Cufley, Cathleen Mary v The Queen

[1983] FCA 107

Re: CATHLEEN MARY CUFLEY
And: THE QUEEN (1983) 76 FLR 359
No. NT G19 of 1982
Criminal Law and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Toohey(1), Lockhart2) and Jenkinson(3) JJ.

CATCHWORDS

Criminal Law - direction to jury - murder - murder by recklessness - failure to direct that provocation relevant to murder by recklessness - consequences - provocation - whether misdirection on onus of establishing provocation

Criminal Law and Procedure - Direction to jury - Murder - Murder by recklessness - Failure to direct that provocation relevant to murder by recklessness - Consequences - Provocation - Whether misdirection on onus of establishing provocation.

HEADNOTE

The appellant was convicted of murder and sentenced to imprisonment with hard labour for life. She appealed against the conviction on grounds which went to the trial judge's direction to the jury. The grounds were directed to the issue of murder by recklessness and an alleged failure to direct that provocation was relevant to murder by recklessness.

The evidence was that the appellant had stabbed the deceased, as a result of which he died before reaching hospital. The appellant gave evidence that whilst she and the deceased were sitting in a car the deceased punched and abused her, that she had no clear recollection of having a knife in her hand or of stabbing the deceased three times as the medical evidence disclosed.

Held: (1) Per curiam, that provocation may operate as a defence in a case of murder by recklessness or reckless indifference.

Johnson v. The Queen (1976) 136 CLR 619, applied.

(2) Per curiam, that the trial judge's direction was, giving it the widest operation and viewing it in its entirety, a direction that the question of provocation should be considered in the event of a finding by the jury that the appellant killed the deceased intending to kill him and, perhaps, intending to do him grievous bodily harm; on a fair reading of the summing up, the jury would not have been left with an understanding that provocation was something they should consider if they were of opinion that the appellant had killed the deceased with reckless indifference.

Per Lockhart and Jenkinson JJ. - The misdirection was one which may have influenced the result of the trial.

Duff v. The Queen (1979) 39 FLR 315, referred to.

(3) Per Toohey J. - In assessing the weight to be given to complaints about misdirections it is necessary to keep in mind the admonition "that the adequacy of a summing up ought not to be judged upon a subtle examination of its transcript record or by undue prominence being given to any of its parts. It should be taken as a whole and as a jury listening to it might understand it".

La Fontaine v. The Queen (1976) 136 CLR 62, followed.

(4) Per curiam, that the appropriate course was not to enter a verdict of manslaughter but to order a new trial as the question of murder or manslaughter is one for the jury.

Pemble v. The Queen (1971) 124 CLR 107, referred to.

HEARING

Darwin, 1983, May 26, 27; June 3. #DATE 3:6:1983

APPEAL.

Appeal against a conviction for murder. The facts appear fully in the judgement of Jenkinson J.

E. Byron Q.C. and T. Hoyle, for the appellant.

M. Gillooly, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Australian Legal Aid Office.

Solicitors for the respondent; Northern Territory Department of Law.

P.H.M.

ORDER

1. The verdict and the conviction of the appellant pronounced and recorded 9 February 1983 on a charge that she did murder Eric Hyams be set aside.

2. There be a new trial of the appellant upon the indictment that on or about 8 January 1982 at Darwin in the Northern Territory of Australia she did murder Eric Hyams.

3. The appellant be remanded in her present custody to appear before the Supreme Court of the Northern Territory upon her retrial unless in that court proceedings upon the indictment are otherwise terminated.

Orders accordingly.

JUDGE1

The appellant was convicted of murdering Eric Hyams and, in accordance with the requirements of the Criminal Law Consolidation Act, was sentenced to imprisonment with hard labour for life. She appeals against that conviction.

All grounds of appeal relate to the learned trial judge's direction to the jury. They can be summed up in this way.

1. In the circumstances there should not have been put to the jury the possibility that the appellant might be convicted of murder by reason of recklessness or reckless indifference.

2. Nevertheless, having decided to direct the jury in that respect, the trial judge failed to explain recklessness by reference to the salient facts.

