Green v The Queen

[1996] HCATrans 386

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S172 of 1996

B e t w e e n -

MALCOLM THOMAS GREEN

Appellant

and

THE QUEEN

Respondent

BRENNAN CJ
TOOHEY J
McHUGH J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 10 DECEMBER 1996, AT 10.23 AM

Copyright in the High Court of Australia

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

MR K. MASON, QC, Solicitor-General for the State of New South Wales:   I appear with my learned friend, MR A.M. BLACKMORE, for the respondent, if the Court pleases.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ:   Yes, Mr Game.

MR GAME:   If the Court pleases, I hand to the Court an outline of argument.

BRENNAN CJ:   Yes, Mr Game.

MR GAME:   If the Court pleases.  At the very end of his record of interview the appellant was asked a question and it appears in the appeal book at page 264.  It was effectively the last question in the record of interview and the record of interview was conducted only a few hours after the killing.  It is question 163.

KIRBY J:   What page?

MR GAME:   Page 264, your Honour:

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.

Now, he was asked some questions about that in evidence and in cross‑examination and one passage appears on page 264, the bottom of the page:

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.

He said in other places in evidence in effect there were flashes of his father over his two sisters, at the time he lost self‑control, that he kept hitting him because he felt trapped.  The evidence, in our submission, would establish a clear connection between his relationship with the deceased as a father figure and his own sense of betrayal in relation to his relationship with his father.  These were the thoughts that were going through his mind at the time he lost self‑control.

Early in the trial counsel sought to cross‑examine a person who had been called as a Crown witness who was in fact one of the sisters of the accused, Cheree Warnock.  He sought to cross‑examine her in relation to the family history, particularly the knowledge of sexual assaults and the accused’s own beliefs in relation to that - his own concerns, his own sense of anger in relation to it.  The trial judge erroneously, as has been conceded in the Court of Criminal Appeal, rejected that evidence in relation to provocation.

TOOHEY J:   You are drawing a distinction there, Mr Game, between evidence that might have been elicited from the sister as to what in fact happened, and then you spoke also of the accused’s reaction to those events.  Are you saying that the cross‑examination was also designed to bear on the second of those aspects?

MR GAME:   Well, your Honour, we are content to argue this appeal on the basis that the material should have gone in to establish the accused’s state of mind rather than necessarily establish the truth or otherwise of those assertions.  But an attempt was made to cross‑examine the sisters as to whether or not sexual assaults had actually taken place, and an attempt was made to introduce into evidence the criminal history of the father.

TOOHEY J:   Yes, I understand that.  But I am not sure - unless the evidence in some way showed that the accused was at the time, or even later perhaps, aware of what had happened, I am not sure how cross‑examination of the sister on that aspect could be relevant.

MR GAME:   Well, what was sought to do was to cross‑examine the sister and mother and other sister to establish both that the appellant knew of this and the time at which he knew of it and his reaction to that knowledge over a long period of time.  Now, this ruling - and the evidence was quite pertinent in relation to that - did two things:  (a) it excluded the evidence in relation to it being introduced in relation to provocation, but (b) a second error was introduced into the whole proceedings, which was that the case from that point on had to be conducted on the basis that the provocation had to induce in the ordinary man a reaction which might cause him or her to do what the accused did.  That subsequently formed ground 4 of the grounds of appeal.  But those two errors, in effect, coloured the balance of the trial.

On the following morning after this ruling counsel returned to court armed with further arguments for the admission of the evidence in relation to the family history.  He put to the trial judge that the evidence in relation to the family history should be admitted, in effect, to show that if the accused had said what the Sirolas said he had said, which was words something along the lines that there was somebody that he would like to kill, and this was on probably the night before the night of the killing, that this was, in fact, a reference to his father.  The trial judge accordingly admitted the evidence in relation to that issue but excluded it in relation to provocation.  Now, just to put the thing in context it, in fact, ultimately was used against the accused, the evidence of the family history in relation to provocation, and that can be seen in the appeal book at page 235.

KIRBY J:   The history of the father’s alleged sexual abuse of the sisters did go before the jury, though?

MR GAME:   It went before the jury strictly to meet - and I will take the Court shortly to the references in the summing up to this - the evidence of the Sirolas that the accused said that there was somebody that he would like to kill.  That is to say if he did say that then he was referring to his father, but it was specifically excluded in relation to provocation.  Now, if one looks at page 235 one can see how, in effect, the evidence was turned on its head against the accused.  It is referred there to a couple of passages of evidence in which was said:

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

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

Then:

The Crown says when you look at that evidence, even if you reject its version as to what took place, and if you accept the accused’s version at its highest, it says that you will treat those answers literally as suggesting that if he did lose control it had nothing to do with the conduct of the victim but he lost control because of thoughts of his father and his sisters going through his mind.  That is the Crown case as to why it says, if you get to provocation, that it has been negatived; and had nothing to do with the accused’s conduct.

KIRBY J:   So that, although there was an earlier ruling that it was not to be taken into account, save for the particular purpose, in fact, when the judge gave the charge, he was using it in the connection of provocation.

MR GAME:   In a negative way.  In one looks at the summing up ‑ if it would be convenient, I could take the Court to some passages now.  At page 213 in the summing up, lines 30 and following:

The evidence about the father’s activities in relation to the sisters, and alleged sexual misconduct in relation to them, and also the evidence in relation to the father’s assaults upon the wife has been brought forward and is relevant to whether, in fact, there was this so called claim of pre‑meditation.

.....The evidence is brought forward to support a view that the unstated person or the unidentified person in this alleged conversation would not have been Mr Gillies ‑

Then, at page 230, there is a reference at page ‑ it is not a specific reference to this evidence.  It says, lines 35 to 45:

The third alternative is available to the Crown to ensure that an accused person who is abnormally or exceptionally sensitive to provocative behaviour is not permitted to escape full responsibility for causing the death of another person.

Then, at page 231, there is a statement at the bottom of the page, of the “ordinary person” test, which, it is not essential to our argument, but we would submit that that passage at the bottom of the page on 231 is, at best, confusing.  And then, at page 233, lines 30 and following:

Whether or not he was sensitive or not, whether or not he was a “volcano capable of being exploded” or whether he thought about his sisters or about his father’s activities with them is not really to the point.

