenged by the Crown in any respect in his evidence.) 3. The warning was modelled on a standard accomplice warning. The Crown accepted on appeal that "[i]t may well be perceived that the Judge should have tempered the direction" and "[s]ome aspects of the warning [were] arguably not necessary" (written submissions, paragraph 55). The Crown concluded that "although not the subject of complaint at the time, the terms of the warning may well have extended beyond what was necessary or required in the circumstances of this case" (written submissions, paragraph 58). 4. The warning was not sought by a party. The trial judge proposed it, in the absence of the jury, as follows: "I take it, given the way in which the Crown has put its case, that one of the things that will need to be addressed in the summing up is directions in relation to witnesses who might have been criminally concerned in this matter." 1. The Crown said that was correct. There was no opposition or objection from the defence. 2. Section 165 of the Evidence Act relevantly provides: "165 Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: ... (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, ... (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so." 1. The warning to the jury was framed in mandatory terms ("it is necessary for me to give you particular warnings", "The law requires me to give you certain warnings"). That is not strictly correct. The obligation arises only upon a request being made, and is qualified by there being "good reasons for not doing so". However, that was not the complaint advanced by the appellant. 2. The appellant pointed to two matters. The first was that all of the witnesses the subject of the warning had been called by the Crown, had been the subject of s 38 applications, and had been cross-examined by the Crown. In the case of all save Sonia, the evidence was largely exculpatory of the appellant. It was said, in accordance with what was said in R v Baker [2001] NSWCCA 151 that, to the extent that their evidence tended to support the appellant, they should have been regarded as ordinary witnesses. Baker was a case where error was identified when an accomplice warning was given. Ipp AJA there said at [34]: "In my view, [h]is Honour should have explained that, to the extent that Young's evidence tended to support the evidence of the appellant, he should be regarded as an ordinary witness and his evidence should be treated on its merits without there being a need for a special warning." 1. The second was that in the case of Sonia, while part of her evidence inculpated the appellant and part was exculpatory, the direction did not distinguish between the evidence. Reliance was placed on R v Vu [2005] NSWCCA 266 where it was said at [36]: "In my view, there were good reasons for not giving the warning in question. Pham's evidence did not implicate the appellant in the crime charged. To the contrary, it tended to exculpate him. See R v Rose (2002) 55 NSWLR 701 at [294], [295], [297] and [343]. If a warning was given, it should have been limited to those parts of the evidence of the witness that inculpated the appellant. In this case, virtually the whole of her evidence was exculpatory of him." 1. No objection was taken at trial to the warning which was given. The position may be contrasted with Baker where objection was made immediately to the direction. 2. In the circumstances of this proposed ground of appeal, r 4 of the Criminal Appeal Rules has particular force. It is plain, for example, that Sonia's evidence was utterly inconsistent, including on critical matters (such as whether she heard the deceased say "Let me go you scumbags"). 3. Sonia gave evidence that after being called by the deceased shortly after 9pm: "A. He came in the driveway in my daughter's car. After he stopped I realised it was my daughter's car. He came in like very dangerously braked the car, came straight in and started saying and aggravation and that. Q. Stop there; what did he say when he came in? A. 'Where are they you fuckin' grunts' something along those lines. Q. He started swearing at you did he? A. Yes." 1. She said that the deceased grabbed her and pushed her to the ground, and she felt him kicking her. She said that he and the appellant got into a fight, and that no other member of the family was involved. 2. It was then put to Sonia that her evidence was "a total load of hogwash", because someone had hit the deceased over the head with the metal chair. Sonia was cross-examined vigorously by the Crown but maintained her evidence. 3. It is not necessary to summarise the evidence of George, Mehriz and Rabih Hadchiti and Mr Amin. Speaking generally, they denied part of what they had said on the evening to police, in ways that are difficult to explain as cases of faulty memories. For example, Rabih denied that his father had tried to separate the appellant and the deceased, contrary to his statement to police that evening. The inconsistencies were put to them. 4. It is perhaps unusual for so many Crown witnesses to be called, regarded as unfavourable, cross-examined twice, and then be the subject of a warning. However, at no stage was there any objection taken by the defence to that course. 