3. The trial judge failed to make clear to the jury that the issue of provocation applied to recklessness just as much as it did to murder by intent to kill or to do grievous bodily harm.

4. On the issue of provocation generally the trial judge failed to make clear to the jury the circumstances from which provocation might fairly be inferred and left with the jury an impression that the onus of establishing provocation lay on the appellant.

In assessing the weight to be given to these complaints it is necessary to keep in mind the admonition that "the adequacy of a summing up ought not to be judged upon a subtle examination of its transcript record or by undue prominence being given to any of its parts. It should be taken as a whole and as a jury listening to it might understand it" (La Fontaine v. R. (1976) 11 ALR 507 per Barwick C.J. at p.515).

It is also of some importance, in the present case, that the evidence only occupied two days and that his Honour addressed the jury on the morning of the third day. He might therefore reasonably proceed on the basis that the evidence was fresh in the minds of the jury and that it was not necessary to engage in such a meticulous examination of the facts as might have been required at the end of a lengthy trial.

The evidence is referred to in some detail in the reasons for judgment of Jenkinson J. I shall deal with it only in a summary way.

The appellant is 28 years of age. She is a single parent with a son aged 8. In September 1981 she had been in Darwin for about 2 years, living with her sister. The deceased Eric Hyams was then aged 37 years and worked on prawn boats. His de facto wife, Heather Hyams, worked as a barmaid at Lims Hotel five nights a week. The Hyams advertised for a live-in babysitter housekeeper and, in response to that advertisement, the appellant began to work for them in September 1981.

An association began between the appellant and the deceased and, on or about 7 December 1981, they both left Darwin together with the appellant's son and a male friend. According to the appellant, she and the deceased left Darwin with a view to getting married. The deceased told Mrs. Hyams that he was going to Cairns.

The party travelled to Exmouth, then to Perth, to Albany, back to Exmouth and returned to Darwin around midnight on 7 January 1981. The deceased arranged for the appellant to spend the night at the home of his friends Mr. and Mrs. Brady. He then left and returned during the morning at about 9 am.

The deceased and the appellant then left in the deceased's car for Lee Point Beach and some time before 10 am on 8 January there was an incident during which the deceased was stabbed as a result of which he died before reaching hospital. The appellant did not deny that she had stabbed the deceased with a knife which she had obtained that morning from the home of the Bradys.

At the trial the appellant gave evidence that, while she and the deceased were sitting in the car at Lee Point Beach, the deceased punched and abused her and that she had no clear recollection of having a knife in her hand or of stabbing the deceased three times as the medical evidence disclosed.

In the circumstances of this case the trial judge may well have been justified in refusing to give to the jury a direction based on the supposition that the appellant acted with reckless indifference, when there was material from which an intent to kill or to do grievous bodily harm could be inferred. The danger of giving such a direction unnecessarily was referred to by Barwick C.J. in Pemble v. R. (1971) 124 CLR 107 at p.118 when his Honour said:
"A direction as to that aspect of murder when there is not material to warrant a conclusion that the accused acted with reckless indifference is likely to cause confusion in the minds of the jury men; and ought not to be given".

It was not the appellant's case that she stabbed the deceased while trying merely to frighten him. Nevertheless, I am not prepared to conclude that his Honour erred in directing the jury that the appellant might be found guilty of murder if she intended to kill the deceased, if she intended to do him grievous bodily harm or if she acted recklessly, not actually intending to kill, but knowing that the act of taking the knife and stabbing the deceased would probably kill him. Some justification for leaving the latter aspect of murder to the jury is that the appellant's explanation of what happened at the car was so vague it was better to put all possibilities to the jury.

