Bush, I.L. v The Queen

IAN LESLIE BUSH v. THE QUEEN
No. ACTG79 of 1992
FED No. 518
Number of pages - 16
Criminal Law - Legal Practitioners
(1993) 115 ALR 654
(1993) 43 FCR 549
(1993) 69 A Crim R 416

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Miles(2) and Drummond(3) JJ

CATCHWORDS

Criminal Law - offence committed in the ACT - application at trial for a temporary stay of proceedings to enable enactment of legislation which would empower the Court to transfer the venue of the trial outside the ACT - no evidence that such legislation likely to be enacted in the foreseeable future - no evidence that transfer would be necessary for a fair trial even if statutory power existed to do so - application refused by trial judge - no miscarriage of justice.

Criminal Law - convicted of an offence of similar character to that present - application to challenge each prospective juror for cause - onus on applicant to adduce evidence to show that there is a real risk that each individual juror is not impartial - adverse media publicity and survey evidence relied on to support a challenge for cause - no sufficient evidentiary foundation for challenge laid - adequate steps taken by trial judge to secure a fair trial - no miscarriage of justice.

Criminal Law - procedure - no indication prior to close of prosecution case that voluntariness of accused's conduct is in issue - defence adduced expert evidence of automatism - Crown not required to anticipate theoretical defences - Crown entitled to call rebuttal evidence.

Legal Practitioners - criminal proceedings - failure by legal representatives to draw to notice of expert witness facts of clear potential relevance to his opinion - opinion the sole evidentiary foundation for one ground of defence - such conduct not proper.

Crimes Act 1900 (NSW) as applied to the ACT - ss. 13 and 577

Supreme Court Act 1933 - s. 18(1)

Attorney-General v Australian Agricultural Company (1934) 34 SR (NSW) 571

Dietrich v R (1993) 67 ALJR. 1

Jago v District Court (NSW) (1989) 168 CLR 23

Murphy v R (1989) 167 CLR 94

R v Kray (1969) 53 Crim App R 412

R v Manson (1974) Qd R 191

R v Murdoch (1987) 37 A Crim R 118

R v Stuart and Finch (1974) Qd R 297

R v Toh Yu Teng (1987) 30 A Crim R 203

The Queen v Chin (1985) 157 CLR 671

The Queen v Falconer (1990) 171 CLR 30

The Queen v Glennon (1992) 173 CLR 592

HEARING

CANBERRA, 30 March 1993

#DATE 2:8:1993

Counsel for the appellant: Mr. T. O'Donnell

Solicitors for the appellant: ACT Legal Aid

Counsel for the respondent: Mr K. Crispin, QC with

Mr I.A. Doig

Solicitors for the respondent: ACT Director of Public

Prosecutions

ORDER

The Court orders that:

1. The appeal is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

DAVIES J I have had an opportunity to read the reasons for judgment prepared by Drummond J I agree with them.

It is highly unlikely that it would have crossed the mind of any member of the jury, let alone have been considered as a fact, that the person accused in 1992 of the attempted murder of his wife, Leta Karla Bush, was the same person who, in 1987, had been charged and convicted of the manslaughter of his wife, Debra Bush. Almost all the earlier publicity concerned the finding and identification of the body in the bushland outside Canberra. Once the husband had been charged, there was little further interest in the matter and the name and circumstances of the husband did not figure prominently. As the extrinsic circumstances of the two crimes were different, the members of the jury would have had no reason to connect them.
Accordingly, by refusing to institute any special procedures, the learned trial Judge took the course most likely to ensure that no connection would be made by members of the jury between the husband of Leta and the murderer of Debra and also to ensure that, if such a connection was suspected, it would be treated as entirely irrelevant. Nothing would have been more likely to prejudice a fair trial than the institution of a special process for the selection of members of the jury, a process which in itself would have indicated that background information existed which, if known or suspected, could affect the trial. A trial judge must ensure that warnings given and steps taken do not create the very danger which the warnings and steps seek to avoid. See Murphy v. The Queen (1989) 167 CLR 94, per Mason CJ and Toohey J at 100.
The trial Judge, therefore, in the proper exercise of his discretion, gave effect to the principle which Mason CJ and Toohey J in R. v. Glennon (1992) 173 CLR 592 at 603 stated as follows:-

"The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. As Toohey J observed in Hinch (1987) 164 CLR, at p 74, in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them. In Murphy v. The Queen, we stated (1989) 167 CLR 94, at p 99;

'But it is misleading to think that, because a juror has heard something of the circumstances giving rise to the trial, the accused has lost the opportunity of an indifferent jury. The matter was put this way by the Ontario Court of Appeal in Reg. v. Hubbert (1975) 29 CCC (2d) 279, at p 291: 'In this era of rapid dissemination of news by the various media, it would be naive to think that in the case of a crime involving considerable notoriety, it would be possible to select twelve jurors who had not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence.'

