Green v The Queen

[1996] HCATrans 272

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S71 of 1996

B e t w e e n -

MALCOLM THOMAS GREEN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 9 SEPTEMBER 1996, AT 11.18 AM

Copyright in the High Court of Australia

MR T.A. GAME:   If the Court pleases, I appear for the applicant, together with my learned friend, MR T. MOLOMBY.  (instructed by T. Murphy, Legal Aid Commission of New South Wales)

MR R. KELEMAN:   May it please the Court, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ:   Yes, Mr Game.

MR GAME:   If the Court pleases.  This case raised questions as to the proper application of section 6 of the Criminal Appeal Act and the proper interpretation of section 23 of the Crimes Act.  If I could take the Court directly to the material evidence which will direct the Court to the factual background to the legal questions which arise.  Firstly, at page 8 of the application book, lines 10 to 28.  The immediate context of the actions of the applicant appear in that passage.  Question 57:

He asked me what was wrong.  I said ‘I’m not like this.”
He kept going grabbing me.  I pushed him away.

Q.58    How was he touching you?
A.       I suppose it was gently but I didn’t respond.

Q.59    On what part of the body did he touch you?
A.       On my side thats when I pushed him away.

So, he pushes him away twice, and once says, “I’m not like this”.  Then:

Q.60    Did he touch you anywhere else after that?
A.       Yes, he grabbed me by both arms and pulled me towards him             till there was no room in between us.  Then he moved his hand down to my backside, arse.  I pushed it away then he slowly touched my groin area thats when I got aggressive and hit him.

Then at page 12 of the application book appears the context in terms of the applicant’s own personal history.  Questions 163 and following:

Is there anything further you want to tell me about this matter?
A.  In relation to what had happened this night I tried to take it as a funny joke but in relation to what my father had done to four of my sisters it forced me to open more than I could bear.  It hasn’t changed the fact to what had happened to my family but I couldn’t stop myself or control what went through me.”

Then, continuing:

Well, it’s just that when I tried to push Don away and that and I started hitting him it’s just ‑ I saw the image of my father over two of my sisters, Cherie and Michelle, and they were crying and I just lost it.

Then appears a passage of questions from his own evidence which continues:

A.  I just lost control.

Q.  Why did you lose control?
A.  Because those thoughts of me father just going through me mind.

Q.  What about your father was going through your mind?
A.  About sexually assaulting me sisters and belting me mother.

Q.  What feelings did you have at that time as a result of that?
A.  Upset, angry.

And, his Honour, refers in the following passage to the fact that the:

father had forced intercourse upon two of his sisters and had seen his father being regularly violent to his mother ‑

Now, that evidence, the passages to which I have just referred, 163 and following, was excluded from the jury’s consideration on the question of provocation and once it was excluded, on our case, necessarily the defence case fell to the ground.  In fact, the Crown went so far as to say that it was not the act of the deceased which caused the accused to lose control, but it was the thoughts which the applicant had relating to his father.  In effect, this was used as a shield against provocation.

Now, grounds 2 and 3, which appear on page 13, were held to have been made out.  They relate to both the leaving of the evidence and the directions that were given, and the jury were directed and redirected in such a way as to exclude consideration of that material on the question of provocation.  When I say “redirected”, they came back and asked for further directions in relation to murder, manslaughter and provocation, and the further directions explicitly excluded consideration of this material on the question of provocation.  It only came in to meet some evidence from some witnesses called the Sirolas, who said ‑ ‑ ‑

BRENNAN CJ:   There is no doubt that the evidence was wrongly excluded, is there?

MR GAME:   No doubt, your Honour.

BRENNAN CJ:   And I suppose you say it was wrongly excluded, therefore, the proviso could not possibly apply?

MR GAME:   Yes, your Honour.

BRENNAN CJ:   The problem is, however, is it not, that the view that was taken by the majority of the Court of Criminal Appeal is that, even if admitted on the question of provocation, the evidence relating to provocation was not such as to get to the jury?  In other words, the “ordinary person” test was not satisfied?

