9. Elements of the offence and defences

Updates and background for this project (Digest)

• How can directions on substantive law be made more comprehensible?
• Recklessness
• Defences
• Other areas of substantive law
• Complex or obscure terminology
• Preliminary directions on the issues to be determined

9.1 In addition to the key components of a judge’s summing-up and the various judicial directions and comments outlined in previous chapters, the judge must instruct the jury on the elements of the offence and any defences that apply in a particular trial.

9.2 There is no doubt that some of these directions, as required by the appellate courts, contained in the Bench Book or set out in statute, will involve many fine legal points that are confusing to jurors and often give rise to appeal points. Relevant questions are, therefore:

• do the current directions on elements of the offence and any defences provide sufficiently clear guidance to a jury;
• does the complexity of some directions give rise to unnecessary appeal points;
• in so far as they generate appeal points, are the fine distinctions that appellate courts often draw actually capable of being applied by jurors, or are they even relevant to their decision; and
• assuming that issues concerning elements of the offence and any defences must be raised, is there any way of explaining them so that jurors can readily understand and apply them?

HOW CAN DIRECTIONS ON SUBSTANTIVE LAW BE MADE MORE COMPREHENSIBLE?

9.4 There are a number of ways of implementing improvements to the comprehensibility and accuracy of instructions on the substantive law, including by

• appellate decisions;
• amending the instructions in the Bench Book;
• amending the relevant statutory provisions; and
• altering trial procedure.

9.5 There are some notoriously complex areas of the criminal law which would benefit from legislative clarification or resolution by appellate courts. A recent example of legislative reform of an extremely complex area of law can be found in the UK with the enactment of the Fraud Act 2006 (UK). This legislative reform followed a review by the Law Commission and a subsequent proposal by the Home Office to repeal the eight statutory deception offences in the Theft Act 1968 (UK) and the common law offence of conspiracy to defraud, and replace them with a general offence of fraud.¹ It was considered that the highly specific nature of the old offences and the failure to define “fraud” made fraud cases “extremely difficult” for juries.² The provisions were intended to benefit juries by making the law of fraud easier to understand.³

RECKLESSNESS

9.6 To act with recklessness at criminal law is to act with a foresight that one’s actions may cause harm.⁴

9.7 The concept of recklessness now has a wider role to play in NSW since amendments to the Crimes Act 1900 (NSW) removed the term “maliciously” from the formulation of certain offences and, in some cases, substituted the terms “recklessly” or “intentionally” or “with intent” for the term “malice”.⁵ The concept of recklessness also has a significant role in the Commonwealth Criminal Code, but that Code expressly includes an objective element as to whether the substantial risk taken was unjustifiable.⁶

9.8 Recklessness presents a number of problems. One is that, depending on the context, it can encompass several different mental states.⁷

9.9 The High Court has observed that although “reckless” may be seen as an “ordinary term and one the meaning of which is not necessarily controlled by particular legal doctrines”, in ordinary use it may “indicate conduct which is negligent or careless, as well as that which is rash or incautious”. The difference in these possible meanings makes it “inappropriate” for a trial judge to do more than “invite the application of an ordinary understanding” of the word,⁸ even though its use in ordinary speech, and when made a specific element of an offence pursuant to statute, may differ. This presents a possible difficulty for jurors.

9.10 Another problem arises in relation to the subjective test for recklessness. In general, there are two limbs to recklessness in the criminal law: a subjective limb and an objective limb. The subjective limb is that the accused must be aware that his or her conduct may give rise to harm and the objective limb is that it must be unreasonable or unjustifiable for the accused to take the risk that harm will result.⁹ A variation has been introduced in those sexual assault cases where proof depends upon the absence of consent. In such cases, an accused, instead of foreseeing the possibility of absence of consent and going ahead anyway, may be guilty simply by failing to consider the issue of consent at all and going ahead regardless.¹⁰

9.11 One commentator has suggested that there are theoretical and practical difficulties in defining “the subjective state of mind that adequately described recklessness” and has noted:

It must be questioned whether juries are able to fully appreciate the distinction between subjective and objective fault and the requisite state of mind to establish recklessness.¹¹

The element of recklessness is made out if you are satisfied beyond reasonable doubt that the injury [or damage] was caused recklessly by the accused. An injury [or damage] is caused recklessly if the accused realised that some physical harm [or damage] may possibly be inflicted upon the victim [or caused to the property] by [his/her] actions yet [he/she] went ahead and acted as [he/she] did. It is not necessary that the accused realise the degree of harm [or damage] that was in fact caused provided that [he/she] realised that some harm [or damage] of that type would possibly occur. The accused cannot be found to have acted recklessly unless the Crown proves that the accused actually thought about the consequences of [his/her] act and at least realised the possibility of some harm [or damage] of that type occurring.¹²


ISSUE 9.1

(1) Is recklessness, as currently formulated, adequately explained to juries? If not, what should be done to remedy the problem?

(2) Are there problems with recklessness in relation to specific offences? If so, how can these problems be resolved?

9.13 In most cases that are tried, the jury will have to determine whether a defence to a charge is made out. A defence is commonly understood to be the accused’s answer to a charge, or his or her excuse or justification for the offence with which he or she is charged. Examples include claims such as “it wasn’t me”, “it didn’t happen”, “I had to, or he would have killed me”, “I was provoked” or “God told me to do it”. Only a few of these claims are legally classified as “defences”. While there remains some uncertainty as to what a defence at law really is, one view is that a defence is part of the definition of an offence, functioning “as a further set of rules governing the attribution of criminal responsibility”.¹³ The prosecution has to prove both the defining elements of the offence, and, where a defence is raised in the evidence, the absence of that defence.¹⁴

9.14 Although they may be raised in comparatively few cases,¹⁵ a number of defences available in criminal trials present serious challenges to trial judges in directing the jury. Many of these defences are particularly complex, turning on subtle distinctions that can be extremely difficult for jurors to comprehend, much less apply. Some defences are based on common law, while others have been codified in legislation. Some defences apply generally, while others apply only to specific offences. Some defences, like self-defence, are completely exculpatory;¹⁶ others, such as provocation and substantial impairment, are a partial defence that, if established, will reduce a charge of murder to manslaughter.

9.15 In the context of jury directions on “defences”, there are two areas in particular which cause difficulty for trial judges. The first is ensuring that the jury is clear on the onus of proof and that any directions as to the elements of the “defence” are provided in such a way as to avoid any inference of a reversal of that onus. The second area that causes difficulty is instructing juries on the reasonable person test with its complex objective and subjective elements. Before looking at these two issues, we examine briefly the law pertaining to some of the major criminal “defences” and describe some of the complex legal concepts that arise.

Self-defence

9.16 The law has long recognised that a person does not commit an offence if he or she does an act constituting the offence in legitimate self-defence. Common law principles of self-defence applied in NSW¹⁷ until the new Part 11 was introduced into the Crimes Act 1900 (NSW) in 2002 to simplify and codify the law of self-defence.¹⁸

9.17 Explaining the law of self-defence to jurors was virtually an impossible task in the days of Viro v The Queen,¹⁹ and has arguably been made only slightly easier since the High Court reformulated the test in Zecevic,²⁰ or, in NSW, since the enactment of the Crimes Amendment (Self-Defence) Act 2001 (NSW).²¹

9.18 The new test, as set out in s 418 of the Crimes Act 1900 (NSW),²² states that a person is not criminally responsible for an offence “if and only if”:

• the person believes the conduct was “necessary” to defend himself or herself, others, property, or to prevent criminal trespass;²³ and
• “the conduct is a reasonable response in the circumstances as he or she perceives them to be.”²⁴

9.20 Under s 418, the test of self-defence is based on what the accused actually believed at the time of the offence, not on reasonable beliefs or perceptions. Parliament’s intention in formulating this new test was made clear by the Attorney General in his Second Reading Speech. Referring to the fact that the Bill was drawn substantially from the Model Criminal Code, the Attorney stated:

that model removes the objective element of the test as to what the defendant perceived the danger to be. That represents the common law before the case of Zecevic v DPP (Vic) (1987) 162 CLR 645. It means that a person who really thought he was in danger, even if he was mistaken about that perception, may be able to rely on self-defence for his actions.

