De Sales v Ingrilli

[2002] HCATrans 118

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney-  No S30 of 2001

B e t w e e n -

MICHAEL HERON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 MARCH 2002, AT 2.00 PM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the applicant with my learned friend, MR D. JORDAN.  (instructed by D.J. Humphreys, Legal Aid Commission of New South Wales)

MR R.D. ELLIS:   If the Court pleases, I appear for the respondent with my learned friend, MR L.M.B. LAMPRATI.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ:   Yes, Mr Game.

MR GAME:   Shortly I will say something about the misdirections given in respect of provocation, but first I want to say something about what we submit was a very persuasive argument that the trial judge put as to how it would reason to “guilt” with respect to the offence, and focusing upon the assessment of four witnesses; four witnesses who were the only witnesses who gave evidence in respect of seeing the appellant holding a knife and using it aggressively.

Earlier in the summing up, the trial judge had effectively disposed of the defence argument concerning a hypothesis relating to the use of “falling on a piece of glass”.  That appears at page 74, but I am going to take the Court first to page 105  His Honour then referred to four core witnesses ‑  we see that at line 30 ‑ whose credibility his Honour obviously thought was highly important for the jury to assess.  His Honour said at line 32 ‑ ‑ ‑

GLEESON CJ:   What page again, Mr Game?

MR GAME:   Page 105.  Line 32:  he said that, “I do not see Mr Scott Williams as falling into quite the same category”.  Now, what his Honour did then was effectively invite the jury to put Mr Rostami to one side, and we see that – page 106, 107, 108 to 109.  Then at 110, he is effectively saying be careful of Mr Niumeitolu:

he requires a more discriminating and a more measured kind of judgment –

and then extensive observations about this witness, and then a view about what he agreed to in cross‑examination, expressed at 111, namely that he would have said anything in cross‑examination.  He of course conceded that he may not have seen a knife, which was an important concession.  Then he said at line 37:

It is true that he was brought back by the Crown, properly so –

and we say that is an argument as to why the jury should accept him at least in so far as he was brought back to the true position in re‑examination.

CALLINAN J:   I do not quite understand that the “shard of glass” hypothesis.  Where was the glass supposed to have come from, and how could it have caused the wound?

MR GAME:   Your Honour, there were three – it is not essential to this argument, your Honour, but there were three arguments, as I understand, about this shard of glass.  The one was that it may have been on the ground, one of which is that it may have been sticking up from the ground, or the third is that somebody may have wielded a piece of glass.  Now, the appellant denied using a knife.  The actual knife – and there was extensive evidence from pathologists about this shard of glass, but that is not essential to this argument, your Honour.

CALLINAN J:   No, but it helps me understand the case, Mr Game.

MR GAME:   Certainly, your Honour.  What he said back at 74, we say, is effectively ‑ and it is not put in the correct terms, in terms of onus of proof, but he is really inviting the jury to favour the “knife blade” hypothesis over the “glass” hypothesis, and we see that at lines 25 to 31.

Then we come to the witness, Saad.  I should say our argument is that the judge should not enter into any of this exercise about commenting and analysing in detail the evidence of the witnesses.  Then we come to Mr Saad.  What is effectively put in Mr Saad is that what Mr Saad said to Mr Cardinaels, which appears at 115, is the truth.  He says:

Mr Cardinaels’ version is simplicity itself.

So what is left from those three witnesses is what Saad said to Cardinaels and what Niumeitolu said in re‑examination.

Then we come to page 135.  We are told about Mr Williams, and we come to what is described as the “all important category of witness”.  Then he says, at the bottom of the page:

But Mr Williams, as I see it, is not in the same sort of category –

so, he is in a different category.  Then we have an extensive comment – sorry, at 139 we have the judge telling the jury that his evidence is, “very, very important indeed”, at line 2.  Then he puts aside the evidence, at 141, and then addresses the jury about Mr Scott Williams.  He says at line 40:

it is very much a comment on the facts –

but we say to that – the facts of the sovereignty of the jury, and if you have persuaded the jury of the facts it is absurd and meaningless to say that the facts are for them.  If you have persuaded them, you have persuaded them.  Then he put it – then the argument at 141:

he showed a quite interesting degree of presence of mind –

and then on the following page, those are all arguments inviting the jury to accept the evidence of Mr Williams.  Now, Mr Williams’ credibility was at the heart of this case.  The judge says, “He is the first person to do this”, “He is the first person to do that”, “He seems to have had the presence of mind to do that”.  It is a powerful argument.  It might be put in moderation, but it is a powerful and effective argument, and it was disposed of on the basis that it was put with moderation.  We say moderation is at the heart of persuasiveness.  Then his Honour said:

It is just an impression.  Yours might have been entirely different, in which case you will prefer your own to mine; but it just occurred to me that when one is trying to weigh up, in a fair kind of way –

he is bringing the balance of the trial judge to this ‑

what view one can take about Mr Scott Williams, that fact is that he did show a great deal of presence of mind, it seems in me, in what he did –

so it is presence of mind.  Then over the page – he is not simply expunging the inconsistencies and discrepancies, and your Honours would have noticed that defence counsel had relied heavily on them, but bringing into balance a more complete picture.  The judge, in our submission, should not be saying any of this:

I want to say again with emphasis, that is simply to put to you for your consideration an impression that I formed of an aspect of evidence which seemed to me to have some value in that evaluation which you will have to carry out yourself; but as with everything that has to do with the witnesses, it is a matter for your and not a matter for me.

We would say why say it, if it is a matter for the jury?  Why seek to persuade them, when this is the very evidence upon which the jury are being invited to reason to guilt?  The judge is not an advocate, but these are advocate’s arguments, and they are the prosecutor’s arguments for a conviction.

This immediately provoked an application for a discharge, on page 145.  Defence counsel clearly thought that it took the case away from him, and there we have lines 8 to 25, the reasons put for a discharge.  We submit that this raises a matter of general importance, which is to what extent is it appropriate for a judge to comment on the facts?  We submit that summings up should – we have statutory provision in New South Wales that judges do not have to sum up on the facts if it is not necessary.

Our special leave point concerns the extent to which they should comment on the facts.  We say summings up should be restricted to directions of law, warnings and summaries of the respective cases as put, and these lengthy exegeses on an assessment of witnesses are entirely inappropriate.  We submit that this is an appropriate case for this question to be investigated.  We submit that the sovereignty of the facts lies with the jury.  Impartiality requires a judge not to enter into this debate.  That is our first special leave point.  We have a fall‑back point with respect to this, which is that within the existing authorities on what may or may not be said, this was persuasive and clearly would have overawed the jury in our submission.  That is our first special leave point.

The second concerns the directions given in respect of provocation.  Now, the directions given in respect of provocation were wrong in almost every conceivable respect.

GLEESON CJ:   Where did the Court of Criminal Appeal deal with this, Mr Game?

MR GAME:   It was not a ground of appeal, your Honour, but they did deal with it in passing.

CALLINAN J:   Defence counsel did not ask for a provocation direction, is that right, Mr Game?

MR GAME:   That is right.  His case was that he did not stab him.  So provocation was not part of his case.

CALLINAN J:   The judge decided that he should give the directions, is that not right?

MR GAME:   Yes, your Honour, and he identified a number of pieces of evidence in combination which, we say, would clearly give rise to evidence of provocation.  In fact, it was the Crown’s cross‑examination to show that he acted more and more aggressively, in effect lost his self‑control.  The Crown was seeking to show that in cross‑examination.  The passage is at 227.

GLEESON CJ:   Thank you.

MR GAME:   We say that this falls within Crampton, which is that special leave should be granted to cure a substantial and grave injustice, in the words of the joint judgment in Crampton.  When I said these directions erred in every respect, they erred as to burden of proof, they erred as to “would” rather than “could”, “do” rather than “intend” and “kill” rather than “kill or cause grievous harm”.  So they erred in every single respect.  Now, they start at 163.  Line 40 refers of the jury being satisfied of particular matters.  Page 165, line 25:

if you are satisfied that it was said –

that is the insult, and needless to say the applicant is Samoan, so the insult is to be understood in that sense.  On page 165, line 11, “must have been sufficient” is wrong; “to have induced” is wrong.  That is an error there.  Then line 29, “Would an ordinary person”, that is incorrect.  On the following page, page 166, line 19:

would have responded by stabbing the victim dead?