MR GAME:   Your Honour, Justice Priestley applied proviso reasoning, not that there was no case to go to the jury.   The whole of his judgment is couched in the terms of ‑ ‑ ‑

BRENNAN CJ:   Is that right?

MR GAME:   Yes, your Honour.  At page 29 line 15 - in my submission, this is the critical failing in the judgment is that it slipped from Stingel, which is a case where there was not case to go to the jury ‑ ‑ ‑

BRENNAN CJ:   Yes.

MR GAME:   ‑ ‑ ‑ to applying that type of reasoning to proviso reasoning.  Page 29 line 15:

It seems to me that on the evidence the jury had before them and within the range of findings open to them on that evidence they could hardly have come to any different conclusion about par (b). 

Now, that is proviso reasoning but, also, it contains a critical error and the critical error is that it is not on the evidence that they had before them.  The issue has to be considered from the point of view of what the evidence would have been had they been in a position to consider the whole of the material. 

BRENNAN CJ:   Look at line 30.

MR GAME:   Well, your Honour, line 30 there is directed to one question which is, it is directed to ground 4, and it is directed to whether the response would have been a response to form an intent to kill or do grievous bodily harm, as opposed to the erroneous directions which were given, which the ordinary person must have been capable of inflicting the very injuries which were inflicted.  This involves a further error, your Honour, because, what has happened here is that the whole of the proviso reasoning in relation to this case has been focused on ground 4, but grounds 2 and 3 are equally critical and it is necessary to go back to the error which is hidden away in ground 2 in the way in which the court disposed of grounds 2 and 3, because what the court said was this, and it appears at pages 23 to 24, that the accused would have ‑ at page 23 line 50:

or, putting the point accurately in terms of the onus of proof, how the Crown on the evidence could have negated, beyond reasonable doubt, loss of control by the appellant.

In fact, it is loss of control due to conduct of the deceased, and that ignores the submission which the Crown put.  There are already two conclusions to be drawn.  One is that the jury would have rejected the Sirolas’ evidence and, two, that they would have accepted provocation.  But then at page 24, line 10:

Thus the misdirections relation go s 23(2)(a) were irrelevant for present purposes.

But, in our submission, that is beside the point.  It is beside the point for the very reasons given by Justice Smart at pages 46 to 47, which is that the gravity of the provocation must be measured against the particular circumstances of the accused.  The court has failed to address that proposition at all.  If I could just read very briefly from Masciantonio 183 CLR, which is ‑ ‑ ‑

KIRBY J:   That is also quoted by Justice Smart.

MR GAME:   Yes.  It is quoted by Justice Smart.  There is a further passage at page 69:

Whether an ordinary person could have reacted in the way in which the appellant did would pose a more difficult question for a jury.  However, if a jury were to conclude, as it might, that the provocation offered by the deceased was, in the circumstances in which the appellant found himself, of a high degree.....then it is possible that a reasonable jury might also conclude that an ordinary person could, out of fear and anger as a result of that provocation, form an intention to inflict at least grievous ‑ ‑ ‑

BRENNAN CJ:   Whereabouts is this; on 69, did you say?

MR GAME:   That is at page 69, yes, first paragraph, and it follows on from the passage in the majority judgment at page 67, which starts with:

However, the gravity of the conduct ‑

which is the passage that is cited by Justice Smart.  What has happened here is that Justice Priestley has concluded favourably that the jury would have concluded that there was provocation but without considering the material which was at the heart of the applicant’s case.

BRENNAN CJ:   No.  Correct me if I am wrong, but the way in which I read what Justice Priestley was saying was this:  that the jury might well have considered, if this evidence had been admitted and proper directions had been given, that the accused was, in fact, provoked, but in applying the provisions which relate to the ordinary person, one cannot think that this is a case in which the ordinary person could have been provoked or might have been provoked and, for that reason, it does not matter because provocation could not have got to the jury.