To conclude otherwise is to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge."

I see no error in the course taken by the trial Judge.
Mr Saulwick's survey questions were misconceived. The first two questions mentioned the murder of Debra Bush by her husband and the third question asked, "If that husband were to be charged with a second offence ..." (the emphasis is mine). This question expressed the very connection which it was desirable to keep from the jury and which a member of the jury, if uninstructed, would have been unlikely to have made. The survey therefore had a tendency of its own to interfere with the due administration of justice. Although only 500 persons were surveyed, the community in the Australian Capital Territory is not a large one. I would expect that, in future trials in the Australian Capital Territory, any such survey would be conducted only with the express approval of and subject to the directions of the Judge appointed to conduct the trial.
I agree with the order proposed by Drummond J.

JUDGE2

MILES J I have read the judgment of Drummond J in draft and, for the reasons expressed, I agree that the appeal should be dismissed.

JUDGE3

DRUMMOND J The appellant was convicted on 18 November, 1992 after a trial before Gallop J and a jury of the attempted murder of his wife, Leta Karla Bush, and the murder of John Richard Nicholson. Shortly before the offences occurred, Mrs. Bush had left the appellant to live with the deceased. The offences occurred at Canberra in the early hours of 13 March, 1992 when the appellant entered their residence and stabbed each many times with a long-bladed knife. The appellant was arrested and charged almost immediately.

In October 1987, the appellant was convicted of the manslaughter of his first wife, Debra Michelle Bush, at Canberra in January 1987. He had strangled her after an argument about her association with another man. The appellant was sentenced on that occasion to 18 months' imprisonment. Although the body of his first wife was found in the bush outside Canberra soon after the killing, it was not identified for nearly three months as that of his wife. That, together with the fact that it was her husband, the appellant, who was then promptly charged with her murder, attracted a good deal of media publicity in the ACT.
The appellant's history of uxoricide is the foundation upon which the major attack on his most recent convictions is built. It was submitted that, because of the publicity given in the ACT in 1987 to the events concerning the killing of the appellant's first wife and to his subsequent trial, it was not possible for the appellant to have a fair trial unless it was held outside the ACT or, if he were tried in the ACT, unless he was permitted to challenge his prospective jurors for cause to ensure that no one sat on his jury who was aware of the events of 1987. In addition to putting into evidence samples of the publicity given by the print media to the events of 1987, the appellant relied on survey evidence that was said to show that there would be a real likelihood that any jury empanelled in the ACT would include at least one person who would connect the appellant with the 1987 killing. It was also submitted that this was an exceptional case because of the danger that any juror who connected the appellant with the 1987 killing might inform other previously ignorant jurors of that connection and that all jurors who possessed that information would be likely to treat it as showing a propensity on the part of the appellant to kill.
The first ground of appeal is that the trial judge "erred in law in disallowing a stay of proceedings pending the making of appropriate legislative and administrative arrangements for a change of venue for the trial".
It was argued that the denial of this stay resulted in the appellant being denied his fundamental entitlement to "a fair trial", as that term is now understood. Reference was made to Dietrich v R (1993) 67 ALJR 1. However, as was said by Mason CJ and McHugh J in Dietrich, supra, at 9:

"(A)ppellate courts in this country do not interfere with convictions entered at trial purely on the basis that there was unfairness to the accused in the conduct of the trial. The appellate jurisdiction in criminal matters depends upon a conclusion that there was a 'miscarriage of justice' such that the applicant 'has thereby lost a chance which was fairly open to him of being acquitted ... or a real chance of acquittal' ..."

