2.Set aside the order of the Court of Criminal Appeal of the Supreme Court of South Australia made on 3 June 2014 and, in its place, order that:
(a)the appeal be allowed;
(b)the appellant's conviction be quashed; and
(c)a new trial be had.
On appeal from the Supreme Court of South Australia
Representation
M E Shaw QC with B J Doyle for the appellant (instructed by North East Lawyers)
M G Hinton QC, Solicitor-General for the State of South Australia with F J McDonald for the respondent (instructed by Director of Public Prosecutions (SA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Lindsay v The Queen
Criminal law – Murder – Defences – Provocation – Where male Caucasian deceased made sexual advances towards male Aboriginal appellant at appellant's home in presence of appellant's de facto wife and family – Where open to jury to find that appellant killed deceased having lost self-control following advances – Where provocation left to jury at trial and appellant convicted of murder – Where Court of Criminal Appeal ("CCA") dismissed appeal against conviction because it concluded provocation should not have been left to jury as evidence, taken at highest, could not satisfy objective limb of provocation – Whether CCA erred in so concluding – Relevance of contemporary attitudes to sexual relations.
Criminal law – Appeal – Appeal against conviction – Application of proviso – CCA dismissed appeal by applying proviso to s 353(1) of Criminal Law Consolidation Act1935 (SA) – Where CCA not invited to apply proviso by prosecution – Whether CCA erred in invoking and applying proviso of its own motion.
Words and phrases – "minimum powers of self-control", "ordinary person", "partial defence".
FRENCH CJ, KIEFEL, BELL AND KEANE JJ. Michael Joseph Lindsay was tried before the Supreme Court of South Australia (Sulan J) on an information that charged him with the murder on 1 April 2011 of Andrew Roger Negre. The jury were directed that it was incumbent on the prosecution to prove that the killing of the deceased was unprovoked. Lindsay was convicted of murder.
Lindsay appealed against his conviction to the Court of Criminal Appeal of the Supreme Court of South Australia (Kourakis CJ, Gray and Peek JJ) on grounds which challenged the accuracy and sufficiency of the directions given to the jury on the issue of provocation. The majority (Peek J, with whom Kourakis CJ agreed) found that the directions were flawed in a number of respects and that the cumulative effect of these flaws constituted a miscarriage of justice[1]. However, their Honours were of the "firm view" that in 21st century Australia the evidence taken at…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Lindsay v The Queen
Sign in free to access the full text
Details
AGLC
Lindsay v The Queen [2015] HCA 16
Case
[2015] HCA 16
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Court of Criminal Appeal of South Australia concerning a conviction for murder. The appellant, an Aboriginal man, was convicted of murder after killing a Caucasian male at his home. The defence of provocation had been left to the jury at trial, and the appellant was subsequently convicted. The Court of Criminal Appeal dismissed the appellant's appeal, finding that provocation should not have been left to the jury as the evidence, even at its highest, could not satisfy the objective limb of the defence.
The legal issues before the High Court were whether the Court of Criminal Appeal erred in concluding that the evidence was insufficient to satisfy the objective limb of provocation, and whether the Court of Criminal Appeal erred in invoking and applying the proviso to section 353(1) of the *Criminal Law Consolidation Act 1935* (SA) of its own motion, without invitation from the prosecution. The Court was also required to consider the relevance of contemporary attitudes to sexual relations in assessing provocation.
The High Court found that the trial judge had not erred in leaving the defence of provocation to the jury. The Court reasoned that there was ample evidence for the jury to consider the subjective limb of provocation, namely that the appellant was provoked by the deceased's conduct and lost self-control. The jury's assessment of this evidence was critical to evaluating how an ordinary person might have reacted, and therefore to satisfying the objective limb. The Court concluded that it was open to the jury to have a reasonable doubt as to whether an ordinary person subjected to the same provocation could have lost self-control to the extent of forming the intent to kill or inflict grievous bodily harm.