As I have said to you, ladies and gentlemen of the jury, the evidence of the accused in relation to his feelings about his father, his feelings in relation to offences of a sexual nature allegedly committed by the father upon the sisters is relevant (as I have earlier indicated) was admitted, to neutralise the premeditation claim that has been advanced through the Sirolas ‑

Then at page 234 one can see, in a sense, what the accused was left with as his case, lines 10 to 20:

brought this friendship to an end was the conduct of the victim that night.  The accused claims a younger man, two-thirds of his age, made sexual advances and sexual overtures to him - a person who was heterosexual, who had never been caught in a situation before.  He says “It is this conduct that caused me to lose my self-control”.

So, in effect, the defence was severely truncated by the ruling, because the very account that he gave in relation to his loss of self-control was taken away from him.  And then one sees the passage to which I have already referred at page 235.  It was used against him in the way in which I have identified.

TOOHEY J:   Mr Game, I am just having a bit of trouble fitting this present line of argument into the grounds of appeal and particularly because ground (c), which is on page 317, contends that:

The Court of Criminal Appeal erred in holding that evidence of the truth of what the Appellant’s father had done.....was not admissible ‑

but your present argument is really a much wider one that that, is it not?  You are saying, in effect, as I understand it, that even the appellant’s belief as to what might have happened was shut out from the jury in relation to provocation.

MR GAME:   Yes.  Your Honour, in order to understand the grounds, it is necessary to go back into the judgment of the Court of Criminal Appeal, because the three principal grounds that were advanced were conceded by the Court of Criminal Appeal.  The Court of Criminal Appeal dismissed the appeal on application of the proviso, but in order to understand the whole argument it is necessary to go back into the grounds which were - and I will take the Court to them directly - argued in the Court of Criminal Appeal and which were upheld as grounds here in the appeal book at page 265.

TOOHEY J:   So are you saying, in effect, that this present line of argument is really not a challenge to the Court of Criminal Appeal, but was given insufficient weight or attention in considering whether or not the proviso would apply?

MR GAME:   Your Honour, there are a number of aspects to the argument but, firstly, it is necessary to understand how the Court of Criminal Appeal could have concluded (a) that the appellant would, in any case, have succeeded under 23(2)(a) but, in any case, lost under 23(2)(b).  The critical and central error which we identify in the judgment of the Court of Criminal Appeal concerns the failure of the Court to have regard to this material in respect of 23(2)(b), that is to say, it all touched on the gravity of the provocation, but it was conceded as being relevant to 23(2)(a) in the Court of Criminal Appeal.

Justice Priestley concluded that the appellant would, in any case, have succeeded under 23(2)(a).  We dispute that finding.  We say that how could it be said that he would in any case have succeeded under 23(2)(a) when that very evidence was used against him to show that (a) he was not acting under provocation, and (b) in respect of section 23(2)(b) we submit that none of this material was considered by the Court of Criminal Appeal in considering section 23(2)(b).  It is relevant because it establishes the gravity of the provocation.

It was the central thing which operated on his mind in the circumstances.  It explained the gravity of the conduct of the deceased, particularly in circumstances where the deceased was, on the evidence, a father figure, a person who the accused had trusted, who had given him employment, a person who he had looked up to, who knew his circumstances, who knew that just a few days ago he had broken up with his girlfriend.  In a sense, he was one of his closest friends.  So that there was a relationship of trust between the two.

So that what took place in the bed - and we do not agree with the description of it as merely an amorous touching but an unwanted and rejected on more than one occasion sexual advance by a naked person who has invited a person to stay at his place, who has a particular relationship with him, and it is that particular relationship which goes to the heart of this case.  So all I have been attempting to do so far is to show how the material was excluded in the trial and how it came before the court, but all of this is bound up in the ground of appeal which says that the court erred in applying the proviso.  That is the way in which we put the argument.

McHUGH J:   One difficulty I am having at the moment with your argument is not in relation to 23(2)(b) because, at the moment, it seems to me plain that the material to which you have referred was relevant to 23(2)(b), but the passages which you have been reading, I think for the most part, are passages directed to paragraph (a) and I have more problem about (a).  It must go to provocation but, ultimately, it is whether or not, under (a), is whether or not the act or omission is the result of a loss of self‑control induced by any conduct of the deceased.  The conduct here is the sexual advances and as to whether or not that caused the - that must be shown that that induced the accused to lose self-control, but perhaps the charge was not as full as it could have been, but are you suggesting that there was any error in what was actually said by the judge about paragraph (a)?

MR GAME:   Your Honour, the conduct of the deceased does not exclude the whole of the relationship between the deceased and the accused and in respect of (b) putting ‑ ‑ ‑

McHUGH J:   You are on (b) now.

MR GAME:   No, but, your Honour, to understand the conduct of the deceased one has to understand the relationship between the two because one has to understand whether or not the accused was provoked by that conduct.  Now, one cannot exclude the relationship ‑ ‑ ‑

McHUGH J:   No, and it clearly must go to provocation, but once it goes to provocation, you still have to ask yourself the question, “Was the loss of self‑control induced by any conduct of the deceased?”

MR GAME:   Your Honour, if one puts it in those - I am not sure that I am disagreeing with you because, your Honour, it was conduct of the deceased which induced the loss of self‑control.

McHUGH J:   Yes.

MR GAME:   Loss of self‑control in a person with a particular history, but, your Honour, even on (a) one has to bring into account that particular history.  In fact, the very way in which it was used against the accused, that passage at page 235 really demonstrates that.

McHUGH J:   I know.  When you said that I just wondered whether or not the criticism was well‑founded.  It may be on the facts of this case, but I could imagine cases where somebody loses self‑control, not because of the conduct of the deceased, but because in some way it does trigger off something.

MR GAME:   That may be so, your Honour, and this issue was never addressed in the Court of Criminal Appeal and if it had any foundation then it is obviously a matter that would had to have been addressed, but the relationship between the two was not tangential in any sense, as can be seen by answer 163 and as can be seen by the fact that the betrayal by the father of the sisters and the mother was of the very same kind as was now happening to him in a person that he trusted as a father figure and so ‑ ‑ ‑

McHUGH J:   The difficulties of this case seem to me to rely on other areas and it is the question of reasonable proportionality and whether it fits in at all with this section now.  I must say I have some difficulty about that whole concept really having regard to the language of paragraph (b) and subsection (3) assumes that it has got some part to play or may have some part to play and it is not easy to see how it fits in there.

MR GAME:   Well, proportionality is not and has not been since the decision of this Court in Johnson an element that it is necessary to establish ‑ ‑ ‑

McHUGH J:   No.