The person’s actions on the basis of his belief still has to be reasonable, but the belief itself is totally based on the circumstances as the person perceived them to be.²⁸

9.21 When assessing the genuineness of the accused’s belief, the jury must consider not only what the accused says was his or her perception of the seriousness of the attack and its immanency, but also all other relevant circumstances. These may include such things as evidence of explicit acts and threats by the aggressor, the personal characteristics of the aggressor such as age, size and strength, and any relevant knowledge the accused had about the aggressor from previous experience or incidents. A battered woman, for instance, may have a real sense of an impending attack from the aggressor if there have been prior incidents of violence in the relationship.

9.22 The jury must also consider any extraordinary attribute of the accused which bears on his or her perceptions of the circumstances and which had a bearing on any belief he or she may have formed, including for example, if the accused was intoxicated and his or her mental state at the time of the conduct. The purpose of the inquiry is to determine whether the accused actually believed the conduct was necessary rather than whether any such belief was based on reasonable grounds.³⁰

9.23 Furthermore, these inquiries are to be conducted from the accused’s point of view at the time, not with the benefit of hindsight. As the majority judges said in Zecevic, the circumstances at the time of the offence may have afforded little, if any opportunity for calm deliberation and detached reflection on the accused’s part.³¹

9.24 Section 418 (2) of the Crimes Act involves an objective assessment of the reasonableness of the accused’s response, but given the circumstances “as he or she perceives them”.³² The objective assessment of the proportionality of the accused’s response is thus tempered by the subjective qualification “as he or she perceives” the circumstances. When making this assessment, the jury must take into account those personal characteristics of the accused which may affect his or her perceptions of the circumstances at the time, such as age, intelligence, mental state and physical incapacity. The accused’s intoxicated state is also relevant when assessing the accused’s perception of the circumstances, but it is not relevant to the issue of whether the accused’s response was reasonable.³³ Here, the jury must be directed to consider what “would have been a reasonable response by a sober person in the circumstances as [the accused] drunkenly perceived them”.³⁴

9.25 The Bench Book provides detailed model directions on self-defence:

Although “self-defence” is referred to as a defence, it is for the Crown to eliminate it as an issue by proving beyond reasonable doubt that [the accused’s] … [specify act, for example, stabbing] was not done by [the accused] in self-defence. It may do this by proving beyond reasonable doubt one or the other of two things, namely —

1. That [the accused] did not believe at the time of the [specify act, for example, stabbing] that it was necessary to do what [he/she] did in order to defend [himself/herself]; or

2. If it is reasonably possible that [he/she] did have such a belief, that nevertheless the [specify conduct, eg stabbing] of [the accused] was not a reasonable response in the circumstances as [he/she] perceived them.

If the Crown fails to prove either one or the other of these matters then the appropriate verdict is one of “not guilty”.³⁵


ISSUE 9.2

Are the Bench Book directions on self-defence adequate and/or appropriate?

9.26 A “defence” of provocation will, if successful, entitle the defendant to be convicted of manslaughter for an offence that would otherwise constitute murder.³⁶ This is because public policy dictates that someone who is provoked to kill in “the heat of passion” is less blameworthy than the person who meticulously plans the murder. A conviction for murder would generally attract a greater penalty than a conviction for manslaughter. However, the range of sentencing options for manslaughter is now so wide that they can and do sometimes overlap with murder.³⁷ In NSW, the penalty for manslaughter is imprisonment of up to 25 years.

9.27 Provocation is therefore only an issue for the jury’s determination after the jury has determined beyond a reasonable doubt that the accused is guilty of murder. It is not a relevant consideration at all if the jury is satisfied beyond a reasonable doubt that the accused did not intend to kill or cause grievous bodily harm to the victim.

9.28 The trial judge is required to leave the defence of provocation to the jury where sufficient evidence has been raised, generally by the accused.³⁸ In making this determination, the trial judge must consider the version of events most favourable to the accused.³⁹

9.29 Section 23 of the Crimes Act 1900 (NSW) provides that an act is done or omitted under provocation where:

(1) the defendant had a loss of self-control, that was induced by the conduct of the deceased (including insulting words or gestures) towards or affecting the accused; and

(2) the conduct of the deceased was such as could have induced an ordinary person in the position of the defendant to have so far lost self-control as to form an intention to kill, or inflict grievous bodily harm upon the deceased.⁴⁰

9.30 The provocative conduct of the deceased must have caused the defendant to lose self-control. Section 23(2)(a) provides that the provocation may include (although is not exclusive to) grossly insulting words or gestures towards or affecting the defendant. However, words are not strictly limited to insults; words spoken, which are violent, or extortionary may also qualify as provocative conduct.⁴¹ Conversely, mere words of abuse would not normally qualify as provocative conduct.

9.31 Additionally, provocation requires that the loss of self-control be sudden and temporary, stemming from emotions such as fear, panic, anger or resentment.⁴²

9.32 Although it is essential that the defendant lost self-control (induced by the deceased’s provocative conduct) at the time of the killing, the act causing death need not immediately follow upon that provocative conduct.⁴³ It is possible for the provocative conduct to cumulate over a period of time, after which a triggering event causes the defendant to lose self-control.⁴⁴ This leaves the door to provocation open to battered women who kill their abusive husbands.

9.33 Provocation must have been received within the sight or hearing of the defendant.⁴⁵ So, words or conduct not otherwise spoken to, or done, in the presence of the defendant cannot amount to provocation.

9.34 Although the new formulation of s 23(2)(a) does not make express mention of it (unlike the previous provision), it is likely that provocation cannot be sustained where it was self-induced. ⁴⁶

The test of provocation

9.35 Two questions are left to the jury on provocation: the first is whether the accused was actually provoked to do the killing and the second is whether a reasonable person in the position of the accused could have responded to the provocation in the same way as the accused.

9.36 The first is a subjective question, namely whether, on the facts, the accused genuinely had a loss of self-control caused by the deceased’s alleged provocative conduct. Essentially, the jury must assess how grave were the allegedly provocative words or conduct, from the accused’s perspective. Therefore, everything about the accused is likely to be relevant in answering this question, including his or her age, sex, maturity, physical features, ethnic background, personal attributes, personal relationships including his or her relationship with the victim, his or her past history (such as whether the accused had been a victim of a previous sexual assault) and even mental instability or weakness.⁴⁷

9.37 The jury must put the provocative conduct into context, before moving on to answer the second question, namely, whether an ordinary person in the same position as the accused could have responded to the provocative conduct (as assessed in the first part) in the same way as the accused. The terminology used in the Act speaks in terms of possibilities, not probabilities or likelihood.⁴⁸ The question is not whether it was likely or probable that an ordinary person would react in the same way as the accused, but whether it was possible that an ordinary person would have so acted. The word “could” is not interchangeable with “would” or “might”. To do so is likely to result in a successful appeal on the ground that the jury was misdirected on the law.⁴⁹

9.38 The underlying rationale for appealing to the ordinary person is to ensure there is no fluctuating standard of self-control against which defendants are measured.⁵⁰ In Stingel v The Queen,⁵¹ the High Court defined the ordinary person as one with the minimum powers of self-control within the limits of what is ordinary for a person of the same age and maturity as the defendant.

