Heron v The Queen

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S30 of 2001

B e t w e e n -
MICHAEL HERON
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GLEESON CJ
McHUGH J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 9 OCTOBER 2002, AT 11.22 AM

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

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

GLEESON CJ: Yes, Mr Game.

MR GAME: If the Court pleases, on 15 March 2002, in a special leave Bench comprising your Honour the Chief Justice and Justice Callinan dismissed one proposed ground of appeal and referred the second ground to the Full Court to be argued as a special leave application, but to be argued in full. Now, that ground concerns the issue whether or not, in effect, the trial miscarried by reason of the erroneous directions given by the trial judge on the question of provocation.

KIRBY J: He did not get much help from your end of the table, did he, at trial?

MR GAME: No, he did not, your Honour.

KIRBY J: He did not get any.

MR GAME: Well, your Honour, the help he got was that he was asked by defence counsel for directions on provocation, and the point we would make about that is that, having asked for directions, it is hardly likely that counsel would acquiesce, as it were, knowledgably, in erroneous directions being given. The second point we would make ‑ ‑ ‑

KIRBY J: Well, he did not say anything.

MR GAME: He did not say anything. No, that is quite true, your Honour, but ‑ ‑ ‑

KIRBY J: How long did this trial last?

McHUGH J: Twenty‑three days.

KIRBY J: Twenty‑three days. Would you agree that the real issue at trial was whether or not your client had a knife and used it on the deceased? Was that not the real question that was tendered to the jury for its decision?

MR GAME: Yes, your Honour, that was the real issue. There was evidence of loss of self‑control. The question was whether or not there was evidence of provocation, supporting loss of self‑control. The Crown itself sought, as it were, to make a case of loss of self‑control in establishing that the applicant stabbed the deceased. I should say that – it may or may not strengthen my position on this special leave application – but, ultimately, the applicant’s position on the question whether or not he stabbed the deceased was a very weak one. The deceased was undoubtedly stabbed; the fight was undoubtedly with the applicant. The hypothesis that was put forward by the defence was a hypothesis that he may have been ‑ ‑ ‑

KIRBY J: Was ‑ ‑ ‑?

MR GAME: The hypothesis that was put forward by the defence was that he may have been stabbed either ‑ ‑ ‑

KIRBY J: By the cue or by a piece of glass.

MR GAME: ‑ ‑ ‑ with a piece of glass, or he might have fallen on a piece of glass, in circumstances where there were injuries – a clear cut of three or four centimetres going through the ribs. So it was a very unlikely proposition. Now, your Honour, I should say, also, that there are really two legs to our argument about the erroneous directions. One concerns the directions on provocation themselves, and the other concerns those directions in so far as the trial judge, we submit, reversed the onus of proof. We submit that we have an equally strong ground that the trial judge reversed the onus of proof on provocation. Now, that question was raised by the Crown Prosecutor, who complained about – or raised with the judge his concerns about the directions on onus of proof.

KIRBY J: But the judge did say expressly at one stage that the Crown bore the onus. There was an express statement.

MR GAME: I will take your Honour to the directions shortly. The overwhelming weight of the directions are to the effect that the accused had to establish facts upon which the jury would be satisfied of provocation, and he said so explicitly.

KIRBY J: What was the case in which Justice O’Brien in Victoria recently had some things to say about provocation? Do you know that case? Did you see those reports?

MR GAME: No, I have not seen that case, your Honour. Now, what I propose to do is to take your Honours to the directions and show, we would submit, that the directions were quite seriously flawed ‑ ‑ ‑

GLEESON CJ: The directions were partly oral and partly in writing, were they not?

MR GAME: Yes, your Honour.

HAYNE J: Are not there some logically prior questions that need addressing before you descend into whether the directions are flawed or not? First, were the directions necessary? Second, why was there no complaint at trial? Why was there no complaint in the Court of Criminal Appeal? Are they not logically prior to these matters you want to deal with?

MR GAME: Well, whether there was evidence is logically prior, but I would like to deal with the directions first because they pick up what the evidence was and they do tease out that question.

GLEESON CJ: Where can we most conveniently find rule 4 of the Criminal Appeal Rules? Is it set out in the papers we have?

MR GAME: No, it is not, your Honour, but can I say this: we would argue, first of all, that rule 4 does not arise in relation to the burden of proof aspect of the directions. The second point we would make is that if we establish – there may be two questions here. One, is was there – I think we will find a reference to it in Crampton in a moment, your Honour, but I will pull it out of Crampton in a moment. But what we would say is that if there was evidence upon which the issue should have been left to the jury – and there may be a slightly different but ultimately the same question for the Court of Criminal Appeal – and if it is established, if we, as it were, get over the proviso question, that is to say, that the Crown is unable to show that there was no substantial miscarriage of justice, then we would say that rule 4 could not stand in the way of miscarriage of justice in circumstances where the Crown cannot answer the proviso under section 6.

GLEESON CJ: But there is an anterior question to which I think Justice Hayne’s question to you was directed and that concerns our own jurisdiction and the exercise of that jurisdiction in circumstances where the point was not taken either at trial or in the Court of Criminal Appeal.

MR GAME: That is true, your Honour, but Crampton is a case where the offence could not be made out and, accordingly, it was an acquittal point. Giannarelli was an acquittal point case also because there was no admissible evidence in Giannarelli. If we make out our argument, then this would be a case where, as it were, the accused lost a chance of an acquittal and it would be a retrial point. Obviously, Crampton is a stronger case in the sense that it would amount to an acquittal. But if we do make out our case that there was evidence upon which a jury could entertain a reasonable doubt and we do establish that the directions effectively took the issue from the jury, then we would submit that there cannot be a different – it is a question of discretion. It is not a question of jurisdiction. It is a question of how serious the error was.

GLEESON CJ: It is a question of discretion about the exercise of our jurisdiction.

MR GAME: That is right, your Honour, and I would not question that. But, your Honour, what I say is – and it is really a very short argument about this – that Crampton is an acquittal point, and that was found to be an exceptional circumstance in this case. If you have a case that answers the description of a miscarriage of justice and the Crown cannot establish the proviso and, in effect, what that error is in the case is a case in which a defence which is open to the accused is taken from the jury, then he has lost the chance of an acquittal. If one looks at from the ‑ ‑ ‑

HAYNE J: Acquittal of murder.

MR GAME: An acquittal of murder, yes, your Honour.

HAYNE J: Yes, and conviction inevitably.

MR GAME: Yes.

HAYNE J: Inevitable conviction for manslaughter.

MR GAME: Well, that is all true, your Honour.

HAYNE J: It just seems to me you are arguing from certain tags to the content of the tag and applying the tag without any regard to the underlying principle, Mr Game.

MR GAME: Your Honour, the principle is stated in different ways. In the joint judgment in Crampton it is described as a “grave and substantial miscarriage of justice”, but it is taken from Craig, which was in fact a special leave case. We would submit that “grave and substantial miscarriage of justice” does not really - it is difficult to see what further that can add if the Crown cannot answer the proviso. Your Honour the Chief Justice, for instance, referred to exceptional circumstances.

Now, each case will have to be addressed on its merits. For instance, if this case was a case where there was very strong evidence of provocation and these misdirections were given, then we would say that the Court would not hesitate to intervene.

KIRBY J: Is that not the point? You are seeking special leave on a point that was not raised by you in defence at trial, on a point which was not raised by you in contention in the Court of Criminal Appeal, on a point which would have enlivened rule 4 in that court and provided you with an extra hurdle you had to overcome, and you come here asking for special leave. Now, at least as far as I am concerned, a matter always relevant to that is whether a miscarriage has happened. It is hard to say, except in a technical sense, that a miscarriage has happened in this case because it is not the case you fought at trial.

MR GAME: Your Honour, the fact that it is not the case that was fought at trial does not mean there has not been a miscarriage of justice.

HAYNE J: That is a very large proposition, Mr Game, and you will need to develop that in a little detail, I think, at some point in your argument.

MR GAME: Your Honour, there are plenty of cases – and Pemble is an example – where a defence is not raised by the defence and there is a duty on the judge to leave it to the jury. We would submit this is just such a case. But defence counsel in this case did raise the issue with the judge in relation to the question of provocation.

GLEESON CJ: Is there any difference between the maximum penalty for murder and manslaughter?

MR GAME: Yes, your Honour, 25 years for manslaughter, life for murder. It would make a significant difference in relation to the question of penalty.

KIRBY J: Your toehold into an argument is that counsel at the trial did raise the issue and you say once the issue is raised and the judge gave directions, once the judge does that, he has to do it accurately.

MR GAME: Yes, your Honour.

KIRBY J: And if he does not, then that raises a question as to whether the trial has been in accordance with law.

MR GAME: Yes, your Honour. What I say about defence counsel is it is difficult to see why defence counsel would raise the issue and ask the judge to give directions on that and intoxication and then not care about the directions being erroneous.

McHUGH J: He did not address on it.

MR GAME: That is true, but ‑ ‑ ‑

HAYNE J: You referring, are you not, to 695 where we have the summary of the exchange of the judge?

MR GAME: That is correct, your Honour.

HAYNE J: Now, counsel for the accused said that he would have brief written submissions relating to the matter to hand up on the next day of trial. Do we have those?

MR GAME: I do not have them.

KIRBY J: Are they in the book?

MR GAME: Mr Ellis is telling me he does not think that it ever happened. But at 695 the judge said he was not going to give the directions. Now, maybe something happened where the judge said that he would give the directions.

HAYNE J: Well, see, these, at least from my point of view, are matters of no little importance, because they really do bear upon how live an issue of provocation really was at trial.

MR GAME: But, your Honour, one can see how live an issue it was from an examination of the evidence.

HAYNE J: Yes, and from the treatment that it received at the hands of the party, at the time.

MR GAME: Yes, but defence counsel had a reason why he would not want to address on provocation, which was in this case ‑ ‑ ‑

HAYNE J: He was running the accident answer.

MR GAME: Yes. So he would have had a reason for that, but that is no reason not to complain about the erroneous directions. But, your Honour, my second point, and I made it ‑ ‑ ‑

GLEESON CJ: The problem with provocation from a defence counsel’s point of view, is that if you do not drive it home it just gives you a motive for murder.

MR GAME: Well that is the whole point: the prosecutor ‑ it would seem from the cross‑examination, it did not really matter to the prosecutor what version was being given by the accused about the events, because the accused was giving evidence about a loss of self‑control. So that, in effect, the loss of self‑control that the accused was deposing to in his evidence‑in‑chief and the cross‑examination was really strengthening the hand of the prosecutor on the primary issue, because the prosecutor could go to the jury and say, “Well, look, he said he lost his cool because of all these things that were done; is it imaginable that somehow or another the deceased died by an accident in those circumstances?”

GLEESON CJ: Well, there is a difference between losing your cool and losing your self‑ control and this was actually a rather extended brawl which seemed to have been interrupted on at least two occasions before your client stabbed the victim.

MR GAME: Your Honour, that is a different matter, but the interruption, in our submission, does not deprive the case of provocation and one example is Masciantonio, where the Court held that it was erroneous to, as it were, break it up into separate incidents and the judge said to the jury that it had to be treated as a composite. So, the fact that it is a broken incident, in a sense, does not deprive the case of provocation. In relation to this issue about taking the point, the prosecutor did take the point in relation to the onus of proof.

McHUGH J: Yes, but the difference between this and other cases ‑ in Mancini, in Kwak Mensu, in Pemble the defence of provocation was never put at all and, in the first two, the conviction for murder carried the death sentence. Here you are complaining about directions which, if the point had been taken, could have been cured by the trial judge, but the point was never taken, the judge was never asked to correct what he said in his summing up. There has been a 23‑day trial at public expense.

MR GAME: But the judge declined to correct the erroneous directions on onus of proof and that much we have.

McHUGH J: Well, that assumes they were erroneous.

MR GAME: Your Honour, I will come to them shortly, if I get to that, which is not clear at this point. It is not clear that I will actually get to my argument. I will try. I will struggle on, soldier on.

Your Honour says it was left but, your Honour, the way in which it was left to this jury, the jury could not possibly have concluded provocation in favour of the defence. I mean, it was put at such a high level. It was put at the level of: would the ordinary person have responded by stabbing or shooting the victim dead?

McHUGH J: Unless my memory is failing me in my old age, the way the judge put it was the way it used to be put before the legislature started to tinker with the law of provocation.

