- Jury directions and an alleged reversal of the onus of proof – Decision restricted  NSWCCA 63
Updated 7 July 2016
Jury directions and an alleged reversal of the onus of proof
Decision restricted  NSWCCA 63 – 27 April 2016 Court of Criminal Appeal – Leeming JA, Hall, Bellew JJ
Facts: The accused was found guilty of murder and appealed that conviction. During the course of summing up, the trial judge provided both oral directions and also written directions. Objection was taken on appeal to both forms of direction. While it was submitted that some of the oral directions allegedly reversed the onus of proof, it was also conceded on appeal that when those statements were made, almost immediately thereafter they were followed by a correct statement of the onus of proof. The Court found that had the oral directions been considered alone then it was very much doubted that any identified error could be said to be sufficient to distract the jury from its proper task. However, the same could not be said about the written directions.
The complaint about the written directions which were in the form of a question trail was that the questions did not appropriately set out the onus that the Crown was required to discharge. Some examples were given in the judgment. For example:
- Question 1 – is there a reasonable possibility that the accused did not deliberately stab BM in the neck.
- 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.
- If the answer to this question is no, then you must consider question 2.
Question 2 was addressed in this way:
- Question 2 – is there a reasonable possibility that the accused stabbed BM in the neck, neither intending to kill him, or intending to cause him really serious bodily injury?
- If the answer to this question is yes, then the accused is not guilty of murder. You must consider whether he is guilty of manslaughter.
- If the answer to the question is no, then you go on to consider issue 3.
In each case, the existence of a reasonable possibility that the appellant did not deliberately stab the deceased was equated to a failure by the Crown to discharge its onus to prove its case beyond reasonable doubt. This formulation was alleged to be a serious error as it amounted to a reversal of the onus of proof. It was alleged that it amounted to a direction to the jury that they needed to reach a positive conclusion that there was a reasonable possibility of innocence rather than directing the jury that it was up to the Crown to prove its case beyond reasonable doubt.
The Crown submitted in part, that the direction was in conformity with the Bench Book which contained examples of model directions. The direction contained in the Bench Book was 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.
It was submitted by the appellant that the Bench Book direction is wrong.
The Court noted that there is longstanding authority to the effect that no court should attempt to explain the meaning of beyond reasonable doubt: see for example Green v The Queen (1971) 126 CLR 28; 46 ALJR 545;  HCA 55 at p 32. Yet it appears that the authors of the Bench Book might have fallen into error in attempting to define that term.
Further, it was submitted that the written direction must be regarded as taking primacy with the jury as it was that document that was taken by the jury into the jury room during their deliberations.
Held: The Court held that the central point in the argument made by the appellant was that the reasonable possibility established by the evidence was a possibility that the Crown had to eliminate or remove before the accused could be found guilty. It was important that the written directions made that clear. In order to explain their judgment the Court said:
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 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 be 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 the 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.
Ultimately, the Court did not find it necessary to find that the direction provided in the question trail reversed the onus of proof. However, the Court was satisfied that the direction was erroneous and contrary to law. The appeal was therefore upheld and a new trial ordered.
Comment: This case provides an example of the care required to be taken by the trial court and the parties (who are often required by the court to approve the written directions) when written directions are provided to a jury. It will be no defence to a successful appeal that the direction complies with a model direction set out in the Bench Book. The Bench Book is merely a guide and should not be relied on as definitive. Further, it is worth noting that even when correct oral directions are provided to the jury, an erroneous written direction will likely be held to be of more significance because the jury are able to take those directions with them into the jury room when they are asked to consider their verdict.
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