At the same time the problems of taking this course are well illustrated by a consideration of the ground of appeal that "his Honour failed to explain or amplify the doctrine of recklessness or of reckless indifference by reference to the salient facts of the case". The trial judge directed the jury about foresight of consequences and the other elements comprised in murder by recklessnes. The "salient facts" were largely that when interviewed by the police the appellant admitted stabbing the deceased; in cross-examination she said she could vaguely remember stabbing him in the back, that she thought she stabbed him once in the back but did not remember anything else and that she must have had the knife when she stabbed him. The learned trial judge directed the jury's attention to this evidence. He asked them to consider whether the appellant "intentionally inflicted injuries on (the deceased) in a manner and of a nature and under circumstances which lead you to find, as a jury, that she knew at the time she inflicted those injuries, she knew that death would probably result; not possibly result, ladies and gentlemen, probably result; knew that death would result, although, of course, she may not have had the actual specific intention at the time to actually kill or cause grievous bodily harm. It is really, ladies and gentlemen, the area of recklessness".

In my view, his Honour having left to the jury the possibility of murder by recklessness, it was desirable to explain to them, by reference to the facts of the case, how they might consider the appellant to have been reckless and the facts militating against a finding of recklessness. His Honour did not do this. But for reasons that follow I do not find it necessary to determine whether the appeal should be allowed on that ground.

The principal complaint made by the appellant's counsel is that the trial judge, having decided to leave murder by recklessness to the jury, did so in such a way as to lead them to understand that provocation applied only where there was an intention to kill or to do grievous bodily harm. In those circumstances, it was said, a jury who might have been disposed to find that there was murder by recklessness must inevitably have concluded that in such a case provocation would not operate to justify a verdict of manslaughter. Whether the jury were likely to be left with this impression depends upon the overall impact of his Honour's direction.

The respondent rightly accepted that provocation was available to reduce murder to manslaughter in the case of recklessness or reckless indifference. See Johnson v. R. (1976) 136 CLR 619. The respondent also conceded that, on more than one occasion in the course of his summing up, the learned judge dealt with the question of provocation with express reference only to murder constituted by intent to kill or do grievous bodily harm. But the respondent argued that on no reasonable view of the summing up could it be said that his Honour had withheld from the jury provocation in the case of murder by recklessness. On two occasions his Honour explained provocation with reference to a finding that a person unlawfully killed another with murderous intention. The respondent submitted that, read in its entirety, the direction to the jury fastened on to provocation with reference to murderous intention only because his Honour was there dealing with the mental state of the appellant and it would not have been appropriate at that point to introduce murder by recklessness. It was submitted that when the direction is read in its entirety it can be seen that provocation was left to the jury as a factor that might in all cases reduce a finding of murder to one of manslaughter.

In my view that submission cannot succeed. Giving the direction its widest operation and viewing it in its entirety, the conclusion is inevitable that the trial judge directed the jury that it was in the event of a finding by them that the appellant killed the deceased intending to kill him (and, perhaps, intending to do him grievous bodily harm) that they should consider the question of provocation. On a fair reading of the summing up, the jury would not have been left with an understanding that provocation was something they should consider if they were of opinion that the appellant had killed the deceased with reckless indifference.

In those circumstances the appeal must succeed. It cannot be said that the direction was one that could not reasonably be supposed to have influenced the result of the trial. This makes it unnecessary to consider the other grounds of appeal.

The appeal should be allowed. The appellant argued that in such an event there should be substituted a verdict of manslaughter. The respondent opposed this course on the ground that, in the circumstances of this case, the question whether the appellant was guilty of murder or manslaughter was essentially one for a jury. I agree.

There should be an order in the following terms:

1. The verdict and the conviction of the appellant pronounced and recorded 9 February 1983 on a charge that she did murder Eric Hyams be set aside.

2. There be a new trial of the appellant upon the indictment that on or about 8 January 1982 at Darwin in the Northern Territory of Australia she did murder Eric Hyams.

3. The appellant be remanded in her present custody to appear before the Supreme Court of the Northern Territory upon her retrial unless in that court proceedings upon the indictment are otherwise terminated.

JUDGE2

The appellant Cathleen Mary Cufley was convicted by a jury in the Supreme Court of the Northern Territory of the murder of Eric Hyams. She appeals to this Court from that conviction.

The killing of Hyams by the appellant is not in dispute. The Crown relied on three heads of murder showing malice: intent to kill or intent to cause grievous bodily or stabbing Hyams knowing that it was probable that death or grievous bodily harm would result even though the appellant had not intended to cause his death.