5. There was good reason for counsel taking that course for it is perfectly plain even from the transcript of evidence of Sonia, George, Mehriz, Rabih and Mr Amin that their evidence was inconsistent. What is more, defence counsel's address to the jury well illustrates what was perceived at the time. 6. In his entire address to the jury, which on its face appears to have been cogent and squarely directed to the evidence, counsel for the accused did not mention that his client might be exonerated by the evidence of any of his family or by Mr Amin. He focussed first on the medical and forensic evidence, and pointed to the facts that the Crown's expert agreed that the deceased's throat could have been cut by his twisting his neck against a stationary knife, and that the injuries connected with the chair frame could have been incurred by the deceased falling onto the chair. He stressed the limited time for an opportunistic attack by more than one member of the Hadchiti family, and the unreliability of the evidence of TB and Marian. Finally, he emphasised the absence of any plausible motive, his client's good character, and the proven association of the deceased with knives and violence to women and drugs. 7. Indeed, to the extent that he referred to the witnesses the subject of the s 165 direction, his point was only that the prosecution had failed to produce any blood-stained clothing from any other family member, notwithstanding that the police were at the home and had secured the site within minutes of the death. Counsel did not rely on any of the testimonial evidence given by the members of the Hadchiti family. 8. In short, proposed ground 2 criticises a direction not objected to at the time which in effect mirrored the approach taken by counsel for the accused the previous day in his final address. We do not consider that leave should be granted to raise this ground of appeal. Even if the judge's ruling went too far, as the Crown's submissions came close to conceding, we are not persuaded that there was "such a departure from the essential requirements of the law that it goes to the root of the proceedings". The proviso 1. Section 6(1) of the Criminal Appeal Act 1912 (NSW) provides as follows: "The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred" (emphasis added). 1. The emphasised portion of s 6(1) is generally referred to as the "proviso", empowering this Court to dismiss an appeal, even in the face of error by the primary judge. 2. The Crown submitted in writing that, in respect of ground 1: "If, contrary to these submissions, the Court were to be satisfied of error, then dependent on the view taken of the asserted errors, the proviso may apply." 1. That was the entirety of the Crown's reliance on the proviso in its written submissions. That course is less than desirable. As was said in Mortada v R [2014] NSWCCA 36 at [156]: "It is important for the person convicted at such a trial, as well as for the efficient operation of the Court, and the avoidance of a needless retrial in the limited circumstances where the proviso operates, that the Crown provide detailed and substantial assistance in explaining why a guilty verdict was inevitable and how that conclusion can safely be reached, notwithstanding the natural limitations of appellate review." 1. The Crown's reliance on the proviso was expanded upon in oral address: "This was a case that your Honours were considering the evidence, where there was spectacularly compelling evidence in relation to material that supported the Crown's case. … [T]hey're very clear parts [of the evidence] showing this was a concerted attack upon the deceased that commenced from the moment he arrived." The Crown outlined a number of aspects of the evidence to support this submission. In response, Mr Game drew attention to a number of aspects of the evidence which he said "could raise a reasonable doubt". The law on the proviso 1. The history of the adoption of the proviso is set out in the High Court's judgment in Weiss v The Queen [2005] HCA 81; 224 CLR 300 at [12]-[30], by reference to equivalent Victorian legislation. The High Court there held at [35] that "in applying the proviso, the task is to decide whether a 'substantial miscarriage of justice has actually occurred'." More specifically, at [41]: "[t]he appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty" (citations omitted). 1. As Gageler J said in Baini v The Queen [2012] HCA 59; 246 CLR 469 at [51]-[52]: "… Weiss v The Queen overturned that understanding of the essential condition of the respondent persuading the court of criminal appeal that 'no substantial miscarriage of justice has actually occurred'. … As reformulated, the essential condition became that the court of criminal appeal itself be persuaded 'that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty'. … The reformulation in Weiss must, of course, be applied by courts of criminal appeal '[u]nless, and until, a majority of this Court qualifies what is said in [it]'" (citations omitted). 1. As the majority stated in Filippou v The Queen [2015] HCA 29; 89 ALJR 776 at [15]: "By 'substantial miscarriage of justice' what is meant is that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her or that there was some other departure from a trial according to law that warrants that description" (citations omitted). 