9.39 Ethnicity,⁵² gender,⁵³ intoxication⁵⁴ and sensitivity to sexual interference⁵⁵ are not relevant when considering whether an ordinary person could have done as the accused did, when affronted by the provocative words or conduct. This second objective element exists so that an accused who is easily prone to anger does not benefit from having “a ridiculously short fuse”.⁵⁶

9.40 Peculiarly, the NT Court of Criminal Appeal is prepared to inject Aboriginality and other characteristics of an Indigenous defendant into the objective test. In the case of Mungatopi v R,⁵⁷ where the defendant was Indigenous, the ordinary person was redefined as “an ordinary Aboriginal person living today in the environment and culture of a fairly remote Aboriginal settlement”.

9.41 One appeal judge has commented that:

Trial judges are required to direct the jury to distinguish between those characteristics that affect the gravity of the provocation offered, and those that affect the power of self-control.⁵⁸

9.42 In Heron, Justice Kirby also observed the difficulties in explaining the law of provocation to juries:

The law of provocation has been considered by this Court on a number of occasions in recent years. One of the reasons for the cases has been the obscurity, and internal ambivalence, of statutory expressions of the competing considerations of an objective and subjective kind involved in the law of provocation. The language of s 23 of the Crimes Act 1900 (NSW), in issue in this case, is a good illustration. The section, as it has been amended and as it stood at the relevant time, presents difficulties for a judge in explaining its requirements to a jury, in simple terms so that they may be applied to the facts of the particular case.⁶²

An “ordinary person” is simply one who has the minimum powers of self control expected of an ordinary citizen who is sober and of the same age and consequent level of maturity as the accused.

When one speaks of the effect of provocation on an ordinary person in the position of the accused, that phrase means an ordinary person who has been provoked to the same degree of severity and for the same reason as the accused.

In the present case, this translates to a person with the minimum powers of self control of an ordinary person, as described earlier, who is subjected … [for example, to a sexual advance by the victim which is aggravated because of the accused’s special sensitivity to a history of violence and sexual assault within the family]. [None of the attributes or characteristics of a particular accused will be necessarily irrelevant to an assessment of the content and extent of the provocation involved in the relevant conduct].

This question requires you to take full account of the sting of the provocation actually experienced by the accused, but eliminates from your consideration an extraordinary response (if such there be) by the accused to the provocation actually experienced.

You should understand that when you are dealing with this question you are considering the possible reaction of an ordinary person in the position of the accused, not [his/her] inevitable or even probable reaction, but [his/her] possible reaction.⁶³


ISSUE 9.3

(1) Are the Bench Book directions on provocation adequate?

(2) Is there a better way of explaining the test of provocation to the jury?

9.44 The defence of duress is available where a person did an act that was otherwise criminal by reason only of his mind being then overborne by threats of death or serious bodily violence, either to himself or another, provided that an average person, of ordinary firmness of mind, of the same age and sex and in similar circumstances, would have done so.⁶⁴

9.45 The accused’s belief in the threat of death or serious bodily injury must be based on reasonable grounds.⁶⁵ The threats must be “so great as to overbear the ordinary power to human resistance”.⁶⁶ The threats need not be imminent and immediate; it is sufficient that the threats be continuing, imminent and impending.⁶⁷

9.46 The defence is lost where the accused fails “to avail himself of some opportunity which was reasonably open to him to render the threat ineffective”.⁶⁸ Whether an opportunity to escape the threat existed and was reasonably open to the accused is a question of fact for the jury to decide,⁶⁹ having regard to the accused’s age and circumstances, and to any risks to the accused which may be involved.⁷⁰

9.47 Where the accused adduces evidence from which can be inferred a reasonable possibility that the accused acted under duress, the defence should be left to the jury.⁷¹ In R v Abusafiah, Justice Hunt said that the jury should first be directed as to the elements of the offence charged (including the voluntary nature of the acts of the accused). Then it should be directed in relation to the specific acts of the accused alleged to have committed the offence, and finally, the jury should be directed on the issue of duress,⁷² in respect of which His Honour suggested the following specific directions:

(1) The Crown … must establish that the acts of the accused constituting the offence were done by him voluntarily. That those acts were in fact done would in most cases lead to the conclusion that they were done voluntarily. In the present case, however, it has been argued that you should not come to that conclusion because, it is said, the accused acted under duress or coercion.

(2) The accused does not have to establish that he did act under duress. The Crown must establish that the acts of the accused were done voluntarily and, in order to do so, it must eliminate any reasonable possibility that he acted under duress.

9.49 Although Justice Hunt makes a clear distinction between the two in his opening remarks, by specifically describing voluntariness as an element of the offence, and leaving duress to be decided last as a defence, his specific directions on duress link the effect of the defence with the voluntariness component of the actus reus. He thereby states that duress renders an accused’s conduct involuntary.

9.50 Arguably, the Bench Book also perpetuates the misconception:

A person acts under duress, and therefore involuntarily, if that person’s actions were performed because of threats (express or implied) of death or really serious injury to [himself/herself/dependants] being threats of such a nature that a person of ordinary firmness and strength of will, that is, a person of the same maturity and sex as [the accused], and in [the accused’s] position, would have yielded to them.

The first, and most important consideration, for you is that [the accused] does not have to establish that [his/her] actions were done under duress. The Crown must establish that the acts of [the accused] were done voluntarily, and in order to prove that [the accused] did act voluntarily, the Crown must eliminate any reasonable possibility that [the accused] acted under duress.⁷⁵


ISSUE 9.4

Are the directions on duress in the Bench Book appropriate?

9.51 The defence of diminished responsibility is a partial defence to murder. It was first recognised by Scottish law as a means of mitigating the punishment of the “partially insane” from murder to culpable homicide (manslaughter).⁷⁶ The defence of diminished responsibility was subsequently codified in s 23A of the Crimes Act 1900 (NSW) but in 1997, it was repealed and reformulated into the defence of substantial impairment by abnormality of mind.⁷⁷ The new s 23A(1) provides that in cases where the defendant is accused of murder, he or she can be alternatively convicted of manslaughter if three criteria are satisfied:

• at the time the alleged murder was commissioned, the defendant’s capacity to understand events, or to judge whether his or her actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind;
• the abnormality of mind arose from an underlying condition; and
• the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.⁷⁸

9.53 As it is unique to murder, it follows that juries should be directed to consider the defence of substantial impairment only after they are satisfied, beyond a reasonable doubt, that the accused did the act which caused the death of the deceased with the relevant intention that would otherwise make the accused guilty of murder.

9.54 The first test requires the jury to ask whether the defendant suffered from an abnormality of mind. This is a:

state of mind so different from that of ordinary human beings that the reasonable person would term it abnormal. It appears ... to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will-power to control physical acts in accordance with that rational judgment.⁸⁰

9.55 If the jury is convinced that there was an impairment by abnormality of mind arising from an underlying condition, then the defendant must further show that the impairment was so substantial as to warrant mitigation of criminal liability from murder to manslaughter. To be substantial, the impairment may be less than total, but it must be more than trivial or minimal.⁸³ Some impairment is not sufficient; if the abnormality of mind did not make any great difference, then it can hardly be said that the impairment was substantial.⁸⁴

Understanding the difference between mental illness and substantial impairment

9.56 On the face of it, the defences of mental illness and substantial impairment appear similar. Previously known as the defence of insanity, the defence of mental illness, if established, entitles the accused to be found “not guilty by reason of mental illness”. The legal and practical consequence of this verdict is that the accused may be detained for an indefinite period in a mental health facility or a prison.⁸⁵ Substantial impairment, on the other hand, will reduce a charge of murder to manslaughter.⁸⁶

9.57 Mental illness is distinguished from the defence of diminished responsibility in its application of the M’Naghten test,⁸⁷ which requires a defect of reason from a disease of the mind, as distinct from a substantial impairment by abnormality of mind. It is a subtle distinction which can easily escape even those with expertise in the area.

