Kutny v R No. SCCRM 95/165, SCCRM 95/166 Judgment No. 5200 Number of Pages 12 Criminal Law and Procedure Evidence Jurisdiction, Practice and Procedure

[1995] SASC 5200

COURT IN THE COURT OF CRIMINAL APPEAL OF THE SUPREME COURT OF SOUTH AUSTRALIA DOYLE CJ(2), DUGGAN(1) and NYLAND(3) JJ

CWDS
Criminal law and procedure - evidence - Appellant convicted of manslaughter - evidence that a third party bad admitted responsibility for the killing in circumstances tending to exonerate the appellant - statements relied upon were made to fellow prisoners of the third party and to the appellant. Held that the trial judge was correct in refusing to leave the statements to the jury as evidence of the truth of their contents. The unreliable nature of the statements in the circumstances in which they were made rendered it unnecessary to consider whether a declaration against penal interest should now be acknowledged as an exception to the hearsay rule. In Re Petition of Van Beelen (1974) 9 SASR 163; Walton v The Queen (1988) 166 CLR 283; Pollit v The Queen (1991-1992) 174 CLR 558 and Demeter v The Queen (1987) 34 CCC, (2d) 137 referred to.

Criminal law and procedure - jurisdiction, practice and procedure - courses of evidence, statements and addresses - Discussion as to whether the prosecution had split its case by calling evidence following investigation into an assertion made by the appellant in the course of her evidence. Held that in the circumstances the prosecution had not split its case. The Queen v Chin (1985) 157 CLR, applied.

Criminal law and procedure - jurisdiction, practice and procedure - judgment and punishment - Appellant sentenced on basis that jury accepted provocation as a reasonable possibility - sentence of imprisonment for nine years with a non-parole period of six years not manifestly excessive in the circumstances.

HRNG ADELAIDE, 23 June 1995 #DATE 3:8:1995 #ADD 20:9:1995

Counsel for appellant:     Mr S Tilmouth QC with Mg G McGee

Solicitors for appellant:    Greg McGee

Counsel for respondent:     Mr P Rofe

Solicitors for respondent: DPP (SA)

ORDER
Order made.

JUDGE1 DUGGAN J The appellant was found not guilty of murder but guilty of the crime of manslaughter and sentenced to imprisonment for nine years with a non-parole period of six years. She now appeals against conviction and sentence.

2. The prosecution alleged at the trial that the deceased, Mr Mixon, died from stab wounds inflicted by the appellant in Mixon's house at Crafers on 18th April, 1994. At the time of the incident the appellant was living in a caravan at North Plympton with a man named Peter Elliott who died before the appellant's trial commenced. The appellant was addicted to heroin and met Mixon while working as a prostitute. She visited his home at Crafers from time to time in order to prostitute herself and she stated in evidence that this was the purpose of her visit to his home on the day of the alleged offence.

3. Mrs Mixon left the Crafers home on the morning of 18th April in order to travel to her place of work in the city. Mr Mixon remained in the house alone. During the afternoon a neighbour became suspicious when she could see no sign of anyone being in or around the house and she telephoned the appellant's wife who, in turn, contacted the police. When the police arrived at the home at 3.45 pm they found Mr Mixon lying dead in the kitchen. A subsequent post-mortem examination revealed that he had bled to death from numerous cuts to his throat. There were twenty-four cuts to the throat area and stab wounds to the front and back of the body and one to the head. There were also injuries to the wrists and fingers consistent with the deceased having put his hands up in an attempt to defend himself. Items of personal property were missing from the house. The prosecution tendered diary entries made by the appellant and other evidence which established that the appellant was in need of money at the time.