MR GAME:   ‑ ‑ ‑ and one might have thought that the drafters of this legislation which in a sense followed on the heels of Johnson, but it really more directly followed on cases such as Georgia Hill Case, and was concerned more with the position of battered wives than with the particular circumstances such as these, but, in our submission, the matter to which your Honour refers, in our submission, ultimately comes down to an application of the objective test in subsection (b), which is, could the ordinary person in the position of the appellant have lost self‑control to that degree, and when one sees the loss of self‑control in subsection (b) has been cut down from some of the statements as to what was required in Johnson’s Case, it is certainly a lower standard than was required by this Court in Stingel’s Case.

There are varying statements in Johnson and there are varying statements in Moffa.  In fact, some judges say in this test loss of self‑control to the degree to what the accused actually did.  But to have so far lost self‑control as to have formed an intent to kill or to inflict grievous bodily harm is, in our submission, a lower standard than was required at the time of Johnson’s Case. 

McHUGH J:   What is your submission about “formed an intent”?  Do you qualify if a person would have formed an intent to kill and one does not then have to worry about proportionality or what happens after that moment?

MR GAME:   Exactly, your Honour.  All that you need is that the ordinary person in the position of the accused could have formed an intent to do serious injury.

McHUGH J:   Yes.

MR GAME:   Justice Priestley, not even having regard to the family history, said “could have formed an intent to throw blows”.

KIRBY J:   I think he fell short of “causing serious injury”.

MR GAME:   One would assume so, yes, your Honour.  But there are difficulties with the way in which Justice Priestley dealt with this aspect of the case anyway because of ‑ ‑ ‑

KIRBY J:   Where do we find a description of the history of the legislation?  You say in your first paragraph that it is in substantially different form to its predecessor.

MR GAME:   Your Honour, I have the second reading speech and I have also put on the list of authorities both Johnson and Parker which have the earlier legislation, but I hand to the Court the second reading speech and I will take the Court to the relevant passages.

McHUGH J:   I was in Johnson, but I must say I rather think that you would be better off forgetting about those cases altogether and just concentrate on the words of the section.

MR GAME:   I am not sure that it helps terribly much, your Honour.  But I will take the Court to the second reading speech because it does outline what the - at page 2485 the discussion of section 23 begins.  Then over at page 2486 there is reference to the Georgia Hill Case.  Then at point 5:

However, the new provocation law will not allow accused persons to raise nebulous possibilities as a shield against punishment.  The test is not only whether the accused was provoked but also whether an ordinary person, in the position of the accused, would have been provoked.

It is actually “could have been”.

The formula of words used does not introduce an entirely subjective test of provocation, but it does allow the courts, developing the law through cases, to interpret what the position of the accused was.  I expect that we can look to the sensible but humane application by the courts of this formula of words.

BRENNAN CJ:   How does that assist us to construe this Act?

MR GAME:   It does not particularly, but it does provide the history as to how it came about that this form of words was introduced.  The previous provision is contained in Johnson and can be seen in the headnote to Johnson - which can be seen better in the headnote to Parker, which is at 111 CLR 610. The legislation was in the same form. The reference to use of “grossly insulting language or gestures” has been excluded. The onus of proof has gone, and the ordinary person in a position of the accused has been introduced in the new legislation, whereas the old legislation said:

it was reasonably calculated to deprive an ordinary person of the power of self‑control and did in fact deprive the accused of such power -

McHUGH J:   The trigger for the changes was a very strong campaign conducted by women’s groups which complained that that part of the definition that is required, that the act causing death be done suddenly in the heat of passion, was most unfair to a number of women defendants, such as Georgina Hill and others, who have been convicted of killing their spouses or husbands, I think, in some cases when they were asleep - Mrs Roberts was one, and others.  The Hill decision certainly improved the position of women defendants, and then that legislation was brought in.  That seemed to be the general thrust.  But I do not know that you get much out of the history as to the meaning of the section.

MR GAME:   I am not sure that you do either.  But the result of the section in terms of statutory interpretation in respect of the ordinary person in the position of the accused, in our submission, is very much that one is not so much looking for characteristics of the ordinary person any more, which was very much the focus of the English Homicide Act, and very much the focus of the common law.  The only characteristic with which one is concerned, in effect, is disregarding the characteristic of self‑control in the accused, because one has to disregard that when one comes to the application of the “ordinary person” test.

But in other respects, one is not looking for characteristics of the ordinary person; one is putting the ordinary person in the position of the accused.  So, it does produce a different focus of the inquiry.  For example, exercises such as asking oneself is the ordinary person of that particular class, or sex, or cultural background, cease to have such importance because all of those things are given when one puts the ordinary person in that position, when asks oneself how grave is the provocation.  An assessment as to the gravity of the provocation itself involves a judgment - how serious was it?  There is clearly, in our submission, enormity of judgment in judging the seriousness of the conduct and we do not ‑ ‑ ‑

KIRBY J:   What I do not really understand is what the addition of the words “in the position of the accused” did.  The old statutory provision was just an “ordinary person” - and then this new phrase was introduced - seems to be an internal contradiction in the formula.  The original formula was presumably an objective standard, and then this additional phrase was added to soften that.  But it seems difficult to reconcile the two notions.

MR GAME:   It is difficult to reconcile the two notions, your Honour, but, in a sense, this statutory provision heightens the irreconcilability of the legislation but that irreconcilability has been acknowledged on many occasions in the cases, but it is pointless for one to attempt to argue against the application of an ordinary person in the position of the accused when it appears in the statutory provision.  The exercise is to make sense of it.

KIRBY J:   I realise that, but I am seeking your help to make sense of it because ‑ ‑ ‑

MR GAME:   I say that, your Honour, because there have been temptations to simply do away with the ordinary person test in common law examinations because of the irreconcilability of it and Justice Murphy’s judgment in Moffa’s Case was such an example. 

KIRBY J:   There seem to have been three possibilities.  One the objective test or to go to the Murphy and Irish approach of the subjective test and this is somewhere in between, but I do not quite understand how it works.  What are the elements subjected to the accused that are brought in by that additional phrase that modifies what was otherwise an objective standard designed to spell out the obligation on everybody to control their passions, and not to give way to irrational responses?

MR GAME:   The effect of interpretation of this provision is that one no longer has to inquire, for example, is the ordinary person of infirm mind, is the ordinary person drunk?  That is no longer relevant to the inquiry, in our submission.  One does not have to engage in that.

KIRBY J:   The words are “in the position of the accused”, not with the background of the accused, or with the knowledge of the accused, or with the experience of the accused.

