Cornick v the Queen
[1987] TASSC 44
•28 July 1987
TASSC A40/1987
CITATION: Cornick v The Queen [1987] TASSC 44; A40/1987
PARTIES: CORNICK, Ann Maree
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 92/1986
DELIVERED ON: 28 July 1987
DELIVERED AT:
HEARING DATE:
JUDGMENT OF:
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:
Respondent:
Solicitors:
Appellant:
Respondent:
Judgment Number: TASSC
Number of paragraphs: 29
Serial No A40/1987
File No CCA 92/1986
ANN MAREE CORNICK v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NEASEY J
COX J
UNDERWOOD J
28 July 1987
Orders of the Court:
Appeal against conviction dismissed.
Leave to appeal against sentence refused.
Serial No A40/1987
File No CCA 92/1986
ANN MAREE CORNICK v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NEASEY J
28 July 1987
I agree with the reasons for judgment delivered by Cox J.
Serial No A40/1987
File No CCA 92/1986
ANN MAREE CORNICK v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX J
28 July 1987
The appellant was charged with the murder by stabbing of her de facto husband. She was acquitted of that charge but was convicted of the alternative charge of manslaughter after the learned trial judge had in the course of his summing–up given directions on the law relating to manslaughter simpliciter and on the effect of provocation pursuant to s160 of the Criminal Code. Although his Honour left to the jury as a justification in law of the act causing death the use of force in defence of another as adumbrated by s49, he declined to leave defence of self pursuant to s46. It is his failure to do so which grounds her appeal against conviction. She also sought leave to appeal against sentence. At the conclusion of the hearing the court dismissed both the appeal and the application for leave to appeal saying that reasons would be published later.
The appellant and the deceased had lived for several years in a de facto relationship of husband and wife, although for about four years prior to his death the deceased had not lived permanently and exclusively with the appellant. It seems that he maintained a separate establishment in order not to jeopardize her receipt of social service payments Nevertheless he was a regular visitor to the appellant's home where in his leisure time he worked as a furniture–maker in her garage and where he ate many of his meals and not infrequently slept. The other occupants of the appellant's home were her two sons, Wayne and Raymond, who were the children of her marriage and who were aged 18 and 16 years respectively, and a third boy Adam aged 12 years who was her son by the deceased.
The evidence led revealed that the deceased frequently abused alcohol and that particularly at those times he would become argumentative. The appellant described his behaviour when drunk from the start of 1986 (two months before his death) in this exchange when giving evidence–in–chief in her defence:
"QWhat was he like when he had been drinking by say the start of this year?
A Sometimes he was in a good mood but most times if he had been drinking particularly if Raymond was there at home he would get very argumentative about Raymond because he had had trouble with the law and he just did not like Raymond.
QDid the arguments ever reach physical ever [sic]?
AOccasionally.
QWhat would happen?
AEr – it would start out as an argument because I would not allow him to run my children down to me. I would answer back. He would maybe push me or hit me – open–handed. Sometimes he would just walk away.
QYour mention of the hose, what can you tell us about that?
AYes There was a hose. If Clem's temper got up about anything in particular he would start to get very abusive. There would usually be a tone of voice or a phrase that he may use that would sort of act as a warning that he was getting more angry. By that stage I would be frightened of him and I had on many occasions picked up that piece of hose and threatened him with it and had hit him with it. He seemed to back down if he knew that I was not going to take any more of his threats
QWhat sort or threats were they?
AThat he would attack Raymond, that he would attack me, that he would throw us out of the house, that he would take the car away from me – just along those lines"
There was also evidence of an incident some two years earlier which she described in these terms:
"AHe had been drinking. I don't know what the argument started about. I don't recall him actually coming – sort of coming at me even. I can remember him – he had me down on the floor and he had his hands around my throat and he was choking me and I – the three boys were in the house and I called out for the two bigger boys to come and help me to get him to pull him off me and they came into my bedroom and pulled him off me and there were one either side of Clem and he just sort of like that and threw them off him.
QWas he a strong man?
ANot a muscly man but definitely strong, yes
QYes Were you then in fear of your life?
ASince that episode yes"
She also said that up to the date of his death the complained of behaviour had escalated since Raymond had been in trouble and that quite a few of the arguments centred on Raymond.