4. There was evidence that the appellant arrived at Crafers in a bus at 11.23 am on the day of the incident. Mr Mixon spoke to a young boy who delivered some money to the house at approximately 11.30 am. Then at 12.33 pm a telephone call was made from Mr Mixon's mobile telephone requesting a taxi. There was no evidence as to whether the caller was male or female. The taxi arrived but no-one came out from the house when the driver sounded his horn. At about that time the appellant was seen by two local residents walking alone along a nearby road. The appellant appeared dishevelled and had blood in her hair, on her face and shoes and on one of her hands. She said she had just had a fight with her boyfriend. She was carrying a suitcase. One of the residents drove the appellant to a location not far from the caravan in which she was living. She was dropped off at this location at about 1.40 pm. There was evidence that later in the afternoon the appellant withdrew money from two of the deceased's bank accounts by means of automatic teller transactions. At about 4.00 pm the appellant and Elliott alighted from a taxi in Gouger Street and approximately half an hour later the appellant pawned a video recorder which she had taken from Mr Mixon's house.

5. The appellant was questioned by the police that evening. They had a short conversation with her before suggesting that she take part in a video recorded interview. After obtaining legal advice she declined to take part in a recorded interview. However the preliminary conversation proceeded as follows:
    "The appellant said: 'He bashed me and tried to rape me'.

Detective Kinsman said: 'You don't have to tell me anything.
    Do you realise that?'

The appellant said: 'I used to be a prostitute and he wanted
    me on a regular basis, which was happening. I went up there
    today to tell him no more, but he tried to rape me and he
    hit me in the head with a hammer'.

Detective Kinsman said: 'Was anyone else there?'

The appellant said: 'Yes. I went up there with another
    girl, but I still don't know where she went'."

6. The appellant gave evidence at the trial. She said that on the day of the deceased's death she caught a bus to Crafers accompanied by Elliott. She said Mr Mixon picked them up and took them to his home. Elliott stayed outside. According to the appellant Mr Mixon urged her to have anal sex with him. She refused and an argument developed. She said she received a cut on the head when he threw a hammer at her. She screamed and Elliott ran in. She said a fight ensued between the two men and that Elliott grabbed a knife and started stabbing the deceased. The appellant claimed that she tried to pull Elliott away. She said that at one point Elliott told her to pull the knife out of Mixon's body. She did so and cut her hand in the process. She said that, acting on Elliott's instructions, she put the knife, the hammer and a video recorder in a suitcase. She stated that Elliott ran off down the street and she did not see him until she returned to Adelaide. She confirmed the evidence of the two people who picked her up on the road.

7. It was put to the appellant in cross-examination that Elliott was not present in Crafers on this occasion, but she maintained her claim that he was and said that from the beginning she took the blame for the incident and protected Elliott because she was frightened of him.

8. The learned trial judge put to the jury that there were three alternative bases upon which the appellant could be found guilty of murder or manslaughter, namely, that the appellant alone inflicted the wounds; that the appellant and Elliott jointly attacked the deceased; or that Elliott inflicted the wounds but the appellant assisted or encouraged him. He then gave appropriate directions on the offences of murder and manslaughter in so far as they were relevant to each of the three alternatives including instruction on the defences of provocation and self defence. The judge sentenced the appellant on the basis that she was alone at the time, but that she was acting under provocation.

9. Three of the grounds of appeal relate to directions given by the learned trial judge to the jury as to the use which could be made of statements made by Elliott after the alleged offence to fellow prisoners at Mobilong Prison and other statements made by him in a letter written to the appellant. The fellow prisoners were called by the appellant. They gave evidence that Elliott admitted to them that he had killed Mr Mixon. Counsel for the appellant argued that the letter written by Elliott also contained an implied admission to killing the deceased. The appellant now complains of the learned trial judge's directions that, although these statements could be used for certain purposes including the ascertainment of Elliott's state of mind, they could not be used as evidence of the fact stated or inferred in them that he killed Mr Mixon.

10. The two prisoners, Anthony Percy and Ricky Sugar gave evidence that they were in prison with Elliott at Mobilong in late 1994. Percy said that Elliott frequently spoke to him about the appellant. On one occasion Elliott spoke about the killing of Mr Mixon and said:
    "Just between you and me, I did it and she's wearing it for
    me".