MR GAME:   In our submission, “in the position of the accused” means with the background, every single thing that touches upon the loss of self‑control.  So, for example, in the position of the accused, is the accused there with thoughts of ‑ ‑ ‑

KIRBY J:   The difficulty with that theory is that that would have justified a completely subjective approach and that, by the second reading speech and by the words of the legislature, has being rejected.

MR GAME:   But, your Honour, one cannot exclude a person’s background in considering their position.

GUMMOW J:   That is the question, Mr Game.  In the position at a particular time in particular circumstances.

MR GAME:   Yes, your Honour, it must be the position of the ‑ ‑ ‑

GUMMOW J:   Looked at objectively.  This person in this room at this time, et cetera, et cetera, not a person carrying a particular mental baggage.

MR GAME:   But, in our submission, it is a person carrying a particular mental baggage, because that is his position.

BRENNAN CJ:   Is this your case that what must be done is a two-stage test:  the first stage is to determine the gravity of the provocation to the individual accused and to ascertain the gravity of the provocation to the individual accused, you have to take him as he is, in all the background and in all the circumstances?

MR GAME:   Yes.

BRENNAN CJ:   Having ascertained the gravity of the provocation to the individual accused, you then must postulate what an ordinary person, receiving provocation of such a severity, might do or would do or could do?

MR GAME:   Exactly.

BRENNAN CJ:   Well then, what is the distinction between the operation of this section of the New South Wales Crimes Act and Stinger?

MR GAME:   Well, in our submission, there is very little distinction.

BRENNAN CJ:   Well now, if that is so, your argument in this case is that the trial judge took away from the jury the opportunity to hear and then to consider evidence which was relevant to the determination of the gravity of the provocation offered to him.  Is that right?

MR GAME:   Exactly, your Honour.

BRENNAN CJ:   And, if that is so, then there is no case for the proviso to apply?

MR GAME:   Exactly, your Honour.

BRENNAN CJ:   Well now, there is one other aspect to it, however, and that is that in relation to the admissibility of the evidence of what in fact was done by the father to the siblings, that would have been irrelevant unless the accused knew of it.  So it is the knowledge of it and not the fact of it that is relevant.

MR GAME:   Yes.

BRENNAN CJ:   So, therefore, evidence of the fact of it must have been inadmissible.

MR GAME:   We are not arguing that ground.

McHUGH J:   I am still having some difficulty following your argument now, particularly in the light of your answers to the Chief Justice.  Do you now concede that, on the issue of the self-control of the ordinary person, you do not incorporate personal characteristics or attributes of the accused?

MR GAME:   The ordinary person?

McHUGH J:   Yes.

MR GAME:  The ordinary person has, on our argument, no characteristics at all; the ordinary person is a standard, in effect, which is put in a position of the accused.  The only standard ‑ ‑ ‑

McHUGH J:   Well that is the difficulty I have, because that seems to me to be a departure from both Stingel and Masciantonio.

MR GAME:   Well, the result is not that different, your Honour, in my submission, but I will put it this way, because the Homicide Act really required a consideration of what characteristics did the ordinary person have.  So did the New Zealand legislation, which was very influential because of a decision called McGregor.  But that inquiry seems to be inquiring about what characteristics of the ordinary person possesses seems to be unnecessary, in our submission, because the provision requires one as best one can, to put the ordinary person in the position of the accused, so that really all it is is a standard against which you judge the gravity of the provocation and the loss of self-control.

That is to say, to put it crudely, if the provocation is judged as having, shall we say, seven point five on the Richter scale of gravity of provocation, then one succeeds in applying the ordinary person test, and, in a sense, there is a sliding scale of ordinary person and gravity of provocation and if they meet, one succeeds.  So, for example, if one has a person ‑ the glue sniffing example is the recent decision of the House of Lords in Morhall, where the glue sniffing had to be taken into account in assessing the gravity of the provocation.  But one’s quality as a glue sniffer, or one’s qualities as an alcoholic, or whatever, are not relevant when one applies an ordinary person test.

McHUGH J:   Can I become more contrary?  Do you accept that the characteristics of the ordinary person are merely those of a person with ordinary powers of self control?

MR GAME:   Yes.

McHUGH J:   You accept that?

MR GAME:   Yes.

McHUGH J:   And, the words “in the position of the accused” do not qualify that in any way?

MR GAME:   No.

McHUGH J:   Right.  Well then, you accept Masciantonio and Stingel.

MR GAME:   But, because you have taken into account all of those things in assessing the gravity of the provocation and, as I said, we do not dispute that there is a qualitative judgment when you ask yourself, or when the jury asks themselves, “How serious was the provocation?”, that you are saving the test and you are applying it to a state of affairs which exists, so that you have given a meaningful application to the ordinary person in the accused’s test.

McHUGH J:   The words “In the position of the accused” are somewhat unfortunate, I think, in terms of this section.

KIRBY J:   Did they not come from endeavours in the insurance field?  I think there is something in the Insurance Contracts Act about that time to look at the insured as the ordinary insured person in the position of the insured, and at about the time this legislation was being developed, I think this was being thrown around in the civil area, and somehow somebody must have had the bright idea to bring it into this Act.

MR GAME:   It may be; it may be also, your Honour, although I cannot recall, but it may be that one of the judgments in either Kamplin or Parker referred to putting the ordinary person in the position of the accused, and I would tend to suggest that that would be a likely possibility.

KIRBY J:   The one thing is clear, and that is that it was not intended that it should be the accused, because it would have been so simple to say, “Replace “ordinary man” by ‘the accused’, and that would have been the subjective test, which had been adopted by the Supreme Court of Ireland, and by some other courts, but it was clearly rejected.

MR GAME:   There would be no point at all to subsection (b).  But I should say this, in terms of the directions that were ‑ coming back to a matter raised by your Honour Justice McHugh ‑ ‑ ‑

GUMMOW J:   Just before you do that, Mr Game, am I right in thinking then that this phrase, “In the position of the accused”, you treat as bringing with it the attribution to the ordinary person of special sensitivities of this particular individual, by reason of the past history of that particular individual, not being immediately related to the particular setting in context where the conduct of the deceased takes place?

MR GAME:   I am not sure about the “not immediately being related” because, in our submission, the history was immediately related having regard to the explanation that he gave for what he did, but all of his attributes which go to an assessment of the ‑ ‑ ‑

GUMMOW J:   What an extraordinary story.  He has last seen his father when he was nine or 10 years old, except for one incident when he was 15.