There are three errors there, “could”, “intend” and “death or grievous bodily harm”.  The last few words contain three errors.

that he does what is unreasonable and extraordinary –

that is an error, at line 26.  Page 167, line 8:

would have responded…by stabbing fatally the person –

there are two or maybe three errors there.  Then we see on line 35 on that page:

If you accept that the deceased did in fact make that particular remark –

and that is the insulting remark made by the deceased, and that is the first piece of provocation identified, but that is put in error.  That is in error, put that way.  Then line 46, “find as a fact”, that is an error.  Line 52, “was in fact”, that is an error.  Page 168:

If you are satisfied that that happened –

that is an error.  Then we have the second piece of provocation, which is identified, the shrug of the shoulders and the laugh.  The judge puts that as provocation.  Then we have a further piece of provocation, which is put at line 30:

the deceased without any cause…while he was still being held by Niumeitolu…hit him in the jaw…and then kicking him in the chest –

That is the third piece of provocation identified by the trial judge, and the trial judge leaves that to the jury.  Then we have further provocation.  It says:

“Let him go.  I want to see what he’s got” –

and that is the left by the judge at the bottom of the page.  Then we have the judge saying, “It happened all very, very quickly and you have to look at it in combination”.  There is one other possible piece of provocation which appears at page 94, where he knees him in the head while he is being held down again, and that is when he is sitting on the sofa.  That is a further incident which was not left by the trial judge.  So there are at least four or possibly five incidents leading in combination to provocation.  The directions, as I said, are wrong in almost every respect.

CALLINAN J:   I wonder why the point was not taken in the Court of Criminal Appeal?

MR GAME:   I have no idea, your Honour, but there could not be any reason for not taking it.

CALLINAN J:   Not at that level, no.

MR GAME:   Page 179, the written directions:

Secondly the particular conduct of the victim which is said to have so provoked the accused must have been sufficient –

that is incorrect.  On the following page – sorry, on the bottom of that page:

towards the present accused, would have responded by shooting the victim dead.

This must have come from some other summing up, because this is a stabbing case ‑ ‑ ‑

GLEESON CJ:   Sorry, where did you just read from?

MR GAME:   Line 53, on page 179.  These are in the written directions.  So there are two or three errors contained in those few words there; because it is “could”, it is “intent” and it is “grievous bodily harm”.  Then it goes on:

is that particular provocative conduct may be such as to cause an -

this is over the page –

ordinary person to lose his self‑control to such an extent that he does the unreasonable and the extraordinary, that is to say, an act which, were it not for the provocation, would amount to the crime of murder.

Now, in our submission, there are so many important errors in these directions on provocation.  The judge clearly thought it was appropriate to leave provocation.  It is no answer to our case to assert, as it were, that there was not sufficient evidence to leave the case of provocation, which is the argument put against us.  That, at the very least, would require an analysis on the hearing of an appeal as to the evidence that was given by the appellant and his respondents to it.  It is not correct to say, we would submit, at paragraph 21 of our opponent’s submissions, that the applicant did not refer to any provocative conduct in his evidence.  He did, and on numerous occasions.

Those are our two special leave points.  One we say raises a quite important question about the content of summings up.  The second raises an important question in this particular case, that is to say provocation was clearly erroneously put in multiple respects and in respects that touched on the burden of proof and suggested that the applicant had to prove something in his case.  That may have crossed over the rest of their consideration of the case.  So we submit for those two reasons that this is an appropriate case for a grant of special leave.

GLEESON CJ:   Mr Ellis, we do not need to hear you on the first point.  What do you have to say about the provocation matter?

MR ELLIS:   Certainly, your Honours.

CALLINAN J:   There is no doubt the formulation was wrong, is there?

MR ELLIS:   Yes.

CALLINAN J:   There is?