MR GAME: Your Honour, there are common law cases to which your Honour has been a party that say that those directions are incorrect at common law. The other thing is in New South Wales before the amended Act ‑ I think it was after Johnson; it was 1982 I think – the onus was on the defence to establish provocation and it did not include the provisions that specifically set out the ordinary person could have responded by forming an intent to do grievous bodily harm and it did not contain the bit that said that words or gestures can amount to provocation.

Your Honour says it was left – it was left in a sense but in a practical sense. If there was an issue of provocation to go to the jury, then that issue was effectively taken away again by the directions that were given.

McHUGH J: As a matter of substance, I doubt, Mr Game, whether juries be much influenced by the difference between “could” and “would”.

MR GAME: Well, “would” and “could” is part of it. That is a possibility – that is a reference to a possibility rather than a likelihood but, your Honour, when it comes to actions rather than intentions and actions resulting in killing rather than actions resulting in causing grievous bodily harm, you have error at three levels, with respect, to the directions and you have those directions repeated over and over again. Then you have coupled with that what we submit is clear error in relation to the jury being directed that they must be satisfied of facts.

I was hoping that what I would do is show what the misdirections were and show what the evidence was to support provocation. If we get to the level of showing that the jury acting reasonably could have had a doubt on the question, which is the question, in effect, for the Court of Criminal Appeal, and if we get to the point of showing that the seriousness of the errors of directions that we submit is established, then we submit that we have got to the point of where the proviso could not be applied and it is, apart from possibly nebulous discretionary considerations, we submit there is no other further issue, discretionary reason, that would prevent this Court from granting special leave in the circumstances of the case.

Now, if allowed to do so, that is the way I would seek to develop the argument and I recognise all of the problems that, for instance, your Honour Justice Hayne has referred but, as I see it, the only way of making the argument is by trying to sow how serious the error was and that the issue of provocation was open on the case.

Your Honour says there are anterior questions and there are anterior questions and I do not seek to shirk from those, but it really is a question, not of power, but of discretion, and discretion will be engaged by the Court’s examination of whether or not there really was an issue of provocation to go to the jury and whether it was taken away from the judge by the directions that were given. That is the way we would put our argument.

Now, having said that, if I could take your Honours to the directions that were given and, as I say, it is not just the substance of the directions on provocation that we say are erroneous, but the onus of proof and if I take the Court to application book 859. Now, at 859 the directions are correct in relation to onus of proof at the middle of the page.

GLEESON CJ: Did they have in front of them at the time they were listening to this the written directions?

MR GAME: At page 849 they were handed question 5, your Honour.

GLEESON CJ: So they had in front of them what appears on page 874 where they were informed that:

The question to be decided is:
Has the Crown proved beyond reasonable doubt that such intentional killing . . . was not the result of the provocation ‑ ‑ ‑

MR GAME: Yes, your Honour, but those directions contain other errors. Those recent directions contain several other errors.

GLEESON CJ: It appears from page 875, line 55 that they were actually prepared for another case.

MR GAME: It would appear that they were for another case, another case in which erroneous directions were given. Now, your Honour, perhaps if I just deal with the recent directions at 874. At the bottom of 874 it refers to “two conditions” being “satisfied”. Now, that has significance when I ‑ in due course, in relation to the oral directions on onus, but at the top of 875 it says:

Secondly, the particular conduct of the victim which is said to have so provoked the accused must have been sufficient to have induced an ordinary person –

so that is incorrect. It is “could have been sufficient”, and the intent direction is correct there. Then, at the bottom of the page, the direction is given in terms of the second‑last line, “would have responded by shooting the victim dead” and leaving aside the stabbing, there is error at three levels in respect of that because it is could, it is an intent and it is grievous bodily harm or death. So that particular phrase contains error at three levels.

GLEESON CJ: But on your argument about onus of proof, what the judge was setting out to do was, was it not, to explain to the jury what provocation is, having earlier told them that the onus is on the Crown to disprove it and in explaining what provocation is, provided you make it plain that the Crown bears the onus of proof, it is not unreasonable to state in a positive form the conditions that constitute provocation, is it?

MR GAME: Your Honour, the actual erroneous directions talk about the jury finding as facts and I will come to those shortly, but they were at about page 863. But when you talk about finding of facts then you have put an onus on the defence to establish something and it is not difficult to frame the question in terms of the onus of proof, namely that the onus is on the Crown to establish beyond reasonable doubt either that the accused did not lose self‑control as a result of provocation, or that an ordinary person in the position of the accused could not have formed an intention to kill or do serious bodily harm. It is not difficult to frame the questions correctly in terms of the onus of proof.

Now, your Honour, if I just come back to the written directions for the moment. I referred to what appears at the bottom of 875. At the top of 876, it says:

that objective test, is that particular provocative conduct may be such as to cause an ordinary person to lose his self‑control to such an extent that he does –

so that “he does” is incorrect as well –

the unreasonable –

because he does not have to do anything. He only has to form the intention.

There is an additional aspect to this which is brought out in a passage we refer to in Green, which is that the judge should direct the jury – and it is in Justice Brennan’s judgment in Green 191 CLR 334, if I could just refer to it briefly before turning to the balance. It is a passage at 340 and if I could just refer your Honours to that passage in Green. It is the second paragraph. It speaks in terms of the issue not being “what the ordinary person would have done” but “could have been induced to intend” and his Honour Chief Justice Brennan said:

Dependent on the circumstances of the trial, the jury may need a direction to draw their attention to the difference between “would” and “could” and will ordinarily need a direction to distinguish between what the ordinary person could have been induced to intend and what the ordinary person could have been induced to do.

So not only has the judge not done that, but the issues have actually been conflated, or the distinction has been destroyed, by the directions that were given by the judge in this case. We submit that that is an appropriate way to approach the directions on the question of provocation.

HAYNE J: Well, given that judicial directions to a jury are not to be simply a disquisition on the whole of the law, what do you say were the relevant matters in issue in connection with provocation in this trial?

MR GAME: Simply whether there was evidence upon which the jury could conclude that the accused did lose self-control and whether he did so as a result of provocative conduct coming from the deceased.

KIRBY J: Did lose or could have lost?

MR GAME: No, he had to lose self-control. He had to lose self-control. That is the first step. He has to lose self-control as a result of provocative conduct.

GLEESON CJ: That is the subjective ‑ ‑ ‑

MR GAME: That is the subjective test. The second question is: could the ordinary person in the position of the accused have so far lost self‑control as to have formed an intent to kill or do serious bodily injury? That is the question that was framed by the evidence – and I make no complaint about the way in which the judge left the evidence. In fact, he left the evidence very fairly about what the provocative conduct was.

GLEESON CJ: He actually included in the provocative conduct the fight ‑ ‑ ‑

MR GAME: He included things that happened during the fight, yes.

GLEESON CJ: It was not merely the words.

MR GAME: Not merely the words, but it was – I will come to that quite shortly. There is no complaint made about the way in which he left the provocative conduct. In fact, we say that the directions that he gave showed that there was a case ‑ ‑ ‑

KIRBY J: Well, you say that. Mr Ellis makes the point that the actual cross‑examination and questions asked of your client rather suggests that he was not complaining for example about the words. He was complaining about the things done towards the end of the physical assault.

MR GAME: Your Honour, if we descend - I do not mean descend pejoratively, but if we descend to an argument about that, you will find in context there are answers to that material in other answers given in cross‑examination or in‑chief.

KIRBY J: Let me understand what you say were the provocative acts or words.

MR GAME: Yes, your Honour. If you look at our written submissions, page 8, the judge sets it out but if I can just – at paragraph 25 ‑ ‑ ‑

KIRBY J: Surely not a “dirty look”.

MR GAME: No.

KIRBY J: Goodness, we have that all the time in this Court.

MR GAME: No, your Honour. First of all, there is the comment. I am not sure whether that is giving or taking but anyway.

HAYNE J: “The Lord giveth, the Lord taketh away. Blessed be the name of the Lord” is the full quote, Mr Game.

MR GAME: I can assure you I can find passages that will answer the various factual submissions but the ‑ ‑ ‑

KIRBY J: Was the ethnicity of your client ever proved in the evidence?

MR GAME: No, but he did say that he got his “black cunt’s worth” and he was clearly black.

GLEESON CJ: He was actually in front of the jury.

MR GAME: Yes.

KIRBY J: Can we take it that he was a black person?

MR GAME: I think we can. He appeared to be, yes. He was half Samoan and half Irish – he was Samoan. Then there is the comment – and we make the point there that words and gestures of course can be provocation. Then the judge left the “laughing at me” and he also left “shrugging the shoulders” by the deceased. Then he said:

as Rob was holding me the deceased come up and like, hit me ‑

that is a hit in the face according to the evidence ‑

and then he kicked me.

That is a kick in the chest, according to the evidence. Then he says:

Then I got back up and Rob wouldn’t let go of me, so I screamed at him to let go of me. Then the deceased said, ‘Let him go, I want to see what he’s got’ ‑

Now, it is that combination of evidence that is relied upon as amounting to provocative conduct.

KIRBY J: What about the other evidence about him in the toilet pacing backwards and forwards, with expletives and asking everyone who came in for a line of drugs – speed? What is the relevance of all this?

MR GAME: I do not know, but it was not included in the judge’s directions on this part of the case. The cases do say that in terms of leaving provocation you have to do it on the basis of the version of the facts most favourable to the accused. There is no doubt that this was the version of the facts most favourable to the accused and there is no doubt that the judge left it. I will come to that in a moment. I do not know if that answers your Honour Justice Hayne’s question, but that in summary is the material relied upon.

HAYNE J: Thus your proposition is that it was open to the jury to entertain a reasonable doubt about whether this conduct could have led to an ordinary person so losing control as to intend to kill or do grievous bodily harm.

MR GAME: Yes, but bearing in mind that the gravity of the conduct is to be measured entirely subjectively from the position of the accused, including his perceptions of racial insults and the kind. So the “ordinary person” test is, in effect, a measuring stick upon which you apply to a gravity of provocation, but the gravity of provocation is tested subjectively.

KIRBY J: So that means every time somebody uses those expletives at a Samoan person in our country, then that has to be accepted as an excuse for them to lash out with a knife and murder or kill another citizen? That does not seem to be a very happy state of the law to me.

MR GAME: No, your Honour, but the question is whether or not the jury acting reasonably or properly directed could have entertained a reasonable doubt acting on this material.

GLEESON CJ: Mr Game, there is an aspect of the facts that I would just like you to comment on in relation to the law of provocation. When two men become involved in a brawl and start trading blows and punches and kicks and hitting with a billiard cue and so forth, how does the law of provocation relate to that circumstance? Is it provocative to hit somebody back? If somebody punches you on the nose, is it provocative to hit him over the head with a billiard cue?

MR GAME: Well, not necessarily, no.

GLEESON CJ: We often find it easy to discuss provocation in terms of an insult offered, but how do you relate provocation to a fight and to conduct engaged in during the fight?

MR GAME: Well, your Honour, it is quite difficult because in effect you are applying an “ordinary person” test to, as it were, a community of fighters in a pub and that is the difficulty that you have, but, your Honour, if, in the context of their subjectivity, shall we say, one person behaves in a particularly dirty way, shall we say, when the other person is, shall we say, facing the other way or something happens that is in the context of that subjectivity outlandishly, cowardly or dirty play, then that could be provocative, even though ‑ ‑ ‑

GLEESON CJ: But does it follow that every time there is a fight, if somebody decides to finish it off with a knife there is a live issue of provocation?

MR GAME: Most certainly not, your Honour, most certainly not, but, your Honour, the judge did leave it in this case – and I know judges are reluctant not to leave it – but if the judge correctly left it, then, in a practical sense the test is really conflated and it was treated as such in Van den Hoek; it was treated as if the judge correctly leaving it was the same issue.

HAYNE J: By correctly leaving it you mean was bound to leave it?

MR GAME: Yes, legally bound to – not just being kind but legally bound to leave it, and that issue must – it is framed in a very slightly different way but in a practical legal way it is the same issue, if correctly framed, that the Court of Criminal Appeal would consider for itself in determining whether or not it was correctly left.

Your Honour, if I could return to the directions that were given. If one goes then to page 861 of the application book, we see at 861 line 14, “have determined the level of the gravity of the affront to him”, and that is the point I was attempting to make in response to a matter raised by your Honour Justice Hayne, the level of the gravity is subjectively measured:

it is time to proceed to the second matter, and that is, that the particular conduct of the victim which is said to have so provoked the accused, must have been sufficient –

so that is incorrect there. Then it is correct at that point so, “as to have formed an intent” is correctly framed there.

