Baraghith v The Queen

[1991] HCATrans 331

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S72 of 1991

B e t w e e n -

HAMDI BARAGHITH

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

DEANE J
TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 NOVEMBER 1991, AT 3.29 PM

Copyright in the High Court of Australia

Baraghith 1 15/11/91

MR P.J. HIDDEN, QC:  May it please the Court, I appear with

my learned friend, MR T.A. GAME, for the applicant.

(instructed by Freemans)

MR R.O. BLANCH, QC:  May it please the Court, I appear with

my learned friend, MR G.S. HOSKING, for the

respondent. (instructed by the Director of Public

prosecutions (New South Wales)).

DEANE J: Yes, Mr Hidden.

MR HIDDEN:  If the Court pleases. Your Honours, this is an

application for special leave to appeal against a

decision of the Court of Criminal Appeal dismissing
the applicant's appeal against his conviction and

sentence for murder.

Your Honours, the applicant was found guilty

of the murder of his wife. It was common ground

that he had killed her by beating her with a house

brick. A number of matters of defence were raised

by the evidence in the trial but the substantial

defence was provocation which, if it had been

successful, of course, would have led to a verdict

of guilty of manslaughter but not of murder.

Your Honours, the provocation was said to

arise from the history of the relationship between

the applicant and his wife culminating with a
particular incident on the night on which she died

and that incident itself was of considerable

significance on the question of provocation.

The relevant facts, Your Honours, are probably

best disclosed in the lengthy statement which the
applicant made to the jury. That statement or
almost all of that statement, Your Honours, is set

out in the summing up of the learned trial judge

which commences at page 86 or, rather, the

reference to the statement commences at page 86 of

the application book. The applicant is Egyptian -	incidentally, do Your Honours have difficulty
seeing the printed pagination in the application
book?

DEANE J: Yes.

MR HIDDEN:  We have that difficulty ourselves. Would it be

more convenient, Your Honours, if we refer to the

pagination of the summing up itself? In which
case, we are talking about page 69 of the summing

up at the bottom of the page.

DEANE J: Yes. Some of that is a bit hard too. If you look

at what I think is page - the page in front of me I

cannot work out either but what page - - -

Baraghith 2 15/11/91

MR HIDDEN:  I am sorry, Your Honours, it is page 69 of the

summing up and page 86 of the application book.	It
starts with the words:

given you. But I do not think that the

purpose of this summing up will be greatly

served -

DEANE J:  Mr Hidden, I do not want to deter you from drawing

attention to particular matters. You can assume

that we have read the judgments and the statement.

MR HIDDEN:  May it please the Court. That being so,

Your Honours, we would submit that the whole of the

evidence in the trial, in particular the statement

of the accused but also the confession which he

made to police shortly after the event, discloses

these matters concerning the applicant himself

which, in our submission, were relevant to the

issue of provocation. Firstly, he is Egyptian;

secondly, and of considerable significance, he is

male; thirdly - - -

GAUDRON J: Is that a defence?

MR HIDDEN:  Of great significance in the context of this

case, Your Honour.

TOOHEY J: Is that separate from the first point?

MR HIDDEN: Egyptian male, Your Honour.

TOOHEY J: That is one point, is it?

MR HIDDEN:  Yes. The evidence was not specific as to his

religious persuasion but, we would submit,

Your Honours, it is obvious he is Moslem. It was

clear that he was not Christian. Further, he was a

religious man, that is, not merely a person from a

certain cultural background but a man who

migrant to this country in circumstances where his apparently held religious beliefs. Next, he was a	migration was for the purpose only of marrying his
Australian wife and, in the process of migrating,
he had left behind him virtually the whole of his
family, with the exception of his brother, and the
whole social milieu in which he had lived and
moved.

He said, on a couple of occasions in his

statement, that he had had extensive western

contact and he was an educated man but we would

submit that the evidence and, in particular, the

matters disclosed in his statement none the less

suggest or are capable of suggesting that

notwithstanding any western sophistication he may

have, he remained a man with a firmly traditional

Baraghith 3 15/11/91

view of marriage; he was a man who believed that when you marry each party severs all connections with previous emotional partners and that any

connection, however innocent, should not be pursued

after marriage, and to pursue it is inconsistent

with being married.

Your Honours will recall there was the

specific incident of the deceased's former

boyfriend, David, ringing her. The applicant said

not only was he shocked by that but when his wife returned he told her that the man was not to ring again, let alone have any other contact with her,

even though it seems all she wanted in all

probability was to continue an entirely innocent

and platonic friendship with the man. It would

seem also from the material, Your Honours, that he

was a man who considered that you could discipline

your wife by a hit and not expect one back and

Your Honours might recall on the night of the very

events in question, when things became heated and a
discussion about her general behaviour during the

period of the marriage arose and, in particular,

when reference was made to the incident which
Your Honours will no doubt recall where about a

week before he said he had seen her actually having sexual intercourse with another man at their former

residence, he hit her. She hit him and he said, "I

didn't expect that." Perhaps, Your Honours, to

that we should specifically turn. It is at page 78

of the summing up and 90 something of the

application book.	I cannot see myself what it is,
Your Honours.

DEANE J: Yes, that is a clear 78.

MR HIDDEN:  Yes. This is in the heat of the very incident

which led to her death. He had asked her to leave

and she said - this is at about point 3,

Your Honours:

'No, you are the one who is going to leave

because this is my country, this is not your

place, you are the one who is going to leave

and you are spying on me you son of a bitch' -

and he went on to say:

and I hit her on the mouth when she swear at

me like this, by my hand, and when I did this

she blew up in my face, she was hitting me

slapping me everywhere and I was shocked, I

also didn't expect her to do this, all I want

to do is let her to get out and not swear,

don't behave like this.

