Lindsay v The Queen

[2015] HCATrans 52

[2015] HCATrans 052

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A24 of 2014

B e t w e e n -

MICHAEL JOSEPH LINDSAY

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
KIEFEL J
BELL J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 11 MARCH 2015, AT 11.16 AM

Copyright in the High Court of Australia

MS M.E. SHAW, QC:   May it please the Court, I appear with my learned friend, MR B.J. DOYLE, for the appellant.  (instructed by North East Lawyers)

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MS F.J. McDONALD, for the respondent.  (instructed by Director of Public Prosecutions (SA))

FRENCH CJ:   Yes, Ms Shaw.

MS SHAW:   If the Court pleases, there are essentially three grounds of appeal, comprising paragraphs 2.1 to 2.3 of the notice of appeal, which is in appeal book 2 at page 1049.  Each ground concerns the indication of the proviso by his Honour Justice Peek, with whom his Honour the Chief Justice agreed in the Court of Criminal Appeal on the footing that because of what he has called the objective limb of provocation, provocation was not relevantly open in this case and that the trial judge therefore erred in leaving provocation to the jury.

On the authorities, where there has been a misdirection in relation to provocation of the kind that the court found here, it is accepted that the proviso should not be applied unless provocation ought not to have been left to the jury, because where it is appropriate to be left to the jury the chance of a lesser verdict is inevitably a chance fairly open to an accused.  Authority for that approach, your Honours, is to be found in Pollock v The Queen (2010) 242 CLR 233, for example, which is in volume 3 of our casebooks, number 18, in particular, page 252, paragraph 70.

I propose to address the Court on the relevant grounds as follows.  The first ground which I will address ‑ paragraph 2.3 – relates to whether it was right for the Court of Criminal Appeal to embark upon a consideration of an application of the proviso in the circumstances of this case.  It will be submitted that in circumstances where the prosecution did not submit at trial or before the Court of Appeal that provocation was not open, and proviso not having been invoked by the prosecution, the Court of Appeal should not have considered and applied it.  It will be submitted if that ground succeeds, that is sufficient to dispose of the appeal because this Court should give the judgment the Court of Appeal ought to have given and the prosecution has no better basis now to depart from its position at trial than it had below where it did not sit to do so.

The second ground ‑ paragraph 2.2 – is that in considering whether provocation was relevantly open, having regard to the objective limb, the Court of Appeal wrongly had regard to unidentified academic literature which it should be inferred related to contemporary standards in the operation of the objective limb.  The complaint here is that the appellant had no opportunity to make submissions on the matter, but it also raises a broader question relevant to the third ground about the role, if any, of contemporary standards and in normative views in the operation of the objective limb.

The third ground ‑ paragraph 2.1 in our grounds of appeal – goes to the underlying issue of whether the Court of Appeal was right to hold that the judge was wrong to leave provocation to the jury, and that requires a consideration of whether provocation was relevantly open.  There being no dispute that there was material in the evidence which precluded the conclusion that it inevitably had failed under subjective limb, the issue in shorthand is in effect, taking the evidence at its highest, no jury could fail to have been persuaded that the prosecution had excluded provocation by reference to the objective limb beyond reasonable doubt.

In the appellant’s respectful submission, if provocation was relevantly open, then it follows that the appeal must be allowed and, special leave having been granted on the issue, it is not a case of discerning an error of principle in the way that the Court of Criminal Appeal addressed this issue.

This Court will simply give effect to its own view.  It steps into the shoes of the Court of Criminal Appeal and authority for that proposition, your Honours, is found in Green v The Queen (1997) 191 CLR 334 in volume 1 of our book of cases, number 7, in particular at the bottom of page 343 onto 344. That said, we will be contending that the Court of Appeal did err in its failure to grapple with the real sting of the provocation and the confined role of contemporary standards in the operation of the objective test.

Before developing those three grounds in turn, I propose briefly to lay out the evidence of provocation at trial, the treatment of it at trial by the court and in addresses and the manner in which it was engaged in the Court of Criminal Appeal, and the principles relevant to the objective limb.

A notable feature of this case was the complete absence of any suggestion by the prosecution of premeditation or of pre‑existing motive.  The deceased, Mr Negre, met the appellant for the first time on the night in question in the early hours of the morning.  The appellant is an Aboriginal male, sometimes called Sun Sun, and in the evidence it reveals he was about 28 years of age.  He had not gone to school or read.  He had barely worked, but he did own his own home in which he took great pride.  That was the evidence of his sister, Ms Lindsay, at page 382 of the appeal book.  He lived in his home, which had a swimming pool, and it was kept well.  No smoking was permitted inside.  He lived there with a partner, Melissa, who was not Aboriginal.  They had a nine‑year old child, Ethan, and they also allowed two boarders to live there.

One was the co‑accused, Mr Hutchings, and the other was his partner, Ms Mildwaters.  It was plain that they paid only minimal rental to the appellant for food and utilities and therefore this was relied upon as an indication that the appellant was a generous person, a generous host, and welcomed strangers such as the deceased.  In essence, leading up to the death of the deceased, Mr Negre began drinking with the appellant and his friends at a hotel.  The group then moved to the appellant’s house, where the deceased was later attacked.

Also present at the house were the appellant’s two younger sisters, who were aged 19 or 20, and the second sister, about 26.  There was a cousin there who was asleep.  There was a visitor, Mr Hayes, who was also indigenous, and in addition there were the two boarders.  It was the prosecution case that the two incidents that led to the death of the deceased were a catalyst for the attack on the victim that resulted in his death.  The first incident was outside on a pergola, which can be seen in a plan of the premises in exhibit P2, at appeal book 611.

BELL J:   Ms Shaw, before we start looking at the plan of the pergola, can I just inquire where this aspect of your submissions is going?  It is not in issue that there was material on which it was open to the jury to conclude that your client lost control.  That is, there was material of the – respecting an actual loss of self‑control.  The issue really comes down to the question of whether the Court of Criminal Appeal was right in the circumstances to conclude that the objective limb of the test was not in play, having regard to the facts and, for that reason, it was an error to have left provocation in the first place.

