Goebel-McGregor v R

[2006] NSWCCA 390

CITATION:	Goebel-McGregor v Regina [2006] NSWCCA 390
HEARING DATE(S):	24 November 2006
JUDGMENT DATE:	15 December 2006
JUDGMENT OF:	James J at 1; Hidden J at 131; Hislop J at 132
DECISION:	Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal against sentence dismissed.
CATCHWORDS:	Criminal Law - Provocation - Crimes Act s 23 - Trial judge's directions on provocation.Trial Judge erred in law in his directions to the jury
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Rules
CASES CITED:	R v Khalouf [2005] NSWCCA 395 Green v The Queen (1997) 191 CLR 334 Edwards v The Queen (1993) 178 CLR 193
PARTIES:	Barry David Goebel-McGregor v Regina
FILE NUMBER(S):	CCA 2005/2410
COUNSEL:	L Lamprati SC - Crown T Watts - Appellant
SOLICITORS:	S Kavanagh (Solicitor for Public Prosecutions) - Crown Hal Ginges of Hal Ginges & Co - Appellant
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70092/03
LOWER COURT JUDICIAL OFFICER:	Newman AJ
LOWER COURT DATE OF DECISION:	9/12/02

2005/2410

JAMES J
HIDDEN J
HISLOP J

Friday 15 December 2006

Barry David GOEBEL-McGREGOR v REGINA

Judgment

1 JAMES J: Barry David Goebel-McGregor (“the appellant”) appealed against his conviction after a trial in the Supreme Court before Newman AJ and a jury on a charge of having murdered Vivien Acheson (“the deceased”), his former de facto wife, at Guyra on 8 December 2002.

2 Newman AJ sentenced the appellant to a term of imprisonment for twenty years with a non-parole period of fifteen years, commencing on 9 December 2002, the date on which the appellant was arrested and from which he had remained in custody. In the event of his appeal against conviction being dismissed, the appellant seeks leave to appeal against the sentence imposed by Newman AJ.

3 When the appellant was indicted before Newman AJ on the charge of murder, he pleaded not guilty of the murder but guilty of the manslaughter of the deceased. The Crown did not accept the plea of guilty of manslaughter in discharge of the indictment and the trial proceeded on the charge of murder.

4 At the trial, consistently with the appellant’s plea of guilty to the manslaughter of the deceased, there was no issue that the deceased had died on 8 December 2002 or that the appellant had done an act causing her death, by shooting her in the back of the head. Nor, notwithstanding assertions by the appellant when he had been interviewed by the police that he had not sighted the firearm before firing it and had intended only to frighten the deceased, was there any real issue that the appellant had shot the deceased with the intent required for murder. The appellant was trained in the use of firearms, the shot had been fired at close range and, as already stated, the projectile had struck the deceased towards the back of the head.

5 The live issues at the trial were whether the Crown could prove beyond reasonable doubt that the appellant had not acted under provocation in shooting the deceased (s 23 Crimes Act) and whether the appellant could prove on the balance of probabilities that at the time of shooting the deceased the appellant’s capacity to understand events or to judge whether his actions were right or wrong or to control himself was substantially impaired by an abnormality of mind arising from an underlying condition and whether any impairment was so substantial as to warrant liability for murder being reduced to manslaughter (s 23A Crimes Act).

6 By returning a verdict of guilty of murder the jury showed that in their view the Crown had succeeded in disproving that the appellant had acted under provocation and the appellant had not succeeded in proving all of the elements of the partial defence of substantial impairment.

7 At the trial evidence was given by a large number of witnesses in the Crown case and a recorded interview of the appellant by police on 9 December 2002 was tendered and admitted into evidence in the Crown case. The appellant gave evidence in the defence case. Two psychiatrists Dr Skinner and Dr Allnutt gave evidence in the defence case relevant to the defence of substantial impairment and another psychiatrist Dr Delaforce gave evidence in a Crown case in reply to the evidence of Dr Skinner and Dr Allnutt. Having regard to the nature of the grounds of appeal against conviction, it will be sufficient to give a fairly concise summary of the evidence at the trial.

Summary of Evidence at the Trial

8 The appellant and the deceased entered into a de facto relationship, soon after the deceased arrived in Australia from England in 1994. Two children were born of the relationship between the appellant and the deceased, a boy Cameron who was born on 1 August 1999 and a boy Ryan who was born on 10 August 2001.

9 The relationship between the appellant and the deceased broke down. Prior to the breakdown of the relationship they had been living in Torrington in northern New South Wales. After the breakdown of the relationship the appellant lived in Guyra in a flat in a small block of flats, which he purchased in about December 2001. The deceased remained living at Torrington.

10 On New Year’s Day 2002 the appellant was informed that the deceased had entered into a relationship with a man named Douglas Ellis, who was known to the appellant and who lived in Parkes. On the following day, when the appellant spoke to the deceased, she admitted that she had entered into a relationship with Mr Ellis and told the appellant that the child Ryan had slept in the same bed as the deceased and Mr Ellis.

11 Having received this information, the appellant, who had been exercising access to the child Cameron, refused to return Cameron to the deceased. However, on 18 January 2002 a Local Court, on an application by the deceased, made an order granting each of the appellant and the deceased custody of Cameron in alternate weeks (“week in/week out custody”). No order was made for custody of Ryan, who was still being breast fed by his mother.