Baraghith 15/11/91

So that the picture presented, Your Honours,

we would submit, of the sort of man the applicant
was at the relevant time is of a man who, in

certain cultural respects, was clearly different

from your average Australian, at least, Australian

of Anglo-Saxon or European background.

TOOHEY J: Well, you say that, Mr Hidden. These sort of

arguments always seem to me to assume cultural

differences as opposed to individual differences

which may exist but why should the Court assume

that they exist in the absence of evidence?

MR HIDDEN: Yes, Your Honour. True, it is, there was no

specific evidence as to the cultural attitudes of

this man or those of his background but,

Your Honours, in our submission, perhaps an

emphasis on the cultural differences is not quite

to the point. What is to the point is that there

was an abundance of material from which the

characteristics of this man could be discerned.

Now, the complaint in relation to the

directions on provocation is that the relevance of

that material was not explained to the jury at all.

Perhaps we should say, Your Honours, before we turn

specifically to the legal argument, the provocation

itself would appear to have been - I think

His Honour Mr Justice Samuels referred to a

crescendo from the beginning of the incidents on

that night. It may, perhaps, have been a very much

longer crescendo beginning from when their

relationship started to go awry. The provocation,

we would submit, consisted of the whole history of

the relationship and the deceased's attitude to it,
as he perceived it: the failing relationship, his

perception that she was going out with men with not

even another lady present, having drinks after

work; the perception that she was coming home late

at night having been drinking rather than being at

home with him; the belief of her desire to continue

the relationship with the boyfriend, David; the

actual act of adultery, as he described it, at

Hunter's Hill; the suggestion that he should draw

stumps and go home, leave the country, he, having

come here specifically to marry her and having left

all behind to do that; the suggestion by her

parents and then, of course, by her on the night in

question and previously.

But then, of course, the events of the night

itself where the crescendo proceeded a pace: the

words used that night; the repeated reference to

his leaving the country, it is her country not his,

and the actual physical violence that ensued

between them which, admittedly, he started but

Baraghith 15/11/91

which then proceeded with quite an active role on

her part.

Now, Your Honours, as we apprehend the common

law, as it was stated in the context of the

Tasmanian provision by this Court in Reg v Stingel,

(1990) 171 CLR 312, those personal characteristics

of the applicant were relevant to determine the

gravity of the provocation because, as we apprehend

the judgment of this Court in Stingel, that test is

subjective. What is objective, as this Court

enunciated the law, is the question whether, given
the gravity of that provocation as he, in fact,

experienced it, an ordinary person might have

reacted in such a way as to lose self-control and

form an intent to kill or do grievous bodily harm.

So that, Your Honours, at the very least all

those personal characteristics went to the gravity
of the provocation in so far as the jury was called
upon to determine what effect this history and, in

particular, the events of the night in question had

on this applicant.

Now, Your Honours, His Honour's directions on

the question of provocation commence at page 37 of

the application book, which is page 18/19 of the

summing up. It is really towards the bottom of

page 17 that His Honour first raises the matter of
provocation but towards the bottom of page 18/19

His Honour refers to the material, as he saw it,

relating to provocation and His Honour said:

As I understand it, the concept of provocation

arises because of the assertion of the accused

that the deceased had been unfaithful to him

in a sexual sense. As I understand it, the

climax of his perception was her infidelity on the occasion when he was outside the window of

her flat in Hunters Hill on what he told the

police was the weekend prior to the killing

and on that occasion he claimed he heard

sounds of his wife having sexual intercourse

with another.

His Honour went on on the next page:

In addition to that event and those assertions the accused has claimed that the deceased had

rejected him and behaved in a manner which he

perceived as inconsistent with her marriage

vows.

I do not think it is necessary for present purposes to recite the evidence

touching upon this as Mr Spencer has referred

to it within the last hour or two.

Baraghith 6 15/11/91

Now, with that preliminary, Your Honours, which Your Honours might note makes no reference to

the events of the night when the killing occurred,

His Honour then went on to direct the jury as to

the law of provocation and that commences at about
point 8 on page 20, and His Honour proceeds to
direct the jury as to the elements of provocation

as they are set out now in section 23 of the New

South Wales Crimes Act. His Honour does so through

pages - really commencing at point 6 of page 39.

He refers to:

an act which has resulted from a loss of

self-control -

secondly:

induced by conduct of the deceased towards or

affecting the accused.

His Honour said, towards the bottom:

The third element -

must be -

the conduct of the deceased has been such as

could have induced an ordinary person in the

position of the accused so far to lose

self-control as to form the intention to kill

the deceased or inflict grievous bodily harm

on her.

Then His Honour went on to explain, as the fourth

element, that it did not matter whether the conduct

of the deceased alleged occurred immediately before
the act or at some previous time which, indeed, is

the law under the New South Wales section.

Now, again, Your Honours, at page 40

His Honour repeats the proposition that the conduct

must be such as would induce an ordinary person in

the position of the accused so far to lose his

self-control as to form the intention to kill or to

inflict grievous bodily harm upon his wife.

Now, Your Honours, basically, they were the

directions of law. Now, it is perhaps significant,

Your Honours, to note that they were added to at a

later stage. Now, at pages 45 - - -

TOOHEY J: Well, even before you get to that, Mr Hidden,

what about at the foot of page 40?