KIRBY J: You are on 861. Where is that word “must”, what line?

MR GAME: Line 14.

KIRBY J: Yes, I see.

MR GAME: Then it says at line 21 – and this is something I will pick up when I come back to the passage, shortly:

In other words, you begin by saying: Was there in fact any provocation?

And then the trial judge says at line 30:

Having settled that matter, you then ask: Would an ordinary person to whom an affront . . . had been offered, respond –

So it is “would” and “respond”. Then we go to the next page, 862:

But on that second limb, as to what an ordinary person would have done –

and then again that is incorrect, and then at line 19, it says:

would have responded by stabbing the victim dead –

and as I have already put to the Court before, that is an error at three levels: “would”, “stabbing” and “dead”. Then the next – this seems to have been read from the written directions at this point because it has quite a close correlation but then it says:

the particular provocative conduct may –

that is the only time his Honour said “may” and it does appear once in the written directions, but it is equally an error in that sentence because:

to such an extent that he does what is unreasonable and extraordinary –

and it is not he does. Then we go to the next page. It says:

The objective test: transposing an insult of that level of gravity . . . is it reasonable to say that such an ordinary person would have responded to an insult of that particular gravity by stabbing fatally –

so it says ‑ reasonable to say “would have” and “stabbing fatally”. So that is an error. Then I come to, what I submit is, the beginning of the errors on onus. On the question of fact for you as to whether or not there was something or ‑ ‑ ‑

KIRBY J: Where are you reading now? You have to mention the page and the line.

MR GAME: Sorry, your Honour, page 863, line 27. It says:

On the question of fact for you as whether or not there was something, or were some things, capable of amounting to provocation.

Then it says at line 35:

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

So, it is requiring an acceptance of something –

to which the accused referred in his evidence . . . you would be entitled to regard that as an act of provocation.

Then it says at line 48:

All I am saying is that you would be entitled to find as a fact –

But the jury do not have to find as a fact and that is incorrect at line 50, and that is what the prosecutor was complaining about.

but it would be a matter for you – that that was a provocative thing to do ‑

His Honour says:

you would thereupon be put upon the first stage of the inquiry –

So you find as a fact and then you are on the first stage of the inquiry, so, if you are finding as a fact, there must be some onus on the accused to establish something.

KIRBY J: It is an assessment of the facts. The jury’s role is to find facts.

MR GAME: The jury’s role is to find facts but they do have to find as a fact that there was a provocative remark made.

KIRBY J: It seems a very nice point.

GLEESON CJ: He is only telling them, is he not, that they have to ask themselves whether this is a live issue, a question worth troubling about?

MR GAME: If he says you have to find something as a fact, that suggests an onus on somebody to establish it. In my submission, it effectively puts it on the accused to establish the two points of satisfaction which his Honour referred to earlier. Then his Honour identifies the provocation and we see that at line 20 page 864, and his Honour says:

If you are satisfied that that happened ‑

but again I say you do not have to be satisfied that that happened and it introduces the notion of satisfaction again -

and that the response of the deceased was simply to shrug his shoulders and laugh in a mocking kind of way –

That is identified by the judge, we would submit, as a matter that raises the issue of provocation. He said:

that made the initial provocation worse.

Then:

there was an initial confrontation and blows are struck, that Neumeitolu stepped between them . . . As he put it, he had “his black cunt’s worth”.

Then, the next stage, if I could put it that way, or the next step:

Thereafter, on his version, the deceased without any cause given by the accused himself, kicked him while he was still being held by Neumeitolu . . . hit him in the jaw.

So it is, as it were, the escalation by hitting him and kicking him while he is being held. Then we see at line 50, “if you find as a fact”. The point is really being driven home that you have to find these things as facts and it has been said lots of times now. As I say, it is not difficult to frame it in terms of onus of proof. “If you find as a fact”, then he says:

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

So his Honour has identified, as it were, a fourth aspect of the provocation and that is the parts that we identified in our written submissions. Then he says:

If you find that as a fact, that too would be behaviour of which you would be entitled to find that it was provocative in the sense that we are discussing.

Now, his Honour then says, incorrectly, we would say:

it is the combined effect of the particulars things –

and that is at 865 line 14. His Honour then says:

That is a matter of fact for you. If you do find, based on that material, that there was provocation then, as I say, you go through the stages of analysis –

so again you do find, and that is at a critical point in the directions. Now, your Honours, those are the directions on provocation.

HAYNE J: They are not, are they? You have to begin, have you not, at 858; from line 30 to 859 at 36?

MR GAME: Sorry, I accept that, your Honour. I have to plead that I did not intentionally not take your Honours to 859.

HAYNE J: Yes.

MR GAME: But, if we go then to the redirections sought, the Crown Prosecutor raised the issue of onus of proof and it is clear from his Honour’s remarks starting from line 28 that he intended that the jury be required to find something as a fact – sorry, it is at 867. He said:

Well you to find it as a fact –

so it is not as if his Honour was, as it were, suggesting that this was just part and parcel of the directions on onus and proof. He thought that the jury had to be satisfied they had to find as a fact the two points before it was correctly raised. Well, if he thought that, then it is difficult to see how the jury could have thought otherwise.

GLEESON CJ: But by “find as a fact” he surely only meant, having regard to the other things that he said, that there be material raising this as an issue. If, for example, the prosecution case had been that your client walked into the bar, pulled a gun, shot the victim in the head and then walked out again, the judge would not have been telling the jury anything about provocation. In particular, he would not have been telling the jury that the Crown had to negative provocation, because there would have been no possible view of the facts that raised it as an issue.

MR GAME: No, but, your Honour, the idea of satisfaction of something does not incorporate necessarily any finding of facts. You do not actually have to bring in the idea of finding anything as facts.

GLEESON CJ: On page 858 at line 52 he told the jury that the accused did not have “any onus in relation to” the matter of provocation.

MR GAME: No, that is true.

HAYNE J: And if it matters, those were the last things he told the jury at 866, lines 45 to 52:

onus of proof on the Crown, as to every material issue . . . each of those questions one to five ‑ ‑ ‑

MR GAME: Your Honour, I accept all of that but I can only say that there is a repeated reference to the jury finding facts and being satisfied of matters, and his Honour intended it that way. He simply said – he said at page 867:

nobody quite tells you to what standard they have to be found –

but they do not have to be found to any standard.

GLEESON CJ: But they have to be a live issue.

MR GAME: That is all.

HAYNE J: Was there any forensic reason which precluded counsel for the accused asking for redirection in relation to provocation?

MR GAME: No, your Honour. I cannot imagine what there would have been. Likewise, I say, I cannot imagine what ground there could have been for counsel not to raise the issue on appeal. Counsel raised all sorts of grounds on the appeal, some of which were, to say the least, quite tenuous. So there could not be a reason for counsel not to raise this.

McHUGH J: Well, I can understand at trial counsel might not want provocation raised. I can tell you from my personal experience, I used to dislike intensely when judges raised issues that would enable a jury to bring in a verdict of manslaughter. You were always better off, I thought, murder or nothing.

MR GAME: He had already raised it with the judge. It cannot be right that, having raised it, he is now no longer interested in the fact that the directions were wrong.

McHUGH J: Well, he did not address on it.

MR GAME: No, that is true. I cannot make anything else other than put to you what the material is that supports it, what the errors in the directions were, and say, in effect, that there was evidence in the relevant sense – and I say that for the Court of Criminal Appeal the issue is whether the jury, properly directed, could have had a reasonable doubt – and bearing in mind that in a practical sense that is the same question as whether or not the judge, acting legally, properly left it to the jury ‑ ‑ ‑

McHUGH J: We have no affidavit from the applicant, have we? I mean, accused persons themselves – or, at least, sometimes – would prefer to have it murder or nothing, rather than manslaughter, on the basis that they are going to be in for a long time anyway, if they get convicted of manslaughter, and they worry that juries will choose the easy way out.

MR GAME: But, your Honour, that, in my submission, is defeated by the fact that counsel did raise it with the judge and did ask for it. I cannot imagine an applicant who was of sufficient presence of mind to say, “Well, I want it raised, but I am no longer concerned about the fact that the directions were wrong”. That would attribute to Mr Heron a presence of mind and an understanding of legal processes which would be quite out of the question, I would have thought, in a practical sort of a way.

Your Honours, those are the directions. The only other matter is addressing what are put by the Crown, as it were, as factual submissions that show that the accused did not act under provocation.

GLEESON CJ: Can I just bring you back to that matter I raised a little earlier and that is how you relate provocation to a brawl. Section 23(2)(a) of the Crimes Act in parenthesis refers to “insulting words or gestures”, but it is not limited to that. It is conduct of the deceased that results in “a loss of self‑control”. Well, what about giving somebody a severe beating in the course of a brawl? Is that conduct of the kind that can fall within this concept?

MR GAME: Well, if that is all there was to it, I would be surprised if that could amount to provocative conduct, but you would have to measure it literally as a measuring stick and see whether the conduct of the deceased was, shall we say, wrongful to the level that ‑ ‑ ‑

GLEESON CJ: But what happened here was that there was some sort of pushing and shoving and jostling and an exchange of what might not have been regarded in that company as the worst insults that could be offered and then an exchange of blows, then the fight escalated, then subsided for a while, then escalated again and people started using weapons. How do you relate that kind of activity to this statutory provision?

MR GAME: Well, your Honour, you have to sink yourself in the subjectivity of the fighters to a substantial degree so that if there are taunts, for example, from one of them or inappropriately cowardly conduct, for example, or anything of that kind, that could amount to provocation.

GLEESON CJ: Well, some people are likely to respond a lot more violently to a punch on the nose than to being called a bad name.

MR GAME: Well, this particular accused said that he did respond badly to being called a bad name. In fact he was cross‑examined on it by the prosecutor, who seemed to know that he had responded badly on some other occasion, put it to him, he said he had and he had punched the person. So, in a sense, he was particularly sensitive to that remark.

I do not for one moment question the commonsense of what your Honour the Chief Justice is putting to me about fighting in itself not amounting to provocation, but one has to look at the specificity of what the fighters do.

HAYNE J: At the subjective level or at the objective level are you looking at those issues, Mr Game?

MR GAME: At the subjective level you have to measure it at the first point to see if there was an insult or how grave the provocation was. That is an entirely subjective exercise. I mean, in a sense it shows up the unrealistic nature of applying an objective test to subjectivities of this kind, but that is what the section actually requires you to do.

HAYNE J: In applying (2)(b), how do you apply (2)(b) to the bar room brawl?

MR GAME: The ordinary person is to put themselves in the position of the accused in the bar room brawl and say, “Well, did the deceased do something that was provocative that caused the accused to lose self‑control?” But they have to satisfy more questions and the more questions are going to make it quite hard for the accused to succeed and the more questions are whether or not the ordinary person could have so far lost self‑control to form an intent to do serious injury, at the least.

CALLINAN J: Do you look at the position of the accused before the brawl or after the brawl or during the brawl, at what stage? Do you look at the position when he starts the pool game and has the bet of $20? At what stage do you look at the position of the hypothetical person in the section?

MR GAME: You look at it when you come to apply – to all of the things that the accused did in suggested response to provocation. It is everything.

CALLINAN J: But, what, his position on a second‑by‑second basis, immediately after he administers a terrible blow to another person?

MR GAME: Not on a second‑by‑second basis but on a cumulative basis, your Honour.

CALLINAN J: Well, you cannot confine it then to the moment at which he administers the fatal blow, whatever it is.

MR GAME: No. You have to ‑ ‑ ‑

CALLINAN J: How far back do you go? Before the brawl starts?

MR GAME: Well, you go back to all of the subjectivity – in terms of the gravity of the provocation, all of the subjectivities of the accused including perhaps, if it is relevant, any special sensitivity he has to racial insults. Then you look at what was actually said or done to him.

HAYNE J: We begin from the premise, do we not, that the accused is shown to have intended to kill or do grievous bodily harm?

MR GAME: Exactly.

HAYNE J: That is the premise for debate.

MR GAME: Exactly.

HAYNE J: So he has formed that intention. What then is the work that 23(2)(b) is doing in – the only word I can think of is “regulating” – the application of provocation in such a case?

MR GAME: If you look at it this way, your Honour, if you look at the law of provocation as, as it were, wrongs done to accused that diminish their responsibility or reduce their culpability, then the work that (2)(b) does is that it is a measuring stick of that wrong. It is a measuring stick that says, “Was that wrong enough for us, or bad enough for us to reduce the culpability?”

HAYNE J: And the measure is an objective measure of the ordinary person.