MR ELLIS:   The Crown does not argue that it is to the contrary.  Certainly in terms of what is under section 23(2)(b), the objective assessment.  It certainly should have been “could” rather than “would”.

CALLINAN J:   And equally the trial judge was in no doubt that there was evidence of provocation.

MR ELLIS:   His Honour obviously concluded that because he put it, even though the defence put that it was no part of their case, even though the accused, whilst he gave evidence of some acts which provoked him, gave no evidence that he had lost self‑control.  That is one of the errors that the Crown says has some significance.  The first leg of provocation which the Crown has to prove, or disprove, is that the act or omission is the result of loss of self‑control on the part of the accused that was induced by the conduct of the deceased.

The accused did give evidence and yet never said that either he had lost control or that he had lost control because of what had been said to him.  There was no evidence that he had in fact lost control in the sense which is required for that subsection.  The jury would have been entitled to conclude that the Crown had disproved provocation because of there being a complete absence of evidence that suggested that he had been in fact provoked and had consequently lost self‑control.  If that was the situation, the jury got to that point and said, “Well, the Crown satisfied us that there was no loss of self‑control”, there was no need for the jury to move on to the second limb and to consider the objective part of the test, which is the part which was incorrectly put to the jury.

The Crown says that it is clear – certainly a reading of the defence address, which I read yesterday, there is no mention by defence counsel during his address to the jury of his client having been provoked in the sense of provocation operating to reduce murder to manslaughter.  The entire thrust of the submissions related to what was put as the Crown’s failure to establish that his client had in fact used a knife to stab and subsequently kill the deceased.  His case was that he had never used a knife.  It was not his case that he had used the knife but had only because he had lost control.  So that it was obviously completely inconsistent for defence to try and run the two.  It would have been tactically rather disastrous, on the one hand, to be asking the jury to accept the client’s evidence that he had not in fact used a knife, and on the other hand to accept, or to refute that, and accept that he had been the user or he had used the knife but had been acting under provocation, having lost his self‑control.

So the Crown says there was no challenge to the direction at the trial in the context of that trial.  The Crown says the misdirection did not produce a miscarriage of justice.  Firstly, it was not part of the defence case.  Secondly, there was ample evidence upon which the jury could have been satisfied that the Crown would have met its onus of refuting provocation before the jury even got to consider the leg upon which they were incorrectly directed.  Certainly, if this matter had been raised in the Court of Criminal Appeal it would have been a classic question of the application of the proviso.  In terms of the test from Crampton, the Crown would say this, in that sense, is not an exceptional case, that it could in fact have been run but it is likely that the proviso would have been applied.  The Crown says in relation to indeed this Court, if this Court does allowed the special leave, that it is likely that this Court would apply the proviso in relation to this particular aspect.

The Crown case was a strong case.  The proposition of the shard of glass being something upon which someone fell accidentally was something which the jury clearly had no difficulty with.  What the jury were left with were four people, three of whom the judge actually said, “Well, you’d better look pretty carefully at their evidence” but they were four Crown witnesses saying that this man had the knife.  The jury ‑ ‑ ‑

CALLINAN J:   Is it not the obligation of the trial judge to put any defence that is available?

MR ELLIS:   Your Honour, there is clear authority that in certain situations, and over the views of defence counsel even, a judge ought to, if there is evidence of material, leave a particular aspect ‑ ‑ ‑

GLEESON CJ:   Provocation is probably the simplest and clearest example of an issue that a judge may find it necessary to leave to a jury but which a defence counsel, for obvious tactical reasons, does not want to raise?

MR ELLIS:   Yes, that is true.  This may be a good example of why the defence would not want to run it.  The issue here really was whether there was enough evidence to raise it.  The Crown says if there was enough evidence to raise it, obviously one would have hoped that a proper correct direction was given.  The Crown’s submission at this point in time is not so much that it ought not to have been given, the fact was it was given.

GLEESON CJ:   Was it given after discussion between the judge and counsel for both sides, as to what directions he ought to give to the jury?

MR ELLIS:   I do not think they actually went through the specifics of the directions, but certainly the issue of the giving of the provocation direction was raised.