MR HIDDEN: At the foot of page - - -?

TOOHEY J: Page 40, the page that you had just taken us to.

Baraghith 7 15/11/91

MR HIDDEN: That is 40 at the top pagination, Your Honours?

TOOHEY J: Yes, 22 of the direction. Is there not a

reference to other matters there that the jury

might have regard to in considering the question of

provocation?

MR HIDDEN:  I am sorry, is Your Honour referring to the

paragraph:

You will see that your deliberation in

relation to this matter will involve

considering whether you find there is a

possibility of truth in the assertions of the

accused for the conduct of the deceased and

that includes the alleged words, infidelity,

the staying out late and the asserted

partaking of intoxicating liquor was conduct

towards or affecting the accused such as could

have induced an ordinary person -

Yes, Your Honours, that is a reference in a very

summary form to the alleged provocative conduct.

But, Your Honours, what His Honour never told the

jury was that, "In determining the gravity of that
provocative conduct, you must look at the

characteristics of the accused." His Honour, in

our submission, was bound to do so and it is

consistent with authority that His Honour should

have done so. But what is more, Your Honours, the

reference to the ordinary person in the position of
the accused, unexplained, may well have led the
jury to the view that that is precisely what they

could not do, that is, a requirement that the

conduct must be such as might have induced an

ordinary person in the position of the accused so

far to lose self-control may well have led the jury

to the view that even in determining the gravity of
the provocative conduct to the accused himself,

they must put aside his personal characteristics as

they may have found them to be.	So that not only
was His Honour's direction inadequate, in our	submission, but it was positively misleading.

Now, Your Honours, section 23 of the New South

Wales Crimes Act is unusual because of the use of

the words "in the position of the accused". If we

could take Your Honours briefly to section 23 of

the Act, it provides for the defence of provocation

and subsection (2) of the Act sets out what an act

done under provocation is and subsection (2)(b)

imports the objective element. It says:

that conduct of the deceased was such as could

have induced an ordinary person in the

position of the accused to have so far lost self control as to have formed an intent to

Baraghith 8 15/11/91

kill, or to inflict grievous bodily harm upon,

the deceased -

now, Your Honours, those words, "in the position of the accused" appear, it would seem, only in the New

South Wales legislation, not in the legislation of

any other State nor in England. And when this

Court was dealing with the Tasmanian legislation in

Stingel, it was dealing with a section which did

not contain the words "in the position of the

accused" but simply, "an ordinary person".

Now, as far as we are aware, Your Honours, the

decision of the Court of Criminal Appeal in this case is the first decision of that court on what those words "in the position of the accused" might

mean. The view of Mr Justice Samuels who gave the
majority judgment, Your Honours, was consistent

with what this Court said in Stingel. At page 115

of the application book, which is page 7 of

His Honour's judgment, His Honour said at about

point 7:

Hence, when considering the formula "an

ordinary person in the position of the

accused" the words "in the position of the

accused" so far as they make relevant

attributes or characteristics of a particular
accused do so only in assessing the gravity of
the alleged provocation and are to be ignored
in deciding whether the accused's response was

or was not that of an ordinary person.

Now, accepting that as the law, Your Honours,

the point is even that, that is the fact that the
attributes of the accused may go to the gravity of

the provocation, was not conveyed to the jury and,

indeed, we would submit, rather the opposite was

conveyed to the jury by the totality of

His Honour's directions.

Mr Justice Enderby, who dissented,

Your Honours, seems to have interpreted the words

"ordinary person in the position of the accused"
more along the lines of the decision of the House

of Lords in Director of Public Prosecutions v

Camplin, (1978) AC 705. Camplin, Your Honours will

recall, was the young lad who despatched his victim
with a chapati pan. Whether or not the young lad

was also Indian does not appear but that may well

be the inference.

But, Your Honours, in Camplin, at page 718, Lord Diplock said - having reviewed the history of

the law of provocation and the passing of section 3

of the English Homicide Act gave his opinion as to

Baraghith 9 15/11/91

the proper direction to given to a jury, and this

appears just above letter E. And having said:

The judge should state what the question is

using the very terms of the section.

His Lordship said:

He should then explain to them that the reasonable man referred to in the question is a person having the power of self-control to

be expected of an ordinary person of the sex
and age of the accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him.

Your Honours, Lord Morris - perhaps I will

come back to Lord Morris, Your Honours.

Lord Simon, at page 727, said, just above letter D:

I think that the standard of self-control

which the law requires before provocation is

held to reduce murder to manslaughter is still

that of the reasonable person (hence his
invocation in section 3); but that, in

determining whether a person of reasonable

self-control would lose it in the

circumstances, the entire factual situation,

which includes the characteristics of the

accused, must be considered.

accused were relevant to the objective test

In other words, Your Honours, the view of of the

and the objective test was an assessment of what a

reasonable person, having those particular

characteristics, might do and all that was required

in applying the objective test was to leave out of

the field particular characteristics such as

unusual pugnacity or excitability.

Maybe the distinction is academic. That

appears to have been the view, Your Honours, of

Lord Morris who said, at page 721, just above

letter B:

There may be no practical difference between,

on the one hand, taking a notional independent reasonable man but a man having the attributes of the accused and subject to all the events

which surrounded the accused and then

considering whether what the accused did was
only what such a person would or might have

done, and, on the other hand, taking the

accused himself with all his attributes and

subject to all the events and then asking

Baraghith 10 15/11/91

whether there was a provocation to such a

degree as would or might make a reasonable man

do what he (the accused) in fact did.