12 In the early months of 2002 the deceased twice commenced proceedings against the appellant for apprehended domestic violence orders.

13 On 7 February 2002 the deceased made a statement to a police officer Constable Tucker in support of an application for an apprehended domestic violence order against the appellant. In this statement, which was read at the trial by Constable Tucker in the course of giving her evidence, the deceased said that the appellant had been physically violent towards her on three occasions. In March 1999 he had slapped her on the face following an argument. Later in 1999 after the birth of Cameron, the appellant, while he was wearing his work boots, had kicked the deceased twice in the buttocks, causing bruising. In April 2001 the appellant had thrown a meal on the floor and had slapped the deceased on the head.

14 In his evidence at the trial the appellant admitted that in March 1999 he had slapped the deceased on the face, after an argument in which both of them had been “yelling and screaming”; that he had kicked the deceased but it had not been a serious assault and there had not been any bruising; and that he had thrown a meal on the floor but had not then slapped the deceased.

15 In her statement of 7 February 2002 the deceased said that the appellant had informed her that he intended moving back into the house at Torrington. The deceased said that she was afraid that, if the appellant moved back into the house, there would be further heated arguments and violence.

16 After Constable Tucker had finished reading the deceased’s statement of 7 February 2002, the trial judge directed the jury that the statement was “evidence of relationship between the deceased and the accused… you are not in anyway to use it in connection with any propensities on the accused’s part to violence”.

17 On 15 March 2002 the deceased made a statement to a police officer Constable Cooper in support of a further application for an apprehended domestic violence order. In this statement, which was read at the trial by Constable Cooper in the course of giving his evidence, the deceased said that she had not proceeded with her previous application for an apprehended domestic violence order, because the appellant had told her that he would not be moving back into the house at Torrington. In this statement the deceased said that on 15 March 2002 at the house in Torrington the appellant had said to her:-

“I am going to break you. If you ever win custody of these two boys I will put a bullet right between your eyes. I was going to do it the other day when you were at my place. I had a loaded rifle there then. You will never see England or your family again. I could do the time. I will only get five years for manslaughter. You will never see your children grow up. You will never see England again”.

18 The deceased said in her statement that she had become extremely frightened for her safety.

19 At the trial two witnesses Mr and Mrs Armand gave evidence that at a meeting with the deceased on 17 March 2002 the deceased had told them that the appellant had threatened to kill her by shooting her. Another witness Juanita Haar gave evidence that in a telephone conversation on 18 March 2002 the deceased had told her that the appellant had told the deceased that he would “blow her brains out when she least expected it”.

20 In his evidence at the trial the appellant denied that he had said anything like what the deceased alleged in her statement he had said on 15 March 2002.

21 The deceased did not proceed with her second application for an apprehended domestic violence order.

22 The appellant himself in both the interview with the police and in his evidence at the trial described an incident in which he said the deceased had told him that she had sold a solar panel which the appellant wished to take on a camping trip with Cameron and had “dragged” Cameron away from the appellant. The appellant continued in his answer in the interview by saying that he had said to the deceased:- “Now I can understand why some Australian husbands in my situation take their own lives and their wives’”.

23 A witness Mrs Edwards gave evidence that on 3 March 2002, after the deceased had left her house, the appellant telephoned asking whether the deceased was still there and, when informed that the deceased had left, the appellant had said that he was sick of the deceased’s lies and “I’ll shoot her and the boys”.

24 In his evidence at the trial the appellant admitted that he had told Mrs Edwards that he was sick of the deceased’s lies but denied that he had made a threat to shoot the deceased and the boys, saying that “the boys are my life”.

25 Evidence was given by the appellant about the state of his health in 2002.

26 In April 2002 he had taken Cameron camping and had become soaked by heavy rain. He thought he had then contracted a viral infection, which had lingered on for the rest of the year. At about this time the appellant was prescribed the anti-depressant drug Zoloft and it was revealed that the appellant had high blood pressure.

27 In August and September 2002 the appellant spent about three weeks in a hospital in Armidale, because of his respiratory illness and his state of depression. He was seen by a psychiatrist, who prescribed an increase in the dosage of Zoloft.

28 Proceedings between the deceased and the appellant concerning custody of and access to the two children of the relationship were heard in the Family Court in Tamworth on 28 and 29 November 2002. The appellant had been granted Legal Aid in the Family Court proceedings but at a late stage Legal Aid was withdrawn and the appellant appeared unrepresented.

29 Interim orders only were made by the Family Court in November 2002 and a final hearing was fixed for June 2003. Under the interim orders the appellant’s access to the children was reduced. His access to Cameron was reduced from “week on/week off” access, which had been the position under the Local Court order of 18 January 2002, to weekend access each week. In fact, the appellant erroneously believed that his access had been reduced to weekend access, only every second week. The appellant’s access to Ryan was limited to a few hours each week. The Family Court noted that at the final hearing the deceased would be seeking an order that she have the right to travel to the United Kingdom for a period of two months in every two year period for the purpose of visiting her family with her children.

30 The appellant gave evidence that, after the Family Court had given its decision, the deceased had told the appellant:- “I told you. You can’t win”.

31 The appellant said in his evidence that he had found it “too painful” to go to Torrington, where he had formerly lived and where Mr Ellis now sometimes stayed, to pick up the children and he tried to negotiate some other place for the picking up and returning of the children.

