Clarke v Regina - [2008] NSWCCA 36

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Clarke v Regina [2008] NSWCCA 36

FILE NUMBER(S):
2007/3530

HEARING DATE(S):
12 December 2007

JUDGMENT DATE:
27 February 2008

PARTIES:
Allan Clifford CLARKE (Applicant)
REGINA (Respondent/Crown)

JUDGMENT OF:
Grove J Hulme J Simpson J

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
70017/2004

LOWER COURT JUDICIAL OFFICER:
Barr J

LOWER COURT DATE OF DECISION:
26 November 2004

LOWER COURT MEDIUM NEUTRAL CITATION:
Regina v Clarke [2004] NSWSC 1125

COUNSEL:
W Dawe QC and M C Hay (Applicant)
J Girdham (Respondent/Crown)

SOLICITORS:
Simon Palmer (Applicant)
Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
Conviction by jury for manslaughter on indictment for murder
Sentence
Provocation as basis for conviction
Hearsay provocation not available
Correctness of R v Quartly (1986) 11 NSWLR 332 reserved for determination in suitable appeal
No lesser sentence than imposition appropriate

LEGISLATION CITED:
s 23 Crimes Act 1900

CATEGORY:
Principal judgment

CASES CITED:
Davis v The Queen (1998) 73 ALJR 139
R v Davis [1998] 100 A Crim R 573
R v Mohamad Ali [2005] NSWSC 334
R v Quartly (1986) 11 NSWLR 332
Savas v The Queen (1995) 183 CLR 1

TEXTS CITED:

DECISION:
Extension of time to appeal and leave to appeal against sentence granted.
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/3530
GROVE J
HULME J
SIMPSON J
27 February 2008