1. There are two reasons why we would not apply the proviso in this matter. The first is by reason of a body of authority on the importance of a jury instruction about the standard and onus of proof. However strong the Crown case be, the appellant was entitled to a trial according to law. And however strong the Crown case, there are trials to which the proviso is incapable of applying. The second is that, having reviewed the evidence, we are not satisfied that the Crown case is as "spectacularly compelling" as was submitted. We deal with each reason in turn. Misdirection as to standard and onus of proof 1. As a majority of the High Court said in Handlen v The Queen [2011] HCA 51; 245 CLR 282 at [47] by reference to Weiss, "there is no single universally applicable description of what constitutes a 'substantial miscarriage of justice'" (emphasis in original). In Krakouer v The Queen [1998] HCA 43; 194 CLR 202 at [74]-[75], McHugh J gave an example of such an error. His Honour said: "Misdirections of law in a criminal trial can take many forms. Of few of them can it be said that, at all times and in all circumstances, they constitute a miscarriage of justice. Legal error must often give way to cogent evidence of guilt. But on such matters as the standard or onus of proof or the functions of the jury, the position is different. These matters go to the root of a criminal trial according to law. It is difficult to see how the weight of evidence can have any relevance as to whether or not a misdirection on such matters is a miscarriage of justice. That is not to say that a misdirection as to one of those matters is always a miscarriage of justice. The error may be so trivial that a Court of Criminal Appeal can properly conclude that there has been a trial according to law, notwithstanding the misdirection. But if a direction on the standard or onus of proof or the function of the jury is substantially wrong, I cannot presently conceive of a case where the weight of evidence against the accused could affect the conclusion that a miscarriage of justice has occurred. An accused person is entitled to a trial according to law. Where the law requires that an issue be tried by a jury, the accused does not have a trial in any meaningful sense where the jury is prevented by judicial direction from determining the issue. It is of no relevance in my opinion that a court of criminal appeal thinks that the evidence of guilt is overwhelming. An accused is entitled to be tried by the jury. That is the tribunal that is given the responsibility for determining the guilt of an accused person." 1. His Honour was the only member of the Court who declined to apply the proviso. On the other hand, his Honour's statement about the standard or onus of proof or the function of the jury being substantially wrong, although obiter, was not something denied by the joint judgment. Indeed, a deal of subsequent authority supports it. 2. At the level of the High Court, it has received the qualified support of French CJ, Gummow, Hayne and Crennan JJ in Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92 at [31]: "It may well be right to observe that the proviso could seldom be applied in a case where, as here, the jury were not sufficiently directed of the need to be satisfied to the requisite standard of an element of the offence being considered." 1. At the level of intermediate appellate courts, McHugh J's statement was quoted, with evident approval, by the Victorian Court of Appeal in R v AJS [2005] VSCA 288; 12 VR 563 at [31] and by Peek J, with whom Nicholson J agreed, in R v Kerin [2013] SASCFC 56; 116 SASR 316 at [328]. It was accepted as correct by Pullin JA in Green v State of Western Australia [No 2] [2014] WASCA 53; 240 A Crim R 73 at [77]. 2. Moreover, the passage was applied, in a misdirection case where the primary judge sought to explain the meaning of "beyond reasonable doubt" in Graham v R [2000] TASSC 153 by Cox CJ at [20], and by Underwood J at [69], with both of whom Evans J agreed. Most recently, it was applied by Porter J, with the agreement of Wood and Pearce JJ, in Lin v Tasmania [2015] TASCCA 13 at [142]. 3. We are not aware of judicial disapproval being expressed of the statement of McHugh J in Krakouer, or its citation and application in the four intermediate appellate courts referred to above. We are conscious that in McGrath v The Queen [2010] NSWCCA 48; 199 A Crim R 527, this Court applied the proviso in circumstances when it was said that the views of McHugh J would "require the convictions in the present case on counts 1 and 3 to be quashed" (at [27]). However, that was a case where the misdirection was as to the elements of those counts, rather than on standard or onus of proof generally. We are not persuaded that there is a compelling reason to depart from those authorities: R v XY [2013] NSWCCA 121; 84 NSWLR 363 at [30]. To the contrary, we think they are right in principle. 4. In this case, the natural effect of the written direction was to deny to the appellant the right for the jury to assess whether the Crown has established the four essential issues beyond reasonable doubt. Instead, we have concluded that the jury is to be taken to have asked itself a series of questions as to whether there was a reasonable possibility, which we consider to fall within the category of case described by McHugh J in Krakouer as being incapable of engaging the proviso. Denial of a chance of acquittal fairly open 1. Even if that be not the case, we are nonetheless satisfied that, in the language of the majority in Filippou, "the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him". 2. The Crown case was that the deceased was set upon by the appellant and other members of the Hadchiti family immediately upon his arrival at the residence. Particular reliance was placed upon the fact that Marian and TB gave evidence that the deceased shouted several times "Let me go you scumbags" (emphasising the plural "scumbags"), and the expert evidence of the nature of the deceased's wounds. The Crown case was that there was no provocation or self-defence. 