The appellant put malice in issue by denying intent. She also raised the defence of provocation so as to reduce the crime of murder to manslaughter.

The facts are fully set out in the judgment of Jenkinson J. which I have had the benefit of reading. I will therefore only briefly mention those facts to which reference is necessary. The appellant is a single parent aged 28 years. In September 1981 she commenced to work for Hyams as a housekeeper and baby sitter for his two children aged five and two years. The appellant had then been in Darwin for two years living with her sister and her own son aged seven years. Hyams was then aged thirty-seven years. Hyams lived with his de facto wife Heather Hyams who was employed as a barmaid at Lims Hotel working five nights a week.

An association between the appellant and Hyams commenced. On about 7 or 8 December the appellant and Hyams left Darwin together with a male friend and the appellant's son, apparently for the purpose of getting married. Hyams told his de facto wife that he was going to Cairns. The party travelled to Exmouth for work, then to Perth, Albany, back to Exmouth and thence to Darwin. After driving for two days they arrived in Darwin at about midnight on 7 January 1982.

Hyams arranged for the appellant to stay for the night with friends of his, a Mr and Mrs Brady. Hyams left the appellant at the home of Mr and Mrs Brady that night and returned the following morning at about 9:00 a.m. The appellant and Hyams then left in Hyams' car for Lee Point Beach. Sometime before 10:00 a.m. that day an incident occurred on the beach during which Hyams was stabbed by the appellant. He died before reaching hospital.

The grounds of appeal are misdirection and non-direction of the jury by the learned trial Judge in the following respects:-

1. That it was not an appropriate case for the trial Judge to direct the jury in terms of murder by recklessness. If there was any intent by the appellant sufficient to establish murder it was either an intent to kill Hyams or inflict grievous bodily harm upon him;

2. That in directing the jury as to recklessness the trial Judge failed to explain recklessness by reference to the salient facts relevant to the jury's consideration of that aspect of murder;

3. That in directing the jury as to recklessness the trial Judge failed to direct the jury that the issue of provocation applied to murder by recklessness as well as to murder with intent to kill or to cause grievous bodily harm; and

4. That the trial Judge's directions as to provocation were inadequate and defective.

It is not easy for a trial Judge to explain to a jury the differences between intent to kill, intent to cause grievous bodily harm and the intent involved in reckless indifference. Nor is it easy to explain the difference between recklessness which may warrant a conviction of murder and the recklessness which would support a conviction for manslaughter.

Opinions may differ as to whether on the facts of this case the trial Judge should have directed the jury as to murder by recklessness at all. There is much force in the contention of counsel for the appellant that a direction as to intent to murder or cause grievous bodily harm was all that the jury should have been instructed to consider on the issue of murder.

I do not find it necessary to consider that question because the appeal turns essentially on whether his Honour failed to direct the jury that provocation applied to murder by recklessness as well as to intent to murder and intent to inflict grievous bodily harm.

Counsel for the Crown conceded before us, and in my view correctly so, that provocation applies to murder by recklessness as well as to the other kinds of murder embodying intent: see Johnson v. The Queen (1976) 136 C.L.R. 619 per Barwick C.J. (at pp. 633 and 634).

His Honour clearly directed the jury that provocation applied to both intent to kill and intent to inflict grievous bodily harm. But having carefully read and re-read the summing up the conclusion is inescapable that the direction was not given with respect to murder by reckless indifference.

On this ground the jury was not adequately directed and in my opinion the conviction for murder should be set aside. The misdirection was one which may have influenced the result of the trial: Duff v. The Queen (1979) 28 A.L.R. 663 (at p.673 and 674).

It is impossible to say what consideration the jury would have given to the direction as to murder by recklessness.

It is not necessary to consider the other grounds of appeal relied on by the appellant.

I would allow the appeal and set aside the conviction for murder.

JUDGE3

Appeal against conviction of murder upon a jury's verdict in the Supreme Court of the Northern Territory of Australia.