Allan Clifford CLARKE v REGINA

Judgment

GROVE J: This is an appeal against severity of sentence imposed by Barr J in the Supreme Court. The applicant was tried in October 2004 before his Honour and a jury upon an indictment charging murder and was found not guilty of murder but guilty of manslaughter. For that offence he was sentenced to imprisonment consisting of a non-parole period of six years dating from 12 April 2003 and expiring on 11 April 2009 with a balance term of two years.
The present application was filed on 2 August 2007. It was not accompanied by any requisite material in support of the necessary extension of time for its lodgement. Sentence had been imposed on 26 November 2004. However, on 10 November 2005 the applicant filed a formal notice seeking extension of time in which he confirmed that he sought only to challenge the severity of his sentence. He stated that he had anticipated that Legal Aid would attend to “administrative tasks” and it was not until 20 October 2005 that he was informed of the decision not to fund the appeal, hence the filing abovementioned. Ultimately the applicant was represented at the hearing by Mr Dawe QC and Mr Hay instructed by Mr Simon Palmer, solicitor, all of whom provided their services on a pro bono basis. In the circumstances I consider it appropriate to assess the merits of the arguments addressed on behalf of the applicant without any obstacle created by the substantial delay in the pursuit of the application.
In brief, the applicant, his daughter Narelle and the victim Mr Searle lived separately in adjacent streets and were known to each other. On 12 April 2004 Ms Clarke had a heated discussion with Mr Searle, after which she went to her father’s home. She made a complaint to him, after which the applicant armed himself with a hunting knife and confronted Mr Searle on the grass verge in front of his home. There were both an exchange of words and a physical encounter. The applicant killed Mr Searle with a single thrust of the knife to his chest.
Issues of accident and self defence were raised at trial. Manifestly, these were rejected by the jury. In obvious reference to a possible verdict of manslaughter his Honour made enquiry of counsel concerning directions which were being sought and he was expressly asked for directions on “provocation”, “excessive self defence” and “unlawful and dangerous act”. (T291). There was no elaboration by counsel of any precise directions sought.
In the event, the jury were given directions including written directions in respect of these three matters. They were told that they could consider them in such order as they chose but his Honour suggested that they might consider provocation first. He observed to them, as was not surprising given the abovementioned issues as they were raised and fought, that neither counsel had addressed the question of provocation. In this context his Honour invited the jury to consider evidence of the conduct of the deceased which they may regard as provocative, including what was said to have occurred between him and Narelle and her report to her father. He also directed the jury that there were a number of passages in the interview of the applicant by police which were relevant to provocation. He did not read these to the jury but gave them references to question and answer numbers. The references included assertions by the applicant to police that the deceased had taken off his belt from his jeans, folded it in his fist and started “whacking” him. He also described this as “whipping into me”. Those particular references were at questions and answers 124, 169 and 251. No doubt this was material upon which the applicant was relying at trial on the issue of self defence but there was no error (subject to the matter of “hearsay provocation” to which I will turn) in his Honour’s inclusion of the description of events as potentially relevant to a consideration by the jury of whether the offence of murder might be reduced to manslaughter on account of provocation.
Although I have made reference to jury directions, consequent upon the jury’s verdict it was for his Honour to make findings himself for the purpose of sentence. It was requisite for him to be satisfied beyond reasonable doubt of findings adverse to the offender and they must be consistent with the verdict of the jury: Savvas v The Queen (1995) 183 CLR 1. His Honour’s task was not to engage in an analysis in order to determine what the jury’s findings might have been. It was, as I have said, to make findings for himself, but I would not conclude that the matters of provocative action to which he referred had passed by his Honour’s attention when he came to sentence.
His Honour’s findings were as follows:
“At the trial three possible routes to a verdict of guilty of manslaughter were canvassed, nameIy by provocation, by excessive self-defence and by unlawful and dangerous act. For reasons for which I shall explain, I am satisfied beyond reasonable doubt that the offender intended to inflict grievous bodily harm. It is therefore inappropriate to sentence him as merely for an unlawful and dangerous act causing death. I am satisfied beyond reasonable doubt that the offender was not acting in self-defence. I am satisfied that the offender acted under the sting of the words and action of the deceased, as reported to him by his daughter, and that, so provoked, he attacked and killed the deceased. The conduct of the deceased could have induced an ordinary person in the position of the offender to have so far lost self-control as to have formed the intent to kill or do grievous bodily harm.