Raymond also gave evidence of an incident some nine years earlier when he found the deceased holding a knife which was in her hand against the appellant's throat and the deceased had threatened to kill her if Raymond complied with her request to summon the police. In addition he had seen the deceased strike his mother "three or four times about every six months with an open hand". Sometimes she would retaliate by using an 18" strip of garden hose used for disciplining her sons and "sometimes he (the deceased) used to run away".
The eldest son Wayne gave evidence that he had seen the deceased strike the appellant with an open hand several times a year and likewise spoke of the hose being used by her on the deceased to the same effect.
On the 6 March 1986 the appellant had picked up the deceased from the home of a friend. The two men had been drinking together for about two hours prior to the appellant taking the deceased to her home at about 7 pm. There was no suggestion of any disharmony between them prior to their arrival at the appellant's house. Not long thereafter the appellant sent Raymond and Adam to the bathroom to wash before the evening meal which she was preparing in the kitchen. While there Adam said he heard pots and pans rattling and some yelling and he was sent out by Raymond "to stop the fight". Then he saw his father walking at a fast place to the bathroom whence he emerged holding Raymond. They came straight out to the living room (situate at the other end of the house next to the kitchen) and the deceased pushed Raymond over to the other side of the lounge room and then started yelling at him. Then the appellant "came in to break up the fight" by standing between the deceased and Raymond. The deceased then pushed the appellant and Raymond into the kitchen and threatened to hit them. Thereupon Adam jumped up behind his father and kicked him in the back. The deceased grabbed Adam and threw him across the lounge room, pulled him by the hair and threw him to the floor. Adam tried to get up and his father "did the same". Then when he finally got up the appellant stopped the deceased from hitting him and Adam ran from the house saying he would get the police.
Raymond's account of the altercation to this point was similar to that of Adam but he gave evidence that prior to Adam's departure he saw his mother and the deceased fighting in the lounge room, pushing and shoving, that this seemed to make the later more aggressive and that he then left the lounge room heading towards the bathroom having been struck in the lower abdomen with a knife. It is not clear from Raymond's evidence how this injury was inflicted on his step–father, but it was a superficial one and not the fatal one which was sustained in the upper chest at a later point in time.
After Adam's departure the deceased returned to the living room still in an aggressive mood and "there was a bit more argument and he turfed the tea upside down". This took place in the kitchen where one of the plates on which the evening meal had been placed was later found on the floor. His account continues:
"AThen he started walking away into the lounge room. That's when Mum got the second knife and then Clem said something to Mum and they were sort of in between – sort of in the lounge room and then I couldn't hear anything. They were sort of shouting a bit and then Mum come out Clem sort of followed and he had his hand on his chest and there was blood all over his hands and everything.
QRight. What do you recall happening then? Could you actually see them all the time they were in when they left when they were in the lounge room?
ANot all the time.
QSo they were out of your sight at one stage were they?
AYeah.
QNow you said your Mother got a second knife. What do you mean by that?
AOh, there was two knives
QThere were two knives?
AOne was a white knife – that was the first one.
QWhen you say that was the first one what do you mean by that?
AThat was the one that went down there.
QRight. Do you actually recall seeing that now or – ?
ANo.
QSo you are only now assuming that is what happened?
Ayeah.
QAlright. and so the second one what sort of knife was that?
AThat was a brown one.
QRight before your Mother got that knife you said that Clem was walking away out through the lounge room.
AYeah.
QAnd what did your Mother do?
AShe then grabbed the knife.
QWhere did she go then?
AShe followed him.
QShe followed him and then what did you see?
AAll I remember seeing is the hand going up and then down and I couldn't see anything else.
QWhen you say the hand going up and then down, whose hand was that?
AMum's.
QYour Mother's Before the hand went up and down did you – was there further conversation?
AYes.
QBut you can't remember now what that was?
ANo."
The third youth Wayne did not return home until after the arrival of an ambulance summoned by the appellant at 8.03 pm. The deceased was taken to hospital where he died that night.
The appellant was interviewed by police that night and in a signed record of interview the following question and answer appears:
"Q63At that time (i.e. when the fatal blow was struck) had Richardson shown an [sic] violence towards you?
AHe had pushed me a couple of times and threatened me with his fits [sic] but he hadn't actually hit me."