MR GAME:   But, your Honour, there is a lot more evidence about it.  He had gone looking for his father at Lighting Ridge.

GUMMOW J:   Yes, when he was 15.

MR GAME:   He had been talking about ‑ ‑ ‑

GUMMOW J:   He was belted up by him too but, nevertheless, that gives rise to some special sensitivity in this person.  It is like an eggshell case in a way.

MR GAME:   It is exactly like an eggshell case.

GUMMOW J:   But you attribute the eggshell to the ordinary person, that is what I am trying to ask.

MR GAME:   You have to put the ordinary person in a position of the eggshell accused, yes.

BRENNAN CJ:   By that you mean no more than you must somehow or other produce a schizophrenia into the accused.  On the one hand, he is sensitive to the particular provocation that is offered to him and, on the other, he is capable of exercising the ordinary powers of self-control, is that right?

MR GAME:   There is a minimum standard which is the powers of self‑control to form an intention.

BRENNAN CJ:   Of an ordinary person.

MR GAME:   Yes, to form an intention to cause serious injury, yes.  It is a schizophrenia, that cannot be escaped.

BRENNAN CJ:   Yes.

McHUGH J:   No, it is an ordinary person having suffered the sting of provocation which the accused has suffered.

MR GAME:   Yes, exactly.

BRENNAN CJ:   And in order to determine the sting, what circumstances do you say you take into account?  Do you take into account, for example, physical peculiarities, racial or ethnic origin, particular history, or only the circumstances surrounding the offering of the provocation itself?

MR GAME:   Your Honour, we submit that every single thing that puts in context the state of mind of the accused at the moment at which he loses his self‑control or her self‑control is that ‑ ‑ ‑

TOOHEY J:   Are you saying that in relation to paragraph (b) as well as paragraph (a)?

MR GAME:   That is what you have to do, yes.  To assess the gravity of the provocation, you have to take into account every single thing, but when one says history and when one says background, really, what one is speaking of is that ‑ ‑ ‑

GUMMOW J:   One has to be speaking of the mental condition of this individual.

MR GAME:   Yes, that must be right.

GUMMOW J:   On your submission ‑ ‑ ‑

MR GAME:   On our submission, yes.  Sorry, I was not suggestingit.  What I was going to say was that when one speaks of background and history and so forth, that is really, in a sense, shorthand for saying the things that are in the mind of the accused person at the moment that he loses his self‑control.

KIRBY J:   I find that hard to accept given (a) that there had been a debate before this legislation was adopted as to whether the subjective test should be applied; (b) that that debate is reflected in the second reading speech that you handed up, and (c) the theory that you are propounding really does not need the words “an ordinary person in the position of”.  It just would have been enough to say, “the conduct of the deceased was such as could have induced the accused”.

MR GAME:   But my point, your Honour, is that when one applies that test, one ignores the accused’s own powers of self‑control for the purposes of the application of that test.

McHUGH J:   That is really the only distinction, is it not?

MR GAME:   Yes, your Honour.

McHUGH J:   It is ‑ ‑ ‑

BRENNAN CJ:   A thermometer.

McHUGH J:   Yes.  The section would have been better drafted if it had referred to the accused losing his self‑control if he had had the power of self‑control of an ordinary person.

MR GAME:   Yes, exactly.

KIRBY J:   But the reference to “the ordinary person” and the persistence with that reference seems to be indicating a parliamentary intention that it is expected of a person in the position of the accused that that person will have the self‑control of an ordinary person.  The self‑control of an ordinary person would not react in a murderous way to the kind of advances that are described by the evidence here.  At least, that is the view that the majority took in the Court of Criminal Appeal.  It is unarguable that an ordinary person would, and that therefore, I take it, this is the reasoning on the proviso, that therefore you really did not lose a chance of acquittal?

MR GAME:   Yes, but the Court of Criminal Appeal failed to appreciate that the evidence was relevant to paragraph (b), and that is clear from an examination of the judgment.  So that, in effect, they said they were dealing with a provocation that was far less grave than that which was in fact exposed by the accused’s own case and the evidence in the case.  I should say also that, although the evidence of the family history was excluded, the evidence of the relationship between the accused and the deceased was in evidence.  So that, if one coupled that with the evidence in relation to his family which was excluded, then in a sense it was quite a strong case.  In fact, Justice Smart described the provocation as grave.

KIRBY J:   Yes, but I find that a rather unpersuasive description myself if you are testing it by “the ordinary person”.

MR GAME:   Your Honour, could I say this:  firstly, the question which we are now arguing was not addressed by the Court of Criminal Appeal at all.  Secondly, when one looks at section 23(2)(b), as I said before, one is not concerned with the powers of self‑control of the accused.  All one says is that one ignores the powers of self‑control of the accused for the purposes of the application of that provision.  That is what that provision achieves.

KIRBY J:   Is there any discussion in any of the authorities in the Court of Criminal Appeal other than this case about those words “an ordinary person in the position of the accused”?

MR GAME:   There is no discussion which is helpful.  The case of Baraghith simply says that it is the same as Stingel, and there is another case called Tumanako which says the same.  There is no discussion which would be helpful to the Court, in our submission.

KIRBY J:   Does it appear in other statutes that you have been able to find?

MR GAME:   It appears in no other provocation legislation in Australia.  It does not appear in the Homicide Act.  It does not appear in the Canadian legislation.  It does not appear in the New Zealand legislation, so it is an exclusively New South Wales piece of legislative thought.  I should say also that I referred earlier to a passage in the summing up where his Honour said in the ordinary person test the application was:

to ensure that an accused person who is abnormally or exceptionally sensitive to provocative behaviour is not permitted to escape full responsibility -

and the jury came back and asked a question as to could the trial judge re‑explain provocation, murder and manslaughter and that appears at page 246.  His Honour repeated directions and then referred to abnormally, page 249:

The third alternative, that is the one which refers to the ordinary person, is available to the Crown to ensure that an accused person who is abnormally or exceptionally sensitive to provocative behaviour is not permitted to escape full responsibility.

In our submission, that direction, particularly in the circumstances of this case did nothing to assist and really misled the jury as to what the nature of the inquiry was.

BRENNAN CJ:   Well, your problem is not whether or not the jury would have found one way or the other.  It was that the jury did not get the opportunity of finding and assessing.

MR GAME:   That is right, exactly, your Honour.

BRENNAN CJ:   Yes.