His Lordship went on:

In my view it would now be unreal to tell

a jury that the notional "reasonable man" is

someone without the characteristics of the

accused: it would be to intrude into their

province.

Now, Your Honours, Mr Justice Enderby, in his

dissenting judgment, referred to - Your Honours,

this commences at page 151 of the application book,

being page 30 of His Honour's judgment. His Honour

referred to the judgment of the learned trial

judge, Mr Justice Lush, in the case of Reg v

Dincer, (1983) VR 460 - actually, Your Honours, I

believe in Turkish, that is pronounced "Dinjer".

His Honour, at page 151 of the application book

sets out a lengthy passage from the interlocutory

judgment of Mr Justice Lush in that matter in

which, among others, there is reference to the

decision of the Supreme Court of South Australia in

Dutton, to which we will turn in a moment,

Your Honours.

At page 152, His Honour referred to the words

of Mr Justice Cox in Dutton where he said:

"It follows in my opinion that the ordinary

man against whom the actions of the accused

are to be judged is one possessing all of the

characteristics and idiosyncrasies of the

accused himself - age, sex, race, colour,

physical defects, and so on - which would have

affected his conduct in the circumstances in

which the accused found himself, with the

exception of any extraordinary excitability or

pugnacity that the accused happened to

possess ..... "

Now, Your Honours, that passage from Mr Justice Cox

in Dutton was approved by Mr Justice Lush in

Dincer, and at page 153 of the application book,

Mr Justice Enderby, having referred to it, went on:

It has to be noted that some of Lush, J's

references result from Victoria having no

equivalent to our s.23(3)(a).

That being "the ordinary person in the position of the accused" test.

The main thrust of what he says, however, is

equally applicable in New South Wales.

Baraghith 11 15/11/91

Now, His Honour then went on to refer at some

length to the directions to the jury which

Mr Justice Lush then gave in Dincer, and

Your Honours will see at page 154 of the

application book a portion of those directions

which His Honour underlined.

The first thing is that the provocation must put the accused man into a heat of passion in

which he loses self-control ... -

apparently part of the quotation is left out -

the accused man's reaction so that the jury

can think to themselves, "Well, this is the

kind of thing that an ordinary man in the

whole of the circumstances might have done:

not that every many would have done in the

circumstances, but a man that you could class

as an ordinary man might have done".

And the following page, still in the extract from

Mr Justice Lush, towards the bottom of the page

His Honour posed to the jury:

who is an ordinary man for this purpose?

Well, the answer is that ordinary men come in

all shapes and sizes with enormous variety of

backgrounds of race, religion, colour.

His Honour said:

the jury must consider an ordinary man who has
the same characteristics as the man in the

dock. In this case it has been put to you

from the outset that you have to take into

consideration the fact that Dincer is Turkish

by birth, the fact that he is Muslim by

religion, the fact the he is one whom some of

the witnesses were prepared to describe as a

traditionalist, the picture painted of him

that he was a conservative Muslim -

and His Honour went on to refer to the social

practices which he accepted. His Honour said,

towards the middle of the page:

So the first question in this area of provocation is this. Might an ordinary man of

Dincer's origin, religion and background have

lost his self control on learning of what

Zerrin was doing, and upon being exposed to the final events seconds before the stabbing?

Would an ordinary man of Dincer's origin,

background and beliefs have lost his self

control if he was exposed to what Dincer was

exposed to up to the moment of stabbing? If

Baraghith 12 15/11/91

you thought that the answer to that question
was yes, then it would still be necessary to

ask yourselves, "Well, would that same

ordinary man, losing his self control, have

taken the steps of stabbing?"

In other words, Your Honours, the two

alternative views seem to be these, as we

understand them. The view espoused by this Court

in Stingel dealing with the section which simply
said "ordinary man" was that the person or

characteristics of the accused are relevant to

determining the gravity of the provocation, but in

determining whether provocation of that gravity

could have induced an ordinary man so far to lose

his self-control as to form a murderous intent,

those personal characteristics should be
disregarded unless they are themselves ordinary.

The alternative view is that the jury should determine the appropriateness of the loss of

self-control and the question whether an ordinary

man might so far have lost self-control as to form

the murderous intent, using as "an ordinary man" a man having all the characteristics personal to the accused other than exceptional excitability or

pugnacity.

Now, Your Honours, even though the matter was

clearly settled for Tasmania and, no doubt, for the

common law in Stingel, it may be that in New South

Wales, given the addition of those words "the

ordinary man in the position of the accused", both

interpretations are still open. We would

respectfully submit that the second interpretation

is the preferable one and, indeed, for pragmatic
reasons, perhaps, one more readily explained to a
jury. Maybe the true test - put another way,
perhaps the test for a jury is this, bearing in

mind the burden of proof which the Crown bears,

"Has the Crown satisfied you beyond reasonable

doubt that the accused was not provoked?", that

there was no provocative conduct. If the Crown has

not, you turn to the next question, "Has the Crown

satisfied you beyond reasonable doubt that that

conduct did not cause the accused to lose his

self-control?" If the Crown has not satisfied you

on that question, you turn to the next question,

"Has the Crown satisfied you beyond reasonable

doubt that in all the circumstances, viewed

objectively, it was not reasonable for the accused

to have lost his self-control so as to form the

murderous intent?" That is another way of putting

it.

TOOHEY J: Mr Hidden, those tests do not exist in isolation.