MR GAME:   Your Honour, the judgment is couched in terms of proviso reasoning.  If you look at the top of page 25 - the bottom of page 24:

The Crown’s principal submission in answer to the grounds of appeal established by the appellant was that the provision to s 6 of the Criminal Appeal Act was applicable.  The Crown relied on the words of Stingel at 336‑7, and said that no jury acting reasonably could fail to be satisfied beyond reasonable doubt ‑

Now, Stingel was a case in which provocation was not left.  The judge in this case made a decision that provocation was open, moreover, on a lesser basis than was ultimately left.  Now, the whole of this reasoning is reasoning directed to the proviso, not to the judge’s ruling ‑ ‑ ‑

BRENNAN CJ:   One can understand that that language would be used, but if one looks at the reason why the proviso is being invoked, it is because there was no miscarriage in rejecting the admissibility of the evidence, because the evidence, though admissible on the question of provocation, ought not to have led to provocation going to the jury, albeit provocation did go to the jury.  Is that not the reasoning that is there?  In other words, what I am putting to you, Mr Game, is that if special leave is given, it will involve this Court is doing no more, casting aside any question of the proviso, than assessing for itself whether or not the evidence was such that a jury could find that an ordinary person might have reacted in the way in which the accused did.

MR GAME:   No, your Honour, because there are particular errors along the way which coloured the judgment of Justice Priestley in such a way as to demonstrate, not on a factual basis but on a legal basis, that that conclusion is unsound.  The first is the one I have already identified which is this, that the family history is relevant to 23(b), because the ordinary person in the position of the accused must be an ordinary person in the position of this accused with this family history.  Now, that is a matter which is impliedly but, we would submit, quite definitely excluded by his Honour’s judgment at page 24 line 10, the passage ‑ ‑ ‑

BRENNAN CJ:   And, rightly, in the light of Stingel?

MR GAME:   No, wrongly in the light of Stingel because, your Honour, you cannot put yourself in the position of ‑ the “ordinary man” test applies to the circumstances of the ordinary man ‑ the powers of self-control of the ordinary man apply to the person with that particular history.  That particular ‑ ‑ ‑

BRENNAN CJ:   Where is it in Stingel that there is any support for that proposition?

MR GAME:   Your Honour, the passage I just referred to from Masciantonio, in my submission, explicitly supports that proposition but, in Stingel, page 326, point 3:

Even more important, the content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused.  Were it otherwise, it would be quite impossible to identify the gravity of the particular provocation.  In that regard, none of the attributes or characteristics of a particular accused will be necessarily irrelevant to an assessment of the content and extent of the provocation involved ‑ - -

BRENNAN CJ:   That is referring to paragraph (a), is it not?

MR GAME:   No, your Honour ‑ yes and no, because “the content and extent of the provocative conduct”, for the reasons to which I referred and just quoted from Masciantonio, must be relevant to how serious the ordinary person might regard the provocative conduct.

McHUGH J:   The strength of your argument lies in the fact that Justice Priestley seemed to have determined the paragraph (b) issue simply by relation to the evidence about the touching and as to what effect that could have on an ordinary person, without looking at the evidence which he had already held was wrongly excluded under grounds 2 and 3.

MR GAME:   Yes, and then the question ‑ in Stingel, at the following page, the point is made ‑ ‑ ‑

McHUGH J:   What page is that?