MR GAME: Yes.

McHUGH J: But it is almost impossible to apply the section in most brawls, is it not? There is an insult in the hotel bar. Somebody strikes. The applicant strikes in retaliation. They are pulled apart and told to step outside and finish the fight off. Then it goes on out in the street. Then the applicant gets hit hard on the nose. He becomes enraged and then he forms the intention to inflict grievous bodily harm and kills the deceased. Now, is that a situation where 23 applies, and is the provocation the hit on the nose or the earlier insult?

MR GAME: Your Honour, this was the point I was trying to make before by saying that they are a community of fighters, as it were, that the ordinary person applies themselves to that. All sorts of things become acceptable in communities of shall we say fighters. So the provocation might have to be relatively high before it actually amounts to provocation.

CALLINAN J: I do not know about that. You say a community of fighters. Fighting is against the law in general, is it not? It involves an assault. So how can a community tolerate a custom or practice which itself is criminal?

MR GAME: Your Honour, because we are measuring ‑ ‑ ‑

McHUGH J: R v Coney makes the fight itself unlawful.

MR GAME: Yes, but that does not mean that the fight cannot - things done during the fight cannot be provocation.

CALLINAN J: I am just taking issue with your phrase about a community of fighters.

MR GAME: My point is that you have to apply the ordinary person to something and the ordinary person applies to, as it were, the subjectivity of the fighters, if I could put it that way.

CALLINAN J: Take some other communities. Take some Papuans and New Guineans: they believe in payback, and if they are living in Australia, what do you say, they are a community of paybackers so, therefore, you have to take that into account when assessing provocation?

MR GAME: Well, your Honour, if you apply the ordinary person to that, that would reduce the possibility of there being provocation.

CALLINAN J: But you cannot posit an acceptance of unlawful conduct as a state of normality of an accused person.

MR GAME: No, your Honour, but what is happening here is that one is characterising the wrongfulness of the actions of the deceased and were they wrongful in the relevant sense so that they could have induced an ordinary person to lose self‑control.

CALLINAN J: I would have thought you would have to say:

as could have induced an ordinary person in the position of the accused –

otherwise acting lawfully.

MR GAME: But it does not say that, your Honour.

CALLINAN J: No, but I am not too sure that it does not assume it, in the position of the accused acting lawfully.

MR GAME: But an accused might be acting unlawfully and then lose self‑control. Just as in self‑defence the notion that lawfulness of the actions of the accused does not defeat self‑defence, so unlawfulness of the actions of the accused in provocation does not defeat provocation. There will frequently be cases where the accused is acting in an unlawful way. Mr Masciantonio was acting in an unlawful way when he had a fight with the deceased.

McHUGH J: Yes, but that illegality is, in one sense, part and parcel of the incident, but supposing that the provocation itself takes place in an illegal setting. A burglar is apprehended by a nightwatchman. In a struggle the nightwatchman punches him and the accused then kills the nightwatchman.

MR GAME: There are cases very like that where self‑defence has been left to the jury and there are acts and statutory provisions that now seek to partly overcome that, but there are actual cases where that is precisely what has happened and it has been held that self‑defence must be left, and we would say that the same would apply if there was provocative conduct. For example, if the nightwatchman acted in an abnormally violent way and ‑ ‑ ‑

GLEESON CJ: Suppose the nightwatchman said, “I’ve got you, you black so‑and‑so”.

MR GAME: Well, I am not sure that I am prepared to posit a guess on that.

GLEESON CJ: That would be grossly insulting words, but how would you operate section 23 in relation to a situation like that?

MR GAME: Well, I would have to say it could be provocation. But in this case of Heron, at the time at which the deceased makes ‑ shall we say, from the accused’s point of view, the time at which it starts the deceased makes a provocative remark, but at that time the accused is not acting in an unlawful way in any particular respect. At that point, all he has done is given the deceased a dirty look - at that point.

So you cannot then cut out escalation that involves unlawful acts by the accused, because you will always, inevitably, have an unlawful act that either escalates suddenly or slowly into an unlawful act that results in the killing of the deceased. The deceased is necessarily posited as being dead as a result of an unlawful killing by the accused at the end of the events – a deliberate killing. So it cannot be that you can break it up and, as it were, read into (b) the phrase that your Honour Justice Callinan put, as it were, “the accused (acting lawfully)” to have so far lost self‑control. That is what I wanted to say about section 23.

The remaining factual issue is whether or not, as it were, the Crown has answered the evidentiary points that are raised. The Crown has shown, in effect, by the evidence, that there was no proper case of provocation to go to the jury. I just wanted to refer, in this final part of my submissions, briefly, to a couple of passages of evidence. At page 656 in volume 3, one sees – bottom of the page is the identification of the incident – that is at the bottom of 656 – the comment, and then at 657, there is the passage that is relied upon for, as it were, the second and third phases of the provocation ‑ ‑ ‑

GLEESON CJ: Well, just at the bottom of 656, what appears to have started all this off was a failure on the part of the applicant to shake hands after the game.

MR GAME: Yes.

KIRBY J: Which, by the way, the deceased offered.

MR GAME: Yes, that is true enough.

GLEESON CJ: And the applicant had lost, is that right? He had lost the bet.

MR GAME: He said in evidence that he did not make a $20 bet, so he denied that he made a bet on the game, and he maintained that assertion in cross‑examination. But there was other evidence that there was a $20 bet on the game. So at the bottom of the page is the first comment, and then at page 657 – his Honour referred to the laughing, and he also referred to the shrugging of shoulders. It is not there at 657, it may be elsewhere. His Honour then at 657, line 16 ‑ it says: “hit me” and then “kicked me” and the other evidence establishes that, according to his evidence, the hitting was in the jaw and the kicking was in the chest.

GLEESON CJ: That statement on line 16, the sentence beginning with the words, “I thought”. What exactly does that mean?

MR GAME: Well, at that point, he thought the fight was over.

GLEESON CJ: Or did he think that he had satisfied honour in relation to the jibe that had been made at him?

MR GAME: It is possible, but he said, “I thought it was over”, so either is perhaps open, your Honour. So it is while being held, then, and then hitting and kicking. Then he said, at the top of 658:

Rob wouldn’t let go of me, so I screamed at him to let go of me. Then the deceased said, “Let him go, I want to see what he’s got.”

That is the next phase, as it were, that the trial judge left. Then he said:

I was pretty mad, you know, just angry.

Then there is a reference to being kneed while sitting on the couch, at the bottom of 658. Then if we go forwards to the end of examination‑in‑chief, page 660, he says:

Q. How would you describe your emotions during the fight?
A. I was pretty aggressive, angry.
Q. Why was it you were angry?
A. I think it was because of the whole start of the fight when he called me a black cunt, that is what really started it, I think, it really got me put off, like, you know, got me going.

That is the passage that the judge referred to in the summing up as being indicative of a loss of self‑control. We would make the point there that, cognisant with the cases, anger is a hallmark of loss of self‑control, and the accused does not have to depose to a loss of self‑control for it to go to the jury. Justice Mason referred in Van den Hoek to not putting the accused to the dilemma, as it were, of disclosing a loss of self‑control, and that would apply in this case because, of course, the accused was saying he did not stab the deceased. That is the relevant material in evidence‑in‑chief.
Then we come to the cross‑examination ‑ ‑ ‑

GLEESON CJ: That is all in cross‑examination, according to the bottom of the page.

MR GAME: Sorry, the bottom of the page is wrong, I think. It is all wrong. That is wrong, your Honour. Cross‑examination does not start until 662. Then if I could take the Court briefly to the relevant passages in cross‑examination. We have the passage at 667 where he said:

give him a bit of his own medicine and shake my head at him.
Q. Then what happened?
A. After I shook my head he said –

and then the comment is made, then:

he said, he laughed at me. I pushed him again, he pushed me back, I hit them –

then the prosecutor said – this is at the bottom of the page:

Q. That is not the first time somebody said that to you, is it?
A. No, it is not.
Q. Why push him?

And then he said, because of the remark made. Then he said:

Q. Have you done that with other people who have said that to you?
A. Yes.
Q. Have you hit them?
A. Yes, I have.

I do not know why he asked him that, but he is deposing to a propensity to lose self‑control as a result of remarks of that kind. Now, he said:

Q. You can’t take that, is that right?
A. No, I can’t.

I hope I am not pushing it too far, but he is deposing to a sensitivity to that kind of remark. Then:

Q. Why, after you pushed him, did you then ask him what he said?
A. Because I wanted him to say it in my face instead of walking off and saying it.
Q. Why?
A. Like I said, I was made at the time, I was upset that he said it.

Then he said:

A. Yes, I was angry at the time.
. . . after you asked him to repeat what he said, you pushed him again, did you?
A. Yes.
. . . I was angry.

So he is still angry. Then he said:

Q. You wanted to provoke him into a fight, didn’t you?
A. Like I said –

he makes the remark there –

I pushed him, I asked him what he said and I pushed him again, after he laughed at me.

So he is bringing in – again, I hope I am not making too much of it, but it is the laughing at him that contributes to what takes place then.

GLEESON CJ: Is the ordinary person in the position of the accused hanging out for speed?

MR GAME: This is the difficulty with the test but the ordinary ‑ the position of the accused – the accused is in the position where he is under the influence of speed.

GLEESON CJ: Is the ordinary person in that position?

MR GAME: The ordinary person is not under the influence of speed but the ordinary person applies himself or herself to the position of the accused as if the accused was under the influence of speed.

HAYNE J: Sorry, I do not follow that. It seems to simply conflate the objective and subjective tests. Is that what you are intending?

MR GAME: No, I am trying to say it the way I understand that the cases say it, but it is not very logical but it is the ‑ ‑ ‑

HAYNE J: Do you accept that the objective aspect of the question of provocation is intended to provide some objective limits to be applied in determining culpability for homicide?

MR GAME: Without a question. That is the whole point of it.

HAYNE J: That is that an objective test should be applied.

MR GAME: Yes, that is the whole point of it, to apply a limit.

KIRBY J: That was the history of the common law before the statute. That was brought in Green.

MR GAME: Yes. So that, for example, Mr Stingel taking himself to where his girlfriend was sitting in a car with somebody else, to say that he was provoked by that, no ordinary person could conclude that and therefore provocation could not go in that case.

In Masciantonio your Honour Justice McHugh thought that in that case provocation should not have properly been left, as I recall.

KIRBY J: Mr Stingel could not be provoked but Mr Green could be.

MR GAME: Your Honour, that is ‑ ‑ ‑

KIRBY J: A conversation we have had before, Mr Game.

MR GAME: It does not seem to go away that case.

Your Honour, I have not quite finished with the passages but I will endeavour to deal with them fairly briefly. At page 669, line 15, he said “A closed fist.” Then, line 45:

Rob held me, the deceased come up, he hit me on the jaw, I kind of stumbled . . . I screamed at Rob to let me go and the deceased said, “Let him go, I want to see what he has got”.

At the bottom of the page:

the deceased said “Let him go, I want to see what he has got”.

Then the prosecutor said:

that really got up your nose, didn’t it, really angered you?

Then he gives an answer. Then it is the combination he thought that he had got his – then he makes the remark – then he goes on, “when he come up and hit me”. So it is, as it were, an aggravation of the circumstances. So, as it were, the unfairness of being hit in the jaw and kicked in the chest in a situation where he could not defend himself. That is his case.

Then we see 671, the comment is relied upon at the top of the page and then the comment again is relied upon at line 19 and then the Crown relies on the following passage:

Q. When you thought it as over, are you saying you were hoping the fight would end at that stage?
A. Yes, sir.
Q. Are you saying you were just content with hitting him once, is that right?
A. Yes, sir.

And then it goes on and then at line 48, it says:

Q. And then when he said, “Let him go. Let’s see what he has got”, that upset you?
A. No, what upset me was the punch in the jaw and the kick in the chest, sir.

GLEESON CJ: Right. Now is a “the punch in the jaw and the kick in the chest” conduct of the kind referred to in section 23?

MR GAME: It could be if he is being held down and he is defenceless at the time, yes, in the context where he has previously made a provocative remark.

GLEESON CJ: Well now, does that evidence indicate that up until then he had formed no intent to kill or caused grievous bodily harm and that what caused him to form the intent to kill or cause grievous bodily harm was “the punch in the jaw and the kick in the chest”?

MR GAME: That is some evidence that the Crown relies upon, but we say you have to look at – because his anger is rising; it is not, as it were ‑ ‑ ‑

GLEESON CJ: As it does in a fight.