The appellant in her evidence gave a generally similar account to that given by Adam adding that at the time Adam left she was scared of the deceased and terrified of him because he had never before hurt Adam whom "he worshipped". She acknowledged that the deceased received a superficial wound from a different knife to that which caused his death while they were in the kitchen and she pushed him away while holding that first knife. She thought this had occurred after Adam left. Thereafter she said the accused left the kitchen and at the other end of the house was shouting and swearing and insisting that Raymond be made to leave the house. Her evidence continued:
"He was – his voice was coming closer to me. I was in the kitchen and he was still going on about Raymond and I don't remember picking up the knife and I don't remember going up the passage to him but he said 'I am going to kill him' and then I just hit him."
After a short adjournment her evidence continued:
"QYou don't recall going down the passageway but you were there?
AYes
QAnd Raymond was threatened again?
AYes
QWhat were your feelings just before, I am sorry, at that time?
AI was terrified of him not for me at that stage but for Raymond. He was so angry at Raymond that I thought he would do what he said he was going to do.
QAs well as being terrified were you also angry yourself?
APossibly. I am not real sure.
[Page 8]
QSo which is the dominant feeling?
AFear."
She denied intending to kill the deceased and said that she did not intend to hurt, " just to make him go away and leave us alone". In cross–examination it was put to her that the deceased had not threatened to kill Raymond, but she maintained that he had. She was then asked:–
"QAnd now you are telling the court today are you not that the reason that you stabbed Clem was because he said he was going to kill Raymond?"
And replied:–
"AYes"
Later this exchange occurred:
"QMrs Cornick just before lunch I started to ask you why you didn't tell the police Clement threatened to kill Raymond before you stabbed him?
ABecause I wasn't asked.
QWas that the predominant reason for your killing Clem?
AI struck out at Clem to make him go away to leave my sons and myself alone.
QWhat was your principal feeling towards him at that stage. Fear or anger?
AAnger but mostly fear.
QAnger but mostly fear – what did you think he could do?
AAlmost anything.
QAlmost anything – he is up round the corner of – the house near the bathroom, Raymond is nowhere near him what did you think at that stage, at that moment, he could do to Raymond?
AAt that moment he could not have done anything to Raymond.
QNo and if he tried to do anything to Raymond Raymond could either have defended himself or run away could he not have?
AHe could have done."
And again:
"QWell the time you went up to Clem in the passageway did you think he was going to harm you or did you think he was going to harm your son Raymond?
AEither or both of us
QEither or both of us, had he meant a threat against you?
ANot that I recall.
QNot that you recall and you have already agreed that he had no weapons in his hand?
AYes.
QAnd you had a knife in your hand?
AYes.
QHad he threatened to hurt or kill you on that night or firstly did he threaten to kill you on that night?
AI can't recall him saying that.
QAnd can you now remember whether or not you followed him up the passageway?
ANo.
QCan you explain to the jury how you came to be up the passageway outside the bathroom door?
AI have no recollection of how I got there.
QDid it occur to you that night that you should perhaps get Raymond and say 'Come on let's leave the house until the police or taxi arrive'?
ANo. I didn't think about it.
QYou didn't think about that – the truth is was it not Mrs Cornick you were fed up and you were extremely angry and you had had enough?
AI was angry with him but I was frightened of him too."
It can thus be seen from this brief review of the evidence that the substance of the appellant's case was that she acted in defence of her son Raymond whose life had been threatened by the deceased. Somewhat tenuous though the factual foundation was for such justification in law, the learned trial judge gave directions which are in no way assailed and the jury as their verdict makes clear, rejected it
The learned trial judge was asked to leave self–defence to the jury and after lengthy submissions declined to do so. In part his Honour said:
"I must say that it now seems to me that it is no part of the accused's case according to (her) evidence that she was defending herself when the fatal blow was struck to the deceased. This however does not necessarily mean that it should not be left to the jury and Mr Ellis now says that he seeks to rely on it as a matter proper to address the jury about. In my opinion the only evidence of any kind upon which it can be suggested that the accused herself was under physical attack came from her son Raymond who gave the following evidence at p82 of the transcript:
'Q Do you recall him striking her at any stage?'" (ie referring to the accused)
And the boy gave the answer:
"A A couple of times"
Mr Ellis has also referred this morning to inferences that might be drawn from the nature of the altercation that took place immediately preceding the stabbing but out of Raymond's sight. The nature of the blows described by Raymond was not described in any detail but it was of course given against a background of other incidents in the past in which the accused was alleged to have been struck on occasions by the deceased with his open hand and otherwise. The description given by Raymond bears no resemblance to the two separate incidents of some years ago which were also spoken of – of Raymond and the accused when on one occasion a knife was held at her throat and on another occasion an attempt was made to choke her. The only evidence of the accused of the violence towards her by the deceased on 6 March is to be found in the record of interview Q63. It is my opinion looking at the whole of the evidence that there is no material available to the jury entitling them to find the existence of a reasonable doubt as to the accused's guilt based upon the possibility that she was defending herself under the apprehension that she may be caused death or grievous bodily harm or other injury by the accused at the relevant time or that she could or that she believed she could not otherwise preserve herself from him. Nor do I believe there is scope for the application of ss46(1) as urged upon me by Mr Ellis or self defence at common law. Therefore I propose not to direct the jury in relation to self defence by the accused properly so called. That is, defence of her own person as I believe it is not available for the purpose mentioned above on the evidence."
