Burrows v The Queen

[1990] HCATrans 87

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B4 of 1989

B e t w e e n -

FRANK LESLIE BURROWS

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

BRENNAN J
DEANE J
DAWSON J
GAUDRON J

Burrows

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 MAY 1990, AT 3.00 PM

Copyright in the High Court of Australia

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MR T.J. O'DONNELL:  If the Court pleases, I appear on behalf

of the applicant. (instructed by D.M. Fingleton & Co)

MR M.J. BYRNE:  May the Court please, I appear with my learned

friend, MR B.W. FARR, for the Queen. (instructed by

T. Wakefield, Acting Director of Prosecutions)

BRENNAN·. J:	Mr O'Donnell.
MR O'DONNELL:	Your Honour, if I may assist, there were some

matters that I came to belatedly that we~e not on the list of authorities provided to the Court and I have

provided multiple copies, if it does assist.

BRENNAN J:  It would. First of all, if you would take your place at the

podium, we will be able to have you recorded.

MR O'DONNELL:  I am sorry, Your Honour. I have, in addition

and the relevant sections in relation to homicide from the Queensland CRIMINAL CODE

to the authorities requested to be provided to provocation

if Your Honours do not have them, although they were

simply extracted from Carter.

I have a copy, as best I can obtain it, with

two pages missing, the letter accompanying the draft

Criminal Code from Sir Samuel Griffith to the Attorney-General. That is as provided by the

Justice Department and pages II and III are missing,

but I understand that they do not affect the argument
that I propose to place before the Court in relation

to section 304 of the Code.

BRENNAN J:	Yes.	You can hand those up now, Mr O'Donnell.
(Continued on page 3)

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MR O'DONNELL:  Yes, I would formally also offer the Court

MORRIS V REG, although obviously that is a matter

which has been well covered.	I have those,
Your Honour.

BRENNAN J:  And do you have some notes of your argument?

MR O'DONNELL:  Yes, I do, Your Honour. I have an outline of

argument which I have provided to my learned
friend and if it will assist I also have a list

of authorities provided to the Court.

BRENNAN J:  I do not think we need that though because it is

already available to us.

MR O'DONNELL:	As Your Honour pleases.
BRENNAN J:	Mr O'Donnell, the application_ you are now making

is one for special leave to appeal and so it would be

of assistance if you could address first the aspect
of your case which has to do with the grant of special

leave.

MR O'DONNELL:  Yes, Your Honour. Perli..aps I also need to address the

Court in relation to the application for extension of time.

BRENNAN J:	How far out of time are you?
MR O'DONNELL:	The prisoner was unrepresented and filed his - - -
BRENNAN J:	I need not trouble you on the question of time

unless your opponent has some objection to make

to it later.

MR O'DONNELL:  Yes, thank you, Your Honour. In relation to

the proposition that special leave would be appropriate
in this matter there are appeal grounds that are
on three broad bases. There is the first proposition

that the trial judge should have left the question

of provocation to the jury and that stands on its
own.	I wil 1 come back to that, to the. question of importance

and the areas of conflict that may be raised in

this case jurisdictionally between particularly

Western Australia and Queensland.

(Continued on page 4)

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MR O'DONNELL (continuing): There is a second area of argument

that relates to grounds 2 and 3, relating to the
rebuttal of a suggestion of fabrication made by the
Crown to a defence witness and linked with that the
evidence upon the voir dire of that witness being
limited by the trial judge but the real issue, in

my submission, would be that the defence should have

been entitled in re-examination to present or call

through her and through a lawyer evidence of prior

consistent statements, consistent with her testimony,

it having been put to her, I think, specifically

that she would say anything to assist the applicant.

So, those two are linked.

It would be my submission that the Court of

Criminal Appeal, when dealing with that matter, did
not deal with the provisions of the EVIDENCE ACT
at all and simply decided the matter on the cases,

CLEMENTS V THE NOMINAL DEFENDANT and also,

I think, they may have referred to the English

criminal case of OYESIKU.

It would be my submission that although that may not be the strongest of grounds for a special leave application in the sense of public importance

or jurisdictional conflict or anything of that nature,
it would be my submission that courts of criminal

appeal should not be encouraged to simply overlook

their own legislation and proceed as if it does not

exist.

In relation to the grounds 4, 6 and 7, it would

be my submission that they relate generally to the

question of fairness of trial where persons are
accused of offences such as the killing of children

or where prejudice may naturally arise and the

cross-examination by the learned trial judge of

the defence witness last called, which is the
subject of ground 4, the showing very early in
the trial, literally within minutes of the opening

of the trial, of the fairly horrific photographs of

the deceased child, both at autopsy and at the

scene of death and, in general, the summing up of
the learned trial judge were such as that the course
of the trial was very heavily weighted against the

applicant as an accused and it would be my submission

that the fairness of such trials as a general

proposition is very important in the day-to-day

running of criminal courts and that where trials

become unfair or unnecessarily weighted against an

accused person, it would be my submission, without

disrespect, that the role of the ultimately superior

court in relation to providing guidelines for such

errors or misjudgments is valuable, both in this sort
of_trial and other trials where prejudice may naturally

arise.

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MR O'DONNELL (continuing):  I cannot put it any higher

than that, but it would be my submission that

it is important both to this particular applicant
and to others who find themselves in a position

charged with a serious offence that obviously raises the anger and perhaps disgust of people

in rhe conm1unity generally and then the persons

who have to be jurors in those trials,

of course every endeavour has to be made to make

sure that those persons get fair and unprejudiced,

unemotional trials on the evidence.