32 The appellant gave evidence both in the interview and at the trial about an unusual incident which had occurred on 4 December 2002. The appellant had agreed to assist a recently widowed woman to remove goods from a property at Ben Lomond. While the appellant was at the property, a woman on a motorcycle, who claimed to be the owner of the land, drove the motorcycle at the appellant and ran over his leg. Furthermore, a man carrying a hammer attempted to strike the appellant with the hammer. The appellant believed that his life was in danger and police were called. It rained while the appellant was at the property and he became very ill again from his respiratory illness.

33 On Friday 6 December 2002 the appellant drove to Torrington and picked up Cameron for the purpose of exercising weekend access, in accordance with the interim order of the Family Court.

34 The appellant also picked up a woman named Kerryanne Hunt, who lived in Glen Innes. Ms Hunt and her de facto partner Mr Geoffrey Orchard were known to the appellant. Ms Hunt was to stay over the weekend in one of the flats in the block of flats owned by the appellant, to assist the appellant, who was ill, in caring for Cameron and to help herself to abstain from drinking alcohol.

35 The appellant drove Cameron and Ms Hunt to Guyra.

36 The appellant was ill in bed all of Saturday 7 December 2002. In his evidence at the trial he claimed, for the first time, that he had had a sensation of “floating above the bed”.

37 On the night of Saturday 7 December 2002 the appellant telephoned the deceased and told her that he would be too ill to drive Cameron back to Torrington the following day and the deceased agreed that she would herself pick up Cameron at Guyra.

38 On the morning of Sunday 8 December 2002 the appellant telephoned the deceased and requested that she pick up Mr Orchard and bring him to Guyra. The deceased agreed.

39 In the recorded interview the appellant gave a detailed account of what he said had happened on 8 December 2002. In his evidence given at the trial the appellant said that what he had said in the interview was true, that his recollection was now not as clear and “my mind doesn’t want me to remember”.

40 The following account is taken from answers in the appellant’s interview and evidence given by other persons who were at Guyra on 8 December 2002.

41 The deceased arrived at the appellant’s flat in Guyra at about 4 o’clock in the afternoon. She was accompanied by Mr Orchard and the younger child Ryan. Already present at the flat were the appellant, Cameron, Ms Hunt and a man named Michael Kidd, who worked for the appellant in a Mr Whippy ice cream franchise held by the appellant in Armidale and who had been living in one of the flats in the building owned by the appellant since about October 2002.

42 A suggestion was made (the evidence is conflicting as to who made the suggestion) that all of Mr Kidd, Mr Orchard and Ms Hunt should go to a nearby hotel, leaving the appellant and the deceased alone together, so that they could talk to each other in private. Mr Kidd drove himself and the other two to the hotel in the appellant’s 4-wheel drive vehicle.

43 After they had been left alone together the appellant and the deceased discussed various matters. The following questions and answers occurred in the appellant’s interview by police:-

“Q 172 (A)……(the deceased said) And if you think I came down here to pick up the boys to do you a favour, you can, don’t think I did you any favour. And I said, What do you mean? And she said, I’m heading down to Doug’s with the boys from here, in Parkes.
Q 173 Yes?
A. And she said, And if it’s, if it’s of any interest to you, or something like that, because you’ve been whining about it for so long, if you must know, Ryan will be sleeping in the bed with Doug and I, or me and Doug, Doug and I, and if Cameron wants to sleep in with us, he can too. And then she repeated, she said, I told you you can’t, and that I’m going to beat you. She was drinking a cup of coffee at the time. I walked out of the room……and I walked out, undid the padlock on the gun cabinet and took out a rife.
Q174 Yes, what happened then?
A. When I came back into the lounge, the boys were still in the next paddock. And she’d just gone out into the kitchen. She heard me walk in the lounge, she walked out the kitchen and she was washing her cup. And she said, And by the way, before I win the court case in June, Doug and I will be going, taking the boys and going to England and you’ll never see your boys again.
Q175 What happened then?
A. She turned round and started to smile at me. I was…..”

44 The appellant said elsewhere in the interview that he had taken a .22 rifle out of the gun cabinet and had put a magazine with bullets in it into the rifle.

45 In evidence given at the trial the appellant said that he had fired, when he was at a distance of about two to three metres from the deceased. In his answer to question 344 in the interview the appellant said:-

“I don’t think I even meant to kill her…. I wanted to frighten the shit out of her. I wanted to make her see how much it was hurting me”

46 In evidence at the trial the appellant said:- “I wasn’t myself. I feel I must have been crazy. Absolutely crazy.” He had not planned to shoot the deceased.

47 After shooting the deceased, the appellant collected the two children from where they had been playing in another flat. The appellant made a telephone call to an adult child by a previous de facto relationship who lived in Sydney, saying that he was bringing the children to Sydney.

48 The appellant also telephoned Mr Kidd at the hotel and asked him to bring back the 4-wheel drive vehicle, so that the appellant could detach a child’s car seat from the vehicle. Mr Kidd drove himself, Mr Orchard and Ms Hunt back to the block of flats. The appellant looked in the back of the vehicle but there was no child’s car seat there. The child’s car seat the appellant was looking for had in fact been placed by the deceased in the vehicle in which she had driven to Guyra. While the three other persons were outside the block of flats, the appellant told them that “things were going well with Vivien” at a time when the deceased was already dead. Mr Kidd, Mr Orchard and Ms Hunt then returned to the hotel.