MR GAME:   Page 327 , about point 2:

The function of the ordinary person of s. 160 is the same as that of the ordinary person of the common law of provocation.  It is to provide an objective and uniform standard of the minimum powers of self‑control which must be observed before one enters the area in which provocation can reduce what would otherwise be murder to manslaughter.  While personal characteristics or attributes of the particular accused may be taken into account for the purpose of understanding the implications and assessing the gravity of the wrongful act or insult ‑

the ordinary man can only apply once one has assessed what the gravity of the wrongful conduct is.  For example, to say ‑ I think Masciantonio was to say somebody is a wog ‑ one must have regard to the particular circumstances of the particular accused.  If that person is an Italian person, then obviously it is a far more grave allegation.  The section in New South Wales actually says, “in the position of the accused”, and this was one of the complaints that the jury were never directed as to what “in the position of the accused” means.  Now, “in the position of the accused” picks up ‑ ‑ ‑

BRENNAN CJ:   Yes.  That might make a real difference to Stingel ‑ ‑ ‑

MR GAME:   Yes, I am sorry, I forgot to mention that.  It is an important distinction.  I see the yellow light has come on.  There are a number of particular matters ‑ ‑ ‑

BRENNAN CJ:   You proceed with another five minutes, Mr Game.

MR GAME:   Now, his Honour then dealt with ground 4, which was the ground which said - it appears at the bottom of page 13:

The trial judge erred in law in determining that what is required to satisfy s 23(2)(b) of the Crimes Act is that an ordinary person in the position of the appellant could have been provoked to the response to which the appellant resorted ‑

Now, that is the way in which the applicant was forced to conduct his case.  It just so happened that the jury were in error practically, correctly directed, but he was forced to put his case to the jury to say, “The ordinary person could have responded in that particular way”, and the whole of the proviso reasoning is directed to that passage.  Now, it was accepted by the Court of Criminal Appeal that this ground was made out; that this was a case ‑ if you see at page 20 ‑ in which the:

additional horrific circumstances may be said to have been present ‑

but then at page 20, line 15, his Honour said he found:

it difficult to see how useful distinctions can be drawn between formed intentions ‑

but this is not a question about distinctions between intentions.  It is not even a point about the making of distinctions.  The point is merely a point about what defence counsel puts to the jury in terms of what an ordinary person might do, and he was forced to put to the jury that an ordinary person might respond in this particular way with all of the horrific aspects.  All he had to say was, “An ordinary person might momentarily form an intention to do serious injury.”  That was all he had to put to the jury.  He was already confronted with the degrees of savagery which arise in this case. 

Then when one goes back to the way in which this is dealt with further, at page 25 ‑ and we would submit that further error is exposed in the way in which the problem in dealt with ‑ lines 15 to 20.  His Honour asked himself whether or not the Crown had made good the proposition which appears between lines 15 and 25.  The question was:

“The appellant’s track suit pants were on and the jury were entitled to take the view that the ordinary man ‑

it should be “an” ordinary man in fact ‑

even one whose sisters had been sexually assaulted by their father ‑

and we would add in parenthesis that that was not before them ‑

would rebuff ‑

should be “could” rebuff ‑

those advances in a manner which did not involve the intentional infliction of death or grievous bodily harm.”

and that is wrong too because it is not the infliction, it is the formation of an intention.  Now, there are so many errors in that question which was ultimately answered favourably that it was inevitable that the court would be led into error in answering the proviso question which, as I have already said, was only restricted to this one error without addressing the others. 

Then when one goes on, and it appears at page 28 that it was in fact observed that the defence had had, without much success, cross-examined the Crown witness, which meant that the evidence about the fracture of the skull ‑ if one goes back this problem about the Sirolas ‑ why should one conclude that the Sirolas’ evidence was rejected, but then, back to the proviso question, page 29, last passage:

This brings me to the final matter for consideration in the appeal.  If the incorrect ruling dealt with under Ground 4 had not been made on the second day of the trial, and the appellant’s counsel had been able to conduct his case and address the jury on the footing that the loss of self‑control the Crown had to negative was the loss of self‑control so far as to have formed an intent to kill or to inflict grievous bodily harm upon Mr Gillies, as distinct from a loss of self‑control so far as to have formed an intent to do what he actually did to Mr Gillies, is the possibility that the result would have been different sufficiently ‑

The proviso question is directed to the wrong question.  That is not the question.  It is not the question because it is the ruling that is the problem; not the drawing of distinctions between levels of intention, and the same error is made again on page 31.  Again, it is not a question of the drawing of distinctions. 