9.58 The confusion that this can cause for jurors was most evident in the case of Cheatham, where, during its deliberations, the jury posed the following questions to the trial judge:

On the fifth day of the trial the jury asked for a definition of “wrong” and some guidance on interpretation and suggested some phrases, “moral wrong”, “legal wrong”, “delusionary wrong”, “altruistic wrong”, et cetera.⁸⁸

Could we please have directions by the judge regarding what constitutes mental illness and diminished responsibility?⁸⁹

Did the judge instruct that we have to accept that the accused had an abnormality of the mind or can we reject this abnormality of mind?⁹⁰

Jury status. Not getting anywhere at the moment, agitation prevailing, can we go home?⁹¹

9.60 The struggle to ensure the jury understands the differences between the two defences is arguably aggravated by the court’s obligation to direct the jury on diminished responsibility even where defence counsel does not purport to raise it, and indeed, expressly rejects it.⁹⁵ A likely consequence of this persistent confusion may be a greater preference among defence lawyers to go to trial without a jury.⁹⁶

Directing the jury in relation to medical evidence

9.61 Medical evidence is pivotal in cases where the defences of mental illness and substantial impairment by abnormality of mind are raised. For this reason, the judge should direct the jury that it must not reject unanimous medical evidence unless there is other evidence which displaces or throws doubt on that medical evidence.⁹⁷ This is reflected in the Bench Book which provides:

In determining whether [the accused] has established that it is more likely than not that these matters were so, you will pay close attention to the evidence of the psychiatrists (or other expert witnesses), particularly on the questions which are summarised in the first paragraph of the written directions … These are areas in which psychiatrists [etc, specify] have particular expertise and experience.

You are not bound, however, to accept their evidence. You are entitled to act on other evidence in the case if you think that there is other evidence which conflicts with or undermines the basis upon which the psychiatrists expressed their opinions.

On the other hand, you would obviously pay careful and close attention to what the opinion evidence is as to these matters because of the experience and expertise which these witnesses have in this field.

You would only decline to act on the evidence of the psychiatrists [and psychologists] if you think that there is other evidence which outweighs the psychiatric evidence, or if you think that the facts differ from those on which the psychiatrists proceeded, or if you think that the reasons expressed by the psychiatrists for their opinions (even having regard to their expertise) do not support their conclusion … [a different direction would need to be given if, as often happens, the psychiatric or psychological evidence reaches different conclusions].⁹⁸

9.63 Instructing the jury as to medical evidence is a daunting task. For example, in R v Chayna,¹⁰¹ seven psychiatrists offered varying opinions as to the defendant’s mental condition at the time she killed her two daughters and sister-in-law: ranging from schizophrenia, to severe depression, to an acute dissociative state, with one expert witness doubting the presence of any mental impairment at all. The trial judge directed the jury that the evidence of this last witness supported a conviction of murder. The jury found the defendant guilty of murder, and the matter went to the Court of Criminal Appeal. It was there that Chief Justice Gleeson noted that the variety of psychiatric opinion available to the jury strongly suggests that the operation of diminished responsibility is dependent on concepts which medical experts themselves find at least ambiguous and, perhaps, unscientific, with the place of the defence in the criminal law being a subject “ripe for reconsideration”.¹⁰²

ISSUE 9.5

How can juror confusion about the concepts underlying the defence of substantial impairment be minimised?

9.64 One of the central issues relating to “defences” in criminal trials is that they are not for the accused to prove, but rather for the Crown to disprove.¹⁰³ In relation to self-defence, for example, it is not for the accused to prove that he or she acted in self-defence. Rather, once it is raised by the accused, the onus shifts to the prosecution to prove beyond a reasonable doubt that the accused did not act in self-defence.¹⁰⁴

9.65 Similarly, in the case of provocation, once the defendant produces evidence of provocation, it is not for the defendant to prove that the act or omission causing death was committed out of provocation. Rather, the burden of proof on the criminal standard falls on the prosecution.¹⁰⁵

9.66 In order to avoid any misdirection as to onus of proof, the Court of Criminal Appeal has held that, in all cases in which a “defence” is raised, the direction to the jury should be whether the prosecution has eliminated any reasonable possibility that the accused acted under duress or in self-defence or under provocation, as the case may be.¹⁰⁶ The question should be phrased in this way to avoid confusion as to the onus of proof that rests on the prosecution.¹⁰⁷

9.67 In R v Dziduch, Justice Hunt observed:

It is very unwise even to refer to the issue of self-defence as a “defence”, unless it is only to point out that it is not really a defence at all.¹⁰⁸

9.68 It is also important, when directing a jury as to onus of proof, that the “defences” not be treated as entirely separate matters that the Crown has to establish. They should be listed by the judge along with all the other issues (such as the elements of the offence) that the Crown must establish.¹¹⁰

9.69 Trial judges need to be particularly careful when formulating the elements of the defence, that they do so without reversing the onus of proof.

9.70 In R v Alpuget,¹¹¹ Justice Hunt also suggested that it was advisable to tell the jury that it is often difficult to explain that the Crown, not the accused, bears the onus of proof. By doing so, the jury should be fairly put on notice that any subsequent directions which may not express the onus completely correctly are not intended to override the general direction on onus of proof.

The reasonable person test

9.71 In a number of defences in criminal trials, the jury is required to assess the particular facts of the case against the reaction of the “reasonable” or “ordinary person in the position of the accused”. The issue is best illustrated in the directions relating to the “defences” of provocation, duress and self-defence.¹¹² In such cases, the issue is whether the prosecution has “eliminated any reasonable possibility that the accused acted under duress or in self-defence or under provocation, as the case may be”.¹¹³

9.72 So, in the case of duress, the Court of Criminal Appeal has suggested that the relevant direction should be that the prosecution must establish that “there is no reasonable possibility that… a person of ordinary firmness of mind and will, and of the same sex and maturity as the accused, would have yielded to [the] threat in the way in which the accused did”.¹¹⁴

9.73 In relation to provocation, the test is whether an ordinary person could have done what the accused did, faced with the same degree of provocation. Although relevant to determining the gravity of the provocation, the personal characteristics of the accused (including sex and ethnicity) are irrelevant to the standard of self-control imposed by the law; a standard which is determined by the hypothetical ordinary person.

9.74 Where provocation and duress are in issue, the jurors need to be reminded that they are not to answer the relevant question concerning the response of the reasonable or ordinary person by inquiring what their own reaction would or may have been. Rather, they are to select such person as a hypothetical member of the community with the necessary attributes required by law for that person. Quite how jurors select such a person, and what attributes they are expected to assign to him or her, remains unexplained, and very much a matter for conjecture. Indeed, the test of the hypothetical ordinary person is difficult to understand and difficult for juries to apply. Some academic writers also argue the test has led to inconsistent decisions by juries.¹¹⁵

ISSUE 9.6

How should the concept of a reasonable or ordinary person in the position of the accused be left to the jury in relation to the relevant defences?

9.75 The new Part 11A of the Crimes Act 1900 (NSW) overrides the common law on intoxication.¹¹⁶ Under the Act, intoxication is not a defence but a factor going to criminal responsibility that may negate the elements of an offence.