49 Each of Mr Orchard and Ms Hunt, but not Mr Kidd, gave evidence at the trial that, while they were back at the flats on this occasion, they saw the deceased on the verandah of the appellant’s flat, although, according to the account given by the appellant in the police interview and in evidence given at the trial, she was already dead.

50 The appellant left Guyra, travelling to Sydney with the two children in the vehicle which the deceased had driven to Guyra. When he had reached only as far as Black Mountain, a few kilometres from Guyra, he telephoned Ms Hunt at the hotel and told her that Mr Kidd should drive Mr Orchard and Ms Hunt back to Glen Innes and then, instead of returning to Guyra, Mr Kidd should go directly to work at Armidale the following day.

51 In accordance with this direction given by the appellant, Mr Kidd, Mr Orchard and Ms Hunt headed towards Glen Innes. After they had travelled some distance, Ms Hunt realised that she had left her handbag in the appellant’s flat and the trio returned to Guyra.

52 Mr Kidd entered the appellant’s flat and discovered the dead body of the deceased lying on the kitchen floor with a wound to the back of the head. Mr Kidd and Mr Orchard went to a police station and reported the death of the deceased.

53 The appellant continued driving to Sydney with the two children. He arrived at the house of a daughter by a previous marriage very early in the morning of Monday 9 December 2002. Later that morning he contacted a solicitor. He also telephoned a friend in New Zealand and spoke to the friend’s wife, whose name is Shirley De Goldie. In an answer in the interview the appellant said:-

“I said, Shirley, there’s been some trouble and she said ‘You didn’t, Barry?’ and I said ‘Shirley, I took her out of the picture’”.

54 Later on 9 December 2002 the appellant participated in a long recorded interview by police in which he made many admissions.

55 As already stated earlier in this judgment, three psychiatrists gave evidence, two in the defence case and one in the Crown case in reply. It is unnecessary to refer to this evidence in much detail.

56 Dr Skinner gave evidence that she was of the opinion that as at 8 December 2002 the appellant was suffering from a major depressive illness, which would have been aggravated by his respiratory illness. The incident at Ben Lomond might have caused a deterioration in his mental state. Dr Skinner considered that as at 8 December 2002 the appellant’s capacity to control himself and to make rational decisions would have been impaired by his mental state.

57 In cross-examination Dr Skinner said that, at the time she formed her opinions, she had not been aware of any threats made by the appellant against the deceased and she agreed that a prior history of violence or threats of violence by the appellant against the deceased would cause her to change her opinion.

58 Dr Allnutt gave evidence that he had formed the opinion that as at 8 December 2002 the appellant manifested symptoms of a depressive disorder and an acute stress disorder and was also physically unwell and experiencing symptoms of dissociation. Dr Allnutt was further of the opinion that these conditions had impacted on the appellant’s capacity to judge and control his actions.

59 In cross-examination Dr Allnutt agreed that the information available to him, at the time he formed his opinions, did not include information about a threat to kill the deceased in a way similar to the way in which she had been killed but asserted that such information would not cause him to change his opinions.

60 Dr Delaforce gave evidence that he was of the opinion that as at 8 December 2002 the appellant had an underlying condition of a major depressive disorder and an adjustment disorder and that both disorders would qualify as being an underlying condition causing an abnormality of mind. However, he did not believe that this underlying condition had impaired the appellant’s capacity to understand events, to judge his actions as right or wrong or to control himself.

Grounds of Appeal

61 The appellant’s grounds of appeal were:-

1. His Honour the Learned Trial Judge erred in law in his directions to the jury under s 23 of the Crimes Act 1900 in that:

(a) the jury was misdirected as to the permissible considerations under subs (2)(b);

(b) the jury was directed in breach of subs (3)(a); and

(c) following (a) & (b) above, the jury should have been directed on ‘reasonable proportion’ under subs (3)(a).


2. His Honour the Learned Trial Judge erred in law in his directions to the jury under s 23 of the Crimes Act 1900 in that the jury was further misdirected as to the law of provocation under subs (2)(b).

3. His Honour the Learned Trial Judge erred in law in failing to direct the jury as to consciousness of guilt in that:

(a) the jury was not directed as to the proper use of the evidence of the Appellant’s lie; and
(b) the jury was not directed as to the proper use of the evidence of the Appellant’s conduct following the shooting of the deceased.


4. His Honour the Learned Trial Judge erred in law in failing to direct the jury as to limits on the use of relationship evidence in the nature of past assaults.

5. His Honour erred in failing to discharge the jury.

6. His Honour the Learned Trial Judge erred in the sentencing process in the particular circumstances of the Applicant and thereby the sentence imposed was manifestly excessive.

62 The first five grounds of appeal are grounds of appeal against the appellant’s conviction and the sixth ground of appeal is a ground of appeal against the sentence imposed on him. I will deal with these grounds of appeal in turn.

1. His Honour the Learned Trial Judge erred in law in his directions to the jury under s 23 of the Crimes Act 1900 in that:

(a) the jury was misdirected as to the permissible considerations under subs (2)(b);

(b) the jury was directed in breach of subs (3)(a); and

(c) following (a) & (b) above, the jury should have been directed on ‘reasonable proportion’ under subs (3)(a).

63 It is convenient to commence my consideration of this ground of appeal by setting out the provisions of s 23 of the Crimes Act dealing with provocation.