So, when one puts together that group of errors, in our submission, this is a case where the accused has not got to put his case before the jury on the critical issue which is the issue of provocation.  Relevant evidence has been excluded.  The jury have been misdirected as to that very element in two critical respects.  The court’s own reasoning, in disposing of the appeal, is erroneous in the way in which I have explained.

Now, there is one further point that we seek to raise on the application and it relates to ‑ ground 5 is really already picked up by the submissions I have already put, but ground 6:

The trial judge erred in law in determining that evidence of the truth of incidents of sexual interference.....was not admissible on the issues:

(a)  of the appellant’s special sensitivity -

or -

of the appellant’s adverse attitude -

Now, we would submit that that evidence was clearly admissible.  It goes to the likelihood that he, in fact, held such a belief.  That could be tested by the proposition, for example - and it must have been a very curious thing for the jury to hear the girls relate that they had told him such things without them saying that such things had in fact occurred to them and for the accused to be deprived of the evidence that his father did have such convictions.

McHUGH J:   Why?  The only issue was his state of mind and that depended upon what he was told; not upon the facts.  They may have told him the wrong facts.  They may not have told him enough of the facts.

KIRBY J:   It does take the trial off into a tangential issue and exploration of another crime in the context of a serious trial.

MR GAME:   Your Honour, if it were that they said that those things had not occurred to them or were it the case that they were dead, for example, then one would answer that question in a different way, in my submission.

McHUGH J:   Why?

MR GAME:   Because it makes it more likely that they did say those things, that he did - - -

McHUGH J:   Not at all.

MR GAME:   Your Honour, I suppose now is not the time to press on with that particular point.

McHUGH J:   It is certainly not a special leave point.

MR GAME:   Those are my submissions, may it please the Court.

BRENNAN CJ:   Yes, Mr Keleman.

MR KELEMAN:   As your Honours have already noted, the majority of the Court of Criminal Appeal applied the proviso in the context of concluding that despite a number of errors the jury would inevitably have reached the same conclusion.

BRENNAN CJ:   If that is the proposition it must be demonstrably false.  If it is a question of fact, that should have gone to the jury with the evidence in tact.

MR KELEMAN:   It is our submission that provocation should never have gone to the jury.

BRENNAN CJ:   That is another problem.  I mean, that is the only basis, is it not, on which you could defend the view of the court below?

MR KELEMAN:   That is so, and that is consistent too with - the proposition I am advancing is consistent with the observation that this Court made in the case of Masciantonio.  They made the point at page 68 of that judgment.  Does your Honours have Masciantonio?

McHUGH J:   Yes.

BRENNAN CJ:   Yes.

KIRBY J:   I do not have it.  Just read the passage.

MR KELEMAN:   At page 68, on the second line:

The question is the same when a trial judge is considering whether or not to leave provocation to the jury as it is when an appellate court is considering whether it ought to have been left, but as a matter of practicality a trial judge is likely to lean towards leaving provocation if he or she can.  As was observed by the Privy Council in Lee Chun‑Chuen v The Queen “there is a practical difference between the approach of a trial judge and that of an appellate court. 

And these are the critical words:

A judge is naturally very reluctant to withdraw from a jury any issue that should properly be left to them and he is therefore likely to tilt the balance in favour of the defence.  An appellate court must apply the test with as much exactitude as the circumstances permit.”

We would submit that that is what occurred here, that the Court - - -

McHUGH J:   I must say the difficulty I have with Justice Priestley’s judgment is this, that he determined the gravity of the provocation by reason of the evidence of what happened in the bed according to the accused’s account without taking into account the accused’s longstanding concern concerning this treatment of his sisters by his father.

