Davis v The Queen

[1998] HCATrans 410

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S81 of 1998

B e t w e e n -

CAMM WILLIAM DAVIS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 NOVEMBER 1998, AT 12.33 PM

Copyright in the High Court of Australia

MR G.P. CRADDOCK:   If the Court please, I appear for the applicant.  (instructed by T.A. Murphy, Legal Aid Commission of New South Wales)

MR G.S. HOSKING, SC:   May it please your Honours, I appear with my learned friend, MR A.M. BLACKMORE, for the respondent.  (instructed by S.E. O’Connor, Director for the Public Prosecutions (New South Wales))

McHUGH J:   Yes, Mr Craddock.

MR CRADDOCK:   If your Honour pleases.  This case raises the question whether the law of provocation requires that the provocative conduct occur in the presence of the accused.

HAYNE J:   Well, does it raise that principle?  Does it raise that question, was there any evidence on which a judge could leave the issue to the jury when the killing occurred, what, some days after the accused first heard of what it is said was the provocative statement?

MR CRADDOCK:   Yes, your Honour, can I answer that in two ways:  first of all, can I take your Honours to Justice Hidden’s judgment on the question whether provocation could be left; appeal book page 7 at line 10, where his Honour said:

Accordingly, the evidence here squarely raised the principle enunciated in Quartly –

that is, the hearsay provocation question -

and provocation could not be left to the jury.  I might add that, but for that principle, there was ample evidence to raise the issue.

McHUGH J:   It is the reaction.  It has to be the reaction of an ordinary person.  Surely an ordinary person would not have so far lost self‑control as to have formed an intent to kill at that period of time.  It is one thing if it had happened within an hour or two hours as a result of hearsay, but this is unprecedented.  Speaking for myself, I think there is a strong argument for saying that Quartly was wrongly decided – that the real questions are whether or not there has been provocation, and whether it induced the accused to lose his or her self‑control, and whether the accused sees the provocation, or it is reported to him or her is beside the point.  But, you still have to get over that second hurdle, and that is to say whether or not an ordinary person in the position of the accused would have so far lost self‑control to have formed an intent to kill or inflict grievous bodily harm upon the deceased.

MR CRADDOCK:   Yes, we do not deny the existence of the “ordinary person” test, but might I also take your Honours to the application book at page 3 where, at about line 36, his Honour observed that:

It was also common ground that he did so because he believed that Cutajar had sexually interfered with a three year old girl –

McHUGH J:   That may be so but ‑ ‑ ‑

MR CRADDOCK:   The question on the “ordinary person” test is, as your Honours have put it, but that was a matter for the jury.  One of the precise effects of the 1982 amendments in New South Wales was to do away with the requirement of suddenness.

McHUGH J:   That can be accepted; but supposing he had done this six months later, would you still say there was a case to go to the jury?

MR CRADDOCK:   That might be a clear case, but one must recognise that the jury takes into account not only the time that has elapsed between the provocative conduct, or if we are right, the accused’s awareness of it, but the kind of conduct it is.  It may very well be that a jury would fail to be satisfied that the Crown had eliminated the reasonable possibility that he acted under provocation, where the provocation is of a particularly gross kind, and where the jury could accept the reasonable possibility that it still operated; that it continued to operate upon him even after the passage of a couple of days, such that the killing was as a consequence of loss of control induced by the provocative conduct.

McHUGH J:   I do not know there is much you can say about it, really.  It is a judgmental matter.  Speaking for myself, I could not bring myself to accept that an ordinary person in the position of the accused would have lost his self‑control at that period of time, and in the circumstances of this particular killing.

MR CRADDOCK:   On the basis of the evidence which had been led before him, the trial judge, for the purpose of finding facts for the purpose of giving this judgment, held that there was, absent the hearsay provocation question, as his Honour put it - and his Honour certainly had some experience of such matters – that there was ample evidence to raise the issue.  His Honour had seen the evidence.

HAYNE J:   As to the notion of the provocation continuously simmering with this man, the accused had met the deceased between the report of the sexual assault and the occasion of the killing, had he not?

MR CRADDOCK:   Yes, he had, and those matters would be weighed by the jury.  They might have conflicting effects upon the minds of jurors as to their effect; as to whether there really had been a cooling, and that the provocation had lost its sting, lost its control of the accused, or whether, on the other hand, it merely acted to intensify his feeling of powerlessness, the loss of control; whether it merely acted to intensify the effect of the provocation upon him.  Those, if your Honours please, are matters for the jurors to weigh in the balance in determining whether the provocation, having regard to the time lapsed, could have induced the ordinary person to a homicidal intent.  But, we say that having regard to the circumstances and, in particular, the amendment abrogating the suddenness requirement of the common law, those were, in this case, matters for the jury.