A reading of later parts of the transcript dealing with his Honour's intended directions to the jury both oral and in memorandum form on the question of lawful defence of Raymond suggests that at the time he delivered the ruling just quoted his Honour may have been under a misapprehension as to the interplay of ss46(1) and (2). Certainly there was thereafter a brief discussion of the two subsections and the treatment of them in Patterson v The Queen [1982] Tas SR 143 by Neasey J at 148 and following and by Nettlefold J at 151. After that discussion the memorandum previously prepared overnight in anticipation by the learned trial judge was amended by him so as to specifically pose the relevant considerations justifying force, firstly on the hypothesis that the appellant meant to cause death or grievous bodily harm and, secondly, on the hypothesis that she did not mean to cause death or grievous bodily harm. It was argued on the hearing of the appeal that this "misconception" was germane to his Honour's ruling and that the ruling was accordingly tainted by error of law. In my opinion however, whether or not the learned trial judge did at first labour under any misconception about the ambit of each subsection and their mutual relationship, his ruling proceeded upon the proposition that there was an inadequate factual foundation for leaving any question of self defence to the jury. That view is confirmed in my mind by his Honour's later comment to counsel, "You must have misunderstood the ruling I have given. My opinion is that section 46 does not apply in any way to this case – i.e. as to manslaughter or murder because it is not open on the evidence."
With respect I think the learned trial judge was clearly correct in taking that view. There was a singular paucity of evidence as to the existence of an unlawful assault by the deceased upon the accused at any time reasonably proximate to the fatal stabbing. No factual foundation was laid for any reasonable hypothesis that the stabbing occurred while she was repelling force and there was a fortiori no evidence at all as to the degree of force to which her lethal response required to be proportioned. On the hypothesis that she meant to cause death or grievous bodily harm, the jury were left without any evidence direct or inferential that the appellant might reasonably have apprehended death or grievous bodily harm from the violence of the deceased's assault, or that she might have believed on reasonable grounds that she could not preserve herself from death or grievous bodily harm otherwise than by using the force which she did in fact use. On the best view of the evidence she did what she did to protect her son from the threats of an unarmed man. There was no basis for a direction dealing with self defence under s46 and there is no basis accordingly for interfering with the conviction which followed the jury's finding that the act which caused death was not justified in law. It is for these reasons that I concurred in the decision of the court dismissing the appeal.
As to sentence the learned trial Judge imposed a term of imprisonment of four years commencing on the date of the jury's verdict. Following her arrest, as his Honour was informed, she had been in custody on remand for a period of a little over four months before being released on bail two months prior to her trial.