On 8 January 1982 the appellant killed her lover by stabbing him thrice in the chest with a carving knife. The grounds of appeal were directed against the learned trial judge's charge to the jury : they alleged misdirection of law concerning death caused by acts done with foresight of the probable consequences and concerning provocation; and misdirection and non-direction of fact concerning matters of defence.

The appellant was born on 7 December 1953. She was reared at Albany in Western Australia, where she was educated to third year High School standard. She underwent training in nursing for about 18 months in Albany. In 1980 she came with her five year old son to Darwin, where she lived with her sister until she took employment with Mr. and Mrs. Hyams in September 1981. It was Mr. Eric Hyams whom she killed. He and Mrs. Hyams had been cohabiting as if man and wife for eight years. With them were their two children, one aged five and the other two. The accused went with her son to live in the Hyams' house, where she rendered housekeeping services and cared for the children when Mrs. Hyams was working five nights a week as a barmaid. The appellant had not known either of the Hyams until she answered their advertisement of the job she took with them. Mr. Hyams was engaged only intermittently in employment. Early in December 1981 the appellant and Mr. Hyams and her son left the home together in his car, engaged as the appellant swore to marry. They travelled together to the appellant's family home in Albany, where the child was left. They travelled north through Exmouth to Darwin, where they arrived at about midnight on the night of 7-8 January 1982. Mr. Hyams arranged accommodation for the appellant at the home of one of his friends and then went to the house where Mrs. Hyams and his children were living. The next morning he went to the house where the appellant was staying. He arrived before nine and remained with the appellant in the house until the appellant's hostess, Mrs. Deborah Brady, returned from an errand shortly after nine. According to Mrs. Brady's evidence at the trial, both her guests seemed upset. The same witness gave evidence that the appellant had been saying earlier that morning : "Come on Eric, hurry up. Come on, where are you? If you stay around there with her, I'll". According to Mrs. Brady's evidence the appellant did not complete the sentence quoted, which the appellant repeated.

The appellant and Mr. Hyams left the house together in his car shortly before 9.30. He drove the car to a beach car park. She had taken from the house and secreted under her arm a carving knife. At about 10 o'clock in the car park she stabbed him first in the back and then twice in the chest with the carving knife. He died within the hour. No witness to the stabbing was found and evidence of the circumstances came only from the appellant, in answer to police questioning that day, and on oath at the trial. In an interview of which a recording and a typed record were made that day the appellant said that she and Mr. Hyams left the house at his suggestion, he wishing to talk to her. She said she did not know why she took the knife with her. She said that in the car at the car park he told her that he was going to leave her, that he "had to give it another try for the children . . . . he still loved me . . . . he didn't love her, but he had to give it a go as she wouldn't let him see the children unless he went back". The interview then proceeded:
"Q89. What happened then?
A. I was crying, I got out of the car, he got out first, before he got out I walked down the beach I was crying and that, I got back in the car, then we both got out.
Q90. Which way was the car facing? A. Out to sea.
Q91. What seat were you in?
A. The front passenger seat.
Q92. What happened then?
A. I went around to his side of the car, he was out of the car.
Q93. Which way did you go around the car?
A. Back.
Q94. What was Eric doing?
A. He was going to put some petrol in the car out of a jerry can.
Q95. Was he fact doing that?
A. Yes.
Q96. What happened then?
A. That's when I done it.
Q97. What did you do?
A. stabbed him.
Q98. Where?
A. In the back.
Q99. What was Eric doing when you stabbed him?
A. He had just finished putting the petrol in the car.
Q100. Was he facing you?
A. He was just about to turn around.
Q102. Have a look at this knife.(Miss CUFLEY said "I dont want to see it).
Q103. What knife did you have?
A. The one from Debbies.
Q104. How were you holding it?
A. My right hand
Q105. Where did you stab Eric?
A. In the back.
Q106. How hard did you stab him?
A. I lifted the knife up and just stabbed him.
Q107. What happened then?
A. He turned around he said 'God no Kathy I still love you'
Q108. What happened then?
A. I went all blurry, I stabbed him.
Q109. Did you stab him in the front of the chest?
A. I think I did I am not sure.
Q110. How many times did you stab him?
A. I only remember the once, in the back.
Q111. Did Eric try to grab the knife at all?
A. No.
Q112. Was he bleeding?
A. Yes.
Q113. Why did you stab him?
A. Because I wanted to hurt him.
Q114. Why did you want to hurt him?
A. He said he loved me and said he wanted to marry me but he didn't he was going to leave me.
Q115. What was your intention when you stabbed Eric?
A. It wasn't meant to kill him just out of anger, I was frightened he was going to leave me.
Q116. What happened after you stabbed him?
A. He fell down on the ground.