GLEESON CJ:   In the absence of the jury ‑ ‑ ‑

MR ELLIS:   In the absence of the jury.

GLEESON CJ:   Yes, that almost always happens.

MR ELLIS:   Yes.

GLEESON CJ:   It is a moral certainty that the judge would have discussed with the prosecution and with the defence, before he summed up to the jury, whether he should leave provocation to them.

MR ELLIS:   I think that it is a bit difficult from the material because I do not have all of it, but it would seem that at least initially the defence did not want it left.  It seems at one point the judge ‑ ‑ ‑

GLEESON CJ:   What was the attitude of the prosecution as to whether it should be left?

MR ELLIS:   The prosecution – we do not have – it is not actually transcribed, your Honour.  That is the difficulty.  It just says “Discussion” so I cannot say what the Crown’s attitude was to it having been left.

CALLINAN J:   Mr Ellis, it would be a classic situation, would it not, for a trial judge to leave it to the jury, in a case like this where there is a real prospect that the accused will be disbelieved on one matter, in effect disbelieved on his version, and if he is disbelieved on that version then other evidence may point to a different conclusion.  This is exactly that case, is it not?

MR ELLIS:   Your Honour, I do not ‑ ‑ ‑

CALLINAN J:   In other words, it is not an answer to the judge’s obligation to say that the defence presented a different case, because that case might have been totally disbelieved, indeed unbelievable.

MR ELLIS:   I understand that, your Honour.

GLEESON CJ:   Pemble is the case, is it not?

MR ELLIS:   Pemble, yes.  What I am putting, your Honour, is that in this case it does not have the significance because the first leg, being ‑ ‑ ‑

CALLINAN J:   Does the accused actually have to say, “I was provoked into doing what I am alleged to have done, if I did it”, by a particular event or statement or action?

MR ELLIS:   The accused bears no onus at all.

CALLINAN J:   The accused will often be vigorously denying that he was provoked because he would be denying that he did the fatal act, sometimes.

MR ELLIS:   Yes.  In this case he said that he had been provoked.  This incident seemed to stop and start a bit, and there were various things that were said and done which, at the time, obviously provoked further fighting.  The issue though was ‑ ‑ ‑

CALLINAN J:   The judge puts it because he thinks that there is an inference available on all of the evidence, or on some of the evidence, to support all of the bases upon which provocation may reduce it to manslaughter.

MR ELLIS:   Your Honour, I am not suggesting he should not have put it.

CALLINAN J:   That is all that the trial judge did here.

MR ELLIS:   He put it and he put it incorrectly when it came to the objective test.  The Crown’s argument at this point in time is that when one – and that is why it is a proviso argument, because clearly he was in error in the way he directed on the “could” or “would” ‑ ‑ ‑

CALLINAN J:   You were making the submission on the basis simply of the accused’s version before.

MR ELLIS:   No, what I am saying is ‑ ‑ ‑

CALLINAN J:   There is a whole body of evidence in the case.

MR ELLIS:   No, what I am saying, your Honour, is that when you look not only at the accused’s version but when you look at the evidence, there is a dearth of evidence in relation to that first leg, that is whether he did in fact lose his self‑control as a result of provocation.  The Crown’s submission is that the Crown would have been able to establish to the jury’s satisfaction that he had not in fact lost his self‑control by reason of the conduct of the deceased.  If in fact that is the situation, the fact that there was a misdirection about what is the subsequent objective test which is to be applied, leaves the Crown with a strong argument that the jury would not even have made it to that leg of provocation, that the Crown would have disproved provocation by disproving to (a) in the section.  If that is the case, it cannot be said that he lost a chance or a reasonable prospect of acquittal, and that is a situation where the proviso would apply.

What I am saying about the defence case is that the direction was never challenged.  Whilst no submission was put on provocation ‑ and one can understand that ‑ there is no reason for a defence counsel to fail to challenge an incorrect direction on provocation.  If in fact it was something which rang alarm bells in the mind of defence counsel, one would have thought that regardless of what the defence case was, the fact was he ought at that stage, both he and the Crown, to have pointed out to his Honour the error which was made.  It perhaps simply points to how small a part provocation really played so far as all of the players in that trial were concerned.  It points to the Crown being able to prove beyond a reasonable doubt that there was no evidence that he had in fact so lost his self‑control as to have, by reason of the provocation, done what he did.