11. The examination continued:
    "Q. At some stage, did he give any specific details about
    how he did it or describe what he did?
    A. Yes. At one stage he said 'Cut the motor boat from ear
    to ear and left the head hanging by a thread'. He didn't
    say 'head', he said '3K' which is short for '3KZ', which
    means head.

Q. 'The motor boat', had you heard that before?
    A. Yes, it means 'throat'."

12. Percy said that Elliott told him he wanted to live near the appellant when he got out of prison so that he could "keep in sweet with her". In cross-examination Percy said that Elliott was "a little bit of a braggart" and that he regularly "big noted" himself.

13. Sugar stated in evidence that Elliott spoke to him one day in the prison when the two of them were alone. He gave the following evidence:
    "A. ... I was having a coffee and Peter came in and sat down
    and he started making one and started talking about some
    crimes and things like that, and at that stage I was
    talking, he was talking and I said to him, I stopped him and
    I said 'Pete, Marg didn't do it, did she?' and he was there,
    he sort of winked and smiled at me and he said 'I should
    have cut the piece of shit's head right off'. Then he got
    up and sort of demonstrated to me. He reckons 'I grabbed
    him by the hair and cut his motor boat from ear to ear and
    left the 3K hanging by a thread'.

Q. And the expression 'motor boat', was that something you
    had heard?
    A. Yes.

Q. What does that mean?
    A. That means your throat.

Q. And the 3K?
    A. It means your head."

14. Sugar agreed in cross-examination that Elliott was a "big noter" and a boaster who wanted to be feared. Mr Tilmouth QC, for the appellant, pointed out that Elliott's description of Mr Mixon's injuries was accurate in the light of the post-mortem evidence. However the possibility that Elliott obtained this information from the appellant or through the media cannot be excluded.

15. The letter to which our attention was drawn was written by Elliott to the appellant on 27th April, 1994 while he was in the Adelaide Remand Centre on another matter. The letter contained the following statement:
    "I think it would be best (for us) if I cop at least 2 years
    coz the 'jacks' may pull up with ya a little bit. If I walk
    it will leave ya as the only target and, believe me they
    will go real hard. That's sweet coz it doesn't matter.
    Anyway, I'm big and ugly enough to handle it and it's the
    least I can do for ya."

16. The appellant was permitted to say in evidence that she understood these comments to mean that Elliott would assist her because she was accepting responsibility for the murder on his behalf.

17. The learned judge gave a ruling on the use which could be made of the evidence of Percy and Sugar. He said:
    "Evidence of statements made out of court by a person other
    than the witness are inadmissible hearsay if tendered for
    the purpose of proving the facts asserted in the statement.
    That is so notwithstanding that the statement is a
    confession to the commission of a crime for which the
    accused is on trial and, notwithstanding, that the maker of
    the statement is dead - and I refer to in Re Petition of Van
Beelen (1974) 9 SASR 163. An out of court statement is,
    however, admissible to prove the maker's state of mind,
    intention or knowledge; see Pollitt v The Queen (1991-1992)
    174 CLR 558."

18. Mr Tilmouth conceded that his Honour was bound by the decision in Van Beelen's case. However he argued that this court should now decide that declarations against penal interest should be regarded as exceptions to the hearsay rule in the same manner as declarations against pecuniary or proprietary interest. In the alternative he argued for the adoption of a more general principle that a statement made by a person unable to be called as a witness should be admitted as an exception to the hearsay rule if the circumstances in which the statement was made render it reliable.

19. Mr Tilmouth stressed that there have been a number of recent High Court statements suggesting that more flexibility should be introduced into the hearsay rule. In Walton v The Queen (1988) 166 CLR 283 at 293 Mason CJ said:
    "The hearsay rule should not be applied inflexibly. When
    the dangers which the rule seeks to prevent are not present
    or are negligible in the circumstances of a given case there
    is no basis for a strict application of the rule. Equally,
    where in the view of the trial judge those dangers are
    outweighed by other aspects of the case lending reliability
    and probative value to the impugned evidence, the judge
    should not then exclude the evidence by a rigid and
    technical application of the rule against hearsay. It must
    be borne in mind that the dangers against which the rule is
    directed are often very considerable, as evidenced by the
    need for the rule itself. But especially in the field of
    implied assertions there will be occasions upon which
    circumstances will combine to render the evidence
    sufficiently reliable for it to be placed before the jury
    for consideration and evaluation of the weight which should
    be placed upon it, notwithstanding that in strict terms it
    would be regarded as inadmissible hearsay." (1989) 166 CLR
    283

