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Court of Criminal Appeal 8 November 2013

Iskandar v R

[2013] NSWCCA 256

Homicide
CRIMINAL LAW MURDER CHARGE DIRECTIONS TO JURY DEFENCE OF PROVOCATION LIBERATO V THE QUEEN 159 CLR 507

Citation: Iskandar v R [2013] NSWCCA 256
Court: NSW Court of Criminal Appeal
Date: 8 November 2013
Judges: Macfarlan JA, Hidden J, Latham J

Background

The appellant was convicted of murder following a 13-day jury trial in June 2012. He had pleaded not guilty to murder but guilty to manslaughter, relying on the partial defence of provocation under s 23(1) of the Crimes Act 1900 (NSW). The Crown alleged that the appellant and his son had planned and carried out a premeditated attack on the deceased, a work colleague of the appellant's wife, whom the appellant suspected of conducting an affair with her.

At trial, the appellant gave evidence that just before the fatal attack, the deceased made a series of insulting remarks to him, including sexually demeaning slurs in English and Malay. The appellant claimed these words caused him to lose self-control and kill the deceased. None of the pre-arrest statements the appellant made to police or friends mentioned these particular words as the trigger.

The appellant raised two grounds of appeal: first, that the trial judge failed to give a Liberato-style direction adapted for provocation; and second, that the trial judge misdirected the jury on the standard required before it could reject an inference the Crown relied upon.

  • Whether the trial judge was required to direct the jury, in terms drawn from Liberato v The Queen (1985) 159 CLR 507 and the Criminal Trial Courts Bench Book, that even if it did not positively accept the appellant's evidence of provocation, it still had to consider whether the Crown had negatived provocation beyond reasonable doubt.
  • Whether the trial judge erred by directing the jury that the defence case raised "another equally open inference," rather than simply a "reasonably open" inference, thereby placing an excessive burden on the appellant when the jury evaluated competing inferences.

Decision

On the first ground, Macfarlan JA held that no Liberato direction was required because the trial judge's existing directions adequately conveyed the relevant legal standard. The trial judge had repeatedly told the jury that the question was whether the appellant's account of the deceased's words was "possibly true," and that if so, the jury had to go on and consider whether provocation was established. That formulation made clear the jury did not have to positively believe the appellant's evidence before the defence of provocation required consideration.

Macfarlan JA noted the trial judge had also expressly and repeatedly reminded the jury that the Crown bore the onus of negativing provocation beyond reasonable doubt. The risk of the misapprehension the appellant identified, that rejecting his evidence automatically defeated the provocation defence, was not present on these facts. Accordingly, there was no need to give the Liberato-style direction in the terms set out in the Bench Book.

On the second ground, the Court found the impugned phrase "another equally open inference" was lifted directly from defence counsel's own closing address at trial, which had used the words "equally consistent." The trial judge was accurately summarising the defence case, and immediately clarified to the jury that the Crown's inference had to be rejected if any alternative rational inference existed, not merely an equally available one. The jury was therefore left in no doubt about the correct standard.

Both grounds were refused leave under r 4 of the Criminal Appeal Rules, and the appeal was dismissed unanimously.

Orders Made

  • Leave under r 4 of the Criminal Appeal Rules to rely upon either ground of appeal was refused.
  • Appeal dismissed.

Key Takeaways

  • A Liberato direction is not automatically required whenever an accused gives exculpatory evidence. The Court of Criminal Appeal confirmed that the critical question is whether, read as a whole, the summing-up adequately conveyed to the jury that non-acceptance of the accused's evidence did not relieve the Crown of its burden of proof.
  • Where the trial judge repeatedly directed the jury to consider whether evidence was "possibly true" and made the Crown's onus explicit, the absence of a formal Liberato-style direction does not constitute a ground of appeal.
  • In provocation cases, the jury must be directed that even if it does not accept the accused's account, it must still consider whether the Crown has negatived provocation beyond reasonable doubt. The trial judge's directions in this case satisfied that requirement without using the Bench Book formula verbatim.
  • Appellate courts will assess impugned jury directions in their full context. A phrase that appears to impose an improper burden in isolation may be unobjectionable when the surrounding directions correctly state the standard, particularly where the phrase originates from defence counsel's own submissions.
  • Refusing leave under r 4 of the Criminal Appeal Rules signals that the grounds did not satisfy the threshold for appeal, not merely that the grounds failed on their merits.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 23(1) (provocation)
- Criminal Appeal Rules (NSW), r 4

Cases
- Liberato v The Queen [1985] HCA 66; 159 CLR 507
- Douglass v The Queen [2012] HCA 34; 86 ALJR 1086
- R v Anderson [2001] NSWCCA 488; 127 A Crim R 116
- Regina v Niass [2005] NSWCCA 120

Other
- Criminal Trial Courts Bench Book (Judicial Commission of NSW), [3-620]