MR GAME: Yes. So one cannot simply chop it off and say, we will just take “the punch in the jaw and the kick in the chest”.

GLEESON CJ: I am just wondering whether you, in some respects, got an over generous direction.

MR GAME: On of the facts we got as good a direction as we were entitled to.

GLEESON CJ: That is true.

MR GAME: We rely on what appears at line 10 on page 672, in answer to what the Crown says about that kick in the jaw, because it says:

Q. Why did you do that?
A. He said, “Let him go. Let’s see what he has got”. That is why I did it.

So he has brought back the comment. And then at 672 at line 40 to 50:

Q. What happened when you were on the couch?

is brought back in. Now, your Honours, if you move forward then – I am not sure whether there are other passages that finalise it in between, but if you go to the bottom of 682 ‑ at the bottom of 681 right through to 682 it really brings together what he says in cross‑examination about the acts and the response to them. It says:

Q. Well you didn’t get on top of him. He was still fighting?
A. We were both fighting, yes.
Q. And I suggest to you that you were the aggressor; that he was more or less defending himself?

And then, I will not read it out, but we rely on everything that is said from there down to line 50 as, as it were, pulling together his case. There is one more passage at the end. The prosecutor says at 693, line 25:

Q. You have got a bit of a bad temper, haven’t you?
A. I do have my times.

Your Honours, what the prosecutor was seeking to do, it would seem, is show that it is not really too troubled about the details, but showed that there was a loss of self‑control, coupling that with the other evidence in the case of the evidence of the use of the knife leading to an inevitability that the accused did the killing.

What we say is the Crown says in their submissions in this Court, “Well, look, this must have amounted to a rejection of everything that the accused said.” That is not necessarily so. The jury could well have said, “Well, he lost his self‑control because of these things, but we have a reasonable doubt about that, but we do know that he stabbed the deceased dead and we rely on this material in support of it.” So, in a sense, we are relying on what the Crown did to say that the issue of provocation was properly raised.

Now, your Honours, those are the submissions that we make. I hope I have not avoided the hard questions that your Honour Justice Hayne asked me, but the answers, as best they can be given are, in our submission, to be found in the specificity of the case. If it was properly provocation, the directions were erroneous. The directions deprived the accused of the possibility of an acquittal on murder. It is a retrial point but it is not an acquittal point obviously and it is not an error at the same level as in Crampton. But we would say that the language used by your Honours in various judgments in Crampton used in terms of exceptional circumstances and the like are intended to maintain the flexibility that will allow the Court to invoke its jurisdiction in the appropriate case.

GLEESON CJ: Is that a convenient time, Mr Game?

MR GAME: It is a convenient time, your Honour. I do not think that I have anything further to say, your Honour.

GLEESON CJ: No, all right. Then we will adjourn until 2.15 when we will hear Mr Ellis.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

GLEESON CJ: Yes, Mr Ellis.

MR ELLIS: Thank you, your Honours. Your Honours, obviously the resolution of the main part of this case depends upon the significance of the issue of provocation and the significance of the erroneous direction in terms of “would” rather than “could”. Provocation only arose, or could only have arisen in this case if the jury accepted beyond reasonable doubt the Crown case that the applicant had used the knife and fatally stabbed the deceased, and the acceptance of the Crown case on that meant that the jury rejected the applicant’s evidence, certainly rejected his evidence that he had not used a knife, or had not even possessed a knife and had not used or stabbed the deceased. It is likely also to have involved a rejection of the racial slur, which I will not repeat, but which is well known, I am sure, to your Honours.

KIRBY J: Now, that does not really follow, does it? I mean the knife was a central part of the dispute, but the racial slur does not seem to ‑ ‑ ‑

MR ELLIS: It does not follow as night follows day, your Honour. I couch that by saying it is likely that it also followed ‑ and I will come to that in a moment in terms of a very brief but thorough summary of what each of the witnesses actually said about that. The reality is the only person who gave any evidence of that racial slur was the accused.

KIRBY J: His friend did not support him on the knife. Did his friend deny the slur?

MR ELLIS: Which particular friend, your Honour?

KIRBY J: The Samoan.

MR ELLIS: Yes, he said that the expletives were used but not the racial slur. He did not say it like that. What he said that he heard was – he heard him refer to him as “you fucking cunt”, is what he said he heard.

The Crown says that rejection of the accused on the use of the knife also casts significant doubt on his evidence in terms of what he said actually took place during these series or the on/off, on again physical altercations with the deceased.

The Crown called in total 13 witnesses and the Crown would say there is no basis for suggesting that the jury would have rejected those Crown witnesses having, as it were, accepted the Crown case that he has used the knife and had done so with intent and, indeed, to go on, as they must have, and satisfied that the Crown had proved that the acts were not under provocation, albeit that they did so on the basis of the “would” test, rather than a “could”. Nevertheless, they were satisfied that the Crown had met that test in relation to provocation.

GLEESON CJ: Could I raise with you the same question I raised with Mr Game this morning. Suppose you put the racial slur to one side, where does that leave provocation?

MR ELLIS: On the accused’s evidence, the only other provocation really is his claim that he was held at one stage after the initial punch had been thrown. The fight started, he was then held, and he said, while he was being held he was punched and kicked. He does in cross‑examination suggest that that was something that he had got fairly upset about at that point in time.

GLEESON CJ: But what I am trying to understand is the way the concept of provocation relates to events like that in the course of a bar room brawl?

MR ELLIS: Your Honour, it is very difficult to say, for instance, that in no such case could there ever be provocation. One can think of an occasion where if an insult is passed and a man punches someone, then that person –or, for instance, a woman slaps a man or is struck by a man, then there is a response which is so overwhelming as to potentially, at least, at that point in time, that is, at the point of assessing whether there is enough to go to the jury, taking the defence case at its highest, that there would be sufficient in such a case to say, “It may be that despite his initial assault, what happened thereafter could theoretically amount to provocation.” I do not think one could say that that would never happen. I think it would be a very rare case in which it would happen and an even rarer case in which it would be successful. Some of the other examples your Honour posited this morning in relation to other conduct, for instance – the robber, who is detained.

GLEESON CJ: Well, if you put the racial slur to one side in the present case, I have some sympathy with the position of a trial judge trying to instruct a jury, leaving aside the “would” and the “could” business, how you would instruct the jury by relating the law on provocation to the facts of a bar room brawl.

MR ELLIS: It is certainly not aimed at that. I mean, it is clear, I think historically, that provocation really is not something that occurs halfway through any type of fight. It is usually something which ought to have taken place by the time the fight starts or when the fight first starts. If you are punched ‑ ‑ ‑

KIRBY J: Except that in human conduct you could start with a minor scuffle and then things could be said or things could be done that turn it, by provocation, into a mortal combat. That is what I understand is the fall‑back position. Leave aside the insult at the beginning, midway through there is the holding of him, the kicking and the allegedly provocative statement, “Leave him alone. Let’s see what he can do or what he is made of or” ‑ ‑ ‑

MR ELLIS: I mean, the Crown would say that all that is happening there at the very highest is an invitation to fight or that they are, as it were, each choosing not to exercise control to maintain their temper. There is a big difference between having no control, not having any control over what you do, and choosing not to exercise control. I am sure all of us have been at times that we have lost our temper, have been aware of the fact that we have lost our temper, and go through that process of saying, “Shall I control this?” More often than not we do not exercise that control. It is not that we could not, but we choose not to. That seems to be what happens to ‑ ‑ ‑

KIRBY J: I am not conscious of ever being in that position.

MR ELLIS: Perhaps your Honour is the sole exception to that observation of mine. Another example way of looking at it is perhaps look at self‑defence. Where does self‑defence apply? Can a man who starts a fight ever claim self‑defence? Clearly, sometimes he can. If he starts a physical punch up and then a man produces a knife, it may be that what that man then does thereafter could potentially be acting in self‑defence. So it is very difficult to set down what the rules are. I also acknowledge that if you have a case of that type it is very difficult to instruct the jury as to what they need to look at and what it is the Crown has to disprove. In this case the Crown’s main thrust is firstly you would not accept that the racial slur was made. You would not accept his claim to having been held because, again, there is only, I think, one person who may potentially support that claim.

So the real issue in this case was a credibility issue. Do you accept, coming pretty well as it does only from the accused what he has said. When you have 13 other witnesses, despite the fact that it is a pub brawl and everybody sees a different thing, or has a different perspective on what they see, the failure of any of the others to hear the racial slur, the failure of all but one ‑ and I will come to that person ‑ including the person who is said to have been detaining him at the time, that the accused is held and is then assaulted whilst he can do nothing about it, which seems to be the suggestion, by being kicked and punched by the deceased. The Crown says that is the way the Crown certainly ran its case ‑ I withdraw that, because the Crown had no opportunity to comment on provocation at all. Provocation was not raised until after the Crown had concluded his closing address. He had no subsequent closing address. Certainly, during the course of the address that he did make he made no mention of provocation. It is probably reasonable to say that at that point it was not a topic. As at that Friday, when he had finished, the judge himself was seeming to indicate that he perhaps was not of the view that it ought to go.

GLEESON CJ: I presume the prosecutor addressed first.

MR ELLIS: The prosecutor addressed first. Then after he had finished his address, defence counsel raised with the judge provocation. That was on the Friday. It was then stood over to be considered over the weekend. Then on the Monday the judge ruled, as he did, that he would ‑ well, he never actually made a ruling ‑ ‑ ‑

KIRBY J: The judge would have been very keen to avoid losing the very lengthy trial.

MR ELLIS: Yes.

KIRBY J: He would have been prudently trying to save the trial from any technical hitch.

MR ELLIS: I think that is certainly clear, your Honour. If you take out the “would/could” issue, it was likely that the direction would be given, the jury would not act on it because it was not anybody’s case, and there would not be a problem. And the only reason ‑ ‑ ‑

KIRBY J: All of this is fair enough, but once the judge is persuaded to give a direction, by law, he must give an accurate direction.

MR ELLIS: Yes, not only legally, but logically, it should be correct.

KIRBY J: The strength of the applicant’s case is that the judge used the word “would” instead of “could”, which the statute denies.

MR ELLIS: And the Crown says the strength of the Crown case is twofold; firstly, that the jury were unlikely to get to the second leg where the error occurred, because there was, firstly, a rejection of this accused, and, the Crown would say, a rejection of his claim as to racial taunt as well as to physical. When you look at the evidence, the fact that he is the only one of 14 people describing this fight who is able to say he heard the racial slur, and the only one who actually says that he was held and then kicked and punched by the deceased – there is only one other person who observes a kicking to the torso, but that witness does not say that it was whilst the accused was being held. So that is the first leg of the Crown case ‑ ‑ ‑

KIRBY J: Who was the other witness who confirmed? Can it be said that a jury, properly instructed, might have accepted the accused and that witness?

MR ELLIS: It was the witness, Phoebe Veness. Her evidence is found at AB 324. She said that “the larger man” – this was at 334 of the appeal book, which would be in volume 2. My summarised note of what she said was that the accused was trying to get past the larger Islander to hit the deceased, that he was “pushing and trying to fight”, and that, at that time, the deceased kicked the accused to the torso. The larger Islander, Mr – I am not sure how he pronounces it – Niumeitolu – he commences, I think, at AB 7, the very first witness. He in fact said that the accused ran around the pool table to punch the deceased, and he did not see any instance where he was holding the accused and the deceased kicked him or punched him. He in fact says that he “ran around the pool table” to recommence, after having thrown the first punch in relation to the first incident.

So on the evidence the Crown would say, and bearing in mind that the jury obviously have rejected the accused’s version about the knife so he does not have a lot of credibility or reliability, that it is extremely unlikely that the jury, to the contrary of all of the other evidence, would have accepted what the accused said. So that is the first leg.

The second leg is the Crown would say that there is, in fact, no evidence of loss of self‑control. There may be clear evidence that he was acting in anger, but the Crown’s argument is that there is, in fact, no loss of self‑control. In my written submissions from paragraphs 5.16 through to 5.20 I have put a brief summary as to what the Crown says in relation to loss of self‑control. As a simple example the Crown would say that you cannot, in fact, start a fight and then claim provocation when someone hits you back.

So on that simple scenario, the Crown would say provocation does not apply. It would only be if there was some significant escalation, either by means of resort to another weapon or moving from a mere push and shove or slap into a much more defined and significantly serious offence.

KIRBY J: But can one infer from the way this brawl developed that there was a loss of control from the fact that something arising out of such trivial matters as the loss of a game of pool and a dirty look turns into a murderous attack or homicide?