BRENNAN J:  Would it be right to say that your provocation

point is the point which you put at the forefront

of your application for special leave?

MR O'DONNELL:  Yes, Your Honour.

BRENNAN J: Well perhaps you could deal with that.

MR O'DONNELL: Yes, thank you, Your Honour. In relation to

that it would be my submission that the question

of provocation,where the provocation is alleged to

have been offered by an innocent victim and a

child, is something that fortunately does not

often arise but does arise and the Crown, virtually
from the point of opening- there is a ruling,I
think, before the Crown opens,in the appeal book,

indicating that the Crown case is that the accused

lost his temper and assaulted the child with the

piece of hose. The child later died of an injury

to the liver which, as it turns out, cannot be
linked with any particular injury sustained by the

child or observed at autopsy and the question of

whether that is an issue that should be left to the

jury once the question of provocation, albeit

subjectively, has been raised, is a matter which,

I would submit, is of public importance. It is a

matter that hopefully will not arise often, but does

arise. Certainly this will not be the only unfortunate

case of child killing that does arise where the child

has offered some form of provocation to the person

who kills that child. The other thing is that it

would be my submission that this case raises, not

only proportionality in terms of the violence offered

to the child and the provocation offered to the

person who provided the violence from both perspectives,

this c~se also raises the issue of whether or not the
CRIMINAL CODE of Queensland the Griffith Code, as
it applies elsewhere, for the purposes of section 304,
is self-contained for the definition of "provocation"
or alternatively you have to go to the conm1on law
for the definition of "provocation" or whether you
have to go to section 268 or 269 for the definition

of "provocation" and one of my submissions would be,

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although it is not the only submission that I

would make, is that if the obiter of the High

Court in KAPORONOVSKI V REG is correct, that

sections268 and 269 cannot be imported into

the homicide part of the CRIMINAL CODE for the

definition of provocation, the question then is,

is it the coIIm1on law that applies or is it possible

that terms like "sudden provocation" do not require

legal definition in terms of cases like REG V BRENNAN,REG1

WYLES_-aRd REG V STUART and that section 304.is, in fact,

a statement of the collllllon law as it was at the

time it was drafted by Sir Samual Griffith and it

would be my submission that there was a period in

the middle 19th century where provocation was indeed

essentially subjective relating to suddenness and

the response in cases like HAYWARD and THOMAS, and

it is only later in cases like WELSH, which were

not followed until well into the 20th century, that

the concept of the "reasonable or ordinary man" arose.

BRENNAN J:	N'o doubt that 4s an interesting guestion.whet.ber 268 and 269
are imported into section ~G4 and it may be that
KAPORONOVSKI did not finally settlethatquestion.
When I say, it may be, I do not know whether that
is right or not but, what is the proposition of
law for which you contend which would be an
advantage to your client in this case?
MR O'DONNELL:	Be an advantage to my client?

BRENNAN J: What is the propostion of law?

MR O'DONNELL:  That the question of provocation should have

been left to the jury in his trial on - - -

BRENNAN J: That depends on whether there was and on the most

favourable view evidence that was fit to raise

the issue. Well then, what is the issue which

the proposition at law would define?

MR O'DONNELL: Yes, Your Honour. If I could refer to perhaps

the findings of fact made by the Chief Justice in

the Court of Criminal Appeal.

BRENNAN J:  Would it not be better for you to formulate the

proposition of law so that we could test the findings

of fact against that proposition?

(Continued on page 7)

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MR O'DONNELL:	Yes, Your Honour, although the CCA has made a finding a fact in relation to the matter.
BRENNAN J:	Be it so but to give special leave here there

must be some proposition that you wish to advance,

I take it?

MR O'DONNELL:  Yes, Your Honour. The situation is that the

accused was baby-sitting for a period of time while

the mother of the children was in hospital having

his baby. He was not residing with the family

and when the children became fractious he came

down from rural Queensland to Ingham and took the

children from another household. He was looking

after them for a period of two days and an incident

arose during the course of the relevant evening

where the child vomited and wiped his feet in the vomit and laughed and moved and the accused said,

"Don't move", and grabbed the child and there appears

then to have been - and the accused hit the child,

on his own admissio~ more than 10 times with a

length of garden hose that had been cut by the

mother for the purposes of domestic discipline

and left in the house.

In the course of what happened afterwards,

the child was left - as I understand the pathologist's

evidence - with 14 parallel marks which are
attributable to the usP. of the hose but also 150
smaller bruises which were the subject of controversy.

And the child then - the accused went downstairs

and the child was found later dead in the shower,

although there was artificial resuscitation - there

is evidence of artificial resuscitation attempted

in the shower.

The child died of multiple causes, according

to the path o 1 o g i s t , being in a 1 a r g e par t due to

a split of the liver and there was no finding that

could connect the split of the liver to any injury to the external part of the child's body. So that

the accused gave sworn evidence and said that he

had lost his temper, that he had beaten the child

and that he had beaten him more than 10 times,

although he denied punching or kicking the child.