MR KELEMAN:   We would submit otherwise.  His Honour, right at the beginning of his judgment set out the relevant passages in Stingel, at page 16 of the application book, and those portions of the judgment in Baraghith that dealt with gravity, at pages 17 and 18.  In those passages cited from Stingel this question of gravity is properly looked at.  So, to suggest that his Honour was not aware - - -

McHUGH J:   I know he referred to them but go to page 25, line 30.  He deals with the submission at lines 25 to 30, and then he says:

In deciding whether or not to accept this submission it is necessary to consider the facts in a little more detail.

And then he takes into account all the evidence about what happened in the bed; what Dr Flou had said.  Not a single reference anywhere to the evidence that was wrongly excluded under grounds 2 and 3.  As Masciantonio points out at 68, “The gravity of the provocation”, in that case, “must be seen against the appellant’s long-standing concern over the deceased’s treatment of his daughter and his emotional response to the situation.”  That is what Justice Priestley never took into account.

MR KELEMAN:   With respect, his Honour accepted that that evidence should have been admitted.

McHUGH J:   I know he did but then on this the vital question, he did not take it into account.  One can understand the reluctance to order a new trial in a case like this.  The accused’s statement seems to me to be a bit unreal, but it is a jury question.

MR KELEMAN:   With respect, his Honour also referred, at page 25 of the judgment, to the proposition advanced by the Crown.  In that proposition the gravity of the provocation was referred to in the context of the accused’s particular sensitivity.  That submission at line 18 reads:

“The appellant’s track suit pants were on and the jury were entitled to take the view that the ordinary man, even one whose sisters had been sexually assaulted by their father -

so, that encapsulates this notion of gravity.  So, to suggest that his Honour did not consider that, we would submit, is incorrect, that his Honour - - -

KIRBY J:   What is the structure?  The structure of the judgment involves his Honour’s determination that that was an error and you say that is therefore the given of his Honour’s judgment and then in his reasons he goes on to deal with the particular facts, and that we should not infer from the fact that he did not repeat that, that he had not taken that into account.

MR KELEMAN:   Exactly.  When one takes into account the passages he referred to at the beginning of his judgment, the fact that he cites that portion of the Crown submission which clearly encapsulates that concept, the fact that he also says, at page 29 of the application book, although not directly referring to gravity as such, at line 24, he says:

It is easy to see that many an ordinary person in the position in which the appellant was -

so, when one looks at all of that, we would submit that his Honour was aware of the need to consider the ordinary man faced with a degree of gravity that faced the applicant and that he was very much well aware of that but considered at the end of the day that the ordinary person just would not have been induced by the deceased’s conduct to have so far lost control as to have informed an intent to kill or do GBH.

McHUGH J:   But can I just put this to you.  Then at page 28 his Honour goes on - at the bottom of page 28, line 51:

It seems to me that this court should accept that the basis for the jury’s decision was that they were satisfied beyond reasonable doubt that the sexual advances.....up to the point where the appellant lost his self-control were not such as could have induced an ordinary person in the position of the appellant to have so far lost self‑control -

et cetera.  Then his Honour says:

the substantial question .....whether or not the proviso is whether the appellant lost any chance of a different outcome on the s 23(2)(b) question by the incorrect ruling identified in ground 4 having been made.

It seems to me that on the evidence the jury had before them and within the range of findings open to them on that evidence they could hardly have come to any different conclusion about par (b).

MR KELEMAN:   Really, what his Honour was referring to was the evidence that would have been before them, had the evidence been admitted.  I mean, that is clearly what his Honour is concerned with.

McHUGH J:   It is not the way I read it.

MR KELEMAN:   His Honour must be referring to that because he was looking at the application proviso in the context of evidence having been wrongfully excluded and also in relation to incorrect rulings and directions and that was the only basis upon which his Honour was considering the application.  His Honour specifically said that the evidence in relation to the special sensitivity should have been admitted.  So he could only be considering the proviso in that context, with respect, we would submit.