His Honour rejected the stay application: he was not satisfied that a fair or unprejudiced trial could not be had unless the venue were changed from the ACT to some place outside the ACT. I do not think his Honour was in error in taking this view of the relevant evidence, a matter to which I will return when I deal with the complaint concerning his Honour's refusal of the application to challenge for cause.
But there is no substance in this ground of appeal, even if it is assumed that his Honour was wrong in so holding. At the date of the trial there was no machinery in place to enable the venue of the trial to be changed to a place outside the ACT. The appellant's argument recognised that, since s. 577 the Crimes Act 1900 (NSW), as applied to the ACT, on its proper construction only authorises the Supreme Court of the ACT to change the venue of the trial from the place in the ACT initially selected by the Crown to another place in the ACT (see The Attorney-General v Australian Agricultural Company (1934) 34 SR (NSW) 571 at 577), it was a power of little practical use. Section 18(1) of the Supreme Court Act 1933, to which the appellant referred and which empowers the Supreme Court of the ACT to sit at Canberra "and at such other places in the Commonwealth as are from time to time determined by the Chief Justice", is of no assistance to the appellant's argument since that provision would only authorise the Judge exercising the jurisdiction of the Court to sit outside the ACT with a jury empanelled in accordance with the law of the ACT.
What was relied on in support of the application made to the trial judge was the fact that shortly before the trial started, the appellant's legal adviser had written to the Attorney-General and the Director of Public Prosecutions urging that legislation appropriate to permit such a course should be enacted in the ACT and appropriate arrangements made with the authorities in another jurisdiction and that no response had been received when the application was made. But the enactment of such legislation was not imminent at the time the stay application was made. Then, as now, there was nothing to suggest that the ACT government had any intention to make these sort of arrangements which would involve the passing of legislation by the ACT Legislature and the making of arrangements by the ACT government with the government of some State or other Territory. This case is thus quite different from R v Toh Yu Teng (1987) 30 A Crim R 203 in which an application to change the venue of a murder trial from Christmas Island to Perth was granted. In that case, there was substantial evidence that it would be impossible to obtain an impartial jury from qualified persons resident on Christmas Island, and there was then a Bill before the Commonwealth Parliament which would empower the Supreme Court of Christmas Island to change the venue of a criminal trial from the Island to any Australian State, a Bill which was soon thereafter passed into law and which inserted ss. 11AAA and 12A in the Christmas Island Act 1958.
The trial judge's refusal of a stay, sought only temporarily and only on this basis, cannot have produced any miscarriage of justice in relation to the appellant's convictions.
Counsel for the appellant conceded that he could not contend that there was any basis upon which a permanent stay should have been ordered. However, he submitted that if the trial had to take place in the ACT, it was necessary, if the appellant was to receive a fair trial, for him to be allowed to challenge for cause. The trial judge's refusal of the appellant's application to be allowed to challenge all prospective jurors for cause comprises the second ground of appeal.
Challenges for cause have rarely been allowed. In Murphy v R (1989) 167 CLR 94 at 123-4, Brennan J said of it as a procedure for safeguarding against the empanelling of biased jurors: "Though the procedure is available, the practice of Australian courts has been against its adoption. In the Australian community of today, I think that approach is generally right." Some reasons for the reluctance of Australian courts to accept that this procedure is a useful means of ensuring a fair trial for an accused who has been the subject of adverse publicity are discussed by Mason CJ and Toohey J at 103 and by Brennan J at 123.
The trial judge rejected the application to challenge for cause because he considered that no ground was shown for a conclusion that any particular member of the panel of potential jurors might be aware of the accused's prior conviction for homicide, the basis upon which it was said that there was a risk of partiality here. In my opinion, his Honour was right in so finding. I do not think that the trial judge's refusal of the application to challenge for cause resulted in any miscarriage of justice.
It will be proper to grant an application on behalf of an accused to challenge a prospective juror for cause where there is a risk that the juror may not be impartial as between the accused and the Crown. Challenge for cause is a procedure for questioning only those individual members of a panel in respect of whom there is reason to think that they may be biased against an accused person: see R v Manson (1974) Qd R 191 at 198-202 and R v Stuart and Finch (1974) Qd R 297 at 303-304, 325-328 and 368-369. A challenge for cause must always be a challenge to the suitability of a particular member of the panel to sit as a juror. Section 35 the Juries Act provides that: "At a criminal trial, a challenge shall be made as the person called comes to, and before he enters, the jury box". This is the position whether the challenge is a peremptory one or for cause: see s. 34. "A challenge for cause shall be tried by the Judge presiding at the trial at which the challenge is made": s. 36A. These provisions also show that the challenge for cause is a challenge to an individual juror. A precondition to the grant of an application to challenge for cause is the establishment of a "proper foundation against the particular juryman called": Stuart and Finch at 369. See also Murphy v R at 104 where Mason CJ and Toohey J referred to the need to establish the factual foundation in relation to "a particular juror or jurors" and R v Murdoch (1987) 37 A Crim R 118 at 126.
Proof of the existence of a risk of partiality sufficient to justify allowing the questioning of potential jurors may be provided by evidence of media publicity adverse to the accused "where it has been published in circumstances that justify an inference that members of the jury are likely to have read it and to have been influenced against the accused ..." Murphy v R (1989) 167 CLR 94 at 104, per Mason CJ and Toohey J (Deane and Dawson JJ agreeing). However, cases in which evidence of adverse media publicity will provide a sufficient foundation of fact to justify the granting of an application to challenge jurors for cause "are exceptional cases": ibid, 104. And that applications to challenge for cause are nowadays often based upon what is said to be the prejudicial effect of media publicity upon the members of the panel cannot obscure the fact that the onus the applicant for such a challenge bears is an onus of showing that there is a risk that each individual juror who is sought to be challenged for cause is biased against the accused.
If a properly conducted and properly proved survey report shows that, for all practical purposes, every member of the panel is likely to be prejudiced against an accused, that by itself would provide a sufficient foundation for challenging each member of the panel for cause. But it would be an exceptional case to have survey evidence that went so far as to establish that. The appellant relied on both the evidence of media publicity and certain survey evidence in support of his claim that he should have been permitted to challenge for cause. However, if neither body of evidence itself amounts to a proper basis for such a challenge, it is difficult to see how the two in combination could establish that basis when a challenge for cause can only be allowed if there is evidence that establishes a proper foundation for suspecting bias on the part of each individual potential juror sought to be so challenged.
Insofar as the appellant relies on adverse media publicity, I do not think that he established at the trial any foundation for a challenge for cause. The first killing occurred and the trial at which the accused was convicted of manslaughter of his first wife all took place in 1987, i.e., about five years before the commission of the offences for which the accused was convicted and in respect of which he now appeals. The prejudicial publicity relied on was limited to that surrounding the discovery and identification of the body of the accused's first wife in early 1987 and that associated with his conviction in October 1987. Apart from a single newspaper report on 14 March, 1992 that referred only to the fact that the accused had been charged the previous day with the murder of Nicholson and the attempted murder of his estranged wife and with the offence of trespass with intent to assault Nicholson while armed with a knife, no further information of any significance was given concerning the circumstances of the present offences. Importantly, there was no reference in this report to the events of 1987 and the accused's connection with them. This Court was told that the explanation for the absence of any reference in the media in 1992 to the events of 1987 and of any reference in the media to the accused having a prior conviction for homicide is that an order was promptly made in the Magistrates Court suppressing all reference in the media to those earlier events. The lapse of time between the two killings and trials is one of the major distinctions between the present case and that of R v Kray (1969) 53 Crim App R 412. There, some of the accused were convicted by jury verdict on 4 March, 1969 of murder, a conviction which led to widespread media publicity, which included publicity of matters not in evidence at that trial, but which were discreditable to the accused. When they were brought up for trial a little over five weeks later on yet another murder charge, Lawton J found the media publicity following the first conviction of matters not in evidence at that trial to be sufficient grounds to justify him allowing the defence application to challenge prospective jurors for cause. The passage of about five years between the events of 1987 and the accused being charged and brought to trial on the offences the subject of this appeal serves to diminish substantially the recollection of any persons who followed the events of 1987 at that time of those events, who also happened to be members of the panel from which the accused's jury was drawn in October 1992. The absence of any reminder in the media in 1992 of the events of 1987 coupled with this passage of time between 1987 and 1992 prevents the case being regarded as one of those exceptional ones in which media publicity can provide justification for allowing challenges for cause: there is no basis in the publicity, limited as it is to contemporaneous reports of the events of 1987, for a conclusion that each member of the panel was likely to have been biased against the appellant by his or her recollection of that publicity and by connecting it to the appellant.