There was evidence from persons who had heard

sounds from outside that the beating of the child

may have gone on for longer than the accused. said,

although that evidence, in my submission - and

that would be obviously a matter for the jury had

it gone to them - was very mixed and there were

other witnesses who actually said they heard violence

coming after the ambulance had arrived so there

was - - -

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BRENNAN J:  Mr O'Donnell, the question that was posed by

the Chief Justice in the Court of Criminal Appeal

was whether an ordinary person, in the position

of the appellant, would have so lost control as

to have done acts of the same kind and degree as

the appellant's acts and the Court of Criminal

Appeal answered that question in the negative.

Was the right question asked?

MR O'DONNELL:	No, Your Honour.
BRENNAN J:	What should the right question have been?
MR O'DONNELL:	It would be my submission that simply the

question of provocation should have been left as

a question of fact to the jury, the question of
an element of provocation being offered by the

child to the person who killed him, that a direct

evidence of loss of control - which was undisputed -

and resulted in the death of the child. It would

be my submission that on those facts alone the

accused was entitled to have a jury decided, as

a question of fact, whether or not there was

provocation such as to reduce murder to manslaughter

not so much as a defence but as a merciful verdict.

BRENNAN J:	Mr O'Donnell, would the trial judge not have had to give the jury some direction as to what
constituted provocation?
MR O'DONNELL:	He did not and declined to.
BRENNAN J:	No, would he not have had to do so in the

circumstances which you are positing?

(Continued on page 9)

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MR O'DONNELL:	Yes, Your Honour.
BRENNAN J:	Then, would he have been bound to give them a

direction in the terms in which the Chief Justice

posed the question in the Court of Criminal Appeal?

MR O'DONNELL:	Yes, Your Honour.
BRENNAN J:	So that the Chief Justice's question in the

Court of Criminal Appeal correctly stated the law

so far as your submission goes?

MR O'DONNELL:	No, I would say that it does not.
BRENNAN J:	TheIJ., in what respect is it erroneous?
MR O'DONNELL:	It would be my submission that section 304 -

may well be subjective that the issues raised in

section 304 need nothing other tha11·thewords of section 304

to interpret them.

McHUGH J:  But, there is a question as to what provocation

means and the jury would have to be instructed,

would they not, as to what test they are to apply

to determine whether or not there was provocation?

MR O'DONNELL:  With respect, Your Honour, it is sudden

provocation but, even so, yes, it would be my

submission that - - -

McHUGH J:  Well, it has got to be provocation.

MR O'DONNELL:  Yes. Even given the propositions. raised in

cases like VAN DEN HOEK that provocation can arise

through fear, it would be my submission that

provocation generally is a simple English word that

is capable of meaning something as an English word.

McHUGH J:  But, it is still a question of whether there is

any evidence fit to go to the jury. Supposing all

that happened was that the child had walked across

the room and the accused had then laid into him?

You can hardly submit there was any evidence of

provocation to go the jury.

MR O'DONNELL:	But that is not the situation, Your Honour.
McHUGH J:	I know but the fact that there has got to be some evidence requires you to formulate a legal test for
provocation. How do you determine what constitutes
provocation for the purpose of the section?
DAWSON J:	The mere fact that someone loses their temper

does not mean that there is provocation.

MR O'DONNELL:  No, and I concede that in the past provocation

has been defined as a legal proposition and the very

fact that there can be questions as to whether or

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not fear can be provocation, for example, as
in VAN DEN HOEK, indicates that there is room

to perhaps define provocation if it was to be

extended. But it would be my submission that

section 304 really can stand on its own feet

as it was doing at the time of cases like

HAYWARD when provocation simply was something that

upset somebody and the question then was whether

it was sudden and as a response to the

provocation offered. In my submission, it is not

asking too much to suggest that that is a very

simple way of leaving it and that you do not

need to tell the jury anything further than "Go through the elements contained in section 304".

BRENNAN J:  Until you come to provocation and then

you do not tell them anything about what it means.

MR O'DONNELL:  Well, it may well be clear that it means

upsetting somebody. It has a meaning in the

English language.

McHUGH J:	Supposing your client was u~set because the child
was walking across the room·  Would that raise a
question of provocation to go to the jury and require a verdict of manslaughter if the other conditions were fulfilled?
MR O'DONNELL:	In my submission, that is, in a sense, the

floodgates type of argument and the comments of

English judges since 1957 in cases such as this

where there is a statutory requirement that the

defence be left has been along the lines of, "You

can rely upon the widsom of juries not to acquit in cases where there is not causing death in the heat of passion and it is sudden" and, in any event,

it is not a defence as such, it is a merciful

verdict rather than a defence.

McHUGH J:	If the conditions are made out, it requires a
verdict of manslaughter.  The accused is entitled
to a verdict of manslaughter. There is nothing
merciful about insisting on your legal rights,
is there?

(Continued on page 11)

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MR O'DONNELL:  I mean it only in the sense that that is its

historical derivation, corning from the time of

capital punishment, I suppose, when things were

far more critical.

McHUGH J:	Your argument seems to be that anything is
provocation which upsets the accused?

MR O'DONNELL: Certainly, that is the jury question.

BRENNAN J: That is the proposition?

MR O'DONNELL:  Yes.

BRENNAN J: If the accused is upset that is sufficient by

itself to get the case to the jury?

MR O'DONNELL:  And that something is offered by the deceased

to the accused, something by way of -

BRENNAN J:	It does not matter what it is just -
MR O'DONNELL:	Yes, by way of - whatever is meant by the

simple word"provocation".

BRENNAN J: Well, what is the minimum that has to be meant by

the simple word" provocation'.' in defining what it is

that is offered by a deceased to an accused?