It was on the basis of his Honour’s remarks at those two passages that I have taken your Honours to that we did not include on a leave application the evidence in the trial, but there was a substantial body of evidence of conduct on the part of the deceased, and it was no doubt for that reason that it was common ground that the reason the accused killed was because of the belief.

McHUGH J:   Yes, I appreciate that; but, the fact is the “ordinary person” test is a control test, and unless there is some material upon which that can be satisfied, the matter just cannot be left to the jury.

MR CRADDOCK:   That is a matter that his Honour considered.

McHUGH J:   I know he did; but you are asking for special leave to appeal to raise a question about Quartly’s Case, and the question for us is whether or not, because of this issue about the ordinary person, as to whether or not it makes a suitable vehicle to look at the question.  We are not going to grant leave to examine Quartly’s Case if we think this appeal will be dismissed.

MR CRADDOCK:   I accept that that is the situation.  However, what your Honour points to is the lapse of time between his becoming aware of the provocative conduct and the act itself, and true it is that it was a matter of days – perhaps three days.  That, we say, is no basis, having regard to the circumstances of the case, for holding that no jury, properly constructed, could fail to be satisfied that the Crown had eliminated the reasonable possibility that he acted under provocation, which, of course, is the test.  Time, obviously enough, is a significant matter.  But, one must also have regard to developments in the law in relation to that particular question.

It is not on our list, but in Chay’s Case, C-H-A-Y, I think it is spelt, reported in the Australian Criminal Reports – I forget the volume number – but the then Chief Justice observed that the abandonment of the “suddenness” test meant exactly that.

McHUGH J:   But Chay is a case of an Asian woman who had been subjected to a long period of misconduct on the part of the deceased.  It is a different case to this.

MR CRADDOCK:   It is, but acceptance of cases which involve or depend upon that build up of pressure towards the loss of control themselves suggest that a more analytical approach be taken to the question of the effect of time, and a day, having regard to a form of provocation, may seem like aeons, whereas in another case - and we would say here, where the provocation is of the kind that was before the jury - a matter of days may not seem quite so significant at all.  Even though it was a matter of a couple of days, nevertheless, a jury could fail to be satisfied that the Crown had eliminated the reasonable possibility that the accused acted under provocation.  If your Honour pleases, that is about all that I can really say in relation to the question of suddenness.  So far as the question of hearsay provocation is concerned, the ‑ ‑ ‑

HAYNE J:   Again, speaking for myself only, it seems to me that one is engrafting words on the statute if one says that the provocative acts or statements must occur in the sight and presence of the accused.  Those words do not appear.

MR CRADDOCK:   No, your Honour.  If one traces the common law in relation to that, all roads lead to Fisher.  Fisher was, itself, not a case so much about presence as suddenness.  It may be that your Honours, subject to the question of the “ordinary person” test, and subject to what the Crown might say, might be of a mind to grant special leave in relation to the hearsay provocation question.  Having regard to the time, I do not want to ‑ ‑ ‑

McHUGH J:   You take the whole of your time.  Do not worry about time, that is irrelevant.

MR CRADDOCK:   If your Honours go to Fisher, which is one of the cases in the book.

McHUGH J:   We do not want to hear you on this particular issue. …..on the Quartly issue.  So far as we are concerned, if that is the only point in the

case, there would be a grant of special leave.  Is there anything further you want to put on the question of suddenness?

MR CRADDOCK:   No, your Honour.  The question of suddenness, we say, was a matter that was before his Honour the trial judge on the fact that he had necessarily defined for the purpose of giving his ruling; he had observed the evidence; he saw the flavour of it; it was common ground that he killed because of his belief.  His Honour held that but for the hearsay provocation question, there was ample evidence to go to the jury.  It was a matter of days, but the legislature decided in 1982 to repeal that requirement, expressly so, and it was a matter for the jury, having regard to the kind of provocation which was offered, whether that lapse of time meant that the Crown had eliminated the reasonable possibility that he acted under provocation at the time he killed.  If your Honours please, that is, I think, all I wish to say about that particular issue.

McHUGH J:   Thank you, Mr Craddock.  We do not need to hear you, Mr Hosking.

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 The Queen v Quartly (1986) 11 NSWLR 339 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.  However, under section 23(2) of the Crimes Act 1900 the conduct of the deceased must have been such as could have induced an ordinary person in the position of the accused to have so far lost his self-control as to have formed an intent to kill or to inflict grievous bodily harm upon the deceased.

Having regard to the time that elapsed between the reporting to the accused of the provocation and his killing of the deceased and the circumstances of the killing, we think that no ordinary person could have so far lost self-control to have formed an intent to kill or inflict grievous bodily harm upon the deceased and that no jury could fail to be satisfied beyond reasonable doubt of that point.

That being so, this case is not a suitable vehicle to determine the correctness of Quartly.  The application is dismissed.

AT 12.53 PM THE MATTER WAS CONCLUDED