Insofar as the application to challenge for cause was based upon the report of a survey conducted by a management and marketing consultant, Mr. Saulwick, which was put before his Honour before the start of the trial without objection by the Crown, his Honour correctly assessed this evidence as insufficient to entitle defence counsel to question any individual member of the panel, since it did not indicate that any particular member would be likely to hold the same view as those members of the sample population who responded in the affirmative to all three of the survey questions, including question 3, but only that, at most, a quite small but unidentified group of members of the panel from which the jury was drawn held those views.
Mr. Saulwick gave evidence and was cross-examined. No criticism was made of the methodology Mr. Saulwick used to randomly select his sample population of ACT voters who were asked the following three questions:

"1. I want to ask you a couple of questions about an incident in the ACT in 1987. Do you remember an incident in which a woman's body was found in bushland in the ACT in 1987 and although the body was unidentified for a number of months, it was subsequently identified as that of Deborah Bush? If "yes", ask

2. Did you know that her husband was later tried and convicted of an offence relating to her death? If "yes", ask

3. If that husband were to be charged with a similar offence relating to his second wife and her lover would you, given what you remember of the previous incident:

tend to think that he was guilty of that second offence or have an open mind on the question?"

Mr. Saulwick's key conclusions from the responses he received to these questions were as follows:

"The results suggest that the total result is likely to reflect an accurate picture of the population from which the sample was drawn.

19 of 150 respondents answered Question 3 by stating that they would 'tend to think that he was guilty of that second offence'. This represents 12.66%.

We may be 95% confident that the true percentage lies between 8% and 19%."