MR ELLIS: If one looks at the history, according to every witness the accused was the aggressor and was aggressive all the way through. If you have a look at the evidence in terms even of what was happening in the toilet before any of this, he was agitated, aggressive. There are people in our community who like to fight. There are people in our community who go to pubs and someone looks twice at them and that is an invitation to go over and exchange some physical pleasantries.

So that look at it in this environment, the Crown would say this man was, in fact, a fight waiting to happen. The fact that it did not take much, the loss of a pool game, the fact that he had got a dirty look, so he says, when he bumped him – and no doubt if you bump a man when he is playing his pool shot, you generally will get a dirty look, I would imagine, and especially if there is money on the table and you are the opponent – then he refuses to shake hands. That shows his state of mind.

Why is he refusing the man’s offer? At that point in time the deceased had done nothing. The deceased had, in fact, been the victim, as it was, of being bumped. So it goes to show the state of mind of this particular accused that he refused the handshake and that he was the first to throw the punch. It escalated, things calmed down. I mean, when you lose control, you lose control and people go berserk and do all sorts of terrible things, stab people 20 times, but there was an altercation. He punched a man, seemed to calm down, then it started up again.

It is a bit difficult to get the precise number of times it stopped and started, but it certainly did stop and start a number of times and there were lulls in between which are inconsistent with a man having a loss of control. I mean, to lose your temper does not mean you have lost self‑control. The Crown says that is exactly what happened here and if you have a look, I think my learned friend suggested that the Crown Prosecutor was seeking to show that the accused had in fact lost self‑control.

Our submission is that the Crown sought to show that the accused was an aggressive, violent man who acted in anger, not as a result of loss of self‑control.

If the jury determines, as the Crown say they would, bearing in mind their rejection of him and the overwhelming evidence to the contrary, any provocative act, there is no provocative act caused by or created by the deceased. It is at least arguable, for instance, that if a man is punched and then punches back, that that is not the act which is causing the provocation because in fact the cause of it is the accused himself. So far as provocation is concerned the section stipulates – and it is unusual in the way it does this – what it is that must exist to classify:

the act or omission as a result of loss of self‑control on the part of the accused that was induced by any conduct of the deceased towards the accused.

It is difficult to imagine that if you are punched and you strike back in self‑defence, that that could be said to be conduct towards an accused which could constitute provocative conduct, unless, of course, you have that very rare case where you punch a man and then he pulls out a shotgun and does you some permanent damage with a shotgun.

Certainly, in this case the Crown would say there is no act of the accused which could be said to constitute provocation. There is no loss of self‑control, or if there was a loss of self‑control, it was not because of anything the deceased had done. It was because of the state of mind of the accused. I mean, if a man is, as it were, determined to do damage to somebody because he is in such a mood that he wishes to hurt someone and then so loses control of himself that he goes berserk and does that, that is not provocation. It may be loss of self‑control but the loss of self‑control has to be induced by the act of the deceased. So the Crown says here that was not the situation.

So it is unlikely that the jury ever actually got to the second limb and the “ordinary person” test. Just on that, I think before lunch your Honour the Chief Justice asked about the impact of speed on the test. The Crown’s submission ‑ and certainly this is from my recollection of running a number of these murder trials ‑ that the test is that could an ordinary person with ordinary levels of self‑control, not affected by subjective matters such as intoxication, when confronted by the level of provocation presented to the accused, which contains the subjective element because it is the level of provocation to that accused in the circumstances of that accused which might include some aspects of his perception being impaired by alcohol, et cetera, but the “ordinary person” test or the level of self‑control is not a test which goes up and down. The level of self‑control is said to be that community test which is a common theme against which you gauge the degree of provocation which might occur in any given case.

So even in the case of, say, Green where the provocation was said to be the homosexual attack, there was a question of weighing up the level of that provocation to that individual man and then testing it against the standard of the community which does not change in terms of the average person’s ability to control themselves. So whilst alcohol may play a part, it does not alter the level of self‑control, or drugs, for that matter. Logically, the drugs would make it even more difficult because how do you – if the level of the ordinary person’s self‑control went up or down depending on the impact of drugs, how do you ever determine where that is? The average jury, one would assume – hopefully, it is not so I can still say this, but the average juror probably has not experimented with heroin or cocaine, so it does not know the impact that such a drug might have on the level of self‑control of an otherwise ordinary person.

GLEESON CJ: Well, the average juror happens to be a woman who has probably never been involved in a bar room brawl?

MR ELLIS: True. There are two women who gave evidence and it was clear from their reluctance to actually look at anything that that is probably a fair observation. There are men who enjoy bar room brawls. Our community is quite diverse in the things which people find attractive or fun, and the Crown would say here that you have a perfect example of someone who was looking for a fight; he wanted to fight. If you accept – I think it was the evidence of Mr Ramere, I think it was, who said that – I will double check this as I go through it quickly – but one of the men who in fact was the driver of the vehicle that took the accused and Mr Niumeitolu to the pub – yes, it was in fact Mr Rostami ‑ said that he saw the accused with the knife in the car, and at appeal book page 33 there is said to be a conversation in which the accused said – this is at AB 33, line 46 or so, after he has described the knife and what was being done with it. He said:

Q. What did he say?
A. He say, when you’re in trouble or you want a fight with someone, your friends, you can’t rely on them, they can run but knife is always your friend and is in your hands, never run away, it’s always with you.

There are two things that come out of that conversation, if it is accepted, and all of the things that I say I am mindful of the fact that some of these people were inconsistent and there are a number of warnings that the judge gave in relation to them but, nevertheless, the evidence is there and the jury were entitled, as they did, to act on it as a conglomerate piece of evidence.

Interestingly enough, it is claimed by Mr Rostami that it was, “when you are in trouble or you want a fight”, and the Crown says, that really paints the picture here; when you want a fight ‑ he could not rely on his friends because his friends were actually holding him back trying to calm him down, so he relied on the knife. That is one of the observations I was going to make about Mr Niumeitolu, a very large man described as being over six foot tall and weighing 169 kilograms. One wonders how brave a man would be, in the presence of that man and the accused, who himself was not small, to say, “you fucking black cunt”, when the man mountain beside him also happens to be the same colour and racial origin. So that that is a commonsense thing that the jury would be entitled to take into account.

HAYNE J: There is not much commonsense shown in bar room brawls, is there, Mr Ellis. I think we are a long way from reality if you start to apply logic and commonsense.

MR ELLIS: I do not know, your Honour. When it comes to standing beside a man that big, a lot of people are more circumspect than they might otherwise be and I think it, when you add it to the fact that no other witness heard it, the jury were entitled to conclude that it was never said. The corollary of that, of course, is if they accept that then it is unlikely they are going to accept what the accused alone said about the actual sequence of events in terms of the fight.

HAYNE J: If you confined attention to the account of events given by the accused ‑ I understand you say that that is not the right way to approach it, but if you did that, was there material revealed by that sufficient to allow a jury to entertain a doubt about whether the conduct could induce an ordinary person to so far lose control as to intend death or grievous bodily harm?

MR ELLIS: Your Honours, could I answer that perhaps two ways. The answer strictly to that may be no, but in the circumstances of a 23‑day‑old trial, and it, in essence, not really being an issue, would you not leave it to the jury?

HAYNE J: A separate question about whether the judge was wise to charge the jury on provocation simply to ensure against possible future events, but was there material on which the jury could have entertained a doubt of the kind I have described, if you confined attention to the accused’s version of events.

MR ELLIS: And at that point in time assessed at its highest, as I understand, it is the test.

HAYNE J: Yes.

MR ELLIS: Assessed at its highest you had his claim that there was a racial slur, his claim that he took exception to that, added to his claim then that not only was there the racial slur, but that he had been struck a couple of times whilst being held.

HAYNE J: Yes.

MR ELLIS: Theoretically ‑ I would have to say that it is very marginal but, theoretically, that might, taken at its highest on his case alone ‑ may have been enough to go to the jury. The only difficulty was he does not actually use the words that he ever lost control, but you can, if you take the circumstances at its highest, I suppose ‑ ‑ ‑

HAYNE J: That proposition amounts to the proposition, it seems to me, that an ordinary person might have lost control to the point of intending to do death or grievous bodily harm if assaulted in the fashion described after the racial slur earlier described.

MR ELLIS: Your Honour, I think that had I been addressing the primary judge on the issue I would have addressed that it was not in fact appropriate to leave provocation. I would of course on the other hand said, “But I understand the safety aspects”. The Crown’s submission at that point would have been, by me, that there was not enough but when we look on it now I think it is not necessary to go to back and say, “Well, strictly should the judge have left it at all?”. It is certainly a marginal proposition but I do not think it is necessary for the Crown to actually assert that he positively should not have left it, because you have now the intervening factor that he did give evidence. He has been rejected. When you look at all of the other evidence, and the rejection of him as a witness of truth, which flows from the verdict, that in fact the Crown is able to say, regardless of whether it went and was incorrectly given, he did not in reality lose a chance of acquittal. There was certainly no substantial miscarriage of justice, given what I have just said, together with the fact of how that whole case was run and the fact that no exception was taken to it at the time. Usually the failure of counsel to ask for a direction is because the alarm bells have not gone off because they do not think it is of any great significance or importance.

GLEESON CJ: There are decisions that I have seen in the past, including decisions in the New South Wales Court of Criminal Appeal, that actually say that, are there not? There are cases where judges say the significance of the fact that a redirection is not sought ‑ and you may add, a fortiori, that something does not constitute the subject of a ground of appeal – is that it demonstrates that it was not regarded by those at the trial, representing the accused, as being a matter of practical importance.

MR ELLIS: Yes, there are, your Honour.

McHUGH J: Justice Hayne said it in one of our cases. He said it in Crampton.

MR ELLIS: In Crampton, yes. I think I have extracted that in the written submissions, your Honour. There is a clear line of authority on the rule 4 line of authority in New South Wales. With respect, it is only logical. He raised provocation and at the same time elected not to speak on it at all. Not even as a throwaway line, to say, “And His Honour will tell you something about provocation.” But not only that. He asked his Honour to direct the jury ‑ reminded him, I think, to direct the jury that in fact it was no part of the defence case.

HAYNE J: Mr Ellis, if the root principle is that counsel for the defence cannot effectively disclaim a defence open on the evidence and that counsel cannot concede a matter of law to the disadvantage of the accused ‑ that is Pemble 124 CLR 133 ‑ step one is demonstrating that there is a defence open on the evidence.

MR ELLIS: Yes, true.

HAYNE J: And, here, it seems to me that an area for debate is how this objective element of provocation should be applied. Most especially is that so where if we were to upset it, send it back for retrial, would we be saying that ‑ ‑ ‑

MR ELLIS: No provocation ‑ ‑ ‑

HAYNE J: ‑ ‑ ‑we say the ordinary person in the street can react by forming an intention to kill or do grievous bodily harm in the circumstances of this bar room brawl? Now, that is a very large proposition for this Court to embrace.

MR ELLIS: Yes, the reality is, I think, that is what this Court would have to do. If you are, in fact, sending it back for trial, it is for retrial with provocation to be run as an issue and to be directed correctly on this occasion.

KIRBY J: Some have taken the same view about the orders in Green. It was a large proposition in that case, yet the Court sent it back and, in fact, there was a retrial and, in fact, the second jury came back with a verdict of manslaughter, not murder.

MR ELLIS: Yes, many things can happen though in retrials. I am not quite sure what one can take from that, but I think that your Honour Justice Hayne is saying that that issue of whether it should have been left in the first place may not be determinative in terms of whether the Crown is successful or not, but it may be very much more significant to the defence case in the sense that if the applicant is asking that this Court set aside the conviction and send it back for retrial, that involves this Court, in fact, sending it back for retrial on the basis that provocation is available in this case and ought to be put.

With respect, I think that would be a bigger step to take than the one taken even at first instance by the trial judge who at that point does not know that the accused is to be rejected on the main and does not know that it is a fair inference that it is unlikely that the jury actually accepted him on anything really and he has the added burden of knowing that he has a lengthy trial, a nearly five‑week trial, hanging on what he does and, potentially, there have been cases where the judge has not allowed provocation to the jury and it has been overturned even in otherwise strong cases because if provocation is genuinely available and is not left, it is very difficult for the Crown in a case like that to actually get up on the proviso point because it is hard to positively say that he lost no opportunity of acquittal on the murder point.