In passing sentence his Honour said:
"ANNE MAREE CORNICK, You have been found guilty of manslaughter by the majority verdict of a jury upon your indictment for the murder of Clement Isaac Richardson on or about the 6th March this year. During the course of the trial, a good deal of evidence largely uncontradicted was given as to your relationship with the deceased. I am left in no doubt that the deceased was a heavy and regular drinker and was obnoxious and at times violent when he was drunk. You had lived with him in a de facto relationship for some years although not cohabiting in the full sense of the word for some time prior to the 6th March. You nonetheless maintained a relationship that was substantially that of man and wife. I accept that you have a strong bond of attachment to your three sons who gave evidence during the course of the proceedings I am also satisfied that you have been a positive and encouraging influence upon their development into articulate and intelligent young men. I also accept that on the night of the 6th March the deceased was behaving in an argumentative and aggressive manner and actually assaulted both Adam and Raymond and what he did went well beyond the limits of reasonable chastisement even if such chastisement had been deserved which in my opinion it was not. I believe that it is likely that he also assaulted you although not seriously so as to cause injury to you. My duty is to form a view of the facts consistent with the verdict of the jury. In my opinion this was a case in which the proper interpretation of the evidence and the verdict leads to the conclusion that you were acting under provocation at the time of the killing. In the light of the history of the relationship and the events of the 6th March, I think that that provocation was very significant and substantial although not extreme. I accept, of course, that the provocation was of the quality provided for in s160 of the Code. The behaviour of the deceased although reasonable whilst at the Woodlands home earlier in the evening had rapidly deteriorated upon your return home to Maria Avenue. I believe that you held genuine fears for the safety of Raymond although not to the extent of justifying you in what you did. I believe that your stabbing of the deceased resulted directly from your fear and anger engendered by his selfish and violent conduct. When you killed the deceased this was accomplished by one blow only but the instrument used was a very dangerous weapon particularly when wielded in the manner which you described to Sergeant Otley. I think that you almost immediately regretted what You had done and you made efforts to secure aid for the deceased. Although not stated in mitigation, I believe that you are probably deeply contrite to what occurred. In passing sentence I believe whilst giving full weight to the factors I have mentioned, there is a need to reinforce the sanctity of human life within the community and to impose a punishment commensurate with the gravity of the offence committed. There is also a need to give a clear indication that serious violence, even if only in retaliation, is not an acceptable means of solving domestic problems Accordingly, I sentence you to a term or imprisonment for a period of four years, to date as from 13th August 1986."
The first submission put by counsel for the appellant was that his Honour was in error in proceeding to sentence her on the basis that her conduct would otherwise have amounted to murder but that sudden provocation had reduced it to manslaughter when the jury's verdict was also consistent with the view that death had resulted from criminal negligence in the handling of a dangerous implement. Further, it was also consistent with the view that her fatal act had been intended only to cause bodily harm not known by her to be likely to cause death in the circumstances, or was an act commonly known to be likely to cause death or bodily harm but not intended by her to have that effect. The submission was that where there is a verdict of manslaughter and there is, in the evidence, more than one factual pathway by which the jury might have reached that verdict, it is encumbent upon the sentencer to accept as a basis of a sentence the pathway most favourable to the prisoner.
In Prokopiec v The Queen [1982] Tas R 170 this Court made it clear that the sentencer must determine a factual basis for the sentence he imposes, that the basis must not be inconsistent with the jury's verdict and must be supported by the general body of the evidence, and that he is not bound to accept the whole of the prisoner's version of the facts To that can logically be added the proposition that he is not obliged to accept some view of the facts more favourable to the prisoner than the case actually advanced by him. In R v Harris [1961] VR 236 the Full Court of the Supreme Court of Victoria dismissed the contention that the presiding judge was bound to take the most lenient view of the facts which would support the jury's verdict, saying that in the court's view there was no foundation in law for such a proposition (at 237).
In the present case the appellant did not canvass the possibility of a verdict of manslaughter by virtue of criminal negligence and the learned trial judge did not give directions to the jury thereon. It was simply not an issue and in these circumstances I can see no justification for complaint by the appellant that she was not sentenced on that basis Counsel for the appellant sought to rely on the case of Murace v The Queen (1957) 74 WN (NSW) 147 where the Court of Criminal Appeal reduced a sentence imposed for manslaughter on the basis that the trial judge in passing sentence should have taken into account the possibility that the jury's verdict was based on an alternative set of facts involving a lesser degree of culpability on the part of the prisoner. This case is not however authority for the proposition that the trial judge was obliged to proceed on the version of facts more favourable to the prisoner. The trial judge had misdirected himself by saying that in the circumstances of that case the jury must have accepted the less favourable version. Obviously, as he told the jury that they might convict on either version, there was no way of knowing from their verdict alone which version they had accepted. He did not however purport to make his own findings, but sought to interpret the jury's findings on an erroneous basis Some recent United Kingdom decisions are reviewed by the Court of Appeal constituted by O'Connor LJ and Beldham J in R v Solomon and Triumph (1984) 6 Cr App R (S) 120 at 125 Beldham J on behalf of the court said:
"There are of course occasions upon which a judge is perfectly entitled to seek from the jury the basis of their findings where a general verdict does not disclose the basis upon which it has been reached and where the basis can materially affect the sentence which the Court may impose. The most obvious example is in the case of a verdict of manslaughter when the basis of the jury's verdict may be either lack of intent or provocation or diminished responsibility."