In argument, it was sought to show in reliance on this evidence that the refusal of the application to challenge for cause had deprived the appellant of his right to a fair trial because it had resulted in at least one person being included in the jury who knew of the appellant's involvement in the 1987 killing and who could be likely to have conveyed that information to other members of the panel. The survey does not, however, establish this.
Contrary to the submission of counsel for the appellant, Mr. Saulwick's evidence does not indicate that there was a high probability that between 8% and 19% of the jury, i.e., at least one member of the jury that decided the appellant's fate, would have held an opinion that was prejudicial to him. His opinion was that there was a high probability that between 8% and 19% of the population from which the sample of 150 interviewees was drawn, i.e., all the voters in the ACT, would hold a view adverse to the appellant. As is clear from his answers in cross-examination, it is only if the jury that sat on the appellant's trial was itself randomly selected from the panel summonsed for that purpose that the opinion he expressed would apply to the jury as well. There is no evidence to show how the jury was, in fact, selected from the panel of ACT voters summonsed for jury service. The process by which the jury was selected from that panel would have been the antithesis of random selection if it happened to be the position that both the defence and prosecution counsel had attempted, albeit in a wholly unscientific way, to select jurors likely to favour his side. The point is not entirely an academic one: if, for argument's sake, one side deliberately sought to select persons of the lowest intellectual level, to the extent that attempt succeeded the jury might well comprise a higher proportion of people unlikely to keep themselves informed of current events and so unlikely to have known of the appellant's involvement in the 1987 killing than may be the case with the population of ACT voters as a whole. Moreover, the sample was drawn from the population of ACT voters, not from the more limited population of ACT voters eligible for jury service, which was the relevant population to survey. This may or may not affect Mr. Saulwick's opinion. But, in the absence of evidence indicating that it could not have any significant effect on his opinion, there is a further doubt raised as to the usefulness of the survey. Further, the survey could only amount to evidence that a relatively small proportion of the panel from which the jury was drawn would be likely to think that the appellant was probably guilty of the 1992 killing if it could be accepted as showing not only that that part of the panel was aware of the events of 1987, but also that that group would identify the appellant as the man who killed Debra Bush in 1987. Given the form of the first question, it is quite uncertain as to whether those who answered it in the affirmative were confirming both a recall of the incident and that the victim's name was Bush or only confirming a recall of the first of those matters. Given the form of the third question asked in the survey, it is also not self-evident that a potential juror, with a recall of the events of 1987 and of the victim's name, would be likely to link the appellant with those events because he had the same surname as the victim.
For these reasons, the survey evidence is not in my view a sufficient basis for a conclusion that at least 8% of the jury, i.e., at least one member of the jury, would have connected the appellant with the 1987 killing and would, for that reason, have thought the appellant likely to be guilty of the 1992 offences. While "the wrongful reception or transmission of such evidence (i.e., of an inadmissible prior conviction, especially one of the same kind as the offence charged) by or to the jury is calculated to set the prospect of a fair trial at risk": The Queen v Glennon (1992) 173 CLR 592 at 604, that consideration is irrelevant to the question of fair trial or not where, as here, there is no legitimate basis for a "finding that there was a likelihood of awareness of the conviction or at least a substantial risk of awareness". ibid.
For reasons already given, the appellant's conviction could only be overturned if the rulings made by the learned trial judge rejecting applications for the stay that was sought and for leave to challenge jurors for cause that were themselves based on suggested awareness by jurors of the appellant's previous homicide conviction, had resulted in a miscarriage of justice. A court of criminal appeal must determine this question "in the light of the evidence as it stands at the time of the trial and in the light of the way in which the trial was conducted, including the steps taken by the trial judge with a view to ensuring a fair trial": The Queen v Glennon, at 606.
In rejecting the stay application for the reason he gave, the trial judge said that he would do his best to ensure, by appropriate directions, that the jury would act only on evidence produced in court and he then invited counsel to raise with him any concern they might have if the directions that he said he would give the jury in that regard were not "adequate to protect the accused from unfair prejudice". Immediately after the accused was arraigned and pleaded not guilty to the counts of murder and attempted murder, his Honour addressed the jury upon their role in the trial as representatives of the community and emphasised to them their duty to act with complete impartiality and only upon the evidence given in the course of the trial. His Honour concluded by saying this:

"This trial is going to last about four weeks, it could go a bit longer. It is an important matter. It would be unfortunate, to use as neutral a term as I can, if we got several weeks into the trial and then someone realised that they may not be able to give a true verdict, according to the evidence. Impartiality, making decisions based upon what is ventilated in this courtroom is the only way we can operate in the criminal area. So what I am going to do now is invite anybody who has heard what I have said and who wishes to make any sort of application, based upon an inability to give a true verdict according to the evidence in this courtroom, to come and make an application to be excused."