MR O'DONNELL:  I did not come armed with the Thesaurus but I

would have thought that it would be every word in the

Thesaurus that - - -

DAWSON J: Well, is it entirely subjective?

MR O'DONNELL:  It would be my submission that in section 304

of the Code, at least, that it is.

DAWSON J: Well, have you got any authority for that?

MR O'DONNELL:  Yes, I would seek to argue that in the light of

the majority overturning KAPORONOUSKI that section 268

and 269 do not apply to the interpretation of the

Code and that the Code is either self-sufficient

or it was a reforming piece of legislation which -

both reformed in the area of - - -

DAWSON J: It may be self-sufficient but it raises a question;

immediately you look at the word "provocatiorl', do you

mean subjectively or objectively? You have to

provide an answer to that question.

MR O'DONNELL: Well, I would submit, that the application would

not stand or fall on either basis.

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DAWSON J: Well it must mean one or the other ..... seem

simplistic, but it must - - -

MR O'DONNELL:  No, with respect Your Honour, I seek to argue the

alternative and that the question of provocation

should have been left to the jury as it was in

other child killing cases, both before and after
section 3 of the HOMICIDE ACT in England was passed

and there are cases that I could take the Court to

that show the common law allowing homicide to be

reduced to manslaughter in the killing of children

that go back to the late eighteenth century.

Admittedly at that time the concept of malice of

forethought, as I understand it, was in some state

of flux.

BRENNAN J: Mr O'Donnell, so that we can identify precisely

the point that you wish to make, is it this,

under section 304 of the CRIMINAL CODE, the word

"provocation" appears there, it does not need any

legal definition so that if there is evidence in

a particular case that an accused is upset and

that some action on the part of the deceased upset

him that that is a case which is bound to be left

to the jury?

(Continued on page 13)

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MR O'DONNELL:  Yes, Your Honour, that is it at the bottom line

but there are other aspects that I would - - -

BRENNAN J: Is there any qualification to that as being your

proposition?

MR O'DONNELL:  No, Your Honour. I would submit that it should

be under section 304 very much as it is in England

under section 3 of the HOMICIDE ACT.

BRENNAN J:  Now, how does that proposition sit with cases such

as HOLMES and MOFFA and JOHNSON?

MR O'DONNELL: Yes. Well, none of those, with respect, are

Code cases and -

BRENNAN J:  But you are not seeking to get anything from the

Code as such. You are just finding in the Code the

II • II

wor d provocation .

MR O'DONNELL:  I am sorry, Your Honour. No, obviously the

jury would have to determine the question of fact

within the framework of section 304.

McHUGH J:	At least one element in this section must be an
objective test, must it not, and that is the limb "and before there is time for his passion to cool". It does not say, "and before his passion is cool";
it says, "and before there is time for his passion to cool". That is a hypothetical test, is it not?
MR O'DONNELL:	I had not thought of it in those lines,

Your Honour, but I am not sure that I - well, not

that it is for me to agree or disagree but that may be simply playing with words; that the real test is

whether something happens before there is time and

in that time the passion cools because, you see, he previously has to do something causing death in the heat of passion and - - -

McHUGH J: Yes, but that - the limb in, "before there is time

for his passion to cool" suggests a test. It may be

that his passion has not cooled yet if there was time

for his passion to cool, he is outside the section.

MR O'DONNELL: Yes. Again, that is almost an environmental

proposition in which the subjective person is.

(Continued on page 14)

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McHUGH J: Yes, but it is still an objective test, is it not?

MR O'DONNELL:  In a sense it is objective; I agree with

Your Honour, with respect. But in a sense that is

environmental too, that it is the framework in

which the person is. The critical thing is that

he causes death in the heat of passion, being the

recipient of something understood to be

provocation, something provocative.

McHUGH J:  But by hypothesis, he was in the heat of passion

when he killed the person, otherwise you do not

get to the second - that limb about him

before there is time.

MR O'DONNELL:  I am sorry, Your Honour?

McHUGH J: Well, the hypothesis of the section is that he has

done the act which caused death in the heat of

passion so he is engulfed by passion as at that

stage, yet the SeGtion . has a further

requirement, he. must show that it was done before

there is time for his passion to cool.

MR O'DONNELL:  I concede that that, certainly in the

environmental sense, is objective. It has to be

because it is something outside himself.

McHUGH J: Well then why is not provocation to be defined

objectively,because if you are applying the time

criteria and therefore by reference to what a to cool limb it has to be by reason of objective

reasonable man would do in the circumstances? the objective person?

MR O'DONNELL:  Yes, Your Honour. The ground for appeal also

is that provocation should have been left to the jury

and that, again, raises the sorts of issues that were

raised by the Chief Justice Mr Justice Barwick in
JOHNSON and MOFFA.	The overriding view that came

from the Chief Justice in those judgments was that

questions of fact are essentially jury questions

and should not be taken away and that is the

attitude that has been taken by the English courts,

admittedly after section 3 of the HOMICIDE ACT.

The .. cases I would have sought to have brought to

Your Honours' attention was the case of STEPHEN

CLIFFORD DOUGHTY where Doughty killed a

17-day-old baby who was crying and the Court of

Criminal Appeal in England held that by virtue of

the provisions of the HOMICIDE ACT the defence of

provocation had to be left to the jury because it had

been raised,that he said he lost his temper and lost

his temper in exasperation caused by - - -

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DEANE J:	Raised as a defence?
MR O'DONNELL:	Yes.
DEANE J:	Well, we are concerned with a case where provocation

was not raised as a defence but where, notwithstanding

that it was not raised, the judge should have put it.