9.76 Evidence of intoxication is a matter relevant to an offence of specific intent, that is, an offence of which an intention to cause a specific result is an element.¹¹⁷ Evidence that a person was intoxicated (whether self-induced or otherwise) at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for the offence of specific intent.¹¹⁸ However, it cannot be considered if the person had resolved to do the relevant act before becoming intoxicated or if he or she became intoxicated in order to gather strength to do the relevant act.¹¹⁹

In relation to self-defence

9.77 Where intoxication is raised in connection with self-defence, the Supreme Court has held that the fact that the accused was intoxicated is relevant only to the first question to be determined by the jury when considering self defence, namely, whether the accused reasonably believed it was necessary to do what he or she did in self defence. Intoxication is not relevant to the second question of whether it was reasonable for the accused to have responded to the situation in the way he or she did.¹²⁰

9.78 Where it is necessary to compare the state of mind of the accused with that of a reasonable person, in order to determine whether the accused is guilty of an offence, the comparison must be between the state of mind of the accused and that of a reasonable person who is not intoxicated.¹²¹

9.79 The Bench Book provides the following suggested written direction on intoxication in relation to self-defence:

[The accused’s] intoxicated state —

1. must be taken into account in determining whether [the accused] believed that [his/her] conduct was necessary to defend [himself/herself];

2. must be taken into account in determining the circumstances as [the accused] perceived them to be;

3. must not be taken into account in determining whether [his/her] response to those circumstances was reasonable.¹²²

You should fully understand that the law provides (in substance) that a person who genuinely thought that [he/she] was in danger, even if [he/she] were wrong about that perception because … [specify, for example, [his/her] perception was affected by alcohol], may still be regarded as having acted in lawful self-defence provided that the person’s response was reasonable, based on the circumstances as [he/she] perceived them to be.

You need to look at the case through the eyes of [the accused] in its context, [taking into account [his/her] intoxicated state] and by reference to the actual situation in which [he/she] found [himself/herself], and as [he/she] perceived it to be.

So you determine what [the accused] [in [his/her] intoxicated state] actually perceived was the danger [he/she] faced, and then determine whether what [he/she] did in response to that danger was reasonable. In determining whether what [he/she] did was reasonable, you stand back and consider the response from an objective viewpoint, disregarding, for example, that [he/she] may have overreacted because of the effects of alcohol upon [him/her].

You are considering what would have been a reasonable response by a sober person in the circumstances as [the accused] drunkenly perceived them.¹²³

9.81 The effects of self-induced intoxication are to be disregarded in assessing whether or not the defence of substantial impairment is applicable.¹²⁴ However, a defendant who was intoxicated at the time of the killing may be able to rely on the defence if prolonged use of alcohol or drugs has led to brain damage or disease that substantially impaired the defendant’s ability to control his or her actions. In cases such as these, the defendant must prove that it is the brain damage (being the underlying condition) that caused the abnormality of mind resulting in the substantial impairment of mental capacity, and not the short-term effects of the intoxication.¹²⁵

In relation to consent

9.82 Other than in relation to the accused’s intention in sexual offence cases, intoxication is also relevant to the issue of consent. Where evidence is raised on the issue of consent, the Crown bears the onus of proving, beyond a reasonable doubt, that the alleged victim did not consent. Consistent with common law principles of consent,¹²⁶ the Crimes Act 1900 (NSW) provides that a person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.¹²⁷ A person does not consent if he or she lacks the capacity to consent (for example, because of age or cognitive incapacity) or if the person has no opportunity to consent because he or she is unconscious or asleep.¹²⁸ Section 61HA of the Crimes Act expressly provides that one of the grounds on which consent may be negated is evidence that the alleged victim was substantially intoxicated at the time of sexual intercourse.

OTHER AREAS OF SUBSTANTIVE LAW

9.83 There are other contexts where multiple and complex directions are required as a result of the several elements involved in certain offences. One example is the law relating to the supply of prohibited drugs¹²⁹ and deemed supply,¹³⁰ in respect of which different directions are suggested.¹³¹

9.84 Also challenging are the directions required for many offences arising under the Commonwealth Criminal Code, with its somewhat complex distinction between physical elements and mental elements, its classification of the circumstances in which there is no criminal responsibility, and its sometimes cumbersome framing of offences, for example, in the area of terrorism.

ISSUE 9.7

What other areas of criminal law require revision in order to be more easily explained to juries?

9.85 There are many other existing criminal provisions which use complex or obscure language that may cause difficulties for juries. This can cause problems in two circumstances:

• first, for obvious reasons, when the judge provides no explanation of the word or phrase; and
• secondly, when the judge provides an explanation of the word or phrase.

9.86 For example, the concept of being “knowingly concerned in” certain prohibited activities, without further explanation or guidance being given, may be problematic. The phrase is commonly used in cases of drug importation and possession. It occurs in the Customs Act 1901 (Cth)¹³² and courts frequently use it when referring to charges of knowing involvement or participation under the Drug (Misuse and Trafficking) Act 1985 (NSW). It has been suggested that the use of the phrase “concerned in” might be mistaken by jurors for “concerned about” unless adequately explained;¹³³ and, additionally, that there is an area of imprecision concerning what an accused needs to do before he or she is “concerned in the offence”.

9.87 The use of expressions such as “suffers”, which are not in common parlance, in the context of certain conduct associated with the possession, manufacture or handling of drugs,¹³⁴ is also problematic, as can be seen in one case where it was held that the jury should have been instructed that it was not only necessary for the prosecution to show that the accused knowingly allowed the third party to carry out the relevant act, but additionally that he had the right or capacity to prevent it.¹³⁵

9.88 Some of the problems for trial judges in giving meaningful directions in these areas could be overcome by encouraging the legislature, when framing new offences or amending existing offences, to avoid using terms which are not in everyday use, or which call for extensive supplementary explanation as to their meaning or reach.

9.89 Similarly, there is a case for the legislature avoiding the framing of offences or defences employing expressions of indeterminate reference such as “reasonable cause” or “lack of reasonableness”, leaving it to the courts to provide the context¹³⁶ or for jurors to guess at what cause might be “reasonable” in the circumstances of the case with which they are concerned. An additional problem can arise where the manner in which the provision is framed and the jury directed might be understood as suggesting to the jury some reversal of the onus of proof.

ISSUE 9.8

(1) Should the use of any of the following terms in directions be reviewed in order to help jurors to understand the law that they must apply:


(a) knowing concern; and

(b) suffer.


(2) Are there any other terms that should be reviewed in order to help jurors to understand the law that they must apply?

9.90 The judge’s opening remarks are brief and intended mainly to give the jury a general introduction to the trial process. They usually do not cover substantive law.

9.91 However, a recent survey by the Australian Institute of Judicial Administration (AIJA) found that about 26% of judges in NSW discuss the elements of the relevant substantive law in their opening remarks. The results of this study, which surveyed judges from Australia and New Zealand, should be treated with caution when making general conclusions about judicial practice in this State, since only 23 NSW judges participated in the survey.¹³⁷

9.92 The summing-up given at the end of the trial is the main means of explaining to the juror the legal principles they need to apply to bring in a verdict. It is assumed that giving the directions at the end of the trial is the best way of ensuring that these directions remain fresh in the minds of the jurors during their deliberations. There are, however, arguments for giving jurors the key legal directions during the opening remarks, particularly on substantive law.

Arguments for

9.93 The first argument in support of giving directions on substantive law to the jury both before and after the presentation of evidence is that it may improve jurors’ recall and comprehension. Some studies have found that multiple exposure to the law enables jurors to understand the legal directions and to apply them better to the evidence.¹³⁸

9.94 Secondly, giving jurors the key legal directions during the opening remarks would give them a legal framework and a context for the evidence at the start of the trial. This has been shown to enable jurors to evaluate the evidence more effectively as it is being presented.¹³⁹ In other words, it may assist jurors to fit the various pieces of evidence being presented into a coherent story that makes sense to them.¹⁴⁰ It may also prevent jurors from relying solely on pre-existing and inaccurate beliefs about the law or on personal biases that might be triggered by the nature of the case or the characteristics of the defendant.