In this jurisdiction the Criminal Code s383(1)(c) permits the jury, if they return a general verdict, to find specially upon any question submitted to them by the judge, but subs(3) thereof preserves their right not to find specially upon any question (save as provided in cases of insanity).
At 126 Beldham J continued:
"The only instance we have been able to find in which it might be said to be common practice to go behind the general verdict and to enquire from the jury the basis upon which it was reached is in the case of a verdict of manslaughter, when the jury may have reached their decision on alternative grounds which have been left to them by the judge. In the case of Matheson (1958) 42 Cr App R 145, this Court said that in such circumstances the judge may, and generally should, seek guidance from the jury concerning the basis of their verdict. In the case of Warner (1967) 51 Cr App R 437, this Court described that practice as common, but also pointed out that in other cases there was no obligation upon a judge to ask, nor upon a jury to answer, questions after they have returned their verdict. Even if the jury do express their opinion, the judge having heard the evidence is still entitled, where the evidence supports it, to reach his own view of the facts.
That this is undoubtedly the case is shown by the decision in this Court in Whittle [1974] Crim LR 487 and Ekwuyasi [1981] Crim LR 574. …
In Stosiek (1982) 4 Cr App R (S) 205, this Court again emphasised that juries should not, save in exceptional cases, be invited to explain their verdicts. If, as in that case, the Crown wished to charge an of fence which involved different factual ingredients from that with which the accused was actually charged and which would render the offence more serious or deserving of greater punishment, it could always add a count to the indictment for that other offence. Accordingly the Court held that it was wrong in that case to sentence the appellant upon the basis that he had knowingly assaulted a police officer in the execution of his duty when he had been convicted only of an assault contrary to section 47 of the Offences against the Person Act, and the facts were equally consistent with the appellant's not having known that the victim of the assault was a police officer who was not in uniform at the time and was casually dressed.
It is not difficult to see the reason why it is undesirable to ask a jury to explain an otherwise unambiguous verdict. There are many instances of cases, of which the present is one, in which the of fence charged may be supported by more than one view of the evidence given in the case. The jury entirely consistently with their oaths may have reached agreement on the general verdict, though not precisely on the same basis of fact, and to invite them further to refine their decision could only lead to confusion."
The one case where it is said by the Court of Appeal that it is common practice to enquire of the jury the factual basis for their verdict is manslaughter, but the particular instance mentioned (at 125) by the court is where a possible basis for that verdict is diminished responsibility and the one authority cited (at 126), namely Matheson (1958) 42 Cr App R 145, was such a case. Proof of diminished responsibility however lies on the defence as does insanity and with this in mind Lord Goddard CJ, presiding over a court of five justices, said in Matheson at 153:
"Before parting with the case, this is a convenient opportunity for laying down a rule of practice in cases where a defence of diminished responsibility is raised. The judges of this court have resolved that a plea of Guilty to manslaughter on this ground should not be accepted, though it seems it may be in Scotland: Kirkwood v Lord Advocate, 1939 JC 36. The issue must be left to the jury just as the issue must be if the defence is insanity. It may happen that on an indictment for murder the defence may ask for a verdict of manslaughter on the ground of diminished responsibility and also on some other ground such as provocation. If the jury return a verdict of manslaughter, the judge may, and generally should, then ask them whether their verdict is based on diminished responsibility or on the other ground or on both."
In my view it is neither necessary nor, at least in most cases, desirable to request a jury to refine their decision after a general verdict. In the present case the learned trial judge was fully within the proper exercise of his function as laid down in Prokopiec (supra) in making a factual finding that the appellant was acting under provocation at the time of the killing. He did not in any event make a formal finding that but for that provocation the killing would have amounted to murder.
In imposing punishment the learned trial judge quite properly emphasised that even in a volatile situation where violent though immediately regretted acts are perpetrated under the stress of fear and anger due to sudden provocation there is a need to reinforce the sanctity of human life and to make it clear to the public that serious violence is not an acceptable means of solving domestic problems Having regard to all the matters urged upon him, which there is no reason to suppose he did not take into account, I am quite unpersuaded that a sentence of four years' imprisonment was inappropriate, let alone manifestly excessive. For these reasons I was of the view that the application for leave to appeal against sentence should be dismissed.
Serial No A40/1987
File No CCA 92/1986
ANN MAREE CORNICK v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
28 July 1987
I agree with the reasons for judgment published by Cox J and have nothing to add.
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