MR O'DONNELL:  No, I am sorry, Your Honour, I raised it.

It was raised all right.

DEANE J:  I know it was put to the judge that he shoula have

put provocation, but was it raised as an issue? I

had understood that the way the defence case was put

the stage of provocation was never reached.

MR O'DONNELL:  No, with respect, Your Honour, there was evidence

from the accused himself to say that he lost his

temper and he did as a result - - -

DEANE J:  I realize that. The trial judge said though that,

the way the defence case was put, the question of

provocation would never be reached.	That was
inaccurate, was it?

MR O'DONNELL:  In my submission, that would be so; yes. He said

to the police at first contact that he had lost his

temper and in fact was questioned in relation to his

history of ill temper. He was a burns victim and

had been at rehabilitation.

BRENNAN J:  Yes, but you are rather missing the point of

Justice Deane's question, are you not? If the defence

was	no intention to kill or to do grievous bodily
harm,	then there was no occasion for the operation

of section 304.

MR O'DONNELL:  Yes. The primary defence, I concede, was that

there was no intent to kill or cause grievous bodily

harm.

DEANE J:  His Honour went further - unless I am looking at

something wrong - at page 244he said:

Provocation is therefore not relied

upon because it is submitted that the

jury will not arrive at the threshold

position.-

and he then treated the question as whether; when
those circumstances exist, the judge is required to

leave the issue of provocation.

MR O'DONNELL:  Yes. While the case for the accused was that

he did not intend to kill or cause grievous bodily
harm, at no stage was the point ever taken, as is

often taken, that for tactical reasons it would

confuse the jury -

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DEANE J:	No, I was n~t suggesting that.	What I was asking

you is.; is His Honour wrong where he says:

There is no doubt, however, that

notwithstanding the fact that the

defence does not rely upon s.304

of the Code - - -

MR O'DONNELL:	Yes, that is correct.
DEANE J:	His Honour is wrong, or -
MR O'DONNELL:	No, that the defence did not rely on section 304,

but simply sought to raise it.

BRENNAN J:	Do you mean raise it before the judge, but not before the jury?
MR O'DONNELL:	Leave it as an option for the jury.
DEANE J:	What I had thought had happened was that the defence

did not rely upon provocation in the conduct of its
case, but put to the judge that the circumstances of
the case were suchwhere, notwithstanding that the
defence did not rely upon provocation, the question

of provocation should be put by him to the jury.

Is that right or wrong?

MR O'DONNELL:  Yes, that is correct, as a scenario that they

may accept, if they found that he intended to cause

grievous bodily harm.

DEANE J:  Well, then the case is one in which the issue of

provocation not having been raised by the conduct of the trial, were the c i rcurns tances such that the ju~e had

notwithstanding an obligation to put it to the Jury7

MR O'DONNELL:  Yes, Your Honour. I see the point Your Honour

is corning to. If I may just say, though, that - - -

DEANE J:  I was not putting that against you, so much as simply

trying to identify the question.

MR O'DONNELL:L Yes, Your Honour, but if I may also add that

it was never sought to say that if the jury found

that there was an intent to cause grievous bodily

harm as a bottom line that provocation was not there

and that they could not find provocation; it was

actively sought for the judge to leave provocation

to the jury.

DEANE J:  But it was also, no doubt, decided for very good

tactical reasons that it would not be suggested by

the defence to the jury that the conduct of the child

was such that the defence put that his actions were

reduced to manslaughter by reason of provocation?

C2Tl0/2/HS	16	3/5/90
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MR O'DONNELL:  I am afraid I cannot go to the exact point on

it. Part of my problem is I have a recollection of
it as well as reading the appeal books. It was my

recollection rather than anything I can go to in the
appeal books that provocation was to be relied upon

quite openly and in tandem with the proposition that

there was no intent to cause grievous bodily harm

and certainly the defence would have not hidden

behind a judicial direction in that proposition.

They would have said - well, the case was intended

to be, "If you arc against me on that, there is still

the question of provocation and it is raised on this

basis, if you find there was an intent at the bottom

line to cause grievous bodily harm".

DEANE J: Well, in that case, what His Honour said is wrong

because the defence did intend to rely on

provocation.

MR O'DONNELL:  Well, if I may say so, indeed, but it was not

on the basis that the accused's sworn evidence

was that he intended to cause grievous bodily harm

and lost his temper and could not resist it. So,

it was not as stark as that but he certainly was -

he led evidence, for example, of his - in fact, he

was questioned about his difficulties with his

rehabilitation and there was evidence led from him

in-chief about his accident and the fact that he had

been having trouble with his temper and paperwork in

the rehabilitation course that he was doing; those
things were led in-chief early for the obvious reason

that it may be then possible to say that there was

something that was not transitory that should attach

to him if the 'brdinary marl' test was to be applicable

which at first instance, of course, it would have been.

It would be my submission that in that situation

and given the clarity of the evidence - I am not

suggesting that it is evidence that necessarily would

have led to his acquittal on murder had it gone to

the jury but given that the evidence was quite clear
that there had been this behaviour by the child as
the Chief Justice found and that he reacted in this

way, then the defence was quite anxious to have

provocation raised and left.