No such applications were made and his Honour proceeded with the empanelling of the jury. That there was no application by any member of the panel to be excused following what his Honour had to say about the importance of acting impartially and only upon evidence produced at the trial is an indication that the accused was not deprived of his right to a fair trial by the denial of his application to challenge for cause. It was also conceded that nothing occurred in the course of the trial to suggest that any juror may have been aware of the accused's involvement in the 1987 killing (although an attempt was made to put before the court evidence of statements made by persons suggested to have been members of the jury the day after the verdict had been returned and the jury discharged and while the accused was being sentenced). This, too, contradicts the suggestion that the accused did not have a fair trial because of the risk that biased jurors may have sat in judgment upon him.
The alternative submission that, because of the smallness of the ACT community, challenge for cause should be more readily allowed than would be appropriate in larger communities is misconceived: whether the community from which the jury is drawn is large or small, there can never be a challenge for cause unless the accused first proves a factual foundation for the proposition that each particular juror whom he wishes to so challenge is likely to be biased against the accused or possesses some other disqualification for sitting in judgment upon the accused.
An accused faced with a real risk that his entitlement to a fair trial may have been prejudiced by pre-trial publicity or by possible community knowledge of inadmissible discreditable conduct on his part but who cannot make out a right to challenge his potential jurors for cause, will still be able to obtain the intervention of the court, for example, by way of its giving appropriate warnings to the jury to act only on the evidence, by way of adjourning the trial and discharging the jury, if that should be appropriate, and, in an extreme case, by ordering a permanent stay of proceedings. The view expressed by Brennan J in Jago v District Court (NSW) (1989) 168 CLR 23 at 47 that "(u)nfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness" and so cannot justify a permanent stay does not appear to have prevailed: see The Queen v Glennon (1992) 173 CLR 592 at 605-6, 623-4. But it was not argued in this case that there was any deficiency in the appellant's trial associated with the appellant's involvement in the death of his first wife, apart from in the two respects with which I have now dealt.
The next ground of appeal is that the learned trial judge erred in directing the jury as to provocation "in that the entirety of his direction on provocation suggested that provocation can only be established where the act which provokes an unlawful killing is closely connected in time with the eventual killing". But as I understand counsel's argument, it was to the effect that two comments made by the trial judge may have misled the jury into thinking that consideration of the deceased's conduct said to amount to provocation had to be limited to what he did immediately before the killing, to the exclusion of his conduct in the period of some weeks prior to the killing upon which the appellant also relied.
Section 13(2) of the Crimes Act 1900 in effect defines provocation, while s. 13(3) explicates the concept. The sub-sections provide:

"(2) For the purposes of subsection (1), an act or omission causing death shall be taken to have occurred under provocation where:

(a) the act or omission was the result of the accused's loss of self-control induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused; and

(b) the 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:

(i) as to have formed an intent to kill the deceased; or

(ii) as to be recklessly indifferent to the probability of causing the deceased's death; whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time.

(3) For the purpose of determining whether an act or omission causing death occurred under provocation, there is no rule of law that provocation is negatived if:

(a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission;

(b) the act or omission causing death did not occur suddenly; or

(c) the act or omission causing death occurred with any intent to take life or inflict grievous bodily harm."

There may be some doubt as to how extensively these provisions widen the range of circumstances in which a killing that would otherwise be murder will be reduced to manslaughter beyond those accepted under the pre-existing law as capable of such an effect. Cf. "Defending Battered Women on Trial", Sheehy and others, (1992) 16 Crim LJ at 377 and" Self Defence, Provocation and Duress", Lee J, (1977) 51 ALJ at 442-3.
The accused's evidence was that the killing and the attack on his wife occurred in the following circumstances: about three weeks before the killing, the appellant's wife had left him, telling him she was leaving him for her former boyfriend, the deceased. Between then and the death, the appellant and his wife lived apart, although there was some communication between them. Two days before the murder the appellant, his wife and the deceased met and agreed that the wife would return to live with her parents and that the sexual relationship between her and the deceased would cease immediately. On the afternoon before the killing, the appellant drove past the house in which he had discovered that his wife and the deceased had been living to find his wife and the deceased there playing with his infant son, in apparent breach of the agreement. It was in the early hours of the following morning that the appellant drove to a street near the deceased's house, took from his car a knife (he said in his evidence in chief he did not know why he did this) and gloves which he put on ("so I wouldn't leave any fingerprints"), walked to the deceased's house and entered the bedroom in which the deceased, his wife and his infant son were sleeping, where the attack on the two adults occurred.
The learned trial judge gave the jury detailed directions on provocation in the course of which he identified the deceased's conduct that was said to amount to provocation, referring to the deceased's role in contributing to the break-down of the accused's marriage, to the breach by the deceased of the agreement not to associate with the accused's wife and to the accused finding the deceased in the bedroom with his wife and infant son immediately before the killing. His Honour mentioned the need for the jury to consider the question of the loss by the appellant of his self-control in the context of directions he gave on other issues concerning provocation. However, he then turned to this same matter, in a long passage in the course of which he made the two comments about which complaint is made. His Honour said:

"We have all read the French novel where the husband comes home and finds the wife in bed with the lover, and that is often cited as a classic example of provocation. A man's passions may be "brought to the boil" to such an extent that he loses control, and in the heat of passion, with the blood boiling, he forms an intent to kill the lover and then does it. But usually that sort of scenario embraces a shock on the part of the husband at the new discovery; the new discovery that his wife has a lover. And not discovery, in circumstances where the husband already knew about the relationship for some three weeks earlier, and not in circumstances where there has been a separation - a ventilation of the relationship and an admitted separation based upon a desire by the wife to go and live with the former boyfriend, John.