MS SHAW:   Your Honour, in our submission these background facts and the circumstances and context are relevant to the gravity of the provocation as it was received and the effect on the appellant in the objective limb.

BELL J:   Justice Peek, in evaluating the various challenges you made to the sufficiency of the directions, took account of these matters and it is uncontroversial that the test requires consideration of the sting of the provocation as it was experienced by the accused.

MS SHAW:   Yes.

BELL J:   So do we not have to come to the question of the rightness or otherwise of a view that, accepting the sting of the provocation, nonetheless, in the view of the majority in the Court of Criminal Appeal, no jury properly instructed could fail to be satisfied that the Crown had negatived on the objective basis.

MS SHAW:   Your Honour, the way in which his Honour presented his judgment was to first of all decide that there were these misdirections.  His Honour concluded there was a miscarriage of justice.  He then considered ‑ ‑ ‑

BELL J:   Well, his Honour concluded there was legal error attending the directions.

MS SHAW:   He went further and concluded a miscarriage of justice, and then he turned to the question of the proviso.  In his approach to the proviso, he introduced into that analysis and application matters which we say demonstrate that he misunderstood the application of the objective test, in that he introduced a reference to what had occurred in former times, or what was the attitude in former times to crimes of homosexuality.  He concluded that in former times, this would have been manslaughter, but times have clearly changed.  He had regard to academic literature to inform his view that times have clearly changed, and he concluded that in 21st century Australia, this would not ‑ ‑ ‑

BELL J:   The minimum standard of self‑control of an ordinary person so provoked would not have – could not have involved the loss of self‑control and the formation of the intent.

MS SHAW:   All of the matters, your Honours, that his Honour had regard to, in our respectful submission, the nature of his analysis is such that it is unclear whether or not he is bringing those factors to bear in relation to the gravity of the provocation that the accused ought to have experienced or in fact did experience, or he is bringing them to, what are the ordinary powers of self‑control of an ordinary man?  We say in either respect, there was no relevance to those factors.  The question of the gravity of the provocation has to be evaluated from the point of view of the appellant, and his Honour needed to address the two separate aspects of the objective test.  The first aspect - the gravity of the provocation - what is the nature of the sting; the entirety of the insult that this person experienced?

What his Honour focused on was changing attitudes to homosexuality and, in our respectful submission, this sting was not a sting that centred or was solely directed to the question of a homosexual advance.  It was much greater than that.  It was an insult in the context of the various relationships that the accused – the appellant valued.  It was an insult in the context of his wife being - his partner being present when this proposition is made to him of a homosexual advance.  It is in the context of her being upset, it being rebuffed, and the appellant having not only rebuffed him, but threatened that he did it again, he would hit him.  That was all on the patio, that was the first incident; and he had said he was not gay.

Then the deceased asked him if he would sleep with him in his room, and this was heard by Ms Mildwaters, and the accused, or the appellant, did not agree with that and then immediately following that, which is in the family room, the deceased propositioned the appellant again, despite the threat of violence, despite the upset it would cause to his partner and, in the presence of his sisters on the patio, he then offered to pay him for sex.  The appellant’s response was, “What did you say, cunt?” Instead of desisting, again in the presence of his boarders, again in the presence of family, he then said - asked again and stipulated some dollars; that is, $200, and immediately the appellant lost it or acted like a lunatic.

So, the gravity of the provocation here was very importantly a provocation that went to the heart of his relationship with his family; his partner.  It went to the heart of his relationship and standing with his sisters.  It went to the aspect that he had shown generosity to this person and yet the deceased was, in effect, degrading him in propositioning him this way, degrading his relationships and degrading his hospitality.  That sting has not identified anywhere in his Honour’s consideration of whether, indeed, the objective test could be satisfied, or a jury might find that is not a possible explanation of what occurred.

FRENCH CJ:   That sting, as you characterise it, does not seem to place at the centre the homosexual character of the advance.

MS SHAW:   Not at all.  In our respectful submission, it could have been a heterosexual advance.  The fact that it was homosexual and his protestation that he was not gay was certainly an element, but the real sting was the denigration of this man, who was proud.  He had shown the deceased’s girlfriend around the house when she had come in the early hours of the morning.  He had told the deceased’s girlfriend that he would get him a cab home.  He had offered the deceased’s girlfriend his old entertainment unit.  Everything about his conduct has been one of generosity and reaching out.

Yet, despite him inviting this stranger, giving him drinks, entertaining him, this is how he was treated.  The only thing that he valued, for somebody who had never been to school, the only job he had ever been seen to do was picking lettuces, and obviously had no skills of any kind, the only value he had was his house and his family and his standing in his family and his standing with those who he had generously provided accommodation and food and utilities to at a minimal rental, and the visitor, Mr Hayes, another indigenous man from the Territory, who was there.

We refer to the way in which his Honour Justice McHugh in Masciantonio, which we refer to in our outline, talks about the way in which provocation is a merciful approach.  Not a defence; a merciful approach, to someone who kills not premeditated, but when effectively a particular value they have, a personal relationship they have, or an interest they have, is denigrated to the point ‑ ‑ ‑

FRENCH CJ:   What is the significance of the fact that he is an indigenous person?

MS SHAW:   Well, the significance of that is perhaps tied up with the other features of the case that demonstrate that he was not someone who worked, he could not read, and he had no other explanation that one can deduce as to why this person would treat him with such disdain.  A jury might consider that it flows from the basis of race.  There is no evidence of that, but it is a matter for a jury.  What other possible explanation is there for this person to have treated him so terribly?  So, in our respectful submission, it is the entirety of the picture, the contrast in the appellant’s behaviour, the contrast in which that behaviour was treated, that was the real sting.

Importantly, the jury would have been entitled to take into account in assessing the gravity of the provocation to him, the ferocity of the attack itself, because this was an attack that commenced immediately.  The appellant immediately punched the deceased, he was stabbed repeatedly, and it was accepted by the Crown that it was a frenzied attack.  The Crown case was that it was all over in seconds - not minutes; seconds – and the evidence was of Mr Hayes that he went off his head - on his head like a lunatic.

FRENCH CJ:   Well, that goes to loss of control, which is not in issue.