20. In The Queen v Benz (1989) 168 CLR 110 at 143 McHugh and Gaudron JJ commented:
    "There is, however, much to be said for the view that the
    rationale of the exceptions to the rule which prohibits the
    admission of hearsay evidence is that evidence falling
    within the exceptions has a high degree of reliability and
    can be acted upon safely: see Morgan, 'The Hearsay Rule',
    Washington Law Review, vol 12 (1937) 1, at p 12; Morgan,
    'Hearsay and Non-Hearsay', Harvard Law Review, vol 48 (1935)
    1138 at p 1149; Swift, 'A Foundation Fact Approach to
    Hearsay', California Law Review, vol 75 (1987) 1341, at pp
    1342, 1346; and see Walton v The Queen (1989) 166 CLR at pp
    293-294. If this is the rationale of the exceptions to the
    hearsay rule then, notwithstanding the decision in Myers v
    Director of Public Prosecutions (1965) A C 1001, a strong
    case can be made for developing and applying the common law
    rules of evidence by reference to the principle that hearsay
    evidence will be admitted when it appears to have a high
    degree of reliability."

21. Similar statements were made by some members of the court in Pollitt v The Queen (1992) 174 CLR 558. The cases are discussed in Hunter, Unreliable Memoirs and the Accused: Bending and Stretching Hearsay - Pt 2, (1994) 18 CLJ
76. As the author of the article points out the key element in introducing flexibility into the hearsay rule is the reliability of the evidence sought to be tendered.

22. In Canada declarations against penal interest are now treated on the same footing as declarations against pecuniary or proprietary interest and s65(2)(d) of the Evidence Act, 1995 (Commonwealth) provides that the hearsay rule does not apply to representations made by a person who is not available to give evidence if the representation is "against the interests of the person who made it at the time it was made". Mr Tilmouth also advised the court that the High Court has reserved judgment in The Queen v Bannon an appeal from a decision of the Supreme Court of Victoria which followed Van Beelen's case.

23. However in those situations where the law presently permits an exception to the hearsay rule by reason of a declaration against interest, the circumstances surrounding the declaration must be considered in their totality in order to determine whether the declaration is, in fact, against the declarant's interest thus carrying with it the reliability which justifies the exception. (Van Beelen's case supra at 208.) In Demeter v The Queen (1987) 34 CCC, (2d) 137 the Supreme Court of Canada accepted guidelines proposed by the Ontario Court of Appeal for determining whether a declaration is against penal interest so as to qualify as an exception to the hearsay rule. The guidelines were stated as follows:
    "1. The declaration would have to be made to such a person
    and in such circumstances that the declarant should have
    apprehended a vulnerability to penal consequences as a
    result. In Sussex Peerage the Lord Chancellor would not
    have admitted the declaration in any event of the rule (sic)
    because it was made to the declarant's son. In ordinary
    circumstances where a declaration is made for instance to an
    unestranged son, wife or mother, the psychological assurance
    of reliability is lacking because of (sic) risk of penal
    consequences is not real and the declarant may have motives
    such as a desire for self-aggrandizement or to shock which
    makes the declaration unreliable.

2. The vulnerability to penal consequences would have to be
    not remote.

3. '... the declaration sought to be given in evidence must
    be considered in its totality. If upon the whole tenor the
    weight is in favour of the declarant, it is not against his
interest': Re Van Beelen, p 208 ((1974), 9 SASR 163); R v
Agawa and Mallet ((1975), 28 CCC (2d) 379, 11 OR (2d) 176,
    31 CRNS 293).