3. We will deal with each aspect of the Crown's case in turn. First, as noted at the outset of these reasons, the expert evidence was powerful, but not conclusive. 4. Secondly, Marian's evidence was highly contradictory. At first, she said that both the deceased and she were on drugs on 30 October 2011, and "I didn't want my parents to see me high on drugs." She said that the deceased rang her mother, Sonia, as they approached the residence, and then: "Q. Do you remember what he said to your mother? A. I don't know, I didn't hear no conversation, he just bolted. He went crazy. Like everything went so quick. He did a U-turn quickly, just went, he didn't communicate with me at all, he just chucked us out of the car and didn't communicate at all with us. Me and [TB] were just stranded on the side of the road. Q. It wasn't that you requested Billy to let you out, both you and [TB]? A. Well he told us to get out. Q. Now when Billy went to the property what did you hear? A. I heard mum scream really loud like something terrible had happened and dogs barking and I grabbed [TB's] phone and-- Q. Just stopping there Marian; did you hear anything from Billy? A. Not that I recall." 1. At that stage, in the absence of the jury, the Crown applied under s 38 of the Evidence Act that she be regarded as an unfavourable witness, having regard to her prior statement to police and the evidence she had given at the committal, to the effect that she had heard the deceased say three or four times "Let me go you scumbags", her evidence to the neighbour that "I need to ring the police. They are going to kill him" and her evidence to a police constable when she returned to the property: "Oh no, oh my God, they've executed him". Counsel for the appellant conceded the application should succeed. 2. Marian's evidence in chief continued on the following day. She said that she heard the deceased scream out, "Get your hands off me you scumbags". She was taken to the statement she gave on the evening in question at Windsor Police Station, and portions of a recording of that interview were played to the jury, parts of which she confirmed and parts of which she maintained that she did not recall. Marian said that she had been stressed when giving evidence in court the previous day when she said that she could not remember the deceased screaming out the words "Let me go you scumbags". 3. Marian maintained that she was "high off my head" on drugs when she was interviewed by police. In relation to what she said when she arrived at her family's home after the deceased's death, she gave this evidence: "Q. You I suggest became hysterical and screamed: 'Oh no, oh my God they executed him'? A. No I did not say that. Q. Do you say you didn't say that? A. I didn't say that. I don't recall saying that. I was in shock. Q. Oh no, oh my God they executed him? A. I was in shock when they told me. Q. You were down at the [neighbours'] place and I suggest you said to them that they are going to kill him or kill Billy, correct? A. No I did not say that. What are you trying to say I am a liar?" 1. She said she could not remember running to the neighbours and calling the police. She denied telling the neighbours, "I need to ring the police. They are going to kill him". 2. In cross-examination, Marian initially maintained that she heard the deceased saying "Let me go you scumbags", saying that "I heard it because it is in my head, my mum and him doesn't go away in my head." Eventually she conceded she had a doubt about it, however in re-examination she said that she did hear the deceased scream out "Let me go you scumbags". 3. Thirdly, to the extent that the Crown case turned on the deceased saying "Let me go you scumbags", the evidence of TB was vital. As noted above, TB gave evidence by a DVD played to the jury. The DVD was not in the appeal papers, but a transcript of the evidence stated by her to be accurate was MFI 9 and we have relied on that for what follows. TB said that when the deceased entered into the property, "we heard him say, 'Let me go'" and she said "when I heard him say, 'Let me go', I could see a few people standing around". She then said she heard him say "Let me go you scumbags". 4. In his closing address to the jury, counsel for the accused said that: "Now [TB] is important to the prosecution case obviously because of what she says she can see and what she claims she can hear. The essence of what I want to say about [TB] is you would not accept anything of relevance that she has to say about this matter." Counsel for the accused then drew attention to several inconsistencies between TB's evidence and the evidence of other witnesses, including the undisputed evidence of police officers who attended the scene, particularly in relation to TB's recollection of what she saw occur inside the Hadchiti premises from her vantage point outside the fence of the yard and what she heard. 1. Doing the best we can, and without having seen the DVD of TB's evidence, we consider there is force in these submissions. We cannot conclude that her recollection of what she saw and heard would necessarily have been persuasive beyond reasonable doubt. 