Mr Justice Samuels' judgment is really based in

Baraghith 13 15/11/91

this regard on the proposition that there was no

evidence which would really justify the judge in

singling out the accused as having particular

characteristics, at least, by characteristics that

could be described as cultural. I mean, it is one

thing to say, "Well, provocation is to be judged by

reference to the accused", but there has to be

evidence there which is relevant to the question of

the provocation of the particular accused.

MR HIDDEN: Well, in our submission, with great respect,

Your Honour, there was. There may not have been

evidence to the effect that people from this man's

background tend to have certain attitudes but there

was abundant evidence of what this man's attitudes
were. Against the background of his being

Egyptian, not of a Christian upbringing and coming

to this country, having left all behind him, there

were attitudes to the deceased as his wife which

are eloquent in what he said and what he did.	The
insistence that if she is his wife, she must

abandon all contact with former boyfriends, however

innocent. That is one of his attributes. The whole

concept that marriage was inconsistent with any

kind of friendship with any person with whom you

had ever had an emotional relationship, which he

saw equally of himself -

GAUDRON J: Yes, but why does not one just put that down to

the green-eyed monster? I mean, it is not peculiar

to people of this religious or ethnic background.

It is a feature which can occur in what you

describe as the Anglo-Saxon Australian male.

MR HIDDEN:  Yes. Your Honour, with respect, we may

perhaps - and if we have done this, forgive us -

have strayed from the point by talking about the

cultural background. Whatever the cultural

background, this was a personal characteristic of

this accused.

DEANE J: Yes. What you say is the fact on this aspect that

he is Egyptian is irrelevant?

MR HIDDEN:  It may explain some of his characteristics,

Your Honour.

DEANE J: That a normal Australian accused could get up in

the dock and say, "I'm a man with an extraordinary

jealous disposition. I take offence at things that

don't offend other people" and set the setting.

MR HIDDEN: Well, that may come dangerously close,

Your Honour, to "unusual excitability or

pugnacity".

Baraghith 14 15/11/91

DEANE J:  No, but he would no doubt add, "except that I'm

not a bit unusually excitable".

MR HIDDEN:  But he may say, "Most Australians I know don't

mind their wives going out with their old

boyfriends when they are satisfied that the

relationship is all over. I'm not an Australian

like that.	I can't brook it, no matter how
innocent the association is.	I have such a firm

view of the marriage vows that I will brook no

contact, even by telephone, with someone with whom

my wife has associated, nor will I with any girl
with whom I have ever associated"

DEANE J:  I think for the purposes of the leave question,

you have identified the matters clearly enough

though you need, of course, to bear in mind the

context where the differences between the members

of the Court of Criminal Appeal as to result seem

to have turned to no small extent on factual

considerations and in a context where it is

unusually important that counsel who were there,

who had addressed and had heard the general

reminder to which Justice Toohey has referred you,

did not think it necessary to call for any further

direction or any redirection.

MR HIDDEN:  Yes. Well, mind you, Your Honours, just on

that - as to this particular point, with respect,

that is not quite so. At page 45 of the

application book which is page 27 of the summing

up, the Crown prosecutor expressed concern about

His Honour's directions thus far on "the ordinary

person in the position of the accused" test. This

is at about point 6, Your Honours.

CROWN PROSECUTOR: Another matter, when

dealing with provocation, your Honour said

words to the effect that they will have to

consider amongst other things whether the

conduct of the deceased would induce an

ordinary person to kill his wife. With	respect, it should be an ordinary person in
the position of the accused.

Now, Your Honours, that was a reference to one particular occasion when His Honour left out those

qualifying words and simply said "ordinary person".

And His Honour, perhaps illuminating, Your Honours,

said this:

Well, it is the position of the accused though, is it not? He killed his wife.

Counsel for the accused then said:

Baraghith 15 15/11/91

I think my friend means with all the attendant circumstances.

And the Crown said:

It has to be a person bearing in mind the

accused's situation. I only say that to

prevent appellable?? error should it be

perceived as that one day.

And His Honour said that he would go back and give

a further direction, saying, on the next page:

I should have included all the attendant

circumstances.	I might have at one stage and
not at another.

Now, Your Honours, it is not very clear but it

does seem that the Crown prosecutor was concerned
that the concept if "ordinary person in the
position of the accused" had not been adequately

elucidated for the benefit of the jury and counsel

for the accused joined in that concern. And

His Honour then did, indeed, give a further

direction which commences at page 29 of the summing

up, page 48 of the application book but which, with

respect, Your Honours, did nothing to cure the

problem. His Honour simply told the jury again

that as part of provocation - - -

DEANE J:  I do not read that as complaining about what you

are now complaining about.

MR HIDDEN:  I appreciate that Your Honour need not so read

it, yes.

DEANE J: If one sees no fault in Mr Justice Samuels

approach to the law, it seems to me that there is

nothing there that asks a direction to deal with

your complaint that the directions were simply

inadequate on factual material.

MR HIDDEN: Well, with respect, Your Honour, a little more

than that. Inadequate on factual material in the

sense that they did not assist the jury at all in

how to approach the facts and relate them to the

issue of - - -

DEANE J:  I follow what you say now.