The other point that I would seek to raise is

that in relation to the question of the finding of
the Court of Criminal Appeal, the Chief Justice at

page 301 of the appeal book, said - and it would

be my submission that much turned on this in the

ultimate decision of the Court of Criminal Appeal:

I think the evidence is undisputed that violence

of much greater savagery than was admitted by

the accused was used by him in his attack upon

the child.

C2Tll/l/SH	17	3/5/90
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It would be my submission that that statement having been made and relied upon in the judgment of

the Court of Criminal Appeal, there is an allegation

that whatever the situation was, his disproportionate

response took it out of the scope of the actions of

an ordinary man; that it was not a response within

normal human guidelines and it would be my submission

that that is quite specifically a jury question and

that - - -

McHUGH J: Can I put this to you, Mr O'Donnell: that you can

only measure whether there was time for his passion

to cool if you know what an ordinary person would have

done as a result of that provocation.

MR O'DONNELL:  Yes, or perhaps an ordinary person with the

non-transitory attachments of the accused along the

lines of CAMPLIN and TAAKA and those cases.

McHUGH J: Well, then, why would an ordinary person have been

provoked simply by what this child is alleged to have

done?

MR O'DONNELL: Is that not the real jury question? Is it not

usurping the function of the jury to take that

question away from them?

(Continued on page 19)

C2Tll/2/SH	18	3/5/90
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McHUGH J:	Both at common law and under the Code, the court
has got a duty to determine whether there is
evidence to go to the jury. It is not like the
1957 HOMICIDE Act which says if there is any
evidence that the accused was provoked, then a case has to be left to the jury for it to determine whether a reasonable man would have been provoked
in the circumstances.
MR O'DONNELL:	Yes.
McHUGH J:	Now that introduces a subjective test but at the

moment section 304 seems to me to have an

objective test.

MR O'DONNELL:  Yes, I accept that that is Your Honour's

preliminary observation in relation to that.

DAWSON J:	And that is whether or not the definition .in
section 268 applies or not. It is effective either
way, yes.
MR O'DONNELL:	Yes, I can see the way Mr Justice McHugh is

heading with that and I can see the wisdom.

The other thing about this aspect of proportionality

both coming from the child and, as the

Chief Justice Mr Justice Andrews said, "The violence

of greater savagery being undisputed", the defence case in very large part involved the calling of a pathologist to dispute that the small bruising that

was not of the parallel strap variety was, in fact,
not caused by direct trauma and that the accused's
account of what occurred was, in fact, one that the
jury could have accepted that he, in fact, beat
the child more than 10 times with a piece of

nylex hose and, in fact, the pathologist would

probably be agreed,if you can go to the evidence,

that it was between 14 and 16 times by what can be

done in relation to thebruisingand that, in fact,

may be the limit of the violence perpetrated.

Now, going then to the evidence of the Crown

pathologist, Dr Naylor, that involved some bleeding

in the head of the child and bleeding in the

abdominal cavity of the child which was a result

of the liver injury which is basically

unattributable to any particular application of

force. It may, in fact, have been an accident in

the sense that it did not come from the beating;

it may have been that the child went into the

table or a chair or whatever.

BRENNAN J:	Not only did th~ jury negative that but it was common
ground that he caused the death.
MR O'DONNELL:	Yes.

C2Tl2/l/JH	19	3/5/90
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BRENNAN J:  Well then, the question is whether or not

there was any conduct of such a kind as might

satisfy a jury on the most favourable view

available that the accused was provoked.

MR O'DONNELL:  Yes, Your Honour. And, with respect,

Your Honour, he says that he was; that he lost

his self-control; that -

BRENNAN J:  While he says that he lost his self-control,

the question is whether or not there was any

evidence on which one could say that within the

meaning of section 304 he was provoked.

MR O'DONNELL:	Yes.
BRENNAN J:	Well now, is not the simple question, however it

might be put, whether as the Chief Justice put it or in

whatever other way one wishes to put it, whether

in this case there is any evidence fit for

consideration for the jury, taking the best view

available, which would allow them to say that

this man was provoked2

MR O'DONNELL:  Yes, Your Honour. Well, in my submission,

there clearly was. The scenario of response to

violence was one where, perhaps, 14 blows were

struck with a piece of hose that had been provided

for the purposes of corporal punishment by the mother in the face of the child struggling and

resisting what was a punishrrent being applied in

anger - I am not suggesting that it was proper

corporal punishment in terms of the Criminal Code.

So that there was unlawful violence being laid

upon the child but it may not have been more, given

the defence evidence, than a beating with the hose,

perhaps, 14 times. That may well have been the

extent of the violence on Professor Plueckhaln's - - -

BRENNAN J:  You have got to add a fatal beating with the

hose 14 times.

MR O'DONNELL:  The evidence was that he died of multiple

causes and that no particular injury was the one

that killed him although, obviously, the major

contributor was the split to the liver and the

perennial bleeding but in a child of that age, as

Dr Naylor indicated in his evidence, it only takes

a small amount of bleeding before a child goes into

shock and, in fact, can die but the quantity of - it is in

evidence, whatever it is - it is certainly less

than a litre and children are very vulnerable to

bleeding and particularly bruising and shock.