I acknowledge that there is a subsequent error.  I acknowledge that the provocation was put not unreasonably by reason of the judge himself pointing out, as he did.  When he put provocation he pointed out to the jury that he was doing so because as a matter of law he felt that there was material for them to consider.  So the central argument that the Crown has in relation to this is that this is not an exceptional case because the proviso is very significant in this case, and it is likely to have been applied by the Court of Criminal Appeal.  In many ways the real issue that the jury had to determine here was whether or not he had used the knife in the way in which it is alleged he had used the knife.  If the jury were satisfied that he had so used the knife, the evidence was such that the jury would have been satisfied that there was no evidence of any loss of self‑control.  The fact that the accused himself never said that he lost self‑control.  He did say that there were certain things which provoked him, to which he responded, but he never said that he lost self‑control.

GLEESON CJ:   Am I right in thinking that if this had been a ground of appeal in the Court of Criminal Appeal, the leave of the Court of Criminal Appeal to argue this ground would have been required because of rule 4?

MR ELLIS:   Yes, your Honour.

GLEESON CJ:   So it is not only a question of the proviso, it is a question of leave under rule 4.

MR ELLIS:   Yes.

CALLINAN J:   Have we not held that we are not bound by that provision with respect to leave?

MR ELLIS:   Crampton certainly has held that your Honours can “if it is an exceptional case”, I think is the terminology which is used in Crampton.  I think it is allied in Crampton with the fact that the Court concluded in Crampton that there had in fact been a substantial miscarriage of justice, and it was inevitable that the appeal would succeed on the point which had not been previously run.

GLEESON CJ:   Do you mean by that that the rule 4 point would raise much the same issue as the proviso point would raise?

MR ELLIS:   Yes.  There is really not a lot of difference.

GLEESON CJ:   Whether you looked at it in terms of the proviso or whether you looked at it – in the Court of Criminal Appeal in terms of rule 4.

MR ELLIS:   Yes.  I do not know that there is a big difference in the test which is applied.  I have not actually sat down and put them side by side.  If in fact the proviso would not apply, there is very – the rule 4 test would usually have been met, if it were a case where the proviso would not be applied by the Court of Criminal Appeal.

CALLINAN J:   I do not know whether all the Justices of this Court put it as narrowly as that.  It is not my recollection, I do not ‑ ‑ ‑

MR ELLIS:   I have a copy of Crampton here, your Honour.  When your Honour says “as narrowly” I am sorry, which bit ‑ ‑ ‑

CALLINAN J:   Confined to demonstration of a substantial miscarriage of justice.  I thought there were just general statements saying that this Court had a right to hear, in effect, any case ‑ ‑ ‑

MR ELLIS:   I am not entering into that as a proposition, your Honour.  What I am saying is that in this particular case one of the grounds, or one of the references which was made is that it would still only be an exceptional case in which this Court would intervene where a matter had not been argued at either the trial or the Court of Criminal Appeal itself.

GLEESON CJ:   May I ask you, does a grant of leave pre‑empt that question?  There are three possible courses we can take in this matter, assuming we are in your favour, as we have indicated on the first matter.

MR ELLIS:   Yes.

GLEESON CJ:   We could accede to your arguments and dismiss the application.

MR ELLIS:   Yes.

GLEESON CJ:   We could accede to Mr Game’s arguments and grant special leave, or we can refer the application for special leave on the second ground to a Full Court.  The only reason for taking that third course would be if by taking the second course we were pre‑empting the decision on the question whether ‑ ‑ ‑

MR ELLIS:   Yes, I understand what your Honour is saying.

GLEESON CJ:   Having failed to take the point, either at first instance or on appeal, we would permit the point to be argued in this Court.

MR ELLIS:   I am not sure that I could put it as high as to say that such a ruling would pre‑empt the final decision on the grounds argument.

CALLINAN J:   It is at paragraph 57 of Crampton, in the joint judgment, I think it is a joint judgment.