MR HIDDEN: Thank you, Your Honour. Perhaps, significantly,

Your Honours, at page 116 of the book, page 8 of

Mr Justice Samuels' judgment, His Honour said at

about point 8:

The essence of his account of what had taken place between him and the deceased, or about

Baraghith 16 15/11/91

the deceased's conduct which had grievously

injured him emotionally, consisted of events

that might well have been regarded as

deplorable by any spouse of any cultural

background in relation to another. Adultery

is commonly regarded as a repudiation of

marriage vows and, indeed, sexual intercourse

with other than an established partner is

equally regarded as a repudiation of a
de facto relationship. Persistence in going
out with persons other than a spouse or
partner, returning home drunk, and matters of

the kind of which the appellant complained

might well be regarded as unacceptable
behaviour by people of a variety of cultural

backgrounds. Similarly, abuse and violence

are not usually readily accommodated.

Your Honours, that was part of the basis upon which

Mr Justice Samuels disposed of the ground but the

difficulty with that, Your Honours, is that, in a

sense, with respect, it confuses the two issues of
"the ordinary person in the position of the

accused" and "the personal characteristics of the

accused" which, on any view of it, go to the

gravity of the provocation.

It matters not that any of us would be offended and distressed by conduct such as the

applicant ascribed to the deceased. The point is

the extent to which he was offended and distressed

by it and in that regard, Your Honours, we submit

that there was an abundance of material to show
that he was unusually offended and distressed by

the whole course of conduct culminating in the
dramatic events of the night in question and at

very least, on the question of assessing the

gravity of the provocation, that had to be

explained to the jury. They received no assistance

and, indeed, as we have submitted, the way in which

His Honour directed the jury may have positively

misled them into believing that they could not

regard the matter in that way. They had to assess

even the gravity of the provocation by some

objective rather than subjective standard.

The other matter concerning provocation,

Your Honours, of which complaint was made in the

Court of Criminal Appeal and is in this Court is

the fact - and, Your Honours, this is referred to,

perhaps adequately, at paragraph 4 of the summary

of argument - that while His Honour did, late in
the summing up, set out the lion's share of the
accused's statement including his account of what
happened on the night in question, His Honour did

not, when directing the jury on provocation, refer

in terms to the night in question itself. Indeed,

Baraghith 17 15/11/91

the effect of His Honour's directions would appear

to be that the provocation was really in the

antecedent behaviour, perhaps culminating in the
applicant having found his wife in a situation of
adultery the week before, whereas, on any view of
the evidence and however counsel may have put it to
the jury, on any view of the evidence, the

culmination was the night itself and the events of

that very night directly leading up to his seizing

the brick and striking her. Those very important events were, in a sense, left out of the equation

on provocation. They were not specifically

referred to as part of the provocative conduct.

Now, Your Honours, it is as to that matter

and, indeed, as to the matter on which we have

already made submissions, that is, the question of

what does "the ordinary person in the position of

the accused" mean, that we would refer Your Honours
to the judgment of the Court of Criminal Appeal of

New South Wales in the Reg v Zorad, (1990)

19 NSWLR 91 where, at page 105, the court, in a

joint judgment said this, just at E:

A summing-up should, in every case, not only

include directions as to the ingredients of

the offence which the Crown has to establish

and an explanation of how the relevant law may

be applied to the facts of the particular

case, but it should also include a collected

resume of the evidence which relates to each

of those ingredients and a brief outline of

the arguments which have been put in relation

to that evidence.

And the court refers to a number of authorities,

including the familiar decision of this Court in

Alford v Magee. The court went on:

This is a rule which appears increasingly to

be ignored by trial judges. It is not a

compliance with that rule simply to read the	relevant part of the section to the jury and
then to read out the evidence which has been given chronologically, starting with the first witness and going through the evidence in chief, the cross-examination and then re-examination of each witness before turning to the next witness and so on. The idea of a
summing-up is to present for the jury the
issues of fact which they have to determine.
We regret to say that the summing-up in the
present case failed to comply with that rule.

And in our respectful submission, Your Honours, the

same is true of the summing up in relation to the essential issue of provocation in this trial and,

Baraghith 18 15/11/91

in determining that it was not, the Court of

Criminal Appeal was in error.

The responsibility of the trial judge to sum up to the jury intelligibly and to relate the law

to the issues of fact, of course, was emphasized in

a different context by this Court in Pemble and by

the Court of Criminal Appeal in New South Wales in

Veverka which are referred to in the outline of

argument and we do not propose to refer to them

further. And as is noted there, Your Honours, the

failure to relate the elements of provocation,

especially "ordinary person in the position of the

accused" to the facts of the case is a fundamental

error going to the very heart of the applicant's

defence and, for that reason, far more fundamental

than that identified by the Chief Justice in

Chidiac v Reg, (1991) 171 CLR 432 at page 441.

There, in Chidiac, there was a failure to seek a

particular redirection but this Court was of the

view, as was the court below, that that may well

have been done for sound tactical reasons because

the direction did not go to an essential matter and

may well have necessarily led to reference to

evidence which was basically unfavourable to the

accused.

Your Honours, those are our submissions on the question of provocation. May we turn,

Your Honours, to the question of character?

DEANE J: Yes.

MR HIDDEN:  His Honour's directions on good character appear

at pages 42 to 44 of the application book which,

again, I will attempt to identify for Your Honours

more intelligibly. That is pages 24 to 26 of the

summing up. His Honour directed the jury in terms

of section 412 of the Crimes Act, towards the

bottom of page 24, and told them that good

character went - this is on the next page - to:

likelihood of the accused -

having -

committed the crime charged -

and those words are of some importance,

Your Honours, and also -

in assessing the credibility of any

explanations given by the accused.