(1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter.
(2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where:
(a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and
(b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased, whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time .
(3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if:
(a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission,
(b) the act or omission causing death was not an act done or omitted suddenly, or
(c) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm.
(4) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation.

(5) This section does not exclude or limit any defence to a charge of murder.

64 In directing the jury about provocation and in particular about s 23(2)(b) of the Crimes Act the trial judge said in his summing-up that a question to be determined by the jury was:-

“May the conduct of the deceased have induced an ordinary person in the position of the accused to have so far lost self control as to have formed an intent to kill or inflict grievous bodily harm, serious bodily harm on the deceased?”

65 The trial judge then gave the jury directions to be applied by them in determining this second question. His Honour said:-

“An ordinary person members of the jury, is simply one who has the minimum powers of self control expected of an ordinary citizen who is sober and is of the same age and sex as the accused. When one speaks of the effect of provocation on an ordinary person in the position of the accused, that phrase means an ordinary person who has been provoked to the same degree of severity and for the same reason as the accused.
In the present case this translates to a person who with the minimum powers of self control of an ordinary person, as I have described earlier, and is subjected to the litigation between the deceased and the accused, remarks made by the deceased to the accused, and the whole context of the relationship between the deceased and the accused and in particular the events said to have occurred at the premises at Guyra on 8 December 2002.
This question requires you to take full account of the sting of provocation actually experienced by the accused, but eliminates from your consideration an extraordinary response, if such there be, by the accused to the provocation actually experienced. Thus, extraordinary aggressiveness or extraordinary want of self control on the part of the accused provides no protection against a conviction for murder. You should understand that when you are dealing with this question you are considering the possible reaction of an ordinary person in the position of the accused, not the inevitable or probable reaction, but his possible reaction”.

66 After completing his directions of law on the subject of provocation and before beginning a survey of the evidence relevant to provocation the trial judge asked counsel in the absence of the jury whether there were any “problems” so far in the summing-up. Neither counsel raised any problem.

67 On this appeal it was submitted on behalf of the appellant that the trial judge had misdirected the jury in the part of these directions in which his Honour said:-

“This question requires you to take full account of the sting of provocation actually experienced by the accused, but eliminates from your consideration an extraordinary response, if such there be, by the accused to the provocation actually experienced. Thus, extraordinary aggressiveness or extraordinary want of self control on the part of the accused provides no protection against a conviction for murder.”

68 It was submitted on behalf of the appellant that under s 23(2)(b) of the Crimes Act the jury is required to determine whether the Crown has negatived any reasonable possibility that the conduct of the deceased was such as could have caused an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill or to inflict grievous bodily harm and not whether the Crown has negatived any reasonable possibility that the conduct of the deceased was such as could have caused an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to respond, that is to act or omit to act, in the way in which the accused actually did. Counsel for the appellant referred to Green v The Queen (1997) 191 CLR 334. It was submitted that the direction given by his Honour which used the word “response” had wrongly required the jury to consider whether the conduct of the deceased was such as could have caused an ordinary person in the position of the appellant to have responded in the way in which the appellant had or whether, on the other hand, the appellant’s response was “extraordinary”, that is beyond any possible response of an ordinary person in the position of the appellant.

69 It was further submitted by counsel for the appellant that the direction given by his Honour was contrary to s 23(3)(a) which provides that there is no rule of law that provocation is negatived, if there is not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission.

70 It is clear that under s 23(2)(b) the relevant question is whether the conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill the deceased or to inflict grievous bodily harm on the deceased and not whether the conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have responded, that is acted, in the way in which the accused did. (See Green v The Queen especially per Toohey J at 355-358 and per Gummow J at 377-378.

71 At page 378 Gummow J said:-

“Even without s 23(3)(a), the requirement of proportionality may have been removed by the enactment of s 23(2)(b). The extent of the relevant loss of self-control referred to in that section is the forming of ‘an intent to kill, or to inflict grievous bodily harm upon, the deceased’. Paragraph (b) does not allow consideration of the actual act or omission of the accused causing death and hence there is no occasion for a consideration of the proportion between those acts or omissions and the conduct of the deceased ”.

72 It is to be accepted that the submissions of counsel for the appellant are not without some foundation. However, in the recent decision of this Court in R v Khalouf [2005] NSWCCA 395 similar issues to those raised by the present appellant were raised and were decided adversely to the appellant Khalouf.

73 In Khalouf the same trial judge had given identical directions of law about s 23(2)(b) of the Crimes Act, except that in Khalouf he had inserted the words “act of” between the words “extraordinary” and “aggressiveness”, so that the sentence in which those words appeared read “Thus, extraordinary act of aggressiveness or extraordinary want of self-control on the part of the accused provides no protection against a conviction for murder”.

74 In Khalouf the Chief Judge at Common Law, with whom the other members of the Court agreed, while noting a concession by the Crown that the trial judge’s directions could have been “more felicitously expressed”, held that, in the context of the whole of the trial judge’s directions with respect to s 23(2)(b), the jury would have understood that the question they had to determine was “whether the deceased’s conduct may have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed the requisite intent” (at par 78). The Chief Judge added that, even if, contrary to what he had just said, the direction given by the trial judge had carried a possibility of being misunderstood by the jury, it was significant that counsel at the trial had not raised any objection.