MS SHAW:   That is so, but the frenzied attack can also reflect the gravity of the provocation.  It is a matter the jury can take into account as an indication of the gravity of the provocation, bearing in mind what had occurred before.  So, the background that I have mentioned and the effect that the conduct of the deceased had had on the appellant’s wife, or his partner, where she was described by the sister, Ashleigh, as growling and not happy, to repeat – and the evidence was that the appellant reinforced that he was not happy and it was not to be repeated, and in fact Brigette Mildwaters had said that the partner had said at the patio stage, get him out, get him out of here, and not to do that, the appellant is not gay.

So, here, with his partner proclaiming effectively that her husband is not a person who will engage in sex for a few dollars with a stranger, that he is not a homosexual, in her presence and in the presence of her family, for that taunt to be repeated in such a brazen way and in defiance of the threat, in our respectful submission, was material, taken in the context of this appellant’s circumstances and his relationships and his values, that a jury might well have been unable to exclude that an ordinary person may have reacted in that way.

So, in our respectful submission, that background of effectively building it up and then concluding by offering some particular dollars - $200 - with a suggestion that he would capitulate, after all of that, after all of those threats, for a few dollars, is a view that the jury would be entitled to regard as a possibility that they ‑ ‑ ‑

FRENCH CJ:   Well, the general proposition you are putting I think across that factual situation is, as I understand it, that the question of provocation was, in this case, highly contextualised and not one to be determined by reference to abstract notions of community standards or changes in community standards.

MS SHAW:   Indeed, in our respectful submission, his Honour has wrongly called in aid remarks by his Honour Justice Gibbs in Moffa and her Honour Justice Wilson in Hill’s Case, when this Court subsequently in Stingel in particular has made it plain that those remarks relate only to the question of self‑control; that is, the need to ensure that there is some equality in the way in which provocation is approached.  It relates only to the ordinary man test in the sense of powers of self‑control.  It does not relate to bringing to bear a particular scenario of provocation to be judged against what might be contemporary views of homosexuality or contemporary views of any other – the need to use it as an instrument of policy, to adopt his Honour’s expression.

Perhaps if I can take your Honours to his Honour’s remarks in that respect.  I did intend, in accordance with my outline, to deal with the failure of the Crown to invoke the proviso, but if the Court wishes I can immediately jump to the discussion of the judgment.  To answer your Honour’s questions, firstly if your Honours go to his Honour’s judgment which is – his reasons which are in book 2.

FRENCH CJ:   Page?

MS SHAW:   The topic of the proviso begins at page 1033, and your Honours will see that at paragraph 225 his Honour concluded that on the grounds of appeal that had been argued, the appellant had:

not had a trial according to law and that, in that sense, a miscarriage of justice has occurred.

Therefore, he moved to the application of the proviso.  He acknowledged at paragraph 227 that this was a “discussion initiated by the Court”, indeed, with the appellant’s counsel, and it is fair to say that the appellant’s counsel’s response was in part that the onus is on the prosecution to persuade the court that the proviso should be applied, and the prosecution in the face of that did not seek to invoke the proviso.  His Honour recognised that at page 1036 at paragraph 240, where his Honour pointed out:

Prosecution counsel had made no reference in his outline of argument to any proposed submission that the Judge had erred in leaving the partial defence of provocation to the jury; indeed he had made no reference to the application of the proviso at all.  And, on the hearing of the appeal, prosecution counsel did not suggest the Judge had erred in leaving the partial defence; rather, he submitted that the directions that his Honour gave were correct and sufficient.

I will come to our ground in relation to that, but our point is simply this.  The prosecution took a position below that counsel indicated to the court that, having read Green’s Case, she had nothing further to say against provocation being left.  Consistently with that position, the prosecution adopted the same approach on appeal, and they adopted that approach even though the court raised – or one of the justices - his Honour the Chief Justice raised the question of whether provocation was open.  His Honour Justice Peek, as we set out in the remarks, responded indicating that effectively it was not open because one did not know where provocation failed in this case.  Did it fail on the objective link, or did it fail on the subjective link?

That was what his Honour said in argument; that was a view his Honour expressed during the course of his judgment.  So, in the face of the Crown not having invoked the proviso and having found there was a miscarriage of justice by reason of the directions, his Honour’s consideration of the critical question of whether or not the objective limb had been discharged is set out in its totality at pages 1034 to 1035.  In our respectful submission, we rely on the authorities in this Court of AK v Western Australia and Fleming v The Queen whereby, if there is apparent ambiguity or if there is a gap in his reasons, then that should not be read in a favourable way to his Honour, but it should be construed in a way that his Honour has erred.  That is our fundamental submission.

In our respectful submission, a reading of these remarks indicate that his Honour has approached the objective test in determining whether or not the proviso should apply by failing to distinguish between the two aspects of the objective limb.  The first aspect is the ordinary powers of self‑control.  That is the only true objective aspect.  The second aspect is the gravity of the provocation as it was received by the appellant, and the effect of that provocation on him.

The application of the objective limb cannot be considered unless those two separate aspects are recognised and, indeed, the gravity of the provocation is truly and correctly identified.  If, indeed, his Honour has not identified the sting or identified how he has collated the facts on the version most favourable to the accused, then his Honour has failed to grapple with the critical aspect of what was the gravity of the conduct, as perceived by the appellant in this case, when I come to apply the question - the ordinary powers of self‑control.

BELL J:   My recollection is that his Honour had earlier, in dealing with your complaints concerning the sufficiency of the trial judge’s directions, taken into account the various matters that you have addressed us on this morning as to the gravity of the provocation.  So, when one comes to paragraph 236 on appeal book 1035, his Honour is expressing a view that in the 21st century, in this country:

the evidence taken at its highest in favour of the appellant . . . was such that no reasonable jury could fail to find that an ordinary man could not have so far lost his self control –

Now, that is a correct statement of the test.  Your real complaint is that, in a case in which there was evidence of a subjective loss of self‑control, it was an error for the court to conclude that in all of these circumstances, a sexual advance of the kind concerned here might not have caused an ordinary person to form an intention to do grievous bodily harm or to kill, surely?