His Honour went on to say that, of course, for all

offenders there has to be a first time and the

weight to be given to the character evidence is a

Baraghith 19 15/11/91

matter entirely for the jury. Thus far,

Your Honours, impeccable general directions on

evidence of good character consistent with the

decision of the Supreme Court of South Australia in

Trimboli to which I do not think I need

specifically to take Your Honours.

But His Honour then went on to say this - this

is at page 25 of the summing up:

It may of course be of assistance for you

to consider that prior good character

frequently is of weight depending up the

circumstances. Let me give you an example

that has nothing whatever to do with this

case. If you had a man who had been a bank

officer for thirty years and the evidence was

that he had no prior convictions and that

daily he handled in a trustworthy fashion

multiple hundreds and thousands of dollars and

a charge was brought against him that he stole

$2 from the Boy Scouts Fund. You might think

that those many years of good and trustworthy

service would be something that would weigh

very heavily in the balance as to whether you

were prepared to drawn an inference to guilt

in relation to that person. On the other

hand, if the evidence of his guilt was there,

despite the previous good character, you may

be minded to draw it.

In offences that relate to what might be

perceived, although it is a matter for you, as
something done during passion or emotion or

perhaps as is argued, that at the time there

was an abnormality of mind -

Your Honours might recall there was a defence of diminished responsibility run during the course of

the trial -

you may think that in those circumstances the

question of prior good character is not of

marked weight, but those are just alternative
ways of approaching the matter that I give to

you.

Now, Your Honours, with those directions in

their totality, we submit there are two

difficulties. The first is this - if I can take

Your Honours back to the example which His Honour gave of the bank officer - may we say from the bar

table, Your Honours, that directions of this kind

are commonly given by trial judges in New South

Wales, that is, directions which suggest that the

relevance of evidence of good character varies with the circumstances and in cases of dishonesty it may

Baraghith 20 15/11/91

carry great weight but in crimes in violence,

especially spontaneous crimes of violence, it may

not carry much weight although it is all a matter

for you.

Now, the type of contrast His Honour made

between different types of cases is commonly made

in summings up in New South Wales. We would submit

it is seriously in error, at least as far as a

murder trial where provocation is raised is

concerned. In a sense, what His Honour was saying

with the bank officer example was that, "Where a

bank officer, with years of trustworthy service and

no prior convictions, is charged with a minor

stealing, you may consider the character evidence

of great weight going to a very live issue in the

trial because why would a man with that record for

honesty and trustworthiness commit an act of

dishonesty?" Well, Your Honours, exactly the same

is true of a man of good character and peaceful

disposition who kills his wife with a house brick

and says, "I was provoked". In our submission, Your Honours, evidence of his normally peaceful

disposition is highly relevant to the question

whether he was in fact provoked and did in fact

lose his self-control: two essential matters in

provocation.

To say that "Evidence of prior good character,

including specific evidence as to peaceful

disposition, is not of marked weight in crimes of

violence of this kind" is, in effect, to take the evidence of character from the jury; to render it of no effect.

DEANE J: Well, it is not to take it from the jury. He

said, "You may think" - - -

MR HIDDEN:  Yes, I appreciate that, Your Honours. The first

problem though, however, Your Honours, is that it
pours very cold water on the material but,

secondly, His Honour did not, in any event - a

little bit like "ordinary person in the position of

the accused" with the other matter - direct the jury as to what the relevance of good character

might be in this case. And it was a very great

relevancy in this case, given the provocation was

the real issue here.

Again, in our respectful submission,

His Honour has failed to comply with the injunction

of the Court of Criminal Appeal in Zorad and of

this Court in Alford v Magee. His Honour has given

the jury a general direction about character
evidence with no reference to the evidence in the

case. What is more, His Honour has directed the

jury as to character in such a way as to minimize

Baraghith 21 15/11/91

the affect which character evidence might have had

in this case, quite apart from not explaining what

its real relevance was to the issues at hand.

Now, in a sense, Your Honours, the two matters are complementary. Our complaint as to the

provocation directions itself is that the jury were
not told what "an ordinary person in the position
of the accused" means and it was not explained to

them that they might have regard to the personal

characteristics of the accused, at least to assess

the gravity of the provocation. It is compounded

by the fact that they were also not told that on

that very issue, that is, assessing the gravity of
the provocation to this man, his gentle disposition

and prior good character was of great importance.

They were told he had it. They were given no idea

as to what to do with it or how it related to the

issues in the trial.

Now, Your Honours, as to this matter, the

Court of Criminal Appeal, in the judgment of

Mr Justice Samuels, had this to say, and this is at

page 118 of the application book, page 10 of the

judgment.	Mr Justice Samuels said at about
point 8:

It is not by any means self-evident to me to

what issue it was material. The appellant's

disposition was irrelevant to the objective
element of s 23 as I have explained; and it

was not, I would have thought, a factor which

touched the gravity of the deceased's conduct.

Now, Your Honours, in our submission, that just

cannot be so. His Honour went on:

However this may be the appellant never sought

to formulate the relevance of the evidence

because his counsel requested no directions

concerning it.

True, Your Honours, his counsel did not. That did

not relieve His Honour of the responsibility of

explaining to the jury what its relevance was.

His Honour went on:

In those circumstances I do not consider that the argument requires further consideration.

I would refuse leave under r 4 and reject this

ground.

I must add that it was also contended

that, in the circumstances, the learned trial

judge's observation to the jury that evidence

of prior character might not be of "marked

Baraghith 22 15/11/91

weight" in relation to crimes of passion or

emotion was "inappropriate and undercut the

already inadequate directions on character."