C2Tl2/2/JH	20	3/5/90
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MR o•DONNELL (continuing):  On the basis that- for grounds

that are not being pursued here, the jury

eventually found that he had intended some
serious injury, as it was put, at the time of

the question when the jury asked for redirections

rather than the definition of "grievious bodily

harm" in the Code, but on the basis that they accepted

that he intended some really serious injury,

whatever that may mean, it may well be that they

did not reject the propostion that he had simply,

and I do not say this in any congratulatory sense,

but he had simply hit the child fourteen times with

the piece of hose, having lost his temper and if

provocation had been left, that may well have

placed a completely different complexion on things

in terms of what the jury ultimately

would have convicted him of.

BRENNAN J:  Is it right to say that in order that you should

succeed, you have to make good the proposition that

provocation :in section 304 does not require the application

of any a priori standard to the conduct of the

deceased?

MR O'DONNELL: 

No, Your Honour, that would be one of the

propositions I would seek to raise, but it would
not be the only one.

BRENNAN J: Well, you have to make that proposition good though,

do you not? The reason why I suggest that to you

is because if, however one might express the a priori

standard, the next question would be whether or not
the facts of this casewere sufficient to meet that

standard.

MR O'DONNELL:  Yes, and it would be my submission that indeed

they could well have been.

BRENNAN J: Well, I understand that. But now have you any

authority which suggests that under section 304

provocation is without standards?

MR O'DONNELL:  No, Your Honour, only other than that

historically it came from the period of time that

provocation was generally without standard, apart

from the case of REG V WELSH.

BRENNAN J:  ;Is it right to say that throughout the history

of the Criminal Code in Queensland, section 304

has been regarded as having standards?

MR O'DONNELL:	No, I appreciate Your Honours background in relation to all of this and quite clearly SABRI ISA
and CALLIOPE and KAPORONOVSKI, there has always
been the assumption that there was an objective

C2Tl3/l/CM	21	MR O'DONNELL 3/5/90
Burrows

standard in section 304. I do not say for one

minute that to say what I am saying is not novel,

certainly since the defence counsel tried it on

in SABRI ISA, I understand, but it would have been

my submission that the decision in- the judgment	of Mr Justice Stanley in SABRI ISA is, I wou~d almost
adopt it in its entirety, but for the proposition that it imports section 268 of the Code into the
homocide part of the Code, but that is not my
only argument on provocation because - - -

BRENNAN J:  We have identified the essential point, have we

not, that you wish to raise on special leave.

MR O'OONNEIL: Well, no, I would seek to raise the others as well,

that it is of importance. It ·is true that

that is the only area where a conflict between

jurisdictiora arises or where it could be said that

superior courts have been in error for a considerable

period and - - -

BRENNAN J:  But there is no conflict in jurisdictions on this

point. Uniformly standards have been applied, have

they not?

MR O'OONNEIL: Standards have been, yes.

BRENNAN J:  And there is no doubt about the view that has

been expressed, either at common law or under the

Code, that provocation, which reduces murder to

manslaughter, is affected by standards?

MR O'OONNEIL: Certainly at the moment there is not, no.

BRENNAN J: Well now, the only question then is whether this is

a-, suitable case to consider what the standards should

be or whether there are no standards at all?

MR O'OONNELL: On that particular point, Your Honour?

BRENNAN J: Yes.

MR O'OONNELL: Yes, because I would not seek to concede that there

were not other issues such as whether or not the
question of provocation offered by a child should

not be left to a jury where the person who kills

that child loses self-control, as a question of

fact for the jury and raise the propostion that it

should not be taken away as a question of law by

a trial judge.

(Continued on page 23)

C2Tl3/2/CM	22
Burrows

BRENNAN J: That question can only arise if one says that

either the standard was met and therefore the

case should have gone to the jury or, alternatively,

that there are no standards and therefore the

case should have gone to the jury.

MR O'DONNELL:  Yes. Well, I do not say that I am not arguing

all of them in the alternative, they are all

possibilities., I concede· the argument on

section 304 and I certainly do not wish to put that

round the applicant's neck as his basis for an

appeal. I am not saying I abandon it but - - -

®RENNAN J:	You have got to get special leave,Mr O'Donnell.
MR O'DONNELL: Indeed, yes.	In relation to the other matters,

it would be my submission that provocation offered

by an innocent is an issue that has not been raised

at common law in modern times and as such is an

important issue if people perceive that by some

view of proportionality a child cannot offer

provocation such that a jury could not find that

an ordinary man may intend - - -

DAWSON J: That was never suggested in this case,was it?

MR O'DONNELL: Well, it has never been stated, but certainly

the question of proportionality - - -

DAWSON J:	I mean the Chief Justice did not base his ruling - - -
MR O'DONNELL:	No, he based it, in part, on the proposition

that_ there w~s greater savagery ·than admitted,

so it is a - - -

DAWSON J: That is - you say there is some dispute about that?

MR O'DONNELL:  Ye.s.

DAWSON J: What do ye~ say the acts constituting provocation were?

MR O'DONNELL:  The provocation, I would submit, was that the

child wiped his feet in the vomit and laughed when

asked not to move.

DAWSON J: That is it?

MR O'DONNELL:  Basically yes. So it is at the

point of the child being asked to stand still while

the accused cleans up the vomit and the child

laughing and moving - that is submitted as being

the provocation, yes.

BRENNAN J: Yes, well now do you wish to state any further propositions on this aspect relative to special

leave?

C2Tl4/l/JL	23	3/5/90
Burrows

MR O'DONNELL:  Yes, Your Honour. No,Your Honour,that is all

I wish to say.

BRENNAN J: Yes. Now on any of the other aspects, apart from

provocation, do you wish to say anything with

reference to special leave?