The basic proposition that his Honour relies upon, namely that an ordinary person would not have reacted this way, we would submit, is sound.  The fact that his Honour concentrated on the factual circumstances is not without relevance.  It was appropriate to consider the nature of these advances and they were, at all times it seems, gentle, lacking in hostility and not forceful in any way.  That becomes, in effect, the bottom line.

McHUGH J:   That is one thing, if it is done to an ordinary person, but if you are in the accused’s special position, because of his history and his emotional concern, well, the ordinary man would have a different view.

MR KELEMAN:   That, to some extent ‑ ‑ ‑

KIRBY J:   I would add to that the words “in the position of the accused”.  It seems to import the notion of the peculiarities of the particular condition of the  ‑ ‑ ‑

MR KELEMAN:   But only in assessing the gravity of the conduct.  It plays no part in looking at how a hypothetical man would have responded.  It becomes relevant in terms of setting the context.  You do not look at the ordinary man in complete isolation.  You place the ordinary man into the context of this type of gravity which is what Stingel and Masciantonio  says you do.  But when you actually look at the ordinary man himself, you do not attribute to the ordinary man the personal attributes of the accused and that, we would submit, is made quite clear in Stingel. That is discussed at page ‑ ‑ ‑

BRENNAN CJ:   That raises for me, as present advised, the major problem in this case.  I mean, Stingel, at page 332, seems to me to postulate an ordinary man removed, in a sense, from the particular attributes of the accused as the controlling element of provocation.  I read page 69 of Masciantonio in exactly the same way.  But neither the Tasmanian Code nor, I think, the Victorian law considered in Masciantonio contains the words which 23(2)(b) contains which, in reference to the ordinary person test, says “could have induced an ordinary person in the position of the accused”.

MR KELEMAN:   Certainly.

BRENNAN CJ:   Now, that seems to me to raise a question as to whether one does leave out of account the factors which might be taken into account under 23(2)(a).

KIRBY J:   The statute has it a bit both ways, does it not?  It says “an ordinary person that is in the position of the accused”.

MR KELEMAN:   Certainly, but that is precisely the law that the High Court looked at in Stingel and that is apparent at page 332 of the judgment in Stingel.

BRENNAN CJ:   That is the page I referred you to.  But in Stingel, what it says is that you look at the person without any particular attributes.  You look at the ordinary person only for the purposes of this paragraph (b) test.  How is it - and you can say, of course, that is designed to deal with the fellow whose got a defect of his genitals and so forth, the cases that deal with that.  When one looks at 23(2)(b) in the Crimes Act, is it inviting consideration of the circumstances which have affected the ordinary person, even though one predicates the ordinary powers of self-control, et cetera; in other words, the particular circumstances which are unique to the individual; postulate that individual as having the ordinary powers of self-control and say well, now, with that background and that environment, what do you say?

MR KELEMAN:   We would submit it does not operate in that way.  It simply operates to place the particular conduct of the deceased into context.  Once that context is placed, the ordinary man is then placed into that context and you only look at the ordinary man with the attributes of an ordinary man; not the special sensitivities of the particular accused.  I would submit that that is no different from how the High Court considered the position of the law in Stingel.

McHUGH J:   That may be, but the passage at page 332 was dealing with two questions.  It had already said that the personal characteristics and so on and the personal history of the accused was relevant in determining the gravity of the provocation.  Then at page 332 their Honours say - we said - involve a particular difficulty as to whether the existence of some attribute:

is relevant both to the identification of the content or the gravity of the wrongful act or insult and to the level of power of self-control ‑

The rest of the page deals with the self-control issue.  It seems to me that the error, or arguably the error that Justice Priestley has made in this particular case is that he does not take into account that earlier evidence to determine the content of the gravamen.