However, the effect of this error was not such

as to provoke counsel into any attempt to have

the judge correct it, and the point does not

surviver 4.

I suppose, Your Honours, it is not entirely clear

whether His Honour is there saying "the effect of

this suggested error" or His Honour is conceding

that that was in error but that rule 4 ought

prevent leave being granted to argue it.

I pause merely to remark, Your Honours, that

Mr Justice Enderby was of the view that this ground ought succeed although His Honour dealt only with

the assertion that the learned trial judge's

directions had failed adequately to explain to the

jury that good character went to the credibility of the applicant's account. His Honour did not really deal with the question which we are now

entertaining, that is, the relevance of his

personal disposition to the defence of provocation.

Your Honours, again, perhaps, with reference

to both these matters, the directions on

provocation and the directions on character, it is interesting to return to the South Australian case

of Dutton to which Mr Justice Enderby referred at

some length in his judgment. At page 159 of the

application book, page 38 of His Honour's judgment, judgment of Mr Justice Cox and at page 160, towards

the middle of the page, there is reference to the

opinion of Mr Justice Cox:

that the ordinary man -

is the person having -

all of the characteristics and idiosyncrasies

of the accused himself.

That matter has already been dealt with,

Your Honours. But His Honour then went on:

As I said earlier, (the trial judge) referred

to the ordinary man without explanation or

embellishment. Given the nature of the

defence ... it was necessary to endow the

ordinary man with the accused's infirmities in

this respect. It could not be supposed that

the jury would make this adjustment unaided;

after all, the postulated ordinary man was, to

this important extent, being made less

ordinary. It follows that, inasmuch as the

Baraghith 23 15/11/91

reference to the ordinary man was left
unexplained, there was a misdirection in the

charge."

Now, Your Honours, in our respectful

submission, those words of Mr Justice Cox are

apposite to the argument we have already presented

on the provocation directions and are equally

apposite, mutatis mutandis, to His Honour's

directions on character. In both respects, the

jury was left unaided as to what these legal

expressions had to do with the case which they were

called upon to decide.

Your Honours, the final matter sought to be

argued on this application is the question whether
rule 4 of the Criminal Appeal Rules of New South

Wales is intra vires the Act, at least as far as

appeals on a question of law are concerned.	Might
we take Your Honours to rule 4?

DEANE J:  Was this point raised in the Court of Appeal?

MR HIDDEN: It was, Your Honours. It is not referred to in

the judgment but my learned junior who argued the

matter in the Court of Criminal Appeal did raise

it. So much is asserted in the affidavit in

support of this application and, I understand, is

not contested by the Crown.

GAUDRON J:  You only get to that point, however, do you not,

if your primary points are made good? It is

entirely academic unless your primary points are

made good.

MR HIDDEN:  I suppose, Your Honour, that must be so, yes.

Yes, true. Your Honours, the point is a very short

point. Let me say this, Your Honours: as to the

two major grounds, the provocation directions and

the character directions, Mr Justice Samuels is of

as - - - the view that rule 4 applied to both. said, there may be some question about that as far As we have

DEANE J: But, Mr Hidden, it is not going to make any

difference in this case because unless we think it

is appropriate to grant leave in relation to one or

other of your points, we will not grant it, and in

considering whether it is appropriate to grant leave we will take account of the fact that no objection or adequate objection was taken at the

trial even if the Court of Criminal Appeal should

not have taken account of it.

MR HIDDEN:  We understand what Your Honours are saying.

Those are our submissions, if the Court pleases.

Baraghith	15/11/91
DEANE J:	The Court need not trouble you, Mr Blanch.

This is an application for special leave to

appeal from a decision of the Court of Criminal

Appeal of New South Wales refusing leave to appeal

in relation to alleged deficiencies in the learned

trial judge's summing up to which no objection or

no adequate objection had been taken at the trial.

There are two distinct areas of complaint.

The Court of Criminal Appeal was divided in

relation to them both. Mr Justice Samuels and

Mr Justice Loveday refused leave.

Mr Justice Enderby would have granted leave and would have upheld an appeal on each of the two

areas of complaint.

The first point relates to the learned trial

judge's directions about provocation which was a

central issue on the trial. It is that His Honour

failed adequately to summarize the material which

was capable of amounting to provocation. It is

also argued that the trial judge failed adequately

to instruct the jury about the meaning of, and

facts relevant to, the phrase ttin the position of
the accusedtt in section 23, the provocation
section, of the New South Wales Crimes Act. The
majority of the Court of Criminal Appeal correctly

interpreted that phrase, consistently with the judgment of this Court in Stingel v The Queen,

(1990) 171 CLR 312.

The second point relates to the learned trial

judge's directions about evidence relating to the

applicant's general character, in particular

evidence that he was not prone to violence. It is

argued that the directions were inadequate as to

the use which the jury could make of that evidence
in the circumstance of this case where the

credibility of the applicant was of central

importance. It is also argued that the directions

implied that the evidence in question was of little

importance in the present case.

As to both points, the case turns very much on

its own facts and the differences between the

members of the Court of Appeal reflected differing

assessments of the evidence and of the directions

to the jury rather than differences of principle.

An appeal to this Court would not, in our view,

give rise to any real question of general principle

appropriate to attract a grant of special leave.

Special leave to appeal is therefore refused.

MR HIDDEN:  May it please the Court.

AT 4.34 PM THE MATTER WAS ADJOURNED SINE DIE

Baraghith 25 15/11/91