MR O'DONNELL:  Yes, Your Honour, I do.

BRENNAN J: What do you wish to say about - - - ?

MR O'DONNELL: 

In relation to the question of whether or not

the trial judge should have allowed the accused to
re-examine witnesses to rebut a suggestion of

fabrication, it would be my submission that an

appellate court should never ignore

the only relevant legislation which was done in

this case,that there was no reference at all made
to section l0l(l)(b) of the EVIDENCE ACT but rather
the Court of Criminal Appeal ignored section

l0l(l)(b) of the EVIDENCE ACT and rejected that

ground of appeal on the basis that it was not a

suggestion of recent invention in terms of the

civil case,CLEMENTS V THE NOMINAL DEFENDANT?

BRENNAN J: 

If this proposition were made good on appeal it

would mean that some evidence that should have

been admitted was not admitted?

MR O'DONNELL:  Yes.

BRENNAN J: But if the appeal should fail on the first point,

that is the provocation, because taking the most

favourable view no provocation was made out, the

second point has nothing to say, because the most

favourable view picks up whatever might have been

said by allowing that re-examination in.

MR O'DONNELL:	The examination went to the body of evidence surrounding the duration of the assault or the
attack, yes.

BRENNAN J: That is right and the accused himself gave evidence

about that?

MR O'DONNELL:  Yes.

BRENNAN J: And the accused's evidence is the most favourable?

MR O'DONNELL: Yes, although the evidence of the mother of the

deceased child ringing from hospital, which was

challenged in the way that it was by linking the

two propositions with the proposition that'~ou would

say anything to assist Frank Burrows," was very strong

evidence and was discredited, almost absolutely, by

virtue of the fact that the Crown was allowed to

C2Tl4/2/JL	24	3/5/90
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tender exhibit 46 which indicated that her evidence

was, in part, lies whereas, in reality, she had

within 48 hours and prior to corrnnittal handed to
the applicant's solicitors the altered copy of her

statement and previous to that statement being

settled had contacted a solicitor and made a detailed

statement which outlined both aspects of the

evidence to him.

(Continued on page 26)

C2Tl4/3/JL	25	3/5/90
Burrows

BRENNAN J:  Was it right to say that the essential and agreed

facts were that the child was beaten by the

accused and the child died as the result of the

beating. the beating took place on - what was it -

the Monday night, I think, and that that took

place at some time during the evening?

MR O'DONNELL:	At around 7 to 7.30, yes.
BRENNAN J:	Now, those facts are agreed and they are corrm:m grOLID.d?
MR O'DONNELL:	They are common ground, yes.
BRENNAN J:	The question is for how long was the child being

beaten and that is the only point that there might

be any dispute on.

MR O'DONNELL:	Yes, 'Which in my submission may well go to the question of intent to corrnnit the murder, that a
person - if the jury takes the view that this
child has been the subject of a vicious and protracted beating, then the inference that the
accused intended  .. _to cause grievous bodily harm
or, as the trial judge put it on the redirection, some really serious injury, then that inference
is far more open without the counterbalancing
evidence saying that, "I have been consistent
in what I have said at least since 17 February
and prior to committal".

The other issues - and in terms of the

importance of it I would ask the Court to take

a global view of the, what I would put no higher

than small unfairnesses, that the learned

trial judge, although it is not pleaded as a

ground for appeal, it was against the background
of the trial judge saying to the prosecutor at

the point of arraignment, "Was the deceased a

child?:", and then within pages of that in

transcript allowing the jury to see without any

medical evidence at all police photographs which

are before the Court showing the child badly

battered and dead. Then, with a significant

defence witness, he allowed, in fact he asked

a question of that witness that a Crown prosecutor

could not have asked - he raised with

Professor Pleuckhahn the proposition that was

a piece of wood shown in the photograph a potential

murder weapon and that was never put to the accused

and that was raised in, sort of, the dying moments

of the defence case as a fresh proposition and as

a speculative proposition. And certainly, until

redirection it would be my submission, if you took an

overview of the surrnning up, it was very much the

evidence of the Pryor girls and he only came to the

C2Tl5/l/LW	26	3/5/90
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evidence of Mrs Trow at a point of redirection

and Professor Plueckhahn's evidence is

effectively discounted. It said nothing much

turns on it. Well, it was never the defence

case that nothing much turned on it.

Tl6

So, for a whole series of small things, the

climate in that trial was against the accused from
the beginning. It was never possible to say, "Look,

it is conceded that there was an unlawful killing.

I am guilty of manslaughter." None of those

concessions were ever possible and the whole time

he was facing a series of small unfairnesses and

it would be my submission that it would be

important to point out that that is not the way
to run a trial and that the appropriate court to
point that out is the High Court of Australia, for
policy reasons; that fair trials have to be

provided to persons who connnit terrible crimes or
who are charged with connnitting terrible crimes.

It would be my submission that in a global

sense that is as great an injustice as any.

Thank you.

BRENNAN J:  Thank you, Mr O'Donnell. We need not trouble

you, Mr Byrne.

MR BYRNE:  Thank you, Your Honour.

BRENNAN J: In this case, there is no sufficient reason to

doubt the conclusion at which the Court of Criminal

Appeal arrived. If special leave were granted, the

appeal would undoubtedly fail. Accordingly, special

leave to appeal is refused.

AT 4.04 PM THE MATTER WAS ADJOURNED SINE DIE

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