And you will remember I read to you her evidence about that, that the accused does not disagree with. You must consider all that as to whether the accused was acting under provocation. And certainly provocation can be that sort of behaviour; it can be very provoking, no doubt, for a husband to find his wife in bed with another man. And it does not have to be just that: there can be a whole course of things. So you have got to look carefully, not only at the conduct of the deceased and what he has done to the accused, because that is what is relied upon as the cause of the accused's loss of self-control - if you find that is what happened - and as the sort of conduct which could have induced an ordinary person in the position of the accused to so far lose self-control as to form an intent to kill."

He then went on to tell the jury that the Crown case was that this was not a case of loss of self-control at all, but rather a premeditated killing. He told the jury that the appellant could not rely on provocation if his intent to kill was formed independently of any act of the deceased and then, in seeking to further explain to the jury the need to consider not only whether the appellant lost his self-control but whether an ordinary person could have been induced to lose his self-control also as a result of the conduct of the deceased, his Honour said:

"Provocation has to be something which might naturally cause an ordinary man to loose his self-control to such an extent as to form an intent to kill and the acts of the accused have to be by way of hot blooded response rather than planned and premeditated retaliation for some slight or insult or some grievance occasioned to the accused perhaps much earlier and in time for the blood to cool. So you have to consider everything that happened and having done all that ask yourselves whether whatever the deceased did was so violently provocative as to lead an ordinary man to lose his self-control, decide to kill and then cause death with that intent."

So far as concerns what his Honour had to say about "the French novel", a jury could not have misunderstood that what his Honour was doing was correcting any misconception they might have that provocation could only be found in a sudden discovery of the wife in the act of adultery with a lover, and was telling them that provocation could, on the contrary, be found in the sequence of events stretching over a relatively long period of time upon which the appellant was relying here in saying he was provoked to kill the deceased.
As to the other passage in the summing up the subject of complaint concerning what his Honour had to say to the effect that the acts of the accused had to be by way of hot-blooded response, rather than planned and premeditated, his Honour was emphasising to the jury, as it was proper for him to do, the need for them to consider carefully whether the killing took place in circumstances in which the appellant had in fact lost self-control, being circumstances in which the conduct of the deceased could have caused an ordinary man to so far lose self-control as to kill. He was not purporting to deal with the conduct of the deceased relied on as constituting provocation, but a quite different matter. I do not think there is any real risk that the jury may have thought, from this passage of the summing up, that they were not required to evaluate the whole of the deceased's conduct over the period of several weeks upon which the appellant relied as amounting to provocation: his Honour, a little earlier in the first passage of his summing up about which there was complaint, had told them "you must consider all that" and in this second passage, his direction "so you have to consider everything that happened ..." could only be understood by the jury as yet another reminder, albeit in the different context in which he was there speaking, to have regard to the whole course of events the appellant was relying on as amounting to provocation.

