AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 10 February 2023

Cliff v R

[2023] NSWCCA 15

Assault & violenceHomicide

Citation: Cliff v R [2023] NSWCCA 15
Court: NSW Court of Criminal Appeal
Date: 10 February 2023
Judges: Kirk JA (principal judgment); Harrison J and Wright J agreeing

Background

The applicant was convicted of murder following a jury trial in Wagga Wagga. The Crown alleged he stabbed a 16-year-old boy with the specific intent of causing grievous bodily harm. It was not disputed that the applicant caused the death. He had pleaded guilty to manslaughter, but the Crown did not accept that plea as a resolution of the charge.

The central issue at trial was whether the applicant possessed the requisite intent for murder, given evidence that he had consumed methylamphetamine and ketamine and was intoxicated at the time of the stabbing. He also raised extreme provocation as a partial defence. The jury convicted him of murder and he was sentenced to 30 years' imprisonment with a non-parole period of 22 years.

The applicant sought leave to appeal against conviction, out of time and without any objection having been raised at trial to the impugned directions. His sole ground was that the trial judge's oral directions on intoxication undermined the onus and standard of proof, producing a miscarriage of justice.

  • Whether the trial judge's oral directions on intoxication impermissibly introduced a staged approach, requiring the jury to positively conclude that the applicant was intoxicated before considering whether he had the requisite intent.
  • Whether those directions reversed the onus of proof or undermined the requirement that the Crown prove intent beyond reasonable doubt.
  • Whether leave to appeal should be granted under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), where no objection was taken to the directions at trial.
  • Whether time for filing the application should be extended.

Decision

Kirk JA (with Harrison and Wright JJ agreeing) extended time for the application but refused leave to appeal. The Court accepted that the applicant raised an arguable point, and that some portions of the oral directions were capable of criticism when viewed in isolation. In particular, certain passages could be read as suggesting that the jury needed to reach a positive, preliminary conclusion that the applicant was intoxicated before going on to consider intent, rather than treating intoxication as part of the evidence bearing on whether reasonable doubt existed as to intent.

However, the Court emphasised that jury directions must be assessed in their totality, including the written directions provided to the jury. Written directions are important and are likely to be relied upon; they form a significant part of the context in which oral directions operate. The Court noted that the differences between the impugned passages and directions that would have been unimpeachable were subtle, and that the Crown had not conceded intoxication, meaning the trial judge needed to direct the jury to consider the relevant evidence.

When the directions were viewed as a whole, the Court found no real possibility that the jury understood any intermediate factual finding to be required, that any onus rested on the applicant, or that the Crown was relieved of proving intent beyond reasonable doubt. The absence of any objection by senior counsel at trial was a further indication that the directions, in context, did not carry the meaning now attributed to them.

Applying r 4.15, the Court held that the applicant had not demonstrated a lost real chance of acquittal, nor any other basis for exercising the discretion to grant leave. No miscarriage of justice was established.

Orders Made

  • Time for filing the application for leave to appeal is extended to permit the application to be made.
  • Leave to appeal is refused.

Key Takeaways

  • Jury directions must be assessed in their totality: small infelicities in oral directions may not constitute a miscarriage of justice when the written directions, taken as a whole, correctly state the law and are likely to guide the jury's deliberations.
  • Where a Crown does not concede intoxication, a trial judge is required to direct the jury to consider the relevant evidence on that question. A direction instructing the jury to consider whether the accused was intoxicated is not the same as imposing a requirement to positively conclude that fact as a separate preliminary step.
  • Under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), leave is required to rely on a direction not objected to at trial. The absence of any objection by experienced trial counsel can be taken as an indication that the directions, in context, caused no injustice.
  • Refusing leave to appeal, the Court of Criminal Appeal confirmed that the test for exercising the r 4.15 discretion is whether the applicant has lost a real chance of acquittal or whether there has been a miscarriage of justice more generally.
  • Sufficient grounds to extend time for an appeal may exist even where the explanation for delay is incomplete, provided the ground raised is arguable, though that alone will not secure leave if the substantive complaint ultimately fails.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 428C(1)
- Criminal Appeal Act 1912 (NSW), ss 6, 10
- Criminal Appeal Rules 1952 (NSW), r 4
- Jury Act 1977 (NSW), s 55B
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1, 3.5, 4.15

Cases
- ARS v R [2011] NSWCCA 266
- Beattie v R [2021] NSWCCA 291
- Cook (a pseudonym) v R [2022] NSWCCA 282
- Edwards v The Queen [2021] HCA 28
- GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40
- Green v The Queen (1971) 126 CLR 28; [1971] HCA 55
- Hadchiti v R (2016) 93 NSWLR 671; [2016] NSWCCA 63
- Hofer v The Queen [2022] HCA 36
- Justins v R (2010) 79 NSWLR 544; [2010] NSWCCA 242
- Lin v State of Tasmania (2015) 252 A Crim R 64; [2015] TASCCA 13
- Morrison v R [2022] NSWCCA 158
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Germakian (2007) 70 NSWLR 467; [2007] NSWCCA 373
- Saunders v R [2022] NSWCCA 273
- Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104
- Viro v The Queen (1978) 141 CLR 88; [1978] HCA 9