MR GAME:   Now, this takes one then to the way in which the Court of Criminal Appeal dealt with ‑ ‑ ‑

BRENNAN CJ:   Before you leave that there is one observation at page 234 that has me puzzled:

The accused claims a younger man, two‑thirds of his age ‑ ‑ ‑

GUMMOW J:   Yes, I could not understand that either.

BRENNAN CJ:   What is the reference to two‑thirds of his age.  What ages were they?

McHUGH J:   22 and 36, were not they?

BRENNAN CJ:   Yes.

MR GAME:   He was 22 ‑ ‑ ‑

GUMMOW J:   No, it is the wrong way round.

BRENNAN CJ:   It is the wrong way round.

MR GAME:   It is the wrong way round.He was 22, the deceased was 36.  He had known the deceased for six years. 

BRENNAN CJ:   I mean, the accused’s case here was that this was an abuse by a father figure.  Is that not right?

MR GAME:   Exactly, your Honour.  The case that the accused was left putting was that which appears at page 234, which is an unwanted sexual advance by an older man.

BRENNAN CJ:   Not just by an older man, by somebody who was in a particular relationship with him.

MR GAME:   Yes, but as I said - I will be repeating myself if I say it again, but one has to bring in both sides of that particular history.

KIRBY J:   What was their history just very briefly?  The father had left, had he?

MR GAME:   The history was he had not seen - the accused said at page - evidence came from his sister that he hated his father and he wished he was the the oldest, that he knew about the sexual assaults, that it was a matter that was talked about in the family.  His mother gave evidence that he felt like killing his father for what he had done to the girls, that is Mrs Riley.  Caroline Vrolyks’s sister gave similar evidence.  Michelle Clarkson, another sister, said the same.  She said at page 124:

he would make sure he never hurt us ever again.

The accused at pages 80 to 81 - is some history from the accused in relation to this.  That was some evidence that his concerns were quite current.  He had mentioned it at a family wedding which had taken place a month before at which the deceased was, in fact, the organist.  Now, the evidence of Cheree Warnock in relation to this is at pages 64 to 65, and what she said.  It is the whole of 64 and page 65.  The evidence then at page 120 line 53 is the mother’s evidence in relation to it ‑ ‑ ‑

KIRBY J:   But in terms of time, what was the result of this, that at age what did the father disappear and did the accused live with the deceased thereafter or ‑ ‑ ‑

MR GAME:   He left the family when he was aged about ‑ ‑ ‑

GUMMOW J:   Page 81, I think.  Nine or 10 he says.

MR GAME:   I think he was either nine or 10, yes, and the mother seems to think a little bit younger at page 120 and one sees in that passage ‑ ‑ ‑

KIRBY J:   And he went to live with the deceased, did he, then?

MR GAME:   No, he lived in Mudgee, but, no, he knew the deceased for six years and the deceased was a father figure to him and that appears in the evidence ‑ ‑ ‑

KIRBY J:   This father figure is a sort of general description.  Was he living with the deceased or not?

MR GAME:   No, your Honour, but his sister said at page 69 line 40:

He always spoke very good of him.  He always said that Don was always there for him if he needed someone.  He always spoke good of him.

Q.  Can you remember any particular things he said about him along that line?
A.  He said if he ever needed anything that he only had to ask Don and he would try and help him.

Q.  Did he say how he thought of Don?
A.  He always said that Don was like a father that he never had, like he thought of him that way because he was always good to him.

Then over the page that night when he went out for dinner to the deceased’s place, “He was in a good mood”, and there was evidence from Mrs Gillies, the deceased’s mother, that he gave him work, that is at page 24.  The accused himself said of the deceased at page 87:

Q.  Was he a good friend?
A.  One of me best I suppose.

Q.  Did you trust him?
A.  Yes.

Q.  Did you look up to him?
A.  Yes.

Q.  Did he give you advice about things?
A.  Sometimes.

Q.  Did you value his advice?

So there was evidence from the accused in relation to that and at page ‑ ‑ ‑

GUMMOW J:   There was no evidence, was there, of the accused disclosing his own family history?

MR GAME:   No, there was evidence that he disclosed the information in relation to his sister - sorry, there was evidence that he disclosed that he had broken up with his girlfriend.

GUMMOW J:   I realise that, but in relation to his bashing and other ‑ ‑ ‑

MR GAME:   There is no evidence about that question, your Honour.  At page 112 line 37, he said:

That he took me trust away and trapped me, scared me.

Now, that, in our submission, is an important piece of evidence in the case.

KIRBY J:   What line is that?

MR GAME:   It is at line 37 and he said at 104 with respect to being trapped, lines 45 to 50:

Q.  And what did you do then?
A.  Kept hitting him.

Q.  Why?
A.  I just felt trapped, scared.

McHUGH J:   That raises a question I want to ask you about. Provocation is primarily concerned about anger and resentment; self‑defence about fear.  To what extent is fear a relevant element on the issue of provocation?

MR GAME:   Your Honour, firstly, elsewhere he did say that he was angry.

McHUGH J:   I appreciate that.

MR GAME:   There is a case, the name of which escapes me at the moment, which says that provocation is not restricted to anger.  I am not sure whether it is Van Den Hock, but it is a decision of Chief Justice Mason in which he said it was not restricted to anger, but was restricted to responses of fear.  Now, I had a feeling that was Van Den Hock, but there certainly is a decision of this Court in which that question is considered.  I have read it in the last few days, I just cannot remember its name, but has been favourably to the accused’s case in these circumstances.

McHUGH J:   There is a passage in Glanville Williams’ textbook of Criminal Law in which he says that fear can be relevant to provocation, but he does not cite any authority.

MR GAME:   If I could send up a reference to that case, which I will hopefully pull out after today. 

GUMMOW J:   Can I just ask you a question which is out of sequence?  This phrase, “in the position of the accused”, does that include the circumstance here that both the accused and the deceased had been drinking for some hours - wine and then scotch?  Is that all part of the position of the accused?  Would you put the “ordinary person” is that position, who is slightly woozy with drink?

MR GAME:   One would have to examine that quite closely, but it may be relevant in this sense, your Honour; it is not a matter that has been examined in any detail and ‑ ‑ ‑

GUMMOW J:   Can you measure yourself, the self‑control of the ordinary person, the ordinary person being slightly woozy.

MR GAME:   The ordinary person is not slightly woozy, but the ordinary person ‑ ‑ ‑

GUMMOW J:   But does that have any impact on the measure of self‑control that is involved?