This is a different situation though. It was left – not left perfectly. The significance of “would” and “could” in the circumstances of this case is very much more minor than it can be in other cases, even though there is a clear and obvious difference between “would” and “could”. In the circumstances of this case, even his own counsel having, as it were, run the flag up the pole and asked for the direction to be given, did not pick up on it, did pick up on the fact that he wanted the judge to reiterate to the jury that it was not the defence case and that really just demonstrates what the jury have confirmed by their verdict: that the issue in this case was not one of provocation. The issue was whether or not he stabbed this man.

The Crown says when you now look back in hindsight it is clear that there was no miscarriage. The trial was conducted in what was the only possible way for the defence to run it. The technical mistake could not have induced a miscarriage of justice, the Crown would say, in all the circumstances of this case. I am not sure whether your Honours wanted me to – I can probably in five or six minutes race through the various witnesses.

GLEESON CJ: That would be convenient, if you would not mind?

MR ELLIS: Certainly. I will start with – I am doing these simply in the order in which they were called and appear in the appeal book. Rostami is to be found in AB 28. He said that – or “gave no evidence of any racial slur.” He said, “The accused started the fight”, that “the accused wanted and did continue the fight.”

KIRBY J: Who was he? Was he just a bystander?

MR ELLIS: Mr Rostami had met the accused that night through the other large Island gentleman and he had driven the two Islanders to the pub.

McHUGH J: He claimed he saw the knife in the car on the way to the ‑ ‑ ‑

MR ELLIS: He claims that he saw the knife in the car; that the accused was playing with the knife – he described it – and then he is the one who gave that conversation that I took your Honours to a little while ago.

McHUGH J: The judge was very critical of Rostami, was he not?

MR ELLIS: Yes, your Honours. There is criticism ‑ ‑ ‑

McHUGH J: In fact he told the jury that, “If you have any problems with him you should just disregard him.”

MR ELLIS: I think if we had Mr Rostami all alone, we would not be here, but the reality was that whilst there were problems with a number of these witnesses it was the cumulative effect and the common theme that actually runs through the evidence. He did see, he says, the stabbing, and saw the knife in the accused’s hand.

Mr Niumeitolu, from appeal book page 7, he did not hear the racial slur; the accused threw the first punch. He said there was no kicking or punching by the deceased whilst the accused was being held. The accused went in around the pool table to restart the fight. He saw blood and he saw the accused with the knife.

Mr Ramere at appeal book 202: he did not know the accused. He knew of the deceased. He did not hear a racial slur. He said the deceased was placating at various stages or trying to be of that ilk throughout; that the accused was the aggressor; that he heard the accused say, “I’m going to kill you”. There were about four separate incidents. Now, he says that a man called Johnny, which I think is fair to say, is the man, Henao, who was a witness who was called – the last minute he made a statement but a couple days before the trial, so it was a couple of years down the track. He had not been spoken to since the incident. It was said by Mr Ramere that it was this person, Johnny, who himself was apparently black, said to the deceased, after the accused had been aggressive and loud and said he was going to kill you, said to the deceased:

“Don’t worry about it, those black cunts are all the same.”

This witness said then the deceased said to Johnny:

“Come on, mate, I have met some beautiful black people in my life, don’t say things like that”.

My note is that it was the deceased said to Johnny those words that I have just said and that is according to what Ramere says.

HAYNE J: That is page 215 at the foot?

MR ELLIS: Yes.

HAYNE J: Billy, the deceased?

MR ELLIS: Yes. He does also say that he heard the deceased say, “let him go, let’s see what he got, let him go”. That was at 222.

Mr Sidoti commences at 282. He did not know the accused or the deceased. He saw a scuffle and push. The accused was the aggressor. He did not hear the racial slur. He did not see how the deceased received his wound. He did not see the accused held and kicked and punched. He saw the accused, in fact, break free from the large Islander and come around and recommence the fight with the deceased by punching the deceased. He heard someone yell, “He’s got a knife”. Within moments of that he saw blood spurting from the deceased’s neck.

Phoebe Veness, at AB 324, she was a girlfriend of the previous witness, Mr Sidoti. She did not know the accused or the deceased. She saw a bit of pushing, thought it was joking. The accused trying to get past a large Islander. Pushing and trying to fight. The deceased kicked the accused to the torso. Your Honours, I have shortened this a bit. I am using those terms but they did not actually say it was the deceased. They just identified people but there was no issue at trial about that. She is unsure of what happened then. The deceased ended up on the floor. The accused was on top of the deceased, fighting. The accused pushed the deceased up against a glass door, saw that frame break and smash. Later saw blood on the accused and saw the accused throw a beer glass.

McHUGH J: She also gave evidence, did she not, that the deceased went outside and was smoking marihuana?

MR ELLIS: Yes, prior to the commencement of the fight, yes. I have really only dealt with the commencement of the arguing and any fighting but ‑ ‑ ‑

McHUGH J: That might indicate that he – I do not know.

MR ELLIS: More laid back, perhaps.

McHUGH J: Yes, do people get aggressive with marihuana? I do not know.

MR ELLIS: I think long term use you can get paranoid, but generally speaking, it does not induce aggression normally.

GLEESON CJ: You say “normally”. A lot of people who are not so clinical as to ingest marihuana on its own.

MR ELLIS: No, that is so, too. We are not sure in this case whether there is any evidence of other drugs here. There is certainly the suggestion of other drugs being around.

HAYNE J: The accused gave evidence, did he not, that he had taken a couple of lines of speed?

MR ELLIS: Yes, the accused did. He was on speed. He said he had two lines of speed, but I do not know in relation to the deceased. I do not think there is any suggestion of anything other than marihuana.

GLEESON CJ: Sometimes there is a rather naïve assumption that people who take marihuana are specialists.

MR ELLIS: Yes, that is certainly so.

CALLINAN J: In any event, a lot of evidence these days suggest that it does produce schizophrenic behaviour in people.

MR ELLIS: Yes, and paranoia.

CALLINAN J: And in very small quantities.

MR ELLIS: And that is part of the problem, you do no know what the history was of the deceased.

CALLINAN J: Particularly if somebody may have the slightest disposition towards schizophrenia.

MR ELLIS: Yes.

KIRBY J: But we are not here dealing with the whole marihuana debate.

MR ELLIS: We are not, that is certainly true. But the common theme among – I think, without exception – all of the witnesses is that the deceased was not the aggressor and generally was trying to placate and ‑ ‑ ‑

KIRBY J: On the contrary. He showed his hand to the man ‑ ‑ ‑

MR ELLIS: He did.

KIRBY J: ‑ ‑ ‑ and went there and offered friendship, but it was rebuffed.

MR ELLIS: Yes. The next witness was Scott Williams, at AB377. He again says the accused was the aggressor. He saw the pool cue slammed down, the accused did not look happy. There was a slightly heated exchange. He then says that the accused threw a punch at the deceased. He heard ‑ ‑ ‑

McHUGH J: He did think at first that the bleeding might have been due to the glass, did he not?

MR ELLIS: Yes.

McHUGH J: But then he saw the knife.

MR ELLIS: Yes. There certainly was an injury to the right shoulder blade of the deceased, which seemed to be consistent with a glass injury received at some earlier stage when they were on the floor. He does describe the deceased as bleeding from his right shoulder blade. Then he says he was trying to pull them apart, he saw the knife in the accused’s hand – he could only see the blade – and that the accused and the deceased were face to face, almost together at that point. Shortly after, whilst he did not see the stab wound, he saw a second wound to the upper chest and neck area of the deceased. Similarly, he did not see any kicking while the accused was held, nor did he hear the racial slur.

Jennifer Drew, AB439, she saw wrestling and jostling at one end of the pool room, initially thought they were mucking around. She was not wearing her glasses – she was short‑sighted – so things were not in focus. I can understand that problem. But she does say that she saw blood running down the man’s back, she saw a glass thrown, she saw another man then approach the injured man, and she heard, “He’s got a knife, he’s got a knife”, but she cannot identify anybody. She heard, “He’s got a knife, he’s got a knife”, but she did not hear any other racial slur.

Paul Cahill, who was with the man Scott Williams, saw two men fighting. He did not hear the racial slur, he did not see any kicking of the accused while he was held. He saw an injury to the shoulder blade during the fight, saw the glass door broken, he heard, “He’s got a knife”, and then he ran off to leave. He looked back for his friend Scott and he saw the deceased holding his neck, saying “He stabbed me” or “He has killed me”. John Williams, AB489, saw the person who was clearly the accused in the toilet area before this incident speaking very loudly and very aggressively. Then he saw the deceased and the accused fighting, the accused was being restrained and the accused lunged forward towards the deceased. The fight then resumed after the accused punched the deceased.

He then gave some evidence about the toing and froing of those exchanges, saw the accused throw a beer glass at the deceased, he saw a second glass thrown. He saw the accused walk rapidly towards the deceased. The deceased picked up a barstool, the accused knocked the barstool out of the deceased’s hands and swung his right arm and struck the deceased on the left hand side of his neck. As the arm of the accused was pulled away, the witness saw a lot of blood splatter onto the floor. The accused immediately turned and ran out.

So, again, the accused was the aggressor, did not see any kicking whilst he was being held and did not hear the racial slur and whilst he does not say he saw a knife, the only reasonable inference from a blow with the right hand to that region, immediately thereafter blood spurts and the accused takes off, was confirmation of a number of the other witnesses that he had stabbed him.

Paul Bryant, appeal book 535. He said the accused was aggressive, saw the fight. The accused came back and restarted the fight. The deceased was trying to pull away. They both ended up on the floor wrestling. When the deceased got up he had moved to a doorway towards the bar, away from where they were fighting. The accused threw a glass at him, then he looked away and when he looked back the accused had moved back directly to be standing directly in front of where the deceased was standing near the doorway. He then saw the accused run off and just after the accused ran off he noticed an amazing amount of blood on the floor and he saw the deceased grab his left-hand side collar bone. Again, saw no kicking while the accused was held and no racial slur.

Mr Henao is the man who came forward some couple of years later. He could remember very little. He did not remember hearing the racial slur or saying it. It was put to him in cross‑examination and he denied that the deceased said it, he denied that he said it, but then he conceded that he might have, but he had had a few drinks and he could not remember, which was pretty well his evidence. So, in a sense, it took it nowhere.

Mr Dominic Fede at AB 572, the noise attracted his attention. The accused was yelling at the deceased. The accused lurched towards the deceased. The deceased was defensive, not aggressive. The accused was swinging towards him. The accused was restrained by the larger man, tried to free himself and in so doing smashed the glass door in his struggle. He said then things settled down a bit and then the accused lunged at the deceased and laid into him. He next saw the deceased get up off the floor and he moved over to the door near the entrance to the bar. He saw a glass fly through the air. Then he did not see anything after that. He saw the deceased subsequently holding his neck and blood gushing and he heard the deceased say, “What are you doing? What are you doing? I am dead. You have killed me.” He did not hear the racial slur, did not see him held and kicked whilst being held.

George Saad, appeal book 597. He was involved in getting the pizza and he knew the accused and he grabbed the accused when he noticed the fight and held him in a bear hug, he said. He held him for a few seconds – this is at 602 – he calmed down, then he let him go. He then returned to where the pizzas were and the fight broke out again. It lasted longer. It involved chairs and tables, he said. The very large man broke it up by standing between the two. He said that he picked up a pool cue to chase the deceased out, as he had noticed that the accused had a knife in his hand during the second struggle. He saw the knife for a few seconds and the accused was jabbing with it. He said he saw the deceased pick up a stool. He then lowered his pool cue and stepped back. He then saw the accused run towards the deceased, lunge towards the deceased. He then saw blood dripping from the deceased’s jugular and he heard, “He has got a knife.” He said he panicked and left. He did not hear the racial slur and he did not see any kicking whilst he was being held.

That, in essence, is the summary of the main witnesses.

GLEESON CJ: Thank you.

MR ELLIS: The trial judge summarised all of this material and he broke it into various categories. There was no challenge made of his direction in terms of the factual side of it, of his summary of the facts, and one area I did want to take your Honours to, the suggestion of the onus of proof, that his Honour had reversed that in his directions.

The Crown’s submission in relation to that is that you need to start at 725 of the appeal book at approximately line 37. His Honour having gone through the first four questions that would be set out for the jury said:

And there is a fifth question which might arise, depending upon how the other four questions are answered and that is question 5: Has the Crown proved beyond reasonable doubt that such intentional killing of the victim by the accused was not the result of provocation, in the requisite legal sense, of the accused by the victim?

