De Wet v WA

[2021] WASCA 83

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Defences
3. › Self-defence
4. › Jury directions
5. › Onus of proof
6. › Whether trial judge's direction gave rise to real risk jury would be misled or confused as to onus of proof
7. › Criminal Code (WA), s 248
1. Criminal Law
2. › Appeal
3. › Jury directions
4. › Summing up
5. › Whether summing up considered as a whole conveyed false basis for determining case
6. › Standard of review — real risk as distinct from fanciful risk

Quick Take

A trial judge's oral explanation of the elements of self-defence under s 248 of the Criminal Code (WA), which frames the issues in positive terms (e.g., 'did the accused believe...'), does not give rise to a real risk of misleading the jury as to the onus of proof where the written question trail and other oral directions clearly and repeatedly state that the onus is on the prosecution to disprove self-defence beyond reasonable doubt. An incomplete direction (stating 'if you accepted' rather than also addressing the reasonable possibility standard) is not erroneous where it does not purport to be comprehensive and is not expressed as 'if, and only if'.