MR GAME:   It does not have any impact on the measure of self‑control, but it does have - it may have - I will not say it does, but it may have some impact on the level of the gravity of the provocation.  If I could give an example:  if the accused knows that the deceased is drunk and, therefore, less likely to respond, or less likely to be capable of being communicated with in the sense of understanding rebuffs; you know, “I said no”, and the deceased was, shall we say, so drunk that he would not take no for an answer, then the intoxication would be part of the context. 

I really put that argumentatively, your Honour, to show how it could be relevant.  But the accused’s own intoxication, in this case, has not been relied upon as being of any particular significance in the case.  What the accused knows about what the deceased knows about the accused can be relevant.  For example, the accused knew that the deceased knew that the accused would not be interested in having sex with him, or should have known it, because he had had a girlfriend until a few days before.  So, the deceased’s knowledge of his sexuality is a relevant matter to the level of provocation and in that ‑ ‑ ‑

BRENNAN CJ:   Whose knowledge?

MR GAME:   Well, the accused knows that the deceased knows about his sexuality, therefore, the accused knows that the deceased should have known better than to ask him for sex.

BRENNAN CJ:   I see, yes.

McHUGH J:   Van Den Hock is the case, and Sir Anthony Mason took the view that fear was a factor that could not be ignored, and in Tikos [No 1] Justice Smith, who was a great criminal lawyer, apparently also accepted it.

KIRBY J:   This was a case not of assault, except in a rather minor key, but of advance, and the fear that one is talking about is the fear of, not of the physical assault, but of inappropriate advances on the part of the deceased.  The fear that an ordinary person would have would not be one that would lead to this sort of a response.  What I would like you to do before you are finished is to tell me what work you see those words which have been retained, “an ordinary person in the position of” do, according to your theory of the section, because I am not clear about it.

MR GAME:   Your Honour, I am not sure how much further I can take that than I have, but I will attempt to do so, but firstly, with respect to actually what took place, we do not agree with the description of the activities of the deceased as being an amorous advance.  First of all, he had invited him to stay the night; said, you sleep in this room, and then quite a short time later he came into the room without any clothes on, was rebuffed twice, and told once that he did not want to, that I am not like this.  So there is a physical rebuff twice and there is persistent attempts to, first of all put his hand on his buttocks and then on his penis.  Now those, your Honour, we would not describe as being amorous advances and it was persistent by putting his arm around him.  That, in our submission, does not ‑ ‑ ‑

KIRBY J:   How do you describe them?  You used the words Justice Smart used.

MR GAME:   I would not use precisely those words but, your Honour, it is an indecent assault, it is both a physical and a sexual assault and it is persistent.

McHUGH J:   That was why I was asking you about the issue of fear, because it seemed to me that, from the accused’s evidence, perhaps also from the point of view of the ordinary man, that fear of sexual assault would be a factor perhaps almost as influential as anger or resentment, in causing this accused to react in the way he did.  Now do you attempt to segregate them out and say, if fear of a sexual assault was the dominant factor then provocation does not apply?  Or is it sufficient that there is a combination of both?

MR GAME:   Well, we would submit so, your Honour.  We would submit that sorting out what is anger and what is fear is really a very difficult exercise, when ‑ ‑ ‑

McHUGH J:   Well, fear and anger both release hormones which, because we are so genetically programmed, lead us to violent action.

MR GAME:   This case was not a case about an accused person who had an abnormal fear of homosexual advance; this case was a very specific - it was not conducted as such, although the way in which the accused was left with the case once the family history was excluded, made it more like that kind of case, but this was a very specific case circling around that which emerged from answer 163 in the record of interview which was, as I said, the last question in the record of interview.

TOOHEY J:   Mr Game, could I just seek clarification of a factual matter, although I think I know what the answer is.  At page 256, line 51, it is said that:

The Crown’s case at the trial was that Mr Gillies had gone to bed, highly intoxicated, that the appellant had then come into the room -

which, I take it, is the room where the deceased was.  That is said again at page 292 at line 31.  This is reflecting apparently the Crown’s contention, but the accused’s account was quite different, was it not, that the deceased had come into the room where he, the accused, was sleeping?

MR GAME:   Yes, your Honour.

TOOHEY J:   I take it then all that the Court of Criminal Appeal is doing is setting up what the Crown was alleging and then recounting what the accused was saying rather than that that matter had been concluded by the evidence in some way?

MR GAME:   The Court of Criminal Appeal approached the case in the same way as the trial judge did on sentence, which was that the Crown had not proved its primary case but that the accused in effect had succeeded in his account but failed on provocation.  So the whole of the case after trial ‑ the focus very much shifted from the trial context “Was the accused to be believed or not to be believed?”, which was one aspect of the trial, to an acceptance of what the accused said but an application of a consideration of the wrongly excluded evidence and the wrong directions to that situation.  So that is really just setting up what occurred.

I think in Justice Smart’s judgment there is a passage in which he said that in effect the Crown had not excluded the accused’s version, and that is certainly the way in which Justice Priestley approached the question.  In fact, Justice Priestley approached it on the basis that the accused must have succeeded under 23(2)(a), a matter with which I have already taken issue in argument for the reasons that I have given.

In the course of argument most of the arguments which I would seek to put have already been put, but could I take the Court fairly briefly to the judgment of the Court of Criminal Appeal.

GUMMOW J:   The crucial point in Justice Priestley’s judgment appears at the bottom of page 280, line 50:

It seems to me that this court should accept.....were not such -

et cetera.  Then he goes on to say what is said there at line 10 on page 281.  Amongst other things, you say there was not a proper examination of what is involved in the concept of “could have induced an ordinary person”, et cetera?

MR GAME:   Yes, your Honour.  If one goes back to pages 269 to 270, which is a consideration of grounds 2 and 3, his Honour has accepted that the family history was relevant to (a) but failed to consider it at all in relation to (b), and by inference we would say excluded in relation to (b).  A careful reading of the judgment shows that that mistake flows through the rest of the judgment.

There are other mistakes in the judgment, but that is the central mistake, in our submission, in the judgment which explains why none of the arguments which I have been putting to the Court this morning have had any sort of consideration in the majority judgment in the Court of Criminal Appeal.  Then one goes ‑ ‑ ‑

BRENNAN CJ:   To pick up the point that Justice Gummow made to you, though, evidently Justice Priestley thought that the jury had found that which appears at the bottom of page 280, but your complaint, as I understand it, is that the question was not put to the jury in the way that ought to have led them to a finding that is in accordance with the section.