MS SHAW:   Can I take two points following from that, your Honour?  The proposition your Honour latterly put about whether a jury could arrive at that view, in our respectful submission, what his Honour should have said was, that is a jury question.

BELL J:   Yes, that is what I am taking up with you, Ms Shaw.  Trying to extract out of paragraph 236 a failure to take into account the sting of the provocation in circumstances where his Honour has rather comprehensively dealt with that topic earlier in his reasons, might not be your strongest point.

MS SHAW:   I agree with your Honour.  Our submission is applying Chief Justice Brennan in Green’s Case.  Once the subjective limb is well and truly satisfied, as there was no dispute here, then there the court should have concluded that because it was only the objective limb that was effectively in issue and the gravity of the provocation was indeed a matter that was evaluative for the jury and, indeed, the ordinary powers of self‑control are to be determined by a jury, not by a court of appeal, then, in those circumstances, his Honour should not have embarked upon a consideration of what in 21st century Australia, is acceptable or not acceptable.

Only a jury can make that decision and, in our respectful submission, that is a signal that his Honour has wrongly had regard to the academic literature that he refers to in paragraph 236 in somehow informing his view that this is not conduct in 21st century Australia; that is, that ought to be considered by a jury.

In our respectful submission, if the literature went to the gravity of the conduct, then obviously that would be applying an objective test to the gravity.  If it went to the issue of self‑control, again, that is a matter quintessentially a jury question.  So, the fact that his Honour has as part of these reasons had regard to matters that we, with respect, submit are purely jury questions is, in our submission, indicative of error in his approach and his failure to appreciate the matter your Honour Justice Bell outlined to me.

In our respectful submission, if one goes back to his Honour’s reference to the comments of Justice Wilson in R v Hill, his Honour treats that discussion by his Honour Justice Wilson in Hill’s Case as bearing upon the way in which he ought to approach the objective test, whereas, if one goes to her Honour Justice Wilson’s remarks in Hill, which is in volume 3, number 20, it was a case where the issue in question related to a homosexual advance and whether or not that homosexual advance was capable of giving rise to provocation.  The issue for the Supreme Court of Canada concerned whether or not age was an appropriate factor to take into account in relation to the ordinary powers of self‑control.

FRENCH CJ: This is [1986] 1 SCR 313?

MS SHAW:   Yes, that is so, your Honour, at page 313.  In particular, her Honour Justice Wilson was in dissent on the issue that age ought to be had regard to on the issue of self‑control and, indeed, addressed the question of sex as a matter that might impact upon the gravity of the provocation.  Her Honour, at page 343, deals with the topic and the quote that is extracted in Justice Peek’s remarks.  What his Honour has commenced with is the sentence five lines down.  So what is important is that her Honour is there in fact addressing not the objective limb overall, but purely the standard of self‑control.  The commencing sentence, in our respectful submission, is quite significant because her Honour says:

The objective standard, therefore, may be said to exist in order to ensure that in the evaluation of the provocation defence there is no fluctuating standard of self‑control against which accuseds are measured.

Her Honour then goes on to talk about the standard of self‑control and the question of individual responsibility, and so on.  But, in our respectful submission, where her Honour talks about the:

element of inequality in the way in which the actions of different persons are evaluated and must therefore be avoided –

her Honour is purely considering the need for an objective standard in relation to self‑control.  In our respectful submission, which I will come to, this Court has said repeatedly that the persons who are in the best position to assess that standard are jurors.

Her Honour then dealt with the question of the homosexual aspect of the assault and the provocation.  She dealt with that at page 351 and approached it from the point of view that the sex of the accused – the submission was that the sex of the accused was not so much impinging on the standard of self‑control, but rather was a factor that might be relevant to the gravity of the provocation addressed to the accused.

Her Honour, at page 352, in our respectful submission, adopts the approach under conclusion (1), which this Court has adopted, that a jury is to consider the gravity of the provocation or the insult in the entire context of the events and from the viewpoint of the accused.  But in particular, in relation to the question of homosexuality, far from suggesting that in today’s age a homosexual advance should not lead to any loss of control or was not relevant to the gravity, her Honour at page 353 said in one of the conclusions, number (3):

The Court of Appeal was also correct in holding that the sex of the respondent could be considered on the objective test, not because different standards of self-control are attributable to the two sexes, but in order to put the wrongful act or insult into context for purposes of assessing its gravity.  In assessing the reaction of the ordinary person to a sexual assault it is the ordinary person who is a male subjected to a homosexual assault which must be considered.

In our respectful submission, how his Honour appears to have reasoned is that, having regard to the statements in Hill – and again by his Honour Justice Gibbs in Moffa in his dissenting judgment – that the question of contemporary conditions and attitudes can be brought to bear.  His Honour has wrongly brought those to bear in the resolution of the ultimate question whether in 21st century Australia this conduct could constitute a sufficient provocation for a jury to consider it.

In our respectful submission, the aspect in respect of which the importance of his Honour Justice Gibbs’ dissent in Moffa – if I can take the Court to Moffa’s Case, which is in volume 2, Moffa (1977) 138 CLR 601; it is number 12 in the volume. His Honour Justice Gibbs’ remarks that are referred to are set out commencing at the bottom of page 616 and onto the top of 617, but it is in essence the basis upon which his Honour dissents and takes the view, applying the objective test, that the material was not capable of giving rise to provocation as an issue.

BELL J:   His Honour was in dissent in the conclusion that in light of contemporary standards, the ordinary person test could not be satisfied in Moffa’s Case, but his Honour’s statements respecting the significance of contemporary conditions and attitudes was embraced by the Court in Stingel.

MS SHAW:   Can I come to that, your Honour ‑ ‑ ‑

BELL J:   Well, it is just – I wonder where this is taking us, Ms Shaw.  It might be accepted that a consideration in forming the objective test, if one has regard to the judgment in Stingel, is contemporary standards.  To the extent that the objective test is concerned to set, as it were, a minimum standard of self‑control that is to be applied, one has regard to changing conditions.  You can go back to Justice Windeyer’s celebrated analysis in Parker v The Queen, where he points out the provocative conduct of one age is not the provocative conduct of another age.