I am satisfied that the words and actions of the deceased towards Ms Clarke were insulting and even dangerous. I am satisfied that she was very upset when she reported the matter to the offender. Ms Clarke gave evidence that the deceased invited her to bring her father into his presence and the offender gave evidence that after Ms Clarke spoke to him he was afraid that the deceased might be intending to hurt him. I do not accept that the deceased ever made such an invitation or ever had any intent to hurt the offender. I do not accept that the offender ever thought that the deceased intended to hurt him.
I am satisfied that when the offender picked up the knife he was intending to stab the deceased. Although he intended to demand an explanation of the deceased, it was not his intention only to talk. I am satisfied that when he approached the deceased he moved quickly, ahead of Ms Clarke, and that as he walked down the street he was already handling the knife with the intention of using it.
After his altercation with Ms Clarke the deceased moved to re-enter his house, and I think that he would have done so if the offender had not approached him and called him out. The offender demanded to know why the deceased had acted as he had and asked him whether he would like to ‘have a go at him’. The offender held the knife in his right hand and waved it at the deceased. I am satisfied that the deceased removed his belt, but only under the threat of the knife. I am satisfied that he used the belt not to attack the offender but to try to knock the knife out of his hand. The offender made a number of thrusts with the knife. Two of them cut the deceased across the knuckles of the belt hand. Another killed him.”
The first ground of appeal asserts that his Honour erred in accepting “hearsay provocation” as the ground upon which the jury found murder reduced to manslaughter. The “hearsay provocation” is identified as the report of what the deceased was said to have done in the exchange with the applicant’s daughter in her report to him. It is convenient to use that expression.
The defence of provocation is governed by s 23 of the Crimes Act 1900 which provides:
“Trial for murder - provocation
23           (1)          Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter.
(2)          For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where:
(a)the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words of gestures) towards or affecting the accused; and
(b)that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased,
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 was an act done or omitted under provocation as provided by subsection (2), 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 was not an act done or omitted suddenly; or
(c)the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm.
(4)          Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation.
(5)          This section does not exclude or limit any defence to a charge of murder.”
In R v Quartly (1986) 11 NSWLR 332 it was held that the defence of provocation pursuant to that provision which reduces a verdict of what would otherwise be murder to guilty of manslaughter requires a reaction by the offender to the conduct of the deceased which occurs in the offender’s sight or hearing. Thus, the provocative incident must be one which directly involves the offender and the deceased even though the actual element of provocation or affront in the provocation may not be directed intentionally or specifically against the offender.
A note to the report indicates that an application for special leave to appeal to the High Court against that decision was refused. In the present case, the report by Narelle to her father would not, upon that authority, be an available element of relevant provocative conduct.
In R v Davis [1998] 100 A Crim R 573 the appellant had been convicted of murder and appealed on the basis that the trial judge had erred in ruling that the defence of provocation would not be left to the jury. The appellant had killed a man in respect of whom it had been reported to the appellant that he had sexually assaulted both the appellant’s five year old niece and three year old stepdaughter. The appeal was dismissed but it can be observed that there were expressions of reservation about the correctness of the decision in Quartly which, nevertheless, was applied.
In an application by Davis for special leave to appeal to the High Court of Australia [1998] 73 ALJR 139 (the Court being constituted by McHugh and Hayne JJ) McHugh J said:
“The applicant seeks special leave to appeal against his conviction for murder to raise the question whether provocation is available to reduce murder to manslaughter where the provocation is not committed in the presence of the accused but is reported to him. The learned trial judge, following the decision in R v Quartly held that it was not. We think that there is a strong case for saying that Quartly was wrongly decided on this point. Having regard to the terms of the statute it would seem sufficient for the accused to show that there was provocation on the part of the deceased and that it induced the accused to lose his or her self-control.”
The application for special leave was refused on the basis that in the instant case the time that elapsed was such that their Honours thought that no ordinary person could have so far lost self-control as to have formed an intent to kill or cause grievous bodily harm.
For completeness I would observe that in R v Mohamad Ali [2005] NSWSC 334 Wood CJ at CL, who had been a member of the Court in Quartly, referred to that case, making the observation:
“Even assuming that it still represents the law, having regard to the doubts which were expressed, in the course of the special leave application in Davis v The Queen [1998] 73 ALJR 139.”