Later the interview continued:
Q131. Why did you take the knife with you when you left Debbie and Ron's this morning?
A. I thought about hurting myself with it, I thought if I stabbed myself he wouldn't leave me.
Q132. When did you decide to stab Eric?
A. After he said he was going to leave me.
Q133. Had Eric told you that he might be leaving you, before this morning?
A. I had a feeling its what he was going to say before we left.
Q134. What gave you that feeling?
A. He was very quiet and didn't look happy.
Q135. When was that?
Hang on a sec I will change the page.
A. This morning when he came back around.
Q136. Well when did you get the knife?
A. Just before we left Debbie's.
Q137. Have you believed before today that Eric might leave you?
A. I was worried about coming back, he told me that he didn't love her but he wanted to see the kids, I have not eaten for two days.
Q138. Did Eric attempt to assault you this morning at the beach?
A. No.
Q139. Did Eric abuse you verbally at the beach this morning?
A. No.
Q140. Would it be fair to say that what upset you this morning was the fact of Eric leaving you?
A. Yes.
Q141. I have seen Eric and he has three stab wounds to him, one in the back and two in the front of the chest, do you recall doing that?
A. Just the one in the back."

In evidence at the trial the appellant swore that, although she did not deny that the evidence of her interview with the police correctly represented what had been said, she retained no memory of taking the knife from the house; that she remembered only some of the conversation between Mr. Hyams and herself in the car park before he was stabbed; that she remembered walking to the beach to try to calm herself after Mr. Hyams had told her that he would return to Mrs. Hyams; that she thought she heard him call out and for that reason returned to the car; that she sat in the passenger seat of the car, crying, upset and suffering a headache, and that Mr. Hyams then sat in the driver's seat. While they were seated thus, he attacked her, she swore. Mr. Hyams had said to her, according to her evidence, in the car park at a time which she did not specify, that he was going to stay with Mrs. Hyams only until he could "get the children". She thought it was after her remarking that he ought not take the children without telling Mrs. Hyams that he abused her in vile terms and punched her very hard on the side of the breast as she sat in the car. Her evidence was that her recollection of the events which occurred after she was punched was not clear, but "all sort of blurred", that she "vaguely remembered" having stabbed him "once, in the back, but I don't remember anything else". She denied having had any intention of doing him any really serious bodily injury, but she said in evidence : "I think it was only meant to hurt him". She gave evidence that Mr. Hyams had before that day punched her "a couple of times". She further testified that Mr. Hyams had expressed a wish to go back to Darwin to see his children, that they had driven from Exmouth to Darwin in about three days, not stopping for sleep or for meals, and that she had not slept during the night of 7-8 January. She explained her false denial to the police of an assault on her by Mr. Hyams by swearing that she had not wished to speak ill of him and had not wished to reveal to the police that she had had a reason to attack him.

The learned trial judge defined the elements of the crime charged by reference to three states of mind contemporaneous with the acts of stabbing, proof of the existence of one of which was necessary to establish the commission of murder : an intention to kill, an intention to cause grievous bodily harm and an intention to do the acts without either of those intentions, but with foresight that grievous bodily harm would probably be caused by the acts. (I do not deal with the three acts separately because his Honour did not, and no complaint was made to this Court that he did not.) Mr. Byron Q.C., who appeared with Mr. Hoyle for the appellant, submitted that the evidence did not justify reference in the charge to the third of those states of mind and that the inclusion in the charge of reference to that third state of mind was in itself a misdirection which had resulted in a miscarriage. But he also submitted, in the alternative, that the learned trial judge had so expressed himself as to give the impression that provocation did not have any application to a charge of murder established by proof of that third mental state.