9.95 Finally, the enhancement in their ability to evaluate the evidence as a result of the preliminary directions on substantive law increases jurors’ satisfaction in the trial process.¹⁴¹

9.96 Justice McClellan has recently spoken about the benefits of identifying the issues early in the trial:

one source of significant time wasting in some trials is a failure to isolate the issues requiring determination before the trial commences. They are sometimes not identified until final address. This has two consequences. The jurors lose track of the evidence, having no means of appreciating its significance and the issues to which it relates. The trial itself is inefficient. Without knowing the issues the trial judge can exert little influence over the advocates to confine the evidence and discipline the questioning of witnesses.¹⁴²

9.97 There are, however, several arguments against giving jury directions on substantive law prior to the presentation of evidence. First, some judges fear that this might overload jurors with too much information at the beginning of the trial.¹⁴³

9.98 Secondly, giving the jury a legal framework at the start of the trial may encourage individual jurors to view the trial from a single perspective. It is argued that there is a danger that jurors may reach a verdict before the jury deliberations (or even before all the evidence has been presented) without regard to the variety of views that the other jurors bring to the jury room.¹⁴⁴

9.99 Finally, it is impractical to give directions at the beginning of the trial because the trial judge, in many cases, may not know which issues will arise, and thus what directions to give. The nature of the prosecution case and the defence or defences that the defence team is intending to use will usually be unclear to the judge at the start of the trial. This raises the importance of the next issue, which might be regarded as a key step in modernising jury trials.

Need for pre-trial disclosure obligations

9.100 Preliminary directions on the substantive law would require counsel for both sides to disclose the issues at the commencement of the trial. At the minimum, this would require the prosecution to identify the elements of each offence for which the accused is charged, and require the defence to identify any of the elements which it disputes and to disclose any positive defence to be relied on by the accused. Such disclosures would be particularly useful in complex trials.

9.101 The Office of the Director of Public Prosecutions endorses disclosure obligations, stating in its preliminary submission that:

if the defence had disclosure obligations, took part in pre-trial negotiations to identify the issues and was required to settle with the prosecution a list of required witnesses, it is probable that the directions and warnings required in any trial could be assessed and determined at a much earlier point in the proceedings. This would eliminate many unnecessary directions and warnings and cut trial length and possible appeal points.¹⁴⁵

9.102 However, even with such disclosure, preliminary instructions on the defence or defences may still be problematic because the issues relevant to the defence may not be crystallised or fully evident until after all the evidence has been presented. At times, an unanticipated defence may arise from the evidence. Alternatively, the defendant’s instructions to his or her legal team might change when the prosecution’s evidence is presented in full. The defendant may change his or her mind about testimony upon which the defence hinges.¹⁴⁶ This problem, if it arises, could be addressed by giving the jury revised directions on the defence or defences in the course of the trial and in the summing-up.

9.103 Pre-trial disclosure was recommended by this Commission in Report 95, The Right to Silence, including limited disclosure by the defence in certain cases.¹⁴⁷ The recommendation was only partially accepted, and pre-trial disclosure of the issues to be raised by both parties is permitted only in “complex criminal trials”.¹⁴⁸

ISSUE 9.9

(1) Should judges give preliminary directions on elements of the offence in their opening remarks?

(2) If so, should they also cover available defences?

(3) To what extent should the issues be defined in the preliminary directions?

1. UK, Home Office, Fraud Law Reform: Consultation on Proposals for Legislation (2004).

2. England and Wales, Law Commission, Fraud, Report 276 (2002) [5.4]-[5.5].

3. UK, Home Office, Fraud Law Reform: Consultation on Proposals for Legislation (2004) [5].

4. R v Coleman (1990) 19 NSWLR 467, 471-472; R v Stokes (1990) 51 A Crim R 25, 40; Pengilley v R [2006] NSWCCA 163, [35]-[45], [53]; Hogan v R [2008] NSWCCA 150, [56]-[62].

5. Crimes Amendment Act 2007 (NSW) Sch 1. The concept of “malice” had previously been seen as problematic, its application having been described as calling for “a meticulous analysis and fine and impractical distinctions to be made by the jury (for which task such a body is quite ill-suited)”: R v Coleman (1990) 19 NSWLR 467, 472.

6. Criminal Code (Cth) s 5.4, s 5.6(2).

7. See Pengilley v R [2006] NSWCCA 163, [34]-[37]; Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80, [1]-[8]; R v BBD [2007] 1 Qd R 478, [48]-[49]; R v Kitchener (1993) 29 NSWLR 696 and A Webster “Recklessness: Awareness, Indifference or Belief” (2007) 31 Criminal Law Journal 272. Crimes Act 1900 (NSW) s 4A provides that “if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge”.

8. Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80, [36]. As the text indicates, there are different considerations to be applied in some sexual assault cases.

9. See Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80, [36].

10. R v Kitchener (1993) 29 NSWLR 696.

11. A Webster “Recklessness: Awareness, Indifference or Belief” (2007) 31 Criminal Law Journal 272, 285-286.

12. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [4-085].

13. D Brown, D Farrier, S Egger, L McNamara and A Steel, Criminal Laws: Materials and Commentary on Criminal Law and Processes in NSW (4th edition, 2006) 530.

14. With the exception of the defence of substantial impairment by abnormality of mind, insanity and some other statutory defences. See further para 9.52-9.53 below.

15. A Judicial Commission of NSW study on the use of partial defences to murder in homicide cases between January 1990 and September 2004 found that 26% of defendants charged with murder had raised one or more of the partial defences. Diminished responsibility, as it was then known, was raised in less than 15% of cases while provocation was raised in only 13%: Judicial Commission of NSW, Partial Defences to Murder in NSW 1990-2004, Research Monograph 28 (2004) (“Judicial Commission Report”).

16. But compare excessive self-defence which was reintroduced in the Crimes Act 1900 (NSW) s 421 by the Crimes Amendment (Self-Defence) Act 2001 (NSW). See also R v Katarzynski [2002] NSWSC 613, [13]. See also para 9.19 below.

17. The test for self-defence at common law was reformulated by the High Court in Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645, 661 (Wilson, Dawson and Toohey JJ).

18. New South Wales, Parliamentary Debates (Hansard), Legislative Assembly, 28 November 2001, 19093.

19. Viro v The Queen (1978) 141 CLR 88.

20. Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645.

21. J Wood, “The Trial Under Siege: Towards Making Criminal Trials Simpler” (District and County Court Judges Conference, Fremantle, WA, 27 June - 1 July 2007).

22. The self-defence provisions (s 418-423) of the Crimes Act 1900 (NSW) were inserted by the Crimes Amendments (Self-Defence) Act 2001 (NSW). Unlike the provisions in relation to intoxication under Part 11A, the legislation does not oust the common law on self-defence. Indeed, in light of the fact that the provisions are grounded in common law principles, it is likely that the common law will remain relevant in resolving issues of interpretation: M Gani, “Codifying the Criminal Law: Implications for Interpretation” (2005) 29 Criminal Law Journal 264, 277.

23. Under the Crimes Act 1900 (NSW) s 418, a person carries out an act in self-defence if he or she believes the act is necessary in order to (a) defend himself or herself or another person; (b) prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person; (c) protect property from unlawful taking, destruction, damage or interference; or (d) prevent criminal trespass, or to remove a person committing criminal trespass.

24. Crimes Act 1900 (NSW) s 418(2).

25. Crimes Act 1900 (NSW) s 419.

26. Crimes Act 1900 (NSW) s 420. Thus repealing the Home Invasion (Occupants Protection) Act 1998 (NSW).

27. Crimes Act 1900 (NSW) s 421 operates to reduce a charge of murder to manslaughter where a person honestly believes he or she is acting in self-defence, but uses more force than is reasonable in the circumstances.