I think Justice Gibbs in Moffa suggested that perhaps there is an expectation that standards change, requiring some greater level of self‑control as society becomes more civilised.  Now, that may be a debatable issue, but is not the heart of this case a question of accepting that the court ultimately draws a line, taking into account contemporary standards and attitudes, that it was an error to conclude that in contemporary Australian society, the sexual advance that it was open to the jury to find occurred here, could have induced an ordinary person to have so far lost control.  It just seems, Ms Shaw, the argument might be getting somewhat overly refined; that is, your issue is not surely to suggest that the court may never have regard to contemporary standards and attitudes in determining whether there is evidence capable of satisfying the objective test for provocation?

MS SHAW:   Your Honour, insofar as the cases are concerned – and Moffa is a good example – his Honour Chief Justice Barwick in the majority took the view that he could not.  So, in other words, standards do change, and for a court to determine what those standards might be is not necessarily the best determiner of that.

BELL J:   But of course in Stingel that is exactly what the Court did, and in Stingel the joint reasons adopt Justice Gibbs’ statement of the relevance of contemporary standards and attitudes.

MS SHAW:   Can I take your Honour to that passage because, in our respectful submission, the plurality in Stingel is limiting the application of what Justice Gibbs said to the question of self‑control.  Stingel (1990) 171 CLR 312 is number 22 in book 3. The particular discussion of the question of self‑control commences with a reference back to her Honour Justice Wilson in Hill at page 326, so there is an acknowledgement of the very topic that Justice Peek has referred to.  Then the Court goes on to consider the ordinary person and identifies at 327 the function of the ordinary person:

to provide an objective and uniform standard –

Without reading through the entire aspect, we submit that the Court is making it plain that in the objective test, there are these two parts, those aspects that are relevant and personal to the accused that relate to the “gravity of the wrongful act or insult”, and then the more important question raised by Justice Gibbs’ remarks, namely, that:

Subject to a qualification in relation to age (see below), the extent of the power of self‑control of that hypothetical ordinary person is unaffected by the personal characteristics or attributes of the particular accused.  It will, however, be affected by contemporary conditions and attitudes –

In other words, it is the standard of self‑control that is affected by contemporary conditions and attitudes.

BELL J:   Indeed, and that is as Justice Peek holds in paragraph 236 of the judgment at appeal book 1035.

MS SHAW:   Your Honour, the difference with the submission I make and that construction is this, that just as the Crown could not adduce evidence at a trial of what are contemporary attitudes or standards of self‑control, a court cannot receive evidence from academic literature about what are standards of self‑control.  The question of the standard of self‑control is a matter for the jury, and their verdicts and their results reflect the standards of self‑control.  The court does not determine them.  It is placed with the province of the jury, and the cases over time reflect the changing standards.

So, for example – and this is not in our list of authorities – but former Chief Justice Gleeson in Chhay’s Case referred to the fact that it is becoming better known that women who are the subject of abusive relationships in fact may kill in the realms of provocation.  But that is not a matter necessarily that the court can deduce for itself, or form its own view as to what are contemporary standards.  That was indeed, in our respectful submission, a matter where Chief Justice Barwick in Moffa disagreed with his Honour Justice Gibbs.  If I can just come back to Chief Justice Barwick in Moffa at book 2, number 12, at page 605 where his Honour referred to the previous view, in the middle of the paragraph at about point 5:

Whilst I agree that it has long been accepted that a confession of adultery, even if unexpected and suddenly made, can never afford ground for the conclusion that an ordinary man would thereby be led to lose his self‑control to the point of forming an intent to murder or to do grievous bodily harm, I must say that circumstances do alter cases and that such an unqualified rule is hardly consonant with the “benignity of the law” in its concession to “human infirmity” –

He went on to therefore consider the facts in Moffa’s Case, and at page 606, his Honour said, at about point 7 over halfway down, having outlined the totality of the deceased’s conduct that may have informed the gravity of the provocation - his Honour said at about point 8:

To describe that situation as consisting merely of words is not, in my opinion, to reflect the reality of the total scene.  I am of opinion that a jury would be entitled to view the situation in its entirety –

Then he goes on to describe that.  Then his Honour says:

Whether they would or would not take such a view of the situation would essentially be a matter for them.  They are credited with a knowledge of how the ordinary man would react in such a situation.

In our respectful submission, that is the point of principle that ought to apply, namely, a court, particularly an appeal court, when the subjective limb of provocation is satisfied, ought ‑ ‑ ‑

NETTLE J:   Surely, Ms Shaw, the next sentence is your best point.

MS SHAW:   Yes, your Honour –

Many might think that they should not draw any such conclusion.  But there are limits to the control of such a factual situation which the court can exercise.

His Honour then goes on to actually say, at point 3:

With every respect to those of a different opinion, I cannot think that the trial judge would have been justified in this case in refusing to leave to the jury the question of provocation.

BELL J:   That was, on the facts of that case, there was a difference of view as between the majority and Justice Gibbs.  May I put it to you this way, Ms Shaw; you do not need to establish that it is not open to an appellate court to conclude that in light of contemporary standards and attitudes, the ordinary person test is not capable of – I will put it the other way.  The prosecution must inevitably be successful on the ordinary person test.  It is not necessary for you to go that far.  It is sufficient for you to establish that it was an error to withdraw the consideration of the objective test in the circumstances of this case, surely?

MS SHAW:   Our submission is, as I alluded to earlier, that, because leave has been granted, the question of whether provocation should be led is a question of law, and this Court can make that determination for itself.

BELL J:   Yes.

MS SHAW:   Can I just add to that passage on 607, your Honours, the last sentence on that first long paragraph:

As I have said, whether it should be concluded that an ordinary man would do so is a question exclusively for the jury, however much a court may be inclined to think that a jury should not do so.

So we rely on the remarks of his Honour Chief Justice Barwick, and indeed, your Honours, Justice Mason in the same case at page 622 of Moffa.  He, in the first paragraph, addressed this difficult issue in this way:

For my part, I feel some diffidence in predicting with assurance how an ordinary man placed in the applicant's situation might react if he were confronted with the occurrences on which the applicant relied.