The appeal was allowed, the order of the Court of Criminal Appeal was set aside, and the appellant's conviction was quashed. A new trial was ordered.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order of the Court of Criminal Appeal of the Supreme Court of South Australia made on 3 June 2014 and, in its place, order that:
(a) the appeal be allowed;
(b) the appellant's conviction be quashed; and
(c) a new trial be had.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
For the reasons to be given, the trial judge did not err in leaving provocation for the jury's consideration. In this Court, the prosecution does not maintain that the directions on provocation given to the jury were sufficient. It cannot be concluded that, if the jury had been correctly instructed on the issue of provocation, the appellant would inevitably have been convicted of murder. It follows that the appeal must be allowed[4]. Neither party submitted that, in this event, this Court should substitute a verdict of manslaughter. The appropriate consequential order is to direct that a new trial be had. [4]Parker v The Queen (1963) 111 CLR 610 at 647 per Windeyer J; [1963] HCA 14; Green v The Queen (1997) 191 CLR 334 at 343-344 per Brennan CJ; [1997] HCA 50; Pollock v The Queen (2010) 242 CLR 233 at 252 [70]; [2010] HCA 35. The evidence at trial The appellant, an Aboriginal man, was aged 28 years or thereabouts at the date of the offence. On the evening of 31 March 2011, he, his de facto wife, Melissa, and a friend, Nicholas Hayes, visited the Hallett Cove Tavern. There they encountered the deceased, a Caucasian male who was previously unknown to them. The deceased had been drinking at the Tavern with his partner, Fiona Ninos. The two had quarrelled and she had gone home without him. The appellant and his party and the deceased all drank together and, in the early hours of 1 April 2011, they went to the appellant's Hallett Cove home to continue drinking. The appellant and Melissa had been living together since before the birth of their son, Ethan, who was then nine years old. They shared their home with two boarders: Luke Hutchings and Brigette Mildwaters. When the group arrived at the Hallett Cove home on the morning of 1 April 2011, Luke and Brigette were there, as were the appellant's two younger sisters, Ashleigh and Tahlia, and his cousin, Michael. The group, with the exception of Michael, who was asleep, commenced drinking together. At around 2:00am, Fiona Ninos rang the deceased's mobile telephone. The appellant spoke to her and invited her to join them. Fiona took up the invitation. After her arrival, the appellant showed her around the home. The deceased was seated at the kitchen bench where he was socialising with the group. Fiona stayed for around 45 minutes to an hour. During this time she did not see any aggressive behaviour. The mood of the group was good, they were drinking pre-mixed cans of bourbon and appeared happy and relaxed. Nonetheless, Fiona was annoyed with the deceased's decision to stay at the Tavern and to go out drinking with strangers and she told him so in heated terms. The appellant suggested that the deceased could stay the night and he offered to bring him home in the morning. Fiona caught a taxi home. Following Fiona's departure, there were two incidents, which together gave rise to the trial judge's decision to leave provocation for the jury's consideration. The first incident took place when the group was outside on the patio. The appellant was seated and the deceased straddled him, moving his hips backwards and forwards in a sexually suggestive manner. The appellant told the deceased that he was not gay and not to do "stuff like that" or he would hit him. Melissa also remonstrated with the deceased. The deceased apologised and the appellant told him "That's okay, just don't go doing stuff like that".
Decision
Reasons for decision
FRENCH CJ, KIEFEL, BELL AND KEANE JJ
NETTLE J
Finally, "[t]here was ample evidence for the jury's consideration of the subjective limb, namely, that the appellant was in fact provoked by the conduct of the deceased and did thereby lose control"[109]. The jury's assessment of that evidence – and so of the extent to which the appellant was in fact provoked by the conduct of the deceased – was critical to the evaluation of how an ordinary person might have reacted to that degree of provocation and, therefore, critical to satisfaction of the objective limb[110]. In those circumstances, it is surely not open to say that, on the view of the evidence most favourable to the appellant, the jury could not have been left with a reasonable doubt as to whether an ordinary person subjected to that degree of provocation could not have so much lost self-control as to form the intent to kill or inflict grievous bodily harm and before regaining self-control gone on and given effect to that intent in the manner in which the appellant did[111]. [109]Lindsay (2014) 119 SASR 320 at 378 [228] per Peek J.[110]Stingel (1990) 171 CLR 312 at 326-327 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.[111]Green (1997) 191 CLR 334 at 345‑346 per Brennan CJ.Conclusion For these reasons, the trial judge was right to leave provocation to the jury. It was not open to the majority of the Court of Criminal Appeal to be satisfied that the inadequacy of the judge's directions on provocation did not deprive the appellant of a chance which was fairly open to him of a verdict of guilty of manslaughter. The majority of the Court of Criminal Appeal was wrong to conclude that the inadequacy of the directions was not productive of a substantial miscarriage of justice. It follows that the appeal should be allowed. The orders of the Court of Criminal Appeal should be set aside, and in their place it should be ordered that the appeal to that Court be allowed, the conviction quashed and a new trial be had.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, KIEFEL, BELL AND KEANE JJ,
NETTLE J