If the jury were to have been satisfied beyond reasonable doubt that the appellant had had that actual foresight of the probability concerning grievous bodily harm which is required (see Pemble v. The Queen (1971) 124 C.L.R. 107 at 119-121), it is hardly to be supposed that they might have failed of satisfaction beyond reasonable doubt that she had willed the harm foreseen. (Cf R. v. Darrington and McGauley (1980) V.R. 353 at 378-379, 354.) The circumstances were such as to suggest rather that she had undoubtedly willed to hurt Mr. Hyams by her blows, but that it might be a question whether she had foreseen the probability that grievous bodily harm would be caused thereby. The firing of a gun in the direction of a person may court a direction in the terms of the third form of malice aforethought, where an intention to hit that person is denied by him who fires the gun; but denial of intention grievously to harm, by one who stabs in the chest and does not deny an intention that the knife should strike where it in fact struck, would not ordinarily attract such a direction. However that may be, I find it unnecessary and, in the absence of information as to whether in final address either counsel adverted to so-called "reckless murder", unwise to express any concluded opinion as to whether a direction on the subject should have been given. (If counsel for neither party did so, then in my opinion no such a direction should have been given, but only a direction that the jury ought not pay regard to what had been said on the subject by counsel for the Crown in his opening.)

The order in which the substantive criminal law of homicide was expounded to the jury in the charge was : first, definition of murder and of the three states of mind sufficient to establish express malice, then definition of manslaughter by an act unlawful and dangerous, then an explanation of provocation as reducing what would otherwise be murder to manslaughter. At the conclusion of his exposition of the elements of murder the learned trial judge said this :
"Now ladies and gentlemen, that is all I wish to say about the charge of murder. You have the situation where one deliberately kills another in the exercise of her will by an unlawful act, intending to kill or intending to cause really serious bodily harm and death results, that is murder. Some judges, ladies and gentlemen, in instructing juries, refer to that question of intention to kill or intention to cause grievous bodily harm merely as a murderous intention. I suppose it sums it up pretty well in a way. Then, as I have just said, you have the killing by an unlawful act of a nature and under circumstances where the jury, whilst not satisfied that the accused at the time had the intention to kill or cause grievous bodily harm, that murderous intention I just referred to, is nevertheless quite satisfied that at the time the accused committed the unlawful death producing act or acts, the accused knew that it would probably result in death."

The terminological distinction there drawn, between "murderous intention" and the third form of express malice, was repeated in the course of his Honour's exposition of manslaughter by unlawful dangerous act. When expounding the doctrine of provocation his Honour said : "I now explain provocation to you simply. If you find a person unlawfully kills another, with that murderous intention we have been talking of, but you consider the evidence enables you to find that he or she was acting under provocation, that is not a defence. I repeat, ladies and gentlemen, provocation is not a complete defence, but it enables you to bring in a verdict of guilty of manslaughter rather than guilty of murder." Shortly before the conclusion of his charge the learned trial judge reminded the jury of the submissions made to them on the appellant's behalf in these words : "He submits, ladies and gentlemen, you cannot be convinced or satisfied beyond reasonable doubt that Cathleen Cufley had an intention to kill, or cause grievous bodily harm - and as I have instructed you, if you are not so satisfied you will not find her guilty of murder. He submits in the alternative, ladies and gentlemen, that even if you are satisfied - even if you are satisfied - she stabbed him with the intention of killing, or causing grievous bodily harm - then the verdict should still be manslaughter, because the Crown had not excluded the hypothesis - the possibility - that it was the deceased's provocation which led to the fatal blows, and on this ground also he asks for a verdict of manslaughter." At no time during the charge did his Honour say anything to suggest that provocation would reduce to manslaughter a homicide committed without intention to kill or to cause grievous bodily harm, but with foresight that the acts which in the event caused death would probably cause grievous bodily harm, except when he stated, as on several occasions he did state, that provocation reduces what would otherwise be murder to manslaughter. Further, when defining each of the first two of the three mental states which may constitute express malice - intention to kill and intention to cause grievous bodily harm - his Honour qualified his definition by these words : "subject to the question of provocation which I will deal with later on", and "subject again to the question of provocation which I will mention"; but he made no qualificatory reference to provocation when defining the third of those mental states.