So he approached it from the point of view that he was not best placed to make that ultimate determination, and therefore agreed with the result of his Honour Chief Justice Barwick.

Coming then to the reference that I raised earlier to his Honour Chief Justice Brennan in Green v The Queen (1997) 191 CLR 334, and is case number 7 in volume 1, can I take the Court to page 345, where the Court of Appeal had effectively held that the appellant had failed on the objective test. His Honour Chief Justice Brennan at page 345 set out what Justice Priestley had said in his judgment:

I do not think however that the ordinary person could have been induced by the deceased’s conduct so far to lose self‑control as to have formed an intent to kill or inflict grievous bodily harm upon Mr Gillies.”

His Honour former Chief Justice Brennan said –

With respect, the conclusion arrived at by the majority was a finding of fact that might not have been arrived at by a jury.  A jury would be entitled to evaluate the circumstances in a different way.  The real sting of the provocation could have been found not in the force used by the deceased but in his attempt to violate the sexual integrity of a man who had trusted him as a friend and father figure, in the deceased’s persistent homosexual advances . . . These were matters for the jury to evaluate in determining the degree of provocation experienced by the appellant.

His Honour’s final conclusions and the application of the proviso concentrate on the reference to homosexuality, or the information that he allows the appellant to glean relates to a changing view of homosexuality and what is acceptable to contemporary society.  We say, with respect, those matters were certainly unclear as to what he was alluding to.  But we submit further that they were irrelevant matters for the court to bring to bear in deciding the question of whether or not the objective limb had been satisfied, and it was a matter that, as former Chief Justice Brennan said, were matters for a jury.

His Honour Chief Justice Brennan also, at page 346, in dealing with the question of whether or not a reasonable jury might have come to a particular conclusion on the objective test, said:

It was essentially a jury question, a question the answer to which depended on the jury’s evaluation of the degree of outrage which the appellant might have experienced.  It was not for the Court to determine questions of that kind, especially when reaction to sexual advances are critical to the evaluation.

We of course here have not only the aspect of a sexual advance, but we say, more potent than that, the threat having been issued, there is defiance of the threat and then the offer of money, and the presence of those who are important to the appellant and his integrity have already, particularly his partner, protested.

Your Honours, his Honour goes on to say a juryman might take a different view effectively of the view taken by the Court of Appeal, and distinguished Stingel’s Case, where Mr Stingel was effectively the aggressor.  His infatuation was a matter that could not be brought to bear in the objective test.  In our respectful submission, in the present case it is plain that the deceased is the instigator and the aggressor, if any analogy is to be made.

BELL J:   Just in terms of your, what I might describe as broader submission respecting the role of the appellate court in this area, there should be reference to Justice Windeyer in Parker v The Queen (1963) 111 CLR 610 at 660, where his Honour cites with approval Justice Dixon in Packett v The Queen for the proposition that:

The Court is entrusted with the duty of ruling whether the matter relied upon is capable of depriving an ordinary man of his self‑control”.

MS SHAW:   Thank you, your Honour.  In our respectful submission, if I can just finally whilst I am referring to Green and the topic of the importance of knowing how his Honour evaluated the sting because we accept his Honour laid out the evidence but we do not find in his remarks, particularly in this area of his remarks at all, any evaluation of what that evidence meant.  What was the perspective that a jury might consider this had from the appellant’s viewpoint?  In other words, it is not – all one can glean is that his Honour focused on homosexuality, and if his Honour was going to decide the ultimate question that the objective limb could not be satisfied, at the very least he needed to summarise the factors that he had taken into account and he had considered and how he viewed the gravity of the provocation. 

BELL J:   He said that he was taking the appellant’s case at its highest.  His Honour’s conclusion was a conclusion that in contemporary Australian society the minimum standard of self‑control of a man of the age of Mr Lindsay does not admit of the formation of the requisite intention having notwithstanding the gravity of the provocation on his case at its best.

MS SHAW:   Your Honour, we accept that his Honour said that.  However, he does not spell out what his view was of the appellant’s case at its highest.  Was he taking the view that it was a homosexual advance?  Was he taking a view it was a rebuff to his hospitality?  Was he taking the view that it was the presence of his partner?  Did he put in context the circumstances of the appellant?  So, to take it at its highest might be – that is his test but how did, indeed, he frame the gravity of the provocation for the purposes of adopting a jury evaluation of the facts?

Your Honours, in Green’s Case clearly the Court of Appeal had outlined its view of what the sting was and, therefore, the High Court was able to say, or this Court was able to say, they focus too much on the homosexual aspect.  That was just one aspect of the sting.  So the absence of a formulation of what were the parameters of his gravity has effectively left the appellant in a position where we are faced – all we can do is point to the fact that it is not enough to say I have taken the appellant’s case at its highest without indicating what conclusion he has drawn as to what that case is.  In Green’s Case his Honour Justice McHugh at page 370 observed that the Court of Appeal had focused on the homosexual nature of the advance and it was:

The sexual, rather than [the] homosexual, nature of the assault [that had] filtered through the memory ‑

Then his Honour said ‑

Viewed in this light, the conduct of the deceased was directly related to the accused’s sensitivity ‑

That obviously related to a previous history of sexual abuse, but his Honour said ‑

Indeed, any unwanted sexual advance is a basis for “justifiable indignation”, especially when it is coupled with aggression.  Such an unwanted advance may lay the foundation for a successful defence of provocation.

Here, in our respectful submission, I have outlined what this particular advance is accompanied with and, in our respectful submission, it is, indeed, a grave provocation.  Your Honours, in order to refer back to our submission as to the need to understand or there to be – for his Honour to have understood what went to the heart of this provocation, we rely on what his Honour Justice McHugh said in Masciantonio (1995) 183 CLR 58 at volume 2 number 11, where at page 80 his Honour said in referring to the concept of “temporariness” about six lines down:

The concept of temporariness ensured that an intentional killing would be excused as manslaughter only when it was committed while the killer’s capacity for self‑control had been overwhelmed by the desire for retribution that often arises when an interest or relationship that a person values is harmed or threatened by the conduct of another person.