28. New South Wales, Parliamentary Debates (Hansard), Legislative Assembly, 28 November 2001, 19093.

29. See S Torpey, “The New Test of Self-defence” (2002) 9 Criminal Law News 41, 43.

30. Compare Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645.

31. Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645, 662-663.

32. Crimes Act 1900 (NSW) s 418(2).

33. R v Katarzynski [2002] NSWSC 613.

34. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [6-490].

35. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [6-460].

36. Stingel v The Queen (1990) 171 CLR 312. See also Crimes Act 1900 (NSW) s 23(1).

37. R v Isaacs (1997) 41 NSWLR 374, 381 (Gleeson CJ).

38. The issue of provocation is sometimes raised on the Crown case, see, eg, Heffernan v R [2006] NSWCCA 293.

39. Stingel v The Queen (1990) 171 CLR 312.

40. Crimes Act 1900 (NSW) s 23(2)(a)-(b).

41. R v Lees [1999] NSWCCA 301, [53] (Wood CJ at CL).

42. Van Den Hoek v The Queen (1986) 161 CLR 158, 166 (Mason J).

43. R v Chhay (1994) 72 A Crim R 1, 13 (Gleeson CJ).

44. R v Chhay (1994) 72 A Crim R 1, 10 (Gleeson CJ). See also Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75.

45. R v Davis (1998) 100 A Crim R 573, 576 (Dunford J).

46. D Brown, D Farrier, S Egger, L McNamara and A Steel, Criminal Laws: Materials and Commentary on Criminal Law and Processes in New South Wales (4th edition, 2006) 598.

47. Stingel v The Queen (1990) 171 CLR 312, 326-327.

48. See, eg, Heron v The Queen (2003) 197 ALR 81; [2003] HCA 17, [33] (Kirby J).

49. See, eg, R v Anderson [2002] NSWCCA 194, [33]-[45] (McClellan J). In Heron v The Queen, the High Court found that the trial judge had erred in misstating the objective part of the test of provocation by referring to what an ordinary person “must” or “would” have done, rather than what an ordinary person “could” have done. But special leave to appeal was refused on the ground that there had been no miscarriage of justice: Heron v The Queen (2003) 197 ALR 81; [2003] HCA 17.

50. R v Hill [1986] 1 SCR 313, [66] (Wilson J).

51. Stingel v The Queen (1990) 171 CLR 312, 327.

52. See R v Masciantonio (1995) 183 CLR 58 where McHugh J, dissenting, argued that ethnicity should be incorporated since the notion of an ordinary person is a pure fiction in a multicultural society. See also, S Bronitt and K Amirthalingam, “Cultural Blindness: Criminal Law in Multicultural Australia” (1996) 21 Alternative Law Journal 58; and S Yeo, “Sex, Ethnicity, Power of Self-control and Provocation Revisited” (1996) 18 Sydney Law Review 304.

53. See Stingel v The Queen (1990) 171 CLR 312.

54. See R v Croft [1981] 1 NSWLR 126.

55. See R v Green (1997) 191 CLR 334.

56. A Reed, “Provocation: A Matter for Jury Determination” (2001) 112 The Criminal Lawyer 1.

57. Mungatopi v R (1991) 2 NTLR 1, 6 (Martin, Angel and Mildren JJ).

58. M Weinberg, “Moral Blameworthiness: The ‘Objective Test’ Dilemma” (2003) 24 Australian Bar Review 173, 184.

59. R v Rongonui [2000] 2 NZLR 385, [108]-[111] (Elias CJ). See also Queensland Law Reform Commission, A Review of the Defence of Provocation, Working Paper 63 (2008) [3.44]-[3.48].

60. R v Smith [2001] 1 AC 146, 156 (Lord Slyn).

61. A previous NSW Law Reform Commission Report recommended the abolition of the objective test and its replacement with a purely subjective test compatible with community standards: NSW Law Reform Commission, Partial Defences to Murder: Provocation and Infanticide, Report 83 (1997), 49-53.

62. Heron v The Queen (2003) 197 ALR 81; [2003] HCA 17, [24] (Kirby J).

63. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [6-410].

64. R v Hurley [1967] VR 526, 543 (Smith J). See also R v Abusafiah (1991) 24 NSWLR 531, 535 (Hunt J). The defence is not available on a charge of murder where the accused does the actual killing: see Lynch v Director of Public Prosecutions for Northern Ireland [1975] 1 All ER 913 and Abbott v The Queen [1976] 3 All ER 140.

65. R v Hurley [1967] VR 526.

66. R v Lawrence [1980] 1 NSWLR 122.

67. R v Hurley [1967] VR 526 (Smith J); see also R v Hudson [1971] 2 QB 202; followed in R v Williamson [1972] 2 NSWLR 281, 290.

68. R v Hudson [1971] 2 QB 202, 207; and R v Williamson [1972] 2 NSWLR 281.

69. R v Lawrence [1980] 1 NSWLR 122, 134.

70. R v Hudson [1971] 2 QB 202, 207.

71. R v Abusafiah (1991) 24 NSWLR 531, 535 (Hunt J). See also R v Nguyen [2008] NSWCCA 22 where the NSW Court of Criminal Appeal allowed the appeal on the ground that the trial judge erred in not leaving duress to the jury, and ordered a retrial.

72. R v Abusafiah (1991) 24 NSWLR 531, 535 (Hunt J).

73. S Yeo, “Voluntariness, Free Will and Duress” (1996) 70 Australian Law Journal 304.

74. S Yeo, “Voluntariness, Free Will and Duress” (1996) 70 Australian Law Journal 304.

75. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [6-160].

76. P Arnella, “The Diminished Capacity and Diminished Responsibility Defenses: Two Children of a Doomed Marriage” (1977) 77 Columbia Law Review 827, 830.

77. See Crimes Amendment (Diminished Responsibility) Act 1997 (NSW). The amending legislation followed the recommendations in NSW Law Reform Commission, Partial Defences to Murder: Diminished Responsibility, Report 82 (1997). The Report itself was a response to Gleeson CJ, who expressed the view in R v Chayna (1993) 66 A Crim R 178, 191 that the defence of diminished responsibility was “ripe for reconsideration”.

78. Crimes Act 1900 (NSW) s 23A(1). See also R v Trotter (1993) 35 NSWLR 428, 431 (Hunt CJ at CL).

79. Crimes Act 1900 (NSW) s 23A(4). See also R v Trotter (1993) 35 NSWLR 428, 4301 (Hunt CJ at CL).

80. R v Byrne [1960] 2 QB 396, 403 (Lord Parker CJ) approved in R v Tumanako (1992) 64 A Crim R 149, 159 (Badgery-Parker J).

81. Crimes Act 1900 (NSW) s 23A(8).

82. NSW Law Reform Commission, Partial Defences to Murder: Diminished Responsibility, Report 82 (1997) 55.

83. R v Trotter (1993) 35 NSWLR 428, 431 (Hunt CJ at CL).

84. R v Trotter (1993) 35 NSWLR 428, 431 (Hunt CJ at CL).

85. Mental Health (Criminal Procedure) Act 1990 (NSW) s 39.

86 This had a clearly significant outcome when murder carried a mandatory life sentence. Since this is no longer the case in NSW, there are renewed calls for the abolition of the defence of substantial impairment for murder. In Victoria, SA, Tasmania and WA the issue of substantial impairment is considered at the sentencing stage as a mitigating factor, rather than as a factor which goes to criminal responsibility.