This Court, in relation to a fresh ground, may do not only what the Court of Criminal Appeal could have done by giving leave in respect of it, but also pursuant to s 73 of the Constitution, may uphold an appeal on that ground –

It is not really qualified, although one would expect that not too many cases would get through the eye of the needle, as it were.

MR ELLIS:   No, I think that is all I am saying, your Honour.  I am not saying that ‑ ‑ ‑

GLEESON CJ:   Crampton was a case in which the Court concluded that the appellant had been convicted of an offence of which, on the Crown case, he was not guilty.

MR ELLIS:   Yes, because there was no such offence, I think was the problem.  It certainly was an exceptional case, as far as that goes.  If I could take your Honour in paragraph 57 to the last part of that paragraph:

This Court may perhaps only choose to do that rarely, but the power to do it is constitutionally entrenched and should be exercised to cure a substantial and grave justice.

GLEESON CJ:   As that case was.

MR ELLIS:   Yes.  That is the point I make here ‑ ‑ ‑

GLEESON CJ:   The remark was directed to the circumstances of the case.

MR ELLIS:   The point that I simply make here is that this is not a case of that type.  As your Honour the Chief Justice said, I think clearly for your Honours to determine whether or not special leave ought to be granted, it would be necessary for there to be a consideration of the issue, or of the prospect of success of the point on the proviso.  Whilst your Honours obviously have to consider that material, I do not think I could say that in so doing that pre‑empts the result.  The Crown may have to establish in your Honours’ minds that the proviso would be invoked.  If your Honours were not sure about whether it would or would not be invoked, that may then be a reason for granting special leave to consider it.

The Crown position is that it was not a matter which would have concerned the jury because of the lack of evidence in the first half of the provocation, that is that the Crown would have satisfied the jury that he had not lost self‑control.  If that is so, the jury would not have gone on to consider the incorrectly directed session.  In that case, there is no miscarriage of justice.  It certainly is, the Crown would say, a strong proviso point, and not one of those rare cases, as the Court mentioned in Crampton, where the Court would intervene.

GLEESON CJ:   Thank you.  Mr Game.

MR GAME:   In respect of rule 4, it is our submission that leave could not stand in the way of a miscarriage of justice under section 6 of the Criminal Appeal Act.

GLEESON CJ:   Is it ultimately the same test as the proviso?

MR GAME:   We submit so, your Honour.  I would also like to refer your Honours to – the judge obviously thought there was plenty of evidence, without opposition of the parties.  The Crown did seek redirection on one aspect of the summing up, and that appears at page 171 with respect ‑ ‑ ‑

GLEESON CJ:   I do not think we need to hear you on the propriety of the judge leaving provocation.  What do you say about the argument that ‑ ‑ ‑

MR GAME:   I am sorry, the Crown said one aspect was incorrect, to the judge, which concerned the burden of proof on provocation.  So that much at least was reserved.  Sorry, I interrupted your Honour.

GLEESON CJ:   What do you say in relation to Mr Ellis’ argument that your client would never have got past the first hurdle in provocation anyway?

MR GAME:   Your Honour, one would have to assess the evidence, but applying a case such as Green, the test would be that it would not have been open for the jury to have found provocation for him to succeed on that point.  That is the way it was approached in Green, where the proviso was applied.  That is a high test, and it could not possibly be answered by putting in brief fragments from the evidence in written submissions on a special leave application, if there is evidence in the summing up.

GLEESON CJ:   Thank you, Mr Game. 

In this matter, in relation to the grounds set out in paragraph 2.1 of the draft notice of appeal on page 240 of the application book, the Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave. 

In relation to ground 2.2, the Court is of the view that the proper course to take, in view of the fact that the point was not taken at first instance or in the Court of Criminal Appeal, is to refer this application for special leave to appeal to a Full Court.

MR GAME:   If the Court pleases.

MR ELLIS:   If the Court pleases.

MR GAME:   And that will be argued as the appeal?

GLEESON CJ:   Yes, to be argued as on the appeal.

AT 2.40 PM THE MATTER WAS CONCLUDED