His Honour refers to Posner and The Federal Courts:

Part of our biological inheritance is the sense of indignation, and its complement the desire for retribution (by violent means if

necessary), that is aroused when someone invades an interest that we value highly.

In our respectful submission, the factors that I have outlined identify the various interests that the appellant had and it is unknown whether or not Justice Peek in considering the appellant’s case at its highest viewed the provocation in that context.  So we rely on that approach as distinguishing this case, for example, from Stingel when, of course, there was no relationship between Mr Stingel and the deceased or the girlfriend.  It was an infatuation. 

Your Honours, can I come to my outline insofar as we submit that the Court – our first position, indeed, that the Court should not have invoked the proviso in this case.  Your Honours, for the purposes of that, can I just refer to these aspects of the trial as an introduction.  Firstly ‑ ‑ ‑

FRENCH CJ:   Sorry, you are moving on to the application of the proviso?

MS SHAW:   I am.

FRENCH CJ:   Just a minute.  I think it might be convenient at this stage, Ms Shaw, if we were to hear argument from the other side on the question of the proviso.  I must say, by way of observation, speaking for myself only, that I wonder whether this was ever a question of the proviso; if provocation should not have been left to the jury there may have been no miscarriage of justice.  That was the approach that, I think, Justice Gibbs took in his dissenting judgment in Moffa, and I think there is a remark from which the same can be inferred from what Justice Stephen said in his judgment in that case, but perhaps at this stage we might hear from the other side unless you had anything further to say in your submissions that does not deal with the proviso question.

MS SHAW:   Your Honours, only insofar as in terms of the question of the – your Honours, the only thing I would point out in response to your Honour the Chief Justice’s comment is that what was in issue was whether or not provocation should be left.

FRENCH CJ:   Yes, I understand.

MS SHAW:   As opposed to a proviso in a broader sense. 

FRENCH CJ:   Yes.  Yes, Mr Solicitor.

MR HINTON:   If the Court pleases.  Whether or not partial defence of provocation should have been left to the jury is a question of law.  It is a question of law that requires a trial judge to apply both limbs of the test, here the common law identified in Stingel, repeated in Masciantonio, applied in Green.  That necessarily requires a trial judge ‑ and I am just sticking with that for a moment before I come forward ‑ necessarily requires a trial judge to form a view on the evidence and its ability to satisfy the objective limb.  That necessarily requires a trial judge to identify the evidence relevant on the first component of the objective limb to assessing the gravity of the provocative conduct.  Then, having done that, it necessarily requires a trial judge to ask whether or not that evidence has a certain capacity and the capacity is can it possibly satisfy a jury – sorry, and it is tricky to get this either in the positive or the negative ‑ ‑ ‑

FRENCH CJ:   Look at the onus.

MR HINTON:   The best way I have seen it put, the neatest way, is in those concluding lines in Stingel at 22, 171 CLR, it necessarily requires the trial judge to be satisfied that the evidence is such that no – put it in the negative:

no jury, acting reasonably, could fail to be satisfied beyond reasonable doubt that the conduct of the deceased, including the insulting remark and the sexual activities . . . 

specific to that case –

was not of such a nature as to be sufficient to deprive any hypothetical ordinary nineteen‑year‑old of the power of self‑control –

et cetera.  So, a trial judge has to identify the evidence and a trial judge has to apply the objective limb, including what possibly – reasonably possibly, the ordinary person might be caused to do if confronted by provocative conduct of the degree of gravity measured by reference to the viewpoint of the accused.

BELL J:   The trial judge ruled as a matter of law that provocation was available here.  The Court of Appeal took a different view.

MR HINTON:   Yes, the same question of law considered by the Court of Appeal in the application of the proviso, but my point is you cannot stop on the objective limb at the stage where, as my learned friends put to your Honours a number of times, you are satisfied that there is evidence that, one, the subjective limb, there was the loss of self‑control, that two, there is – you identify then evidence outlining the gravity of the provocative conduct from the point of view of the accused and stop there.  If you have it, then you must let the jury – you must always let the jury decide then whether or not the ordinary person would.

NETTLE J:   We must almost always leave it to the jury to decide.  It is a pretty exceptional case when you do not, once it is accepted by the Crown that there is evidence of subjective provocation.

MR HINTON:   I do not disagree, but the moment you say you must “almost always” does not, with respect, detract from my point.  My point is there are cases where it will not and Stingel is the prime example.

BELL J:   But Stingel is a very different case.

MR HINTON:   Factually, yes.

BELL J:   As Justice Nettle points out, this was a case where there was evidence of a subjective loss of self‑control.

MR HINTON:   Agreed.

BELL J:   It is, as you accept, Mr Solicitor, a rare case indeed where, in those circumstances, provocation would not be left.

MR HINTON:   A rare case.

BELL J:   What makes this a case that falls in that rare category?

MR HINTON:   That is the $64 million question; if I could come to that in a moment.  But it is critical that first we observe, yes, there is a rare case, but equally, first a trial judge has a duty to take it away if it is the right case to take it away, and equally we know from Weiss’s Case that there is always the risk of appellate intervention by virtue of the application of the proviso.  Appellate intervention with a jury includes a court of criminal appeal deciding that the defence, partial defence, should not have been left.

Now, why am I at pains to deal with that?  Because, in my submission, when we come to the judgment of Chief Justice Brennan in Green we must bear in mind the duty of a trial judge, and equally the duty, in the light of Weiss’s Case, of a court of criminal appeal applying the proviso.  Can I take your Honours to Green? That is to be found at tab 7, 191 CLR 334, and can I take you back ‑ and I apologise but back to page 346 of the Chief Justice’s judgment and we are concerned with from about point 3 to about point 6:

It was not for the Court to determine questions of that kind, especially when reaction to sexual advances are critical to the evaluation. 

My learned friends jump on that.

NETTLE J:   As you would.

MR HINTON:   Absolutely, but there are some distinguishing features, factually, between that case and this.  But if you take that at its highest it means the principle is wherever the provocative conduct consists of a sexual advance, or a sexual advance is critical to the evaluation of the gravity of the conduct, provocation must be left to the jury.  Now, in my submission, you cannot state the principle that high because that immediately comes in conflict with the duty of the trial judge to take it away if the evidence is not capable of satisfying it and equally it comes into conflict immediately with the role of a court of criminal appeal in applying the proviso to ask the same question if it arises in a particular case.  We cannot state it as high, with respect, as the Chief Justice does. 