87. M’Naghten’s Case (1843) 10 Cl & Fin 200, 210; 8 ER 718, 722, (Tindal LCJ).

88. R v Cheatham [2002] NSWCCA 360, [59].

89. R v Cheatham [2002] NSWCCA 360, [64].

90. R v Cheatham [2002] NSWCCA 360, [66].

91. R v Cheatham [2002] NSWCCA 360, [69].

92. R v Cheatham [2002] NSWCCA 360, [69] (Spigelman CJ).

93. R v Cheatham [2002] NSWCCA 360, [67].

94. R v BWT (2002) 54 NSWLR 241; [2002] NSWCCA 60, [96] (Sully J).

95. R v Cheatham [2002] NSWCCA 360. See also para 6.51-6.53.

96. R v Chayna (1993) 66 A Crim R 178, 191 (Gleeson CJ); see Criminal Procedure Act 1986 (NSW) s 132.

97. Taylor v R (1978) 22 ALR 599 (FCA), 618 (Connor and Franki JJ).

98. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [6-580].

99. R v Trotter (1993) 35 NSWLR 428, 431 (Hunt CJ at CL).

100 This reflects the position at common law; see, eg, R v Byrne [1960] 2 QB 396, 403 (Parker CJ).

101. R v Chayna (1993) 66 A Crim R 178, 180-182.

102. R v Chayna (1993) 66 A Crim R 178, 189.

103. However, there are some matters where the onus of proof will remain with the accused. They include, for example the defence of substantial impairment by abnormality of mind (Crimes Act 1900 (NSW) s 23A(4)) the onus of establishing which rests upon the defence, although only on the balance of probabilities: R v Ayoub [1984] 2 NSWLR 511; the common law defence of insanity: R v Porter (1933) 55 CLR 182; and deemed possession in relation to drug trafficking: Drug Misuse and Trafficking Act 1985 (NSW) s 29(a). This paper is not concerned with the evidential burden which can rest upon the accused to raise a matter for which the legal onus of proof will then return to the prosecution. The jury does not need to concern itself with the evidential burden.

104. Crimes Act 1900 (NSW) s 419. See also Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645, 656 (Wilson, Dawson and Toohey JJ).

105. See Crimes Act 1900 (NSW) s 23(4).

106. R v Abusafiah (1991) 24 NSWLR 531, 538, 541-542.

107. R v Dziduch (1990) 47 A Crim R 378, 381-382.

108. R v Dziduch (1990) 47 A Crim R 378, 380.

109. R v Alpuget (NSW CCA, 27 July 1989, unreported) 5-7 (Hunt J).

110. R v Alpuget (NSW CCA, 27 July 1989, unreported) 5-7 (Hunt J).

111. R v Alpuget (NSW CCA, 27 July 1989, unreported) 5-7 (Hunt J).

112. On self-defence, see Crimes Act 1900 (NSW) s 418.

113. R v Abusafiah (1991) 24 NSWLR 531, 541. See also Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [6-160].

114. R v Abusafiah (1991) 24 NSWLR 531, 545 (where model directions were suggested).

115. Queensland Law Reform Commission, A Review of the Defence of Provocation, Working Paper 63 (2008), [12.39].

116. Crimes Act 1900 (NSW) s 428H.

117. Crimes Act 1900 (NSW) s 428B.

118. Crimes Act 1900 (NSW) s 428C(1).

119. Crimes Act 1900 (NSW) s 428C(2).

120. R v Katarzynski [2002] NSWSC 613 applied in Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204, [121-122], [137].

121. Crimes Act 1900 (NSW) s 428F.

122. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [6-480].

123. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [6-490].

124. Crimes Act 1900 (NSW) s 23A(3). See also R v Di Duca (1959) 43 Cr App R 167; R v Fenton (1975) 61 Cr App R 261; R v Jones (1986) 22 A Crim R 42; R v De Souza (1997) 41 NSWLR 656.

125. R v Jones (1986) 22 A Crim R 42; R v Ryan (1995) 90 A Crim R 191.

126. DPP (No 1 of 1993) (1993) 66 a Crim R 259, 265 (King CJ).

127. Crimes Act 1900 (NSW) s 61HA(2).

128. Crimes Act 1900 (NSW) s 61HA(4).

129. Drug Misuse and Trafficking Act 1985 (NSW) s 25 sets out the offences of supply and knowingly taking part in the supply of prohibited drugs.

130. Drug Misuse and Trafficking Act 1985 (NSW) s 29.

131. Judicial Commission of NSW, Criminal Trial Courts Bench Book (October 2008) [5-1810], [5-1820].

132. Customs Act 1901 (Cth) s 243A(3)(f).

133. R v Leff (1996) 86 A Crim R 212, 225. See also cases where the Court of Criminal Appeal has considered that the phrase has been adequately explained: R v Courtney-Smith (No 2) (1990) 48 A Crim R 49, 65; R v Sukkar [2005] NSWCCA 54, [75]-[81].

134. For example, Drug Misuse and Trafficking Act 1985 (NSW) s 6(c), s 18A(1)(b).

135. R v Sheen (2007) 170 A Crim R 533; [2007] NSWCCA 45.

136. See Taikato v The Queen (1996) 186 CLR 454; and Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34, [108]-[109].

137. J Ogloff, J Clough, J Goodman-Delahunty and W Young, The Jury Project: Stage 1 – A Survey of Australian and New Zealand Judges (Australian Institute of Judicial Administration, 2006) 47. The survey obtained responses from 136 judges from Australia and 49 from New Zealand. Of the 23 NSW judges who participated in the survey, six (or 26 %) said they outlined the elements of the relevant substantive law in the opening remarks.

138. D Cruse and B Browne, “Reasoning in a Jury Trial: The Influence of Instructions” (1986) 114 The Journal of General Psychology 129; L Heuer and S D Penrod, “Instructing Jurors: A Field Experiment with Written and Preliminary Instructions” (1989) 13 Law and Human Behavior 409. However, some studies have found that giving preliminary legal directions does not result in improvement in jurors’ recall of the directions: L F Lee, I Horowitz and M Bourgeois, “Juror Competence in Civil Trials: Effects of Preinstruction and Evidence Technicality” (1993) 78 Journal of Applied Psychology 14; L Heuer and S D Penrod, “Instructing Jurors: A Field Experiment with Written and Preliminary Instructions” (1989) 13 Law and Human Behavior 409, 424-425.

139. V Smith, “Impact of Pretrial Instruction on Jurors’ Information Processing and Decision Making” (1991) 76 Journal of Applied Psychology 220.

140. Y Tinsley, “Juror Decision-Making: A Look Inside the Jury Room” (2001) 4 British Society of Criminology «http://www.britsoccrim.org/v4.htm».

141. J Lieberman and B Sales, “What Social Science Teaches Us About the Jury Instruction Process” (1997) 3 Psychology, Public Policy, and Law 589, 629; L Heuer and S D Penrod, “Intructing Jurors: A Field Experiment with Written and Preliminary Instructions” (1989) 13 Law and Human Behavior 409, 413-414.

142. P McClellan, “The Australian Justice System in 2020” (National Judicial College of Australia, 25 October 2008), 11.

143. E Najdovski-Terziovski, J Clough and J R P Ogloff, “In Your Own Words: A Survey of Judicial Attitudes to Jury Communication” (2008) 18 Journal of Judicial Administration 65, 72.

144. L Heuer and S D Penrod, “Instructing Jurors: A Field Experiment with Written and Preliminary Instructions” (1989) 13 Law and Human Behavior 409, 414 citing R Hastie, Final Report to the National Institute for Law Enforcement and Criminal Justice (1983, unpublished).

145. Office of the Director of Public Prosecutions of NSW, Preliminary Submission, 3.

146. See D Watt, Helping Jurors Understand (Carswell, Toronto, 2007) 111.

147. NSW Law Reform Commission, Right to Silence, Report 95 (2000) [3.127]-[3.153].

148. Criminal Procedure Act 1986 (NSW) s 136. See R v Kamba [2008] NSWSC 950.