MR GAME:   Quite, your Honour, but also an argument which I have already put is this; that one could hardly be satisfied that the jury would have concluded that he had lost self-control as a result of provocative conduct of the deceased when the case was put to the jury by the Crown on the basis that he lost his self-control because of thoughts of his father, which is the very evidence which was excluded on that question.  In a sense, the defence case was entirely turned on its head in respect of section 23(2)(a).  His Honour then says at page 276, line 10:

Thus, the misdirections relating to s 23(2)(a) were irrelevant for present purposes.

That is the “must have won” on 23(2)(a) as the exclusion of the evidence and the misdirections referring to the family history, but they were not irrelevant for present purposes for reasons that I have already given.  Then his Honour went on to say:

The remaining question is the effect of the error dealt with in ground 4 -

The error in ground 4, which was the second error which was first identified, which is the ordinary person being provoked to do what the deceased did as opposed to an ordinary person being provoked upon such an intent.  The rest of the judgment is, in effect, an examination of that proposition.  Then one sees at the top of page 277 what we submit is proviso reasoning:

no jury acting reasonably could fail to be satisfied beyond reasonable doubt that the appellant’s reaction -

Then a submission is taken out of the Crown’s submissions at 277, lines 15 to 25, and we would submit that to even ask that question would lead one into error - this is the Crown prosecutor’s submission:

“The appellant’s track suit pants were on and the jury were entitled to take the view” -

and, as we have said, they did not even get to consider it -

“that the ordinary” -

and it is that “an ordinary person” -

“even whose sisters had been sexually assaulted” -

again, that is not the issue that was addressed to them -

“would rebuff” -

and it should be “could rebuff” -

“in a manner which did not involve the intentional infliction” -

again, that is the wrong question, and that is the very error which is being addressed in that ground, which is the intentional infliction of death or grievous bodily harm is the wrong question.

That inquiry continues over the following pages, which is all an examination about the evidence relating to the circumstances of the death without any regard to the family history.  Then an examination of the assault at page 280, and I have already put our submissions in relation to that, and then at page 281, lines 5 to 10:

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 on the s 23(2)(b) question by the incorrect ruling identified in ground 4 ‑

Still no mention of the problem with 23(2)(b), with the reference to the family history.

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 ‑

Now, again, that is a conclusion drawn on the evidence that was before the jury in relation to that issue, not the case that they got to consider.  Then one goes down further in the judgment and the further error is introduced, which is this at line 35:

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 ‑

If the case is one for special leave then, in considering whether the appeal should be allowed, we must approach the matter as if we were a court of criminal appeal.  It then becomes of little importance that on the facts the verdict may seem to have been right, if the jury were not properly directed on a material issue and this misdirection might have affected their decision.

A fortiori, we would submit when the jury have been both deprived of relevant evidence and misdirected as to the evidence.

TOOHEY J:   Does this line of argument carry through into the proviso, or ‑ ‑ ‑

MR GAME:   Yes, your Honour.

TOOHEY J:   And is that the context in which these remarks are being made?

MR GAME:   These remarks are not being made in the context of the proviso.  These remarks are being made in the context of whether or not there was evidence upon which the issue of provocation could go to the jury.  But, we would submit that one applies these principles and then the application of the proviso to the question becomes clear and the inapplicability of House v The King principles becomes clear.

TOOHEY J:   It may not be so easy to apply it to the proviso in that.

MR GAME:   But, your Honour, in our submission, the application of the proviso never will arise once one has concluded favourably the question that there is evidence upon which the jury could find provocation in the sense identified by Chief Justice Dixon in the passage to which I have just referred.

TOOHEY J:   Is that because if there was evidence upon which the jury could so find, then it could never be said that miscarriage of justice has not actually occurred?

MR GAME:   That is a way in which the proposition could be appositely put. 

TOOHEY J:   But is that the way in which you are putting it? 

MR GAME:   It is one way in which I put it.  The other way in which I put it is the Wilde v The Queen way, which is that there has been a fundamental flaw in the trial in the sense ‑ and once that fundamental flaw has been found, it is inappropriate to proceed to a consideration of the application of the proviso because the accused has not had a trial according to law.  Now, that may be a different way of saying the same thing, but it has been expressed in that way in Wilde v The Queen.

BRENNAN CJ:   Yes, but the fundamental flaw proposition in Wilde is a very different one from the wrongful rejection of a piece of evidence, is it not?

MR GAME:   It is, your Honour.  The fundamental flaw proposition is itself a question-begging exercise which creates its own difficulties and we are content to put our argument on the first basis, which is that to which I have just referred, namely that there was evidence and the jury never got to consider the case on the basis of it.

In any event, on our argument Justice Priestley erred in the process of reasoning which led up to the application by him of the proviso.  So if you applied House v The King reasoning, that would, in fact, result in the same conclusion.  There was one passage that I did not refer to that I should have in page 281 line 25.  I have already given the arguments as to the structure of the judgment, but one further sentence, line 25 on page 281:

It is easy to see that many an ordinary person in the position in which the appellant was when Mr Gillies was making his amorous physical advances -

well, that, in our submission, can only be interpreted in one way.  It means in the physical position of the appellant, that is to say, minus the family history, and it is consistent with the rest of the structure of the judgment.  Now, in relation to the decision in Baraghith v The Queen, Baraghith v The Queen was a refusal of special leave.  The correctness of the application of Stingel to the New South Wales provision was never argued.  It was not questioned.  The argument went off on a different question.  So, in our submission, Baraghith v The Queen cannot be determinative of the matter.  Simply as a matter of precedent it cannot be determinative of the matter, but in any event the point was not argued in that case.

Now, the Solicitor‑General referred to a passage in which the first objection was taken in relation to the truth of an assertion of sexual assault -that is at page 29 - but it is clear from that which emerged, which was that the debate was in relation to a much broader question and the judgment covered a much broader question and the evidence admitted, as I have said, went to a much narrower point, which was premeditation. 

In relation to the matter raised by your Honour Justice McHugh with respect to there being a spare room, there was no spare room in this house.  The deceased lived with his mother.  Her bedroom was the front room in the house.  She was away.  There was evidence that the accused was directed to the room of the deceased, the deceased going to sleep in his mother’s room,

and I will just give the Court some page references on that without reading them.  Page 134 line 43, 138 line 15, 89 line 35 and 89 line 55. 

Those are my submissions in reply, if the Court pleases.

BRENNAN CJ:   Thank you, Mr Game.  The Court will consider its decision in this matter and will adjourn until 10.15 tomorrow morning.

AT 2.48 PM THE MATTER WAS ADJOURNED