What is also interesting about this case, of course, is that two other judges apply the proviso.  Justices Gummow and Kirby apply the proviso and, in similar language, again adopting that language from the Court in Stingel, conclude that no jury acting reasonably could fail to be satisfied beyond reasonable doubt that the appellant’s reaction to the conduct of the deceased fell far below the minimum limits of the range of powers of self‑control et cetera.  So, far from just concentrating on the Chief Justice who decides that really this is a question on the objective limb that should go to the jury ‑ ‑ ‑

KIEFEL J:   But their Honours were in dissent.

MR HINTON:   They were, they were.  What is also interesting, with respect, is that there is also a majority within a majority here as to the application of the proviso.  The other two justices, Justices McHugh and Toohey, if memory serves me correctly, did not look to the proviso at all.  They stopped at the point that the learned trial judge, having directed the jury with respect to the use of the evidence, having denied them the use of the sexual abuse evidence on the subjective limb of provocation erred it was a fundamental error such that he had not had the trial that he was entitled to, we are not going to the proviso.

So, with respect, Justice Kiefel, whilst your Honour is quite right, those two are in the minority, we are concerned here, in particular, with the application of the proviso.  Those two judges did not look at it.  They pray in aid Mraz’s Case.  One now has to look very closely at Mraz in the light of the comments made by this Court in Weiss.

NETTLE J:   It has moved on a bit since Weiss even, has it not, with Baini?  We have had a further rendition of how one applies it. 

MR HINTON:   In Baini – you have to be careful about Baini, with respect, because, of course, that is particular to the new provision to be found in the new Victorian provision.

NETTLE J:   That is true, but they approached it on the basis as if it were the application of the common law proviso.  One asks oneself, would the jury be bound to convict notwithstanding the error?  Very difficult to say here that a jury, had they been given a chance to look at this evidence of provocation, would have been bound to convict, is it not – or bound to acquit – bound to convict?

MR HINTON:   My submission is no different to what confronted their Honours in Stingel.  In fact, Stingel was a much stronger case than this.  There, your Honour may recall, you had the young man infatuated, his overtures had been rejected.  On the night in question he goes searching for her.  He sees her with her then lover.  He does not care much for this man.  Ultimately, he finds her in the car park, late at night, intimately involved with him.  He opens the door.  That man insults him.  He goes back to his car, gets the knife, comes back.  There, of course, what we had, but we do not have here, is evidence from that man himself.  I think it was an unsworn statement but we do not even have that here.  So, your Honours are in no better position ‑ ‑ ‑

KEANE J:   On the other hand, there is the problem in Stingel, as the Court pointed out or, at least, as – yes, as the Court pointed out, an ordinary person would not have been involving himself in that situation in the first place, pursuing people in this sort of harassing way and putting himself in that position.

MR HINTON:   That is right.  When you assessed the gravity of the provocative conduct from his point of view, you took into account his infatuation.  But, of course, the Court then says, I think the penultimate page, the ordinary person’s powers of self‑control would not be diminished by infatuation.  So, in our submission, consistent with the majority’s conclusion in this case, is that when one has regard to the sting in this case, we say the powers of self‑control of the ordinary 29‑year‑old, as this man was, and that is the only personal characteristic we are permitted to take into account, but having assessed the real sting, taking into account all his personal characteristics, the powers of self‑control of the ordinary 20‑year‑old are not diminished by an invitation to engage in sexual activity that is not accompanied by a threat or force but was repeated, was made by a stranger in the presence of the appellant’s partner and family members, but in a non‑threatening environment.

Take the evidence at its highest, as Justice Peek did.  Consider the real sting, as my learned friends put, and, in our submission, Justice Peek does identify in terms not materially different and ask them would that diminish the powers of self‑control of the ordinary person.  In our submission, this is a stronger case than Stingel. 

KEANE J:   Well, except that Justice Peek seems to accept that some time ago the answer would have been it is at least a question for a jury as to whether it would.  He concludes, on the basis of his reference to some literature, that it no longer is a question for a jury.  I suppose the question is what is the information that he is relying on there?  How does he know?

MR HINTON:   Can I unpack that?  There are a number of concepts there.  Can I start first by dealing with something Justice Bell alluded to earlier and that is – can I take your Honours to page 999 of appeal book volume 2 ‑ and I will answer all your Honour Justice Keane’s questions but against this background, if I may.  Can I draw your Honour’s attention firstly to paragraph 97 because it is there that his Honour begins to look at the evidence, as he says, relevant to the partial defence and he asks what a jury:

might not unreasonably adopt on the evidence –

taken “at its highest”.  Now, that is critical, taken “at its highest”.  Then, we find in the following paragraphs 98 through to 102 the real sting.  It is not there limited to the homosexual nature of the advance because, as his Honour says, in concluding paragraph 102:

A jury might reasonably take the view that such suggestions made in the present of a man’s female partner, child –

that is an error, the child was not there ‑

and his sisters might cause a greater degree of discomfort, embarrassment, and in turn anger, than if made in private.

Now, of course, we do not have all the nice descriptors that my learned friend has put on that paragraph, but that is the real sting consistent with paragraphs 81 to 84 of my learned friend’s written submissions, teased out, if you like, with respect to the patio incident in the paragraphs that follow and then the second incident.

So praying in aid something that fell from your Honour Justice Bell earlier, when we come forward to paragraphs – to the paragraphs that my learned friends took your Honours to, we must read it against the background of Justice Peek has already identified the real sting on the evidence taken at its highest as he is required to do.  So, when we come to paragraphs 228 and what follows, and the question of whether or not provocation should have been left to the jury, we read it against that background.  Your Honour Justice Keane draws my attention to paragraph 235, page 1035 of volume 2:

There is no doubt that in former times, when acts of homosexuality . . . However, times have very much changed.

In my submission, that should not be read as in any way detracting from the earlier conclusion as to what the real sting was.  That paragraph can live with the real