The argument of the applicant challenged the reliance by his Honour upon his finding that the “hearsay provocation” was at least part of the basis for his own determination in respect of the applicant’s guilt of manslaughter. I share the misgivings expressed by others about the correctness of the decision in Quartly but I do not regard this application for leave to appeal against sentence as a suitable vehicle for determination whether it should still be followed.
It follows from an acceptance of the authority of Quartly that the error stipulated in the first ground of appeal is demonstrated. Nevertheless, as his Honour’s remarks above recited show, it was not the report by his daughter which operated exclusively on the mind of the applicant and he was also responding to the use of the belt which Mr Searle had removed from his waist. The context of the reference in his remarks to this part of the incident conveys a finding by his Honour that it played a part in relevantly provoking the applicant.
The particular error does not of itself undermine the validity of the sentence assessed. The argument which sought so to do was presented in support of the next ground.
The second ground of appeal asserted that his Honour erred in applying a lower degree of provocation following the finding of provocation referred to in ground 1.
The argument was based upon the proposition that if his Honour took into account two elements of provocation, one legitimate, namely the use of the belt by the deceased and the other illegitimate, namely the “hearsay provocation”, then it should be determined that the latter was of lesser moment in operating upon the mind of the applicant than the former, and the sentence should reflect the increased level of provocation of the former when compared with the latter. Logically, the culpability of an offender should reduce as the level of provocation elevates. That can be accepted as a general proposition, however the applicant himself did not rely upon provocation at any level, his evidence being that he accidentally stabbed the victim because he himself lost his balance and fell and his “right arm went up” (and in that way, the knife which he was holding penetrated the victim’s body). (T268).
Supplementary written submissions on behalf of the applicant included a contention that “provocation cannot arise in any other way (than) on the evidence presented (at) trial”. That is no doubt true but, as pointed out above, his Honour was himself required to make findings not inconsistent with the jury verdict which was simply not guilty of murder but guilty of manslaughter and he was entitled to draw available inferences and not limited to accepting or rejecting articulations by witnesses including the applicant. I observe that these submissions are defective in their purported analysis of the jury findings rather than those expressed by Barr J.
The evidence at trial included a description of the retaliation of the applicant to the use by the victim of his detached belt and there was therefore available evidence upon which (with other elements) to found a conclusion of provocation such as his Honour made.
The ultimate question for the Court in this sentence appeal is then, whether, focussing upon the available provocative conduct and, omitting the contribution of the report by his daughter to the applicant of what the victim was said to have done or said, any lesser sentence than that imposed by his Honour was warranted.
In the course of submissions, reference was made to the alternative bases for manslaughter which had been left to the jury at the express request of counsel. First, his Honour’s finding, for the purpose of sentence, that the deceased removed his belt only “under threat of the knife” excluded a finding that manslaughter was committed by reason of excessive self defence. Second, he expressly found that he was satisfied beyond reasonable doubt that the applicant intended to inflict grievous bodily harm. The finding of intent therefore excludes culpability of the applicant for manslaughter by an unlawful and dangerous act where the act is not, of course, accompanied by intent. Hence, this Court needs to deal with sentence imposed for manslaughter on the basis of killing in circumstances of provocation.
In my opinion, the answer to the question posed above is that the culpability of the applicant for this crime of manslaughter, restricting focus to the “legitimate” provocative conduct, warrants no less a sentence than that imposed by his Honour. The level of seriousness is amply demonstrated in the above quotation from his Honour’s remarks other than those referring to the report by the applicant’s daughter.
I would grant the extension of time to make this application, grant leave to appeal against sentence but dismiss the appeal.
HULME J: Grove J has summarised the issues as they were presented to the jury and it is unnecessary that I repeat what his Honour has said. I agree with his Honour that for the purposes of sentence Barr J was required to make his own findings consistent with the jury’s verdict and not to seek to determine what the jury had done – see Cheung v R (2001) 209 CLR 1; R v Isaacs (1997) 41 NSWLR 374. Grove J has quoted the relevant portions of Barr J’s remarks on sentence and it is also unnecessary that I repeat these.
Although the only grounds of appeal were that:-
“His Honour erred in accepting ‘hearsay provocation’ as the grounds upon which the jury found Murder reduced to manslaughter” and
“His Honour erred in applying a lower degree of provocation following the finding of provocation referred to in Ground One”
it was also submitted (and I summarise) that:-
His Honour erred in finding that the Applicant had an intention to inflict grievous bodily harm,