It cannot, I think, be doubted that provocation may operate as a defence in a case in which there is not proved an intention to kill or grievously to harm, but, rather, proof of foresight of death or grievous bodily harm as a probable consequence of the act causing death : see Johnson and Anor. v. R. (1976) 11 A.L.R. 23 at 33-34. Nor do I think that it can be doubted that the jury were not so instructed, but were given directions likely to have led them to understand the contrary. The misdirection was not one which could not reasonably be supposed to have influenced the result of the trial, in my opinion. (See Duff v. R. (1979) 28 A.L.R. 663 at 673-674). There is no way of knowing what, if any, use the jury made in their deliberations of the directions they received concerning the third form of malice aforethought. Accordingly the verdict and conviction cannot stand, in my opinion.

It was a further ground of appeal that the learned trial judge had so expressed the legal requirements of provocation as to have given the impression that an onus lay on the appellant to show that those requirements had been satisfied. Mr. Byron subjected that part of the charge to a searching analysis, but I do not think that the ground was made out. His Honour emphatically and repeatedly placed the onus in relation to provocation on the Crown in unequivocal terms, and the several passages which were the subject of Mr. Byron's criticism would have been understood by the jury as subject to the clear directions concerning the onus of proof, in my opinion.

In evidence in chief the appellant had given the following evidence :
"Have you ever been in any trouble before? --No sir. Never been in any kind of trouble at all? --No sir."
The learned trial judge did not in his charge refer to that evidence and his failure to do so was the subject of a further ground of appeal.

I would respectfully adopt, as a summary statement of the way in which evidence of an accused's good character should be discussed in the charge, the observations of King C.J. in The Queen v. Trimboli (1979) 21 S.A.S.R. 577 at 578. When an accused tried alone gives evidence on oath it would nearly always be appropriate, I should think, that reference be made to the relevance of good character in relation to credibility. Although the questions upon which the evidence under present consideration was based were of imprecise meaning, they could have been regarded by the jury as including a colloquially expressed enquiry whether the accused had been convicted of a crime. If the jury had so understood the questions, they were free, if they thought fit, to treat the evidence as some indication of good character. It is, however, unnecessary further to examine this ground of appeal. If the learned trial judge's failure to refer to the evidence was an error which might justify setting aside the verdict, as to which I express no opinion, consideration would have to be given to the failure of the appellant's counsel to ask for a direction on the subject; and it would also be a question whether the lack of such a direction could reasonably be supposed to have influenced the result of the trial.

Other criticisms of the charge were advanced to suggest that there had been a failure adequately to present to the jury the evidence for the appellant on the issue of provocation. I do not consider that this ground of appeal was made out. No useful purpose would be served by examining the criticisms, since the appeal must be upheld on another ground.

Mr. Byron submitted that, if the appeal succeeded, the Court could, and should, order that a verdict of guilty of manslaughter be entered in lieu of the verdict and judgment to be set aside. Reference was made to cases in which such a course had been taken. But they were cases in which the power exercised had been conferred by a provision in a State statute modelled on the English Criminal Appeal Act 1907. Such provisions are not in the terms of s.28(1)(e) of the Federal Court of Australia Act 1976. (See Duff v. R. (1979) 28 A.L.R. 663.) If a power in this Court commensurate with the power conferred by those provisions were available, as to which I express no opinion, the circumstances do not in my opinion attract the exercise of the power. The Crown opposes exercise of the power. It is a serious question, which I think only a jury should resolve, whether this was murder or manslaughter. (Cf. Pembler v. The Queen (1971) 124 C.L.R. 107 at 125-126, 127-128, 136-137, 138-139.)

I concur in the orders proposed.