4. In a doubtful case a Court might properly consider
    whether or not there are other circumstances connecting the
    declarant with the crime and whether or not there is any
    connection between the declarant and the accused.

5. The declarant would have to be unavailable by reasons of
    death, insanity, grave illness which prevents the giving of
    testimony even from a bed, or absence in a jurisdiction to
    which none of the processes of the Court extends. A
    declarant would not be unavailable in the circumstances that
    existed in R v Agawa."

24. In the view of the court in Demeter's case the appellant did not satisfy these requirements. The statement had been made by an escaped criminal under sentence of life imprisonment to a man who had been his accomplice in crime for many years.

25. In my view the facts of the present case do not provide an appropriate occasion on which to reconsider what was decided by this court in Van Beelen's case. Even if this court were to decide that a declaration against penal interest could qualify as an exception to the hearsay rule, it could not be said that the alleged statements by Elliott to his fellow prisoners in the circumstances referred to by them were made with an awareness of a real risk of penal consequences. I am also of the view that the statements by Elliott in his letter to the appellant, even if construed as an admission, were not made with a realisation of possible penal consequences. Furthermore there is nothing in the circumstances in which the various statements were made to support their reliability. Indeed the contrary is the case, particularly in relation to the statements to the fellow prisoners which appear to have been of a bragging nature.

26. In my opinion the learned trial judge acted correctly in restricting, in the manner in which he did, the use which could be made of the alleged statements by Elliott in the gaol conversations and the letter to the appellant and this ground of appeal must fail.

27. The next ground of appeal complains that the learned trial judge erred in allowing the prosecution to reopen its case at the conclusion of the defence case. In order to deal with the ground it is necessary to refer to some additional evidence given at the trial. There was evidence that Elliott pawned a ring at a shop in Gouger Street at 1.45 pm on the day of the alleged offence. In his opening address the prosecutor referred to this incident and said that the ring came from Mr Mixon's house. He said that the prosecution would be asking the jury to infer that it had been taken from the house on an occasion before the day of the alleged offence.

28. Mrs Mixon said in evidence that she recognised the ring which, she said, had been given to her husband by his sister for his graduation. She said he did not wear it because it was a big ring but it was of sentimental value to him. She said he kept it in a bedside cupboard. However when giving evidence the appellant said that she had broken and entered premises next to the caravan park at Plympton North some days before the alleged offence and a ring and some other items were stolen. Under cross-examination the appellant said that the breaking and entering offence had taken place on 13th April. She also said that she thought the ring which Elliott had pawned was the one which was taken at the time of the breaking and entering offence.

29. It would appear that when the appellant gave this evidence about the ring the prosecution caused some enquiries to be made and a statement was taken from a Mr Thompson who lives near the caravan park. He was called to give evidence after a successful application by the prosecution to reopen its case. He said in evidence that his home was broken into some time between 13th and 16th April while he was away. He said one of the items stolen was a ring. He was shown the ring which Elliott pawned and he said it was identical to the one stolen.

30. If the ring had been taken from Mixon's home on the day of the alleged offence this consideration would tend to provide some support for the appellant's claim that Elliott had accompanied her to the house. The appellant was dropped off at North Plympton at 1.30 pm or shortly thereafter by the person who drove her there from Crafers. Elliott pawned the ring in Gouger Street at approximately 1.45 pm. If the appellant had taken the ring and given it to Elliott after meeting up with him in Adelaide it is unlikely that he would have been able to travel into the city and take part in the transaction in such a short time. No doubt this is why the prosecution suggested in opening that the ring may have been stolen on an earlier occasion. However the evidence of the appellant concerning the breaking and entering on the house near the caravan park some days before and the information obtained by the prosecution from Mr Thompson after that evidence had been given threw new light on the issue.

31. Mr Tilmouth QC, for the appellant, submitted that the prosecution was permitted to split its case by reason of the learned trial judge's ruling that Mr Thompson could be called. He also claimed that the ruling gave rise to unfairness to the appellant.