The evidence supported a finding that the deceased’s death was the result of an unlawful and dangerous act, and

Manslaughter on the latter basis inspired a lower sentence than the sentence of 8 years including a non-parole period of 6 years imposed.

The jury’s verdict meant that Barr J had a limited number of options available to him - in the circumstances of the case that the manslaughter arose as a result of provocation, excessive self-defence or as the result of an unlawful and dangerous act. Barr J was satisfied beyond reasonable doubt that the Applicant was not acting in self-defence. That was a conclusion reasonably open to his Honour, there was no challenge to that conclusion during the appeal and thus I can confine my consideration to at most the possibilities involving, on the one hand provocation, and on the other merely an unlawful and dangerous act.

Barr J said that he was satisfied beyond reasonable doubt that the Applicant intended to inflict grievous bodily harm on the victim. Although it was submitted that there was no evidence to justify this conclusion, it was one well open to his Honour on the evidence, including the uncontested evidence that the Applicant elected to approach the deceased, having first armed himself with the knife. The submission also suffers from the disadvantage that a finding of an intent to inflict grievous bodily harm was one that, in written submissions, counsel appearing for the Applicant before Barr J urged should be made.
Once self-defence is excluded, a conclusion that the Applicant intended to inflict grievous bodily harm can only be reconciled with the jury’s verdict of manslaughter if there is a finding of provocation or, perhaps more accurately, that the Crown failed to exclude the possibility of provocation as that expression is defined in law. Barr J found that the Applicant was provoked by “the sting of the words and action of the deceased, as reported to him by his daughter”.
Grove J has pointed out that such “hearsay provocation” is not, according to the decision of this Court in R v Quartly (1986) 11 NSWLR 332, provocation in law. I agree with his Honour that it is appropriate to accept the authority of that decision in this case although I do so because I am not persuaded that it was clearly wrong. Before such a conclusion could be reached it would be appropriate to consider the historical context in which the doctrine of provocation arose and there was no attempt on behalf of the Applicant to do more than refer the Court to the brief statements of reservation in Davis to which Grove J has referred.
However, I have difficulty in accepting that the Applicant is entitled, or should be allowed to raise the point in this Court. Even if the delay to which Grove J has referred is ignored, the Applicant needs leave to appeal against sentence. The case went to the jury without objection on behalf of the Applicant on the basis that such hearsay provocation was available to reduce what would otherwise be murder to manslaughter. It is an affront to my concepts of justice that, having had and retaining the benefit of that error, the Applicant should now be entitled to complain of it when, on the issue of sentence, he perceives it may operate to his prejudice. A fortiori is this so when, in submissions made to Barr J on sentence, it was urged that his Honour should find that the provocation included both the “hearsay provocation” and the use by the deceased of his belt. If the result of this appeal depended upon Barr J’s reliance on the “hearsay provocation”, I would not grant leave to appeal.
The argument in advance in support of the second ground of appeal involved the following steps:-
The evidence provided support for 2 bases of provocation – the hearsay provocation on the one hand and the use by the deceased of his belt and accompanying words on the other;
Barr J relied on only one basis – the “hearsay provocation”;
The “hearsay provocation” was not available at law;
Therefore the second basis was the only basis available in law or, alternatively, at least had to be taken into account;
Combined, the 2 bases constituted greater provocation than did only one; and
Therefore the sentence should be less than a sentence that reflected only the one basis that Barr J relied on.
The lack of logic in saying that because the “hearsay provocation” was not available, the second basis had to be taken into account but the “hearsay provocation” could be availed of in assessing the weight of the provocation is apparent.
The original evidence of the use by the deceased of his belt and of words spoken by him was contained in the Applicant’s ERISP. It was to the effect that when after being told by his daughter that the deceased had thrown a bottle and screamed at her and offered to fight her, the Applicant attended near the deceased’s premises, the latter came flying out of his house, saying “Alan, you’ll do”, took his belt off, folded it in his fist and started whacking into the Applicant who had somehow fallen to the ground. In evidence the Applicant said that in fact the deceased came at him and he went to the ground twice and the whipping was to the face, eye, back and shoulders. He also said that the deceased had, with his fingers, made a gesture of a pistol. There was other evidence that the buckle end was the end that struck the Applicant.
A difficulty the Appellant has with this second ground of appeal lies in findings made by Barr J that,
“when the offender picked up the knife (some time earlier and not in the presence of the deceased) he was intending to stab the deceased”, and
“I am satisfied that the deceased removed his belt, but only under the threat of the knife. I am satisfied that he used the belt not to attack the offender but to try to knock the knife out of his hand.”
Although there may not be a contradiction in terms, it is impossible to reconcile these findings with the requirements of provocation in law that an offender’s act be the result of a loss of self control induced by conduct of the deceased and that conduct was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to inflict grievous bodily harm, and this even though the use of the belt and accompanying words were but part of the deceased’s actions. There was no attempt to establish that Barr J’s findings were not open to his Honour.
Thus I see no error in Barr J not having also regarded the deceased’s conduct in using his belt and uttering the words he used at about that time as further operative provocation to be taken into account in the determination of the Applicant’s sentence.
There can be no quarrel with the submission that the deceased’s death was the result of an unlawful and dangerous act. It was at least that. However even if it should be concluded that that was the limit of the Applicant’s criminality, it does not follow that the sentence imposed should have been less than it was. In my view it should not. The Applicant’s actions consisted in not only using the knife in the course of his confrontation with the deceased but, with a view to some confrontation and, as he said in evidence, believing that the deceased might want to fight him, deliberately seeking out the deceased and taking the knife into whatever confrontation occurred. As was said in R v Blacklidge (Unreported, NSWCCA, 12 December 1995), “the courts have repeatedly stressed … what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. (R v Dodd [1991] 57 A Crim R 349; R v Hill [1981] 3 A Crim R 397 at 402.)”.
I am not persuaded that even if the proper conclusion was that the Applicant did not have an intent to inflict grievous bodily harm and that he fell to be sentenced on the basis of having killed the deceased by an unlawful and dangerous act, his sentence should be less than it was.
Accordingly, I agree with the orders proposed by Grove J.
SIMPSON J: I agree with Grove J.

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LAST UPDATED:
29 February 2008