2. Fourthly, the deceased's antecedents, which have been summarised above, go some way to corroborating the appellant's defences of self-defence and provocation. The defence addressed on this, concisely but effectively: "So there you have four examples of Billy Mack and a knife, seen by the police throwing one behind a tree, threatening [a woman] and saying he was going to cut her throat; the incident at Blacktown Methadone Clinic and the incident in the High Street, Penrith. Would Billy Mack have been carrying a knife? Is he capable of swinging the knife at Michael Hadchiti? Well the submission in a nutshell, members of the jury, is that is exactly the sort of thing that Billy Mack did and you would have little doubt in finding as a fact that, firstly, he came in possession of a knife; secondly, he assaulted Sonia Hadchiti; and thirdly he swung the knife at Michael Hadchiti in the manner described." 1. Fifthly, the evidence of the appellant contradicted the Crown's case. The appellant was interviewed by police on the evening following the events in question, and a DVD of the interview was played to the jury. In a further electronically recorded statement to the police on 3 November 2011, he said that the deceased "attacked my mum, mate, and when I said let go of her, he pulled a knife on me mate". He said that he was eating an apple at the time and was using a knife to cut it. 2. When giving evidence at trial, the appellant admitted that he had inflicted the wound to the deceased's neck, but denied intending to cut the deceased's throat, or intending to kill him or to cause him serious bodily injury. His case was that the deceased arrived armed with a knife and affected by drugs and assaulted Sonia, knocking her to the ground and kicking her, and then attacked the appellant with the knife when the appellant went to his mother's assistance. He said that he had never seen or met the deceased before. He said he was stabbed in the left wrist by the deceased when he had put his hands up to protect his face from an attack by the deceased. He said that the two men struggled for the control of the Columbia knife, and that "I was pushing down and my hand was holding the knife too and it has gone straight down to Billy's neck." 3. He was cross-examined about the inconsistencies of his account with the injuries suffered by the deceased, including two lacerations on the back of the deceased's head, one of which fractured his skull, the other of which caused an open wound in the back of the skull, and the square injury to the deceased's back of dimensions which corresponded with the chair. He maintained that this happened when the deceased fell against the chair. The appellant denied that there was anyone else in the front yard of his house assisting him. He denied cutting the deceased's throat from behind, contrary to the evidence that that was probably the way in which the deceased's throat had been cut. 4. In light of these, and other, inconsistencies in the evidence, even making "due allowance" for the "natural limitations" of the case on the record, we are unable to determine whether the accused was proved beyond reasonable doubt to be guilty of murder, especially in light of the defence of provocation. In light of the foregoing, even putting Krakouer to one side, we are not satisfied that this is a case in which the proviso should be applied. Orders 1. For those reasons, there should be a grant of leave, confined to ground 1. The appeal should be allowed, the appellant's conviction set aside, and a new trial ordered. This is plainly a case where the power to order a new trial is available and should be exercised: see ST v R [2010] NSWCCA 5. 2. It is not necessary to address the application for leave to appeal against sentence, save for one matter, which we mention against the possibility that her Honour's remarks on sentence need to be considered in the future, and because they are publicly available. Her Honour said at [107] of the remarks on sentence: "Objectively, this was a most serious offence. In sentencing the offender it cannot be overlooked that he still actively persists in sheltering those involved with him from the consequences of their part in this terrible crime. It follows that his moral culpability for his awful offence is also high." 1. On a natural reading of that passage in its context, her Honour was using the fact that the appellant presented a case and maintained a case that he acted alone, which was rejected by the jury, to increase the finding of moral culpability. The Crown in our view properly conceded that, when so read, this was erroneous. As was said in Siganto v The Queen [1998] HCA 74; 194 CLR 656 at [22]: "A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed." 1. The formal orders will therefore be as follows: 1. Grant leave to appeal against conviction, confined to ground 1 of the notice of application for leave to appeal filed 28 May 2015. 2. Appeal against conviction allowed. 3. Quash the appellant's conviction for murder on the charge contained in the indictment against him dated 28 October 2013. 4. Order that the matter be remitted to the Supreme Court for retrial. ********** annexure: MFI 19 (115 KB, pdf) Amendments 28 August 2017 - [9] - 5th line, "We" changed to "I" and "They were" changed to "They are". [64] - [sic] added after "beyond reasonable doubt that". [70] - "the" inserted before "jury room". [73] - [70] replaced with [30]. [104] - Spelling of Youssef corrected. [118] - Spelling of Rabih corrected. [133] - Spelling of Rabih corrected. [142] - "determined" replaced with "returned". [157] - "they're" changed to "They are". [159] - change to punctuation in quote. [162] - Comma deleted. [165] - "threating" replaced with "threatening". 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: 28 August 2017