32. Some guidance on the relevant legal principles is to be found in the joint judgment of Gibbs CJ and Wilson J in The Queen v Chin (1985) 157 CLR 671 at 676 where their Honours said:
    "The principles that govern the exercise of the discretion
    of a trial judge to call evidence after the close of the
    case for the defence have been discussed in this Court in
Shaw v The Queen (1952) 85 CLR 365 at pp 378-380, 383-384;
Killick v The Queen (1981) 147 CLR 565 at pp 568-571,
    575-576 and Lawrence v The Queen (1981) 38 ALR at pp 3, 7,
    22-23. The general principle is that the prosecution must
    present its case completely before the accused is called
    upon for his defence. Although the trial judge has a
    discretion to allow the prosecution to call further evidence
    after evidence has been given for the defence, he should
    permit the prosecution to call evidence at that stage only
    if the circumstances are very special or exceptional and,
    generally speaking, not if the occasion for calling the
    further evidence ought reasonably to have been foreseen.
    The principle applies where the prosecution seeks to call
    evidence to rebut matters raised for the first time by the
    defence; if the rebutting evidence was itself relevant to
    prove the prosecution case (unless, perhaps, it was no more
    than marginally, minimally or doubtfully relevant: Reg v
Levy and Tait (1966) 50 Cr App R 198 at p 202) and the need
    to give it could have been foreseen it will, generally
    speaking, be rejected. The principle would not prevent the
    prosecution from giving in reply evidence directed to an
    issue the proof of which did not lie on the prosecution,
    such as insanity, or from rebutting evidence of the
    accused's good character, provided that the prosecution had
    not anticipated the raising of an issue of this kind and led
    evidence with regard to it, for the prosecution must not
    split its case on any issue. Also, it has been held that
    evidence may be given in reply to prove some purely formal
    matter the proof of which was overlooked in chief."

33. In the same case Dawson J said (p686):
    "The prosecution will not, of course, be seeking to split
    its case when the evidence which it wishes to call by way of
    reply is to rebut evidence which forms no part of its proofs
    as, e.g., where the defence of insanity is raised or
    evidence of good character is called by the accused. Even
    then, if the nature of the evidence which the accused
    intends to call should have been known to the prosecution so
    that it would have been possible to deal with it by calling
    evidence in the prosecution case, the proper course may be
    to refuse the prosecution permission to reopen its case in
    order to call rebutting evidence. Thus it was held in
    Killick's Case that the prosecution ought not to have been
    permitted to call evidence after the close of the defence
    case in order to rebut an alibi raised by the accused which
    ought to have been foreseen by the prosecution because it
    had been raised in earlier proceedings. Where evidence
    which the prosecution seeks to call by way of rebuttal is
    also confirmation of the case which it has sought to make,
    the trial judge must exercise his discretion to ensure the
    observation of the principle which finds its expression in
    the rules which have been laid down: see Killick's Case
    (1981) 147 CLR at p576. If the evidence was only of
    marginal, minimal or doubtful relevance to the prosecution
    case, it may properly be admitted to rebut the defence case.
    There is also authority for the proposition that the
    prosecution may be permitted to reopen its case to repair
    omissions of a formal, technical or non-contentious nature:
    see Archbold's Criminal Pleading, Evidence and Practice,
    41st ed (1982) par 4-414, and the cases there cited.

The relevant principle is essentially one of fairness. The
    accused is entitled to know the case which he has to meet so
    that he may have adequate opportunity to determine what
    questions he may wish to ask in cross-examination, what
    evidence, if any, he may wish to call and what objections,
    if any, he may wish to raise in the case against him.
    Ordinarily the depositions upon which he is committed for
    trial will provide him with this information in advance and
    if the prosecution intends to call additional evidence it is
    required to give notice of its intention to do so. The
    whole procedure would be undermined if the prosecution were
    permitted, save in exceptional circumstances, to call
    evidence in support of its case after the close of the case
    for the defence."