MR KELEMAN:   Can I just take your Honour briefly, if I may, to two short passages in Stingel?  At page 331, when looking at the threshold test, and it is about the seventh line from the bottom of page 331:

A consideration of that question will almost inevitably involve projecting the hypothetical ordinary person of s.160(2) into the position of the accused at the time of the killing.  There is nothing objectionable about that so long as it is remembered that the reference to the ordinary person of s.160 is not a reference to a person of precisely identifiable powers of self-control but a reference to a person with powers of self-control within the range of limits of what is “ordinary” for a person of the relevant age.

They do have regard to what the position of the accused is, in the law as discussed in Stingel, we would submit, in exactly the same why as section 23 contemplates that context.

McHUGH J:   I thought we said expressly in Stingel that there was no difference with 23(b).

MR KELEMAN:   What I am submitting is that the way in which the High Court discusses the law in Stingel reflects the law that is contained in section 23 of the Crimes Act that we are looking at here.  In the passage immediately following the one I have just read at page 332, this Court said:

A projection of the “ordinary person’ of the objective test into the position of the accused at the time of the killing will, however, involve a particular difficulty -

and they discuss that.  They make it clear - perhaps I ought to read on.  I will start again:

A projection of the “ordinary person’ of the objective test into the position of the accused at the time of the killing will, however, involve a particular difficulty in a case where the existence of some attribute or characteristic of the accused is relevant both to the identification of the content or the gravity of the wrongful act or insult and to the level of power of self-control of any person possessed of it.

KIRBY J:   That is a particularly horrible case, and within the confines of the way they were instructed to approach it and the way the trial was conducted, the jury appears to have reached a sensible conclusion.  But, the problem is that these words “in the position of the accused” are, in the nature of things, likely to come up for consideration quite a bit.  I mean, it is no mystery that more and more people are alleging that by reason of their background and sensitivity this will come up, and it seems to me that that may well invite particular attention in this Court, given that it is a nuance on Stingel that has not really been considered.

MR KELEMAN:   We would respectfully submit that it has been considered properly and fully in Stingel, and those passages, particularly at pages 331 and 332, make it clear how that situation is to be treated.  We would say that Stingel ‑ ‑ ‑

KIRBY J:   If the view were taken that Justice Priestley had merely moved to apply the proviso, that really is out of line with the whole series of decisions which have taken, in this Court and in the Court of Criminal Appeal, a very strict view on the application, the proviso, where the trial has not been conducted strictly in accordance with law.

MR KELEMAN:   I would not concede that point at all, your Honour.  All his Honour has done is to have determined whether or not, in the view of the

court, there was a substantial miscarriage of justice.  We would submit that that was done consistently with principle.  His Honour had to look at whether or not there was ‑ ‑ ‑

KIRBY J:   But where an error has occurred, is that the question, or is it not the question whether the accused, not having had a trial according to law, it was inevitable that the jury would convict?

MR KELEMAN:   There are two different questions:  there is the fundamental error, and the inevitability of conviction.  Both of those matters were considered by this Court in Glennon.  We would submit that it cannot be submitted that there was not, in fact, a trial according to law in this particular case.  The errors do not fall into that category.  If anything, the errors have only significance in the context of whether or not conviction was inevitable, and that was precisely what his Honour Mr Justice Priestly did, and we would submit that was the way he considered it.  If I can just find the passage in the appeal book.  It is a question of inevitability, your Honour.  It is raised at page 29 of the appeal book where his Honour said at about line 6:

In my view the substantial question for this court to consider in deciding whether or not the proviso is applicable is whether the appellant lost any chance of a different outcome -

So, his Honour is looking at this question of inevitability consistently with principle.  We would say his Honour correctly applied principle to the facts in this cases and came to a view, on the facts, that there was no substantial miscarriage of justice.  So that no question of principle, we would say, arises in this matter, and that the majority judgment discloses no error.  I really have nothing further to add unless I can assist your Honours in any particular way.

BRENNAN CJ:   Yes, thank you, Mr Keleman.  There will be a grant of special leave.

AT 12.03 PM THE MATTER WAS CONCLUDED