The final ground of appeal argued was that the learned trial judge erred in permitting the Crown to call evidence in rebuttal of the claim which was developed in the appellant's case that he killed in a state of non-insane automatism.
In the course of the defence case, the appellant called evidence from a specialist psychiatrist, Professor Finlay-Jones, who expressed the opinion that certain of the circumstances in which the appellant killed the deceased were consistent with him doing that in a disassociated state. Professor Finlay-Jones would not put the matter any higher than that and acknowledged, among other things, that if the evidence as to the preparations the appellant made in taking up the knife and gloves and driving to the vicinity of the deceased's residence were accepted, that would be inconsistent with his having killed in such a state. He described a "disassociated state" as a mental state in which a person's actions and movements of his body occur independently of his conscious will. There was no suggestion that the possibility that the appellant killed in such a state in turn flowed from the presence of some mental pathology or natural mental infirmity. The evidence of Professor Finlay-Jones thus went to negative the existence of that element of the offence which required proof of willed or voluntary action on the part of the accused: see The Queen v Falconer (1990) 171 CLR 30. This evidence was sufficient to raise as an issue for the consideration of the jury the question whether the Crown had proved that the appellant's homicidal acts were his conscious acts.
The trial judge allowed the Crown to call two psychiatrists, Dr. Parker and Dr. Bartholomew, in rebuttal of the evidence of Professor Finlay-Jones. Each expressed the opinion that it was most unlikely that the accused was acting in a state of involuntariness when he attacked his wife and the deceased. Nothing can be known of just what consideration led the jury to convict the appellant. It is therefore a possibility that this rebuttal evidence was crucial to the jury's decision.
Counsel for the appellant, who also appeared for him at the trial, conceded that "the first inkling" that the appellant might raise the question of the voluntariness of his conduct occurred when Professor Finlay-Jones gave his evidence in chief. Even though counsel may, in his opening address, also have in fact indicated that the voluntariness of the appellant's actions would be the subject of evidence, it is clear that nothing occurred prior to the closing of the Crown case which could have alerted the Crown to the possibility that such an issue would later emerge.
This is fatal to this ground of appeal. The general principle is well settled. The discretion to permit the prosecution to adduce evidence after the close of the defence case is to be exercised in favour of the prosecution only in exceptional circumstances and the guiding principle is that the prosecution ought not to be permitted to split its case; the courts have declined to define what will constitute exceptional circumstances beyond saying that a situation in which the Crown ought reasonably to have foreseen the need to call rebuttal evidence before it closed its case will not constitute such circumstances: The Queen v Chin (1985) 157 CLR 671 at 676 and 684-5.
The Crown could not have foreseen, before it closed its case, that the voluntariness of the appellant's actions might become an issue in the case. There was no evidence before this court to suggest that anything had taken place outside the trial court that might have alerted the prosecution to the possibility that this issue might be raised at the hearing. The Crown was not required to anticipate the possibility that always exists in theory that the defence might ultimately raise such a matter and to counter it in advance.
In the absence of some contrary evidence, it is presumed, both at common law and in the Code States, that an act done by a person who is apparently conscious is willed or done voluntarily. In The Queen v Falconer, supra, at 40-41, Mason CJ, Brennan and McHugh JJ, in a joint judgment, said:

"The presumption that the acts of a person, apparently conscious, are willed or voluntary is an inference of fact and, as a matter of fact, there must be good grounds for refusing to draw the inference. Generally speaking, grounds for refusing to draw the inference appear only when there are grounds for believing that the actor is unable to control his actions. Although the prosecution bears the ultimate onus of proving beyond reasonable doubt that an act which is an element of an offence charged was a willed act or, at common law, was done voluntarily (Woolmington v Director of Public Prosecution; R v Mullen), the prosecution may rely on the inference that an act done by an apparently conscious actor is willed or voluntary to discharge that onus unless there are grounds for believing that the accused was unable to control that act." (emphasis added)

See also 171 CLR at 61-2 and 67-8 and 83.
There is, in my view, nothing in the circumstances of the case known to the Crown and revealed in the evidence prior to the close of the Crown case which should have alerted it to the possibility that the appellant would contend, in his own case, that his actions were involuntary. The Crown's evidence pointed to a premeditated killing committed after the appellant had brooded for a substantial period upon his misfortunes. The attack itself, in which the appellant stabbed both his wife and the deceased many times, does not, against the background of premeditation which included the steps the appellant took in order to launch the attack on his wife and the deceased on the evening of 12 March, 1992, amount to grounds for belief that the appellant was, at the time of the killing, unable to control his actions. The form the appellant's attack on his victims took no doubt suggests a loss of control on his part. But that is a characteristic of many offences of violence. Evidence that does not go beyond that is not sufficient to throw doubt on the presumption of voluntariness: there must be something in the evidence that suggests an inability to control the accused's actions, as distinct from a mere loss of control at the critical moment.
One final matter calls for comment. Professor Finlay-Jones appears to have been ignorant of the fact that the appellant was convicted of strangling his first wife. Neither he, nor the two psychiatrists the trial judge allowed the Crown to call to give evidence on this issue, was questioned in court about that matter by either side. It is understandable that the Crown did not put this matter to the Professor, even on a voir dire, given the risk of a mistrial whatever the witness said about the relevance of the matter to his opinion, which had already been opened to the jury. But that this was the second time the appellant has killed seems to me to be a matter of such clear possible relevance to the question whether he may have killed involuntarily on the second occasion that the issue of involuntariness could not properly have been raised by the defence unless they had explored the matter before trial with Professor Finlay-Jones. For defence counsel to open to the jury and then call an expert witness to give an opinion favourable to the accused's case when counsel has refrained from drawing the expert's attention to material that may be detrimental to the accused, but which is of clear possible relevance to the expert's opinion, in my view, involves the same sort of impropriety that occurs when a party's lawyers "settle" an expert's report. See Whitehouse v Jordan (1980) 1 All ER 650 per Denning MR at 655 and (1981) 1 All ER 267, per Lords Wilberforce and Fraser at 276 and 284.
I would dismiss this appeal.

[1993] FCA 518

02 AUGUST 1993