34. The first observation which must be made about the present case is that there was no splitting of the prosecution case in the sense that there was "no holding back of what the prosecution was, or ought to have been able to prove". (The Queen v Chin per Brennan J at 681). It was conceded that the prosecution could not have known of the possible link between the ring and the breaking and entering committed on Mr Thompson's house until it was mentioned by the appellant in examination-in-chief. However the prosecution required the leave of the court to reopen its case in order to call Mr Thompson to give the evidence and this gave rise to the exercise of the trial judge's discretion. The exercise of the discretion had to be approached with the caution adverted to in the passages cited above and with proper regard to any unfairness that might result from the evidence being given at a later stage in the case.

35. Nevertheless, bearing all these matters in mind, I am of the view that it was appropriate for the evidence to be given and that its admission did not result in any unfairness to the appellant. The prosecution had put a theory as to the theft of the ring which might well have been incorrect in the light of the new material. The appellant herself said that it was her understanding that the ring pawned by Elliott had been the one taken from Mr Thompson's house and so the evidence which was led was not in contradiction of anything she had said. For the same reason I am unable to accept Mr Tilmouth's submission that the appellant should have been asked questions about Mr Thompson's proposed evidence which was in the possession of the prosecution before her cross-examination had been completed. Mr Tilmouth was unable to suggest any comment she would have been able to make on the evidence which might have assisted her case or thrown any further light on the issue generally.

36. The fact that the evidence was called at the end of the case was stressed by the appellant's counsel. Clearly there are some cases in which evidence called after the defence case may assume inflated importance in the eyes of the jury. (Killick v The Queen (1981) 147 CLR 565 at 569). However this difficulty usually arises in a case where the evidence contradicts the evidence given on behalf of the accused. As I have pointed out this was not so in the present case. In my view it was desirable that the jury should be provided with all relevant evidence on this issue and, as there was no unfairness to the appellant in the circumstances or criticism to be made of the prosecution in withholding evidence or failing to initiate earlier enquiries, the trial judge rightly exercised his discretion in favour of permitting the evidence to be given.

37. I would dismiss the appeal against conviction.

38. The appellant also appeals against her sentence on the grounds that it is manifestly excessive and that the learned judge erred in not taking into account the fact that the appellant had offered to plead guilty to manslaughter approximately six months before her trial.

39. The appellant was twenty-seven years of age at the time she was sentenced. It was put on her behalf that she had been separated from her parents when she was very young and left to fend for herself. She began prostituting herself from the age of eleven years and became addicted to heroin at an early age. She has a number of convictions for offences of dishonesty and two court appearances for assault. Dr O'Brien stated in a psychiatric report tendered to the court that the appellant has a borderline personality disorder.

40. Apart from the question of the effect to be given to the appellant's offer to plead guilty to manslaughter, no criticism was made of the basis upon which the trial judge sentenced her. His Honour rejected the claim that Elliott had accompanied the appellant and expressed the view that the proper interpretation of the jury's verdict was that the appellant was provoked by the conduct of the deceased. He did not accept that the verdict could have been based on excessive self defence.

41. Viewed in this light the offence must be regarded as a particularly serious example of the crime of manslaughter. Mr Mixon suffered horrific injuries and he appears to have been unable to offer effective resistance to the attack made upon him. The appellant stole items of personal property from him immediately after the attack. In my view the sentence cannot be regarded as manifestly excessive.

42. I am also of the view that the learned judge was correct in refusing to take into account the offer of the plea of guilty to manslaughter. It would appear that the offer was made without reference to any basis upon which it might be accepted. As the appellant's version was that Elliott had accompanied her to Crafers and killed the deceased despite her attempts to restrain him from the attack, it would have been difficult to relate the plea to the facts of the prosecution case. There was no suggestion at any stage that the appellant would plead guilty to manslaughter on the basis upon which she was sentenced, namely, that she went to the house alone and killed Mr Mixon under provocation.

43. In my opinion the appeal against sentence should also be dismissed.

JUDGE2 DOYLE CJ I agree.

JUDGE3 NYLAND J I agree.