At 727 his Honour continued, at lines 16 and 17:

then you will have to consider question 5, which is the question of provocation. If you come to that question and you answer it “Yes”, in other words if you are satisfied that the Crown has repelled beyond reasonable doubt any suggestion of provocation, then you will return a verdict of guilty of murder because on that basis the Crown would have had – “success” is not the way to put it – the Crown would have had favourable answers from you on questions 3, 4 and 5 and that would be the end of the matter, the Crown would then have established, beyond reasonable doubt all of the essential ingredients in its case.
On the other hand, if you answered question 5 unfavourably to the Crown, that is if you answered it “No”, once again you would return a verdict of not guilty of murder, but guilty of manslaughter –

and his Honour referred to the document and at 858 line 30 he refers to question 5. They have the copy of the document in front of them. At line 35:

Has the Crown proved beyond reasonable doubt that such intentional killing of the victim by the accused was not the result of provocation in the requisite legal sense of the accused by the victim?

Then, at about line 45, at the end of that:

the question of provocation, as the question of intoxication, arises not because the accused has himself made it a positive feature of the case, not because he has any onus in relation to it, but because, as with the question of intoxication, there are, as we shall see, some references in the evidence which seem to me to require, as a matter of law, that the matter at least be brought to your attention –

and at 859 line 30 he is talking about the:

three essential things . . . The first of them is this: If, but for the matter of provocation, you would have found the accused guilty . . . then if the Crown does not succeed in proving beyond reasonable doubt that the accused was not provoked by the victim, in the ways now suggested by the evidence, to kill the victim, then the law will hold that such provocation has reduced what would have been the crime of murder to the crime of manslaughter.

At 866, point 45, his Honour concluded:

onus of proof on the Crown, as to every material issue, which is to say as to each of those questions one to five in the precise way in which I have stated them for you; standard of proof beyond reasonable doubt ‑

which means exactly what it says, no more no less. Clearly at 874 you have the extracted written directions which, so far as the first page, start off:

The question to be decided is:
Has the Crown proved beyond reasonable doubt that such intentional killing of the victim by the accused was not the result of the provocation, in the requisite legal sense, of the accused by the victim.

And then at line 27:

then if the Crown does not succeed in proving beyond reasonable doubt that the accused was not provoked by the victim (in the ways now suggested by the evidence) to kill the victim, then the law will hold that such provocation has reduced what would have been the crime of murder to the crime of manslaughter.

The Crown says when you consider that his Honour started with the directions in terms of the correct onus of proof, referred to them through the case, concluded virtually with his last remarks that the onus was on the Crown, gave the jury a written document which clearly set out that the onus was on the Crown, and all his Honour has done in the meantime obviously is to direct the jury that when they consider provocation they will have to make – and they do have to make findings of fact before they can decide whether the Crown has negatived provocation or not. The way in which it is put in no way, in light of the clear directions on the onus, could have suggested to this jury when they had that document with them at all times when they were considering their verdict, that there was in fact any onus on the accused to prove anything in relation to provocation.

His Honour’s summary in relation to these matters, for your Honours’ information, can be found so far as the summary of the accused’s evidence, at appeal book 777 and then thereafter his Honour summarised the cross‑examination from page 786. His Honour summarised the evidence in relation to the blood at appeal book 794. He summarised the pre‑fight evidence at 812, the insulting language and aggressive behaviour evidence at 821 and, “He’s got a knife” evidence at 928, and those who saw the knife in hand, at 931. As I say, there was no challenges to any of those directions. If I said 931, it must have been 831 rather than 931. It does go that far, but not the summing up.

Your Honours, in relation to the jurisdictional Crampton point, I rely upon the written submissions at paragraphs 5.1 to 5.9. The Crown says that this is not an appropriate case for the granting of leave. There is no fundamental error, no loss of opportunity to quit.

KIRBY J: The only troubling point is the “would” and the “could”, I think. That does appear to be an error. Is your submission that, viewed against the background of the issues in the trial and all the factual evidence that you have now gone through, that such a slip, an infelicity, is not such as would have misled the jury from the strong directions on onus of proof?

MR ELLIS: Yes, your Honour.

KIRBY J: Is that a proviso point.

MR ELLIS: It is both I suppose, your Honour, although it is all probably proviso but on the first leg the Crown says the jury would not have made it to subsection (2)(b). There was no need for the jury to entertain or test it on the objective test because the Crown says there was no evidence of any provocative conduct from the accused which they would accept and there is no evidence for them to conclude that there in fact had been a loss of self‑control.

For the Crown to disprove provocation, if we succeed under that first leg of (a) and establish either of those, that is, that there is no loss of self‑control or no provocation which caused such “loss of self‑control”, then that is the end of it and the jury would not have been required to go any further. Indeed, if the matter went back to retrial, that would still be the strength of the Crown case, that you will not get to (b).

Certainly, the other aspect is that in terms of the proviso the circumstances of the strength of this case, the difference between “would” and “could” in the circumstances of a nigh on non‑existent provocation are such as would lead this Court to conclude that there had been no substantial miscarriage despite the technical error. I accept that in some cases that could be a very significant error. It is just that in this case, it is not.

HAYNE J: At the stage of considering whether to grant leave it would also go, would it not, to whether the interests of administration of justice in the particular case required consideration by the Court of the issue.

MR ELLIS: Yes, that is so. If your Honours conclude that the Crown will inevitably be successful on the proviso, then that is relevant to the application, it is relevant to the consideration of the jurisdictional question. I guess it does not matter, in a sense, which way it is done. It will work back but ‑ ‑ ‑

KIRBY J: It does not matter to you, you just want to win the case. It matters to us.

MR ELLIS: In the sense that logically there is no need to move in either direction but technically if the Court is, as it necessarily is, is looking at the question of the application, then it is a question of assessing the evidence, a question of assessing the strength of the Crown’s argument re the provocation and re the proviso point. If the Crown succeeds on those points then, in fact, there is no basis for establishment of exceptional circumstances which my learned friend is required to establish following Crampton.

Unless there is some other areas that I have not covered ‑ your Honour made one reference this morning to a case of – it is from Justice O’Brien from Victoria. We have located that case. It is available ‑ ‑ ‑

KIRBY J: I would be interested to see it.

MR ELLIS: It is a case of R v Zaharias.

KIRBY J: “R” still stands for The Queen.

MR ELLIS: I am sorry, I am just reading it, your Honour. It does, yes. The Queen v Zaharias, 201 VSCA 168, dated 28 September 2001. It actually deals with duress but it equates it to ‑ ‑ ‑

KIRBY J: Not provocation?

MR ELLIS: No, but it equates it to the similar. Provocation, self‑defence and duress all raise that same objective test so that there is some assistance although to be fair there is a dearth of ‑ ‑ ‑

KIRBY J: We cannot just ignore provocation because it is in the New South Wales Crimes Act. It cannot be wished away but I would be interested whether it is relevant to this case or not, to read what his Honour said because I have only seen it in the newspapers.

MR ELLIS: I have, in fact, copies if your Honours would ‑ ‑ ‑

KIRBY J: You can just leave that and pass that around later.

MR ELLIS: Yes. Unless there is some other area, they are my submissions, your Honour.

GLEESON CJ: Thank you, Mr Ellis. Yes, Mr Game.

MR GAME: Just in relation to the “would/could”. It is not just the “would/could”, it is the doing rather than intending. It may be that the doing rather than intending is more important than the “would” and “could” and it is not just the doing rather than intending, it is doing killing rather than grievous bodily harm.

As I said before, on any count there is error at three levels. It is not just the “would/could”, it is the combination and I relied upon what Chief Justice Brennan said about those in Green.

Your Honours, Mr Ellis has taken you to a lot of ‑ ‑ ‑

KIRBY J: But the onus of proof arguments look pretty thin after you hear all of those very clear and very strong directions given by his Honour to the jury about where the onus lay. I mean they are infelicities at the most, admits to the very strong direction; on this fifth issue the Crown bore the onus of proof. It is said over and over and over again.

MR GAME: Except that his Honour talks about facts being established and did so repeatedly, your Honour, but I have put my submission about that and I do not think it is going to get any stronger by putting it again.

Now, your Honours, with respect to the review of the evidence ‑ and it is true enough that absent Mr Ramere and possibly Mr Henao, there is not support for the racial insults, and then Mr Ramere ‑ the racial insults are coming from Mr Henao but not from ‑ ‑ ‑

KIRBY J: On the contrary, the overwhelming burden of the evidence is against it.

MR GAME: Yes, your Honour, but as I say, there is Mr Ramere’s evidence that has the racial insult but it is coming from a different person but that does not matter, in our submission, in the context of provocation. It does not have to come from the deceased if a mistake of fact is made about it. I have a case about that that I will refer to shortly. The point we make is that – I do not wish to carp on this, but the issue has to be assessed from the version of the events most favourable to the accused. If I could just take your Honours to Masciantonio 183 CLR 58. At the bottom of 67 and the top of 68, it says:

However, because the onus of disproving provocation rests upon the prosecution once there is evidence to raise the question, the actual test must be expressed somewhat more precisely. It is “whether”, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in a relevant sense.” 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 –

So the points made by Mr Ellis are obviously well taken in relation to the facts, but we say the issue has to be determined by a consideration of whether or not ‑ ‑ ‑

KIRBY J: They are very relevant to the issue of whether you get special leave, are they not, and they are very relevant to the proviso? At least they seem that way to me at the moment.

MR GAME: Well, your Honour, if the jury, properly directed, could have had a reasonable doubt about the question, then you could not apply the proviso. I take that from Green 191 CLR and a citation from the quotation – or a reliance upon Chief Justice Dixon’s judgment in Parker, and if I can just refer to that passage in Green again. I have not referred to this passage before, but could I just take your Honours to a passage at 344, and I will not read it out, but there is a long quotation from Chief Justice Dixon’s judgment in Parker and then there is a passage – in part of it it says:

The point is that the issue before the Court of Criminal Appeal was whether by any possibility the jury might not unreasonably discover in the material before them enough to enable them to find a case of provocation.

KIRBY J: Which page is that?

MR GAME: That is at 344, your Honour, and it says in the next paragraph, and this is Chief Justice Brennan:

If a reasonable jury, properly directed, could have had a reasonable doubt as to whether the appellant was provoked to such a degree ‑ ‑ ‑

KIRBY J: All of that brings in “reasonableness”, and that brings in all of this evidence that we have had summarised.

MR GAME: Well, it is whether the jury could, on a proper assessment of the evidence, have a reasonable doubt. We take issue with the argument which is put that because the jury determined that the applicant did the stabbing, therefore they concluded against him, all of the evidence in relation to provocation it does not follow. It does not follow because they may not have even needed to determine that issue having been satisfied that he stabbed the deceased. They may not have even turned their minds to that particular issue. Whether or not it is loss of self‑control or anger, the Crown was very much relying on that conduct to prove its case that the applicant did the killing.

Now, I will not take you to Van den Hoek but it also refers to “any evidence”. On a slightly different point in Stingel ‑ this is just referring to the totality question ‑ if I could just refer your Honours very briefly to Stingel 171 CLR at 326. It says at about point three:

In the same case, Barwick C.J. ‑

and the same case is Moffa ‑

referred to the “totality of the deceased’s conduct” and pointed out that “a jury would be entitled to view the situation in its entirety”.
Even more important, the content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused.

That is all I wanted to say about that.

Now, with respect to the question of a challenge to the factual summary, I do not think anything turns on it, but there was a complaint about the factual summary. In fact, there was an application for a discharge and that is at appeal book 841.

Now, your Honours, with respect to what Mr Ellis said in relation to alcohol, we do not really take issue with what he had to say and I am going to provide your Honours with two cases, a South Australian case of Cooke and a New South Wales case of Croft. Croft was pre-amendment and it is in a slightly different statutory context. But in referring to Croft [1981] 1 NSWLR – and we have that in Court and I will provide that to your Honours shortly – but if I could just give your Honours a page reference. At 149 it says that “a mistake of fact” by a person under intoxication can avail ‑ let us just say intoxication can avail a person in the context of a mistake of fact.

There was just one other matter. With respect to the summary in the Court of Criminal Appeal of the evidence, there is actually a section on insults in the judge’s summing up. We do not take issue with it but it is at appeal book 821 and following.

We will provide the Court with those two cases and those are our submissions in reply.

GLEESON CJ: Thank you, Mr Game. We will reserve our decision in this matter and we will adjourn until 10.00 am tomorrow morning.

AT 3.38 PM THE MATTER WAS ADJOURNED

[2002] HCATrans 383

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