75 In my opinion, the present case is not distinguishable, in favour of the appellant, from Khalouf. The one respect in which the directions of law given in the present case were different from the directions of law given in Khalouf is that in Khalouf, but not in the present case, the trial judge had used the expression “act of (aggressiveness)” but that difference, if of any significance, would have tended to make the directions in Khalouf more likely to be misleading. In both cases no application for any further or different direction was made by counsel for the accused at the trial.

76 In R v Mai (1992) 26 NSWLR 371 Hunt CJ at CL said at 380 with the concurrence of the other members of the Court, in a passage which has since been referred to with approval on a number of occasions:-

“This Court, like the Court of Appeal (and the Full Court before it), has never regarded itself as bound by its previous decisions… Unlike the Court of Appeal, this Court has no practice of requiring the grant of leave before an earlier decision may be re-examined. It has nevertheless departed from previous decisions only with caution, and only when it is satisfied that justice seemed to require the earlier decision to be overturned. In some cases, the Chief Justice has assembled a court of more than three judges to re-examine an earlier decision…. but this practice has been by no means uniform…”

77 I do not consider that the present Court should depart from the decision in Khalouf, which is a recent unanimous decision of the Court of Criminal Appeal, and, on the authority of Khalouf, I would reject this ground of appeal.

Further Submission purportedly in support of the First Ground of Appeal

78 A further submission was made by counsel for the appellant which was said to be a further submission in support of the first ground of appeal. In fact, it was not a submission in support of the first ground of appeal but a quite independent submission. Notwithstanding that the submission was not relevant to any of the grounds of appeal which had been filed, the Court considered the submission.

79 The further submission was based on a passage in the trial judge’s summing-up at p 11 in which his Honour said:-

“You should consider the concept of provocation before you consider the defence of substantial impairment by abnormality of mind. You would only consider that latter defence if you were of the view that the Crown had failed to negative the concept of provocation”.

80 It was submitted that this direction was erroneous, in that the jury would have to consider the defence of substantial impairment, not if the Crown failed to negative provocation, but if the Crown succeeded in negativing provocation.

81 What his Honour said in this passage in the summing-up was clearly erroneous, for the reason given by counsel for the appellant. However, elsewhere in the summing-up, as was conceded by counsel for the appellant, the trial judge had correctly directed the jury.

82 At pp 22-23 of the summing-up the trial judge directed the jury that their verdict should be a verdict of guilty of murder, if the jury were satisfied beyond reasonable doubt of the elements of the offence of murder and that the appellant had not acted under provocation and the jury also found that the appellant had not made out on the balance of probabilities that his actions arose from substantial impairment by abnormality of mind.

83 At p 23 of the summing-up the trial judge directed the jury that, if they concluded that the Crown had not negatived provocation, they would not need to consider the question of substantial impairment by abnormality of mind.

84 At p 40 of the summing-up the trial judge said:-

“ Now, as I have already told you, this question only arises for your consideration if you are satisfied beyond reasonable doubt that the Crown has established all of the essential ingredients of the crime of murder, including that the accused was not acting under provocation. If it has done so, you next come to this question of ‘impaired responsibility’, as I shall call it”.

85 At the trial there was no relevant application by counsel for the appellant for any further direction.

86 I am satisfied that the error made by his Honour, which was made at an early stage of the summing-up, was corrected by what his Honour said later in the summing-up and that by the end of the summing-up the jury well understood that, if the Crown proved all the elements of the offence of murder and also proved that the appellant had not acted under provocation, the jury would still have to determine whether the appellant had established the partial defence of substantial impairment.

87 I would reject this further submission.

2. His Honour the Learned Trial Judge erred in law in his directions to the jury under s 23 of the Crimes Act 1900 in that the jury was further misdirected as to the law of provocation under subs (2)(b)

88 This ground of appeal was based on a part of his Honour’s summing-up where his Honour, in summarising the law about provocation, said it was an element of provocation that “the conduct of the deceased was such that it would have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill or inflict grievous bodily harm”.

89 On this appeal it was submitted by counsel for the appellant that the use of the word “would” and not the word “could” was a misdirection and a serious misdirection. It was pointed out that the section itself uses the word “could” and it would be possible that conduct of a deceased person “could” have induced an ordinary person in the position of an accused to have lost self-control to the extent required, even if it would not be possible to say that the conduct of the deceased “would” have induced such a loss of self-control. See Green v The Queen at 340 per Brennan CJ.

90 What his Honour said in the part of the summing-up which I have quoted was clearly erroneous. However, elsewhere in the summing-up the jury were correctly directed. The trial judge read to the jury the terms of the section, which include the word “could”. The second question which the trial judge posed for the jury was “may” the conduct of the deceased have induced a loss of self-control to the extent required. His Honour told the jury that “when you are dealing with this question you are considering the possible reaction of an ordinary person in the position of the accused, not the inevitable or probable reaction but his possible reaction”.

91 At the trial there was no relevant application by counsel for the appellant for any further direction.

92 I am satisfied that a jury would have understood from the summing-up, taken as a whole, that the question the jury had to determine was whether the conduct of the deceased could have induced a loss of self-control to the extent required and not whether the conduct of the deceased would have induced such a loss of control.

93 I would refuse leave under r 4 in relation to this ground.

3. His Honour the Learned Trial Judge erred in law in failing to direct the jury as to consciousness of guilt in that:

(a) the jury was not directed as to the proper use of the evidence of the Appellant’s lie; and
(b) the jury was not directed as to the proper use of the evidence of the Appellant’s conduct following the shooting of the deceased

94 In summarising the evidence at the trial I referred to evidence given by the appellant in which he admitted telling a lie to Mr Kidd, Mr Orchard and Ms Hunt when they returned to the flats in the 4-wheel drive vehicle, while the appellant was still at the flats. The appellant gave evidence that he said to the three persons that things were going well with the deceased, at a time when, according to the appellant, he had already killed the deceased.

95 In my survey of the evidence I also referred to evidence given by each of Mr Orchard and Ms Hunt, in conflict with the appellant’s evidence that the deceased had already been killed, that on this visit each of them had seen the deceased on the verandah of the appellant’s flat.

96 In his closing address to the jury the Crown Prosecutor referred to the conflict between the evidence of the appellant and the evidence of Mr Orchard and Ms Hunt. The Crown Prosecutor then said to the jury:-

“But if she had been dead, and that is the accused’s version, as you would appreciate, what the accused has done is lie to his friends to make sure they didn’t go into the house, to make sure that he could make his get away, get to Sydney before DOCS got there. So if he were prepared to lie about that, what else was he prepared to lie about?”

97 In one other place in his closing address the Crown Prosecutor referred to the appellant “lying to his friends deliberately to make good his get away”.

98 It was submitted by counsel for the appellant on this appeal that in these parts of his closing address the Crown Prosecutor at the trial had sought to rely on the telling of the lie as evidence of consciousness of guilt. However, no directions of the kind required by Edwards v The Queen (1993) 178 CLR 193 had been given by the trial judge to the jury.

99 In my opinion, although the Crown Prosecutor did suggest a motive the appellant would have had for telling a lie (if it was a lie), the Crown Prosecutor in his closing address did not seek to rely on the telling of the lie as evidence of consciousness of guilt but simply as evidence damaging the appellant’s credibility. The concluding part of the principal submission made by the Crown Prosecutor was:-

“So if he was prepared to lie about that, what else was he prepared to lie about?”

100 There is no indication in the trial judge’s summing-up that the telling of the lie or any of the appellant’s other conduct after the shooting was relied on by the Crown as being evidence of consciousness of guilt. Evidence about these matters was, of course, relevant to the issues of provocation and substantial impairment.

101 No application was made at the trial that directions be given in accordance with Edwards.

102 I would refuse leave under r 4 of the Criminal Appeal Rules in relation to this ground of appeal.

4. His Honour the Learned Trial Judge erred in law in failing to direct the jury as to limits on the use of relationship evidence in the nature of past assaults

103 Earlier in this judgment, in my summary of the evidence at the trial, I referred to evidence given at the trial about a number of acts of violence or threats of violence by the appellant against the deceased. The only part of this evidence relied on by counsel for the appellant in support of this ground of appeal was the evidence in the deceased’s statement of 7 February 2002 taken by Constable Tucker that in March 1999 the appellant had slapped the deceased on the face, that later in 1999 he had kicked the deceased in the buttocks and that in April 2001 he had thrown a meal on the floor and had slapped the deceased on the head.

104 In the summing-up the trial judge referred to the evidence in the deceased’s statement about these incidents and also to the evidence the appellant had given about each of these incidents.

105 It was submitted on behalf of the appellant in support of this ground of appeal that the trial judge should have directed the jury that they could not use the evidence about these three incidents as evidence of a tendency on the part of the appellant to be violent to the deceased.

106 In fact, at the time when the evidence was admitted, the trial judge had directed the jury that the deceased’s statement was “evidence of relationship between the deceased and the accused… you are not in any way to use it in connection with any propensities on the accused’s part to violence”.

107 In his summing-up to the jury the trial judge directed the jury that the evidence of the previous acts of violence was relevant to both provocation and substantial impairment.

108 In my opinion, the direction given by the trial judge in the summing-up was correct and there was no need for any further direction in the summing-up. Evidence that on occasions in the past the appellant had acted violently towards the deceased was relevant to assessing the probability of whether, on the occasion he shot the deceased, the appellant did the act of shooting as a result of a loss of self-control and whether, at the time of the shooting, the appellant’s capacity in the respects stated in s 23A was substantially impaired by an abnormality of mind arising from an underlying condition.

109 No request for any further direction was made by counsel for the appellant at the trial.

110 I would refuse leave under r 4 in relation to this ground of appeal.

5. His Honour erred in failing to discharge the jury

111 Some time after the jury had retired they sent the trial judge a note, asking that further directions be given. The note began with the words:- “If definition of self-control (Macquarie Dictionary) is ability to control one’s behaviour and not act emotionally….”

112 An application was made to discharge the jury on the grounds that these words in the note showed that the jury, in disobedience to directions given by the trial judge, had had regard to extraneous matter, namely a dictionary. The trial judge refused the application for a discharge of the jury and gave a judgment stating his reasons. In part of his judgment his Honour said:-

“… there needs to be a high degree of need for discharge, it is appropriate for the trial judge to take into account the length of time the trial has occupied, the question of inconvenience to witnesses, and indeed, the cost of another trial…..

What is the important question….is whether there is a tangible risk that the accused would be denied a fair trial by reason of the event which has occurred, and, second, whether the problem cannot be appropriately cured by a direction to the jury”.

113 His Honour decided that any problem could be cured by further directions to the jury. There is no further trial transcript available but I am prepared to assume that his Honour gave the jury the further directions he proposed giving.

114 In my opinion, it has not been shown that his Honour erred in not discharging the jury or that his Honour’s decision not to discharge the jury led to any miscarriage of justice.

115 The jury’s conduct in consulting a general dictionary (and not a law book) in an attempt to ascertain the meaning of “self-control”, was only a minor impropriety and the definition the jury obtained was correct and, indeed, almost tautologically correct.

116 It was open to the trial judge to be satisfied that the jury’s action in consulting a dictionary was not indicative of a general tendency on the part of the jury to disobey the trial judge’s directions.

117 I would dismiss this ground of appeal.

118 Having rejected all of the grounds of appeal against conviction or having refused leave under r 4 of the Criminal Appeal Rules to rely on them, I would dismiss the appeal against conviction.

6. His Honour the Learned Trial Judge erred in the sentencing process in the particular circumstances of the Applicant and thereby the sentence imposed was manifestly excessive

119 As recorded earlier in this judgment, Newman AJ sentenced the appellant to a head sentence of twenty years with a non-parole period of fifteen years.

120 As the offence was committed before 1 February 2003, the standard non-parole period provided for in Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act was not applicable.

121 On the hearing of this appeal there was no challenge to any of the findings made by Newman AJ in his remarks on sentence.

122 The findings made by his Honour about the objective facts of the offence included the following:-

During 2002 the appellant suffered from a depressive illness as a result of various stresses upon him brought about by the breakdown of the relationship with the deceased and the battles for custody of the children.

It was not merely a coincidence that the appellant had killed the deceased in almost the same way as he had threatened to do in March 2002. The shooting on 8 December 2002 had not been planned but “the prisoner did not dismiss the option of destroying his former partner from his mind”.

Mr Kidd, Mr Orchard and Ms Hunt had left the flat and gone to the hotel, as a result of a suggestion made by one of them and not at the instance of the appellant.

At the time of the shooting the appellant had intended to kill the deceased. After the shooting the appellant had done nothing to assist the deceased (although it might be queried what he could have done).

The appellant’s subsequent acts in making the telephone calls and in telling the lie to the group of three persons showed that he was then “in full control”.

The appellant’s actions had deprived two very young children of their mother.

123 After making his findings about the objective facts of the offence, Newman AJ concluded that the offence did not fall within the worst class of cases and hence a life sentence should not be imposed.

124 Newman AJ made the following findings about the subjective features of the appellant.

The appellant was born on 23 April 1940 and hence was sixty-two years old at the time of the offence and sixty-four years old at the time he was sentenced. At the time he was sentenced the appellant had a life expectancy of 17.36 years.

The appellant had a minor criminal record, which his Honour disregarded for the purposes of sentencing him for the murder. As already noted, his Honour found that the appellant had been suffering from a depressive illness.

At the time the appellant was sentenced he was suffering from back trouble and had undergone surgery for prostate cancer.

His Honour found that there was much in the offender’s past life to be commended, including military service, his work history and his contribution to community activities and to the rehabilitation of persons suffering from drug and alcohol dependency.

125 After completing his findings about the subjective features of the appellant his Honour concluded:-

“However, despite the many favourable subjective features in the prisoner’s case, the inescapable fact is that he carried out a cowardly and brutal act of murder. Shooting a defenceless woman in the back of the head cannot be categorised in any lesser manner”.

126 It was submitted on behalf of the appellant that the sentence imposed by his Honour was manifestly excessive and that his Honour, having decided that the offence did not call for a life sentence, had imposed a sentence which, having regard to the prisoner’s age and life expectancy, was tantamount to a life sentence.

127 Although a lighter sentence than the sentence imposed by Newman AJ might have been imposed, particularly having regard to the appellant’s depressive illness, the sentence imposed by his Honour was not, in my opinion, outside the range of sentences within a sound exercise of his Honour’s sentencing discretion.

128 As regards the further submission made by counsel for the appellant, it is true that this Court has said that, if a life sentence is to be imposed, it should be imposed “frankly and directly” and a sentencing court which refrains from imposing a life sentence should not impose a determinate sentence which would have the effect of a life sentence. R v Chen (2003) 138 A Crim R 433 at 444 (67). However, a sentence must reflect the objective seriousness of the offence and when the offender is of advanced years a determinate sentence, in order to reflect the objective seriousness of the offence, may unavoidably extend for all or most of the offender’s life expectancy. In DesRosiers v Regina [2006] NSWCCA 16 Latham J, with whom the other members of the Court agreed, referred with approval at par 30 of her judgment to a statement by Allen J in R v Holyoak (1995) 82 A Crim R 502 at 507:-

“It simply is not the law that it can never be appropriate to impose a minimum term which will have the effect, because of the advanced age of the offender, that he well may spend the whole of his remaining life in custody”.

129 In the present case the appellant was sixty-two years old at the time he committed the offence of murder by what the sentencing judge found to be a cowardly and brutal act. It was inevitable that there would be a real risk of the appellant dying in custody, before he completed serving even the non-parole period of any sentence which adequately reflected the objective seriousness of the offence.

130 I would grant leave to appeal against sentence but would dismiss the appeal against sentence.

131 HIDDEN J: I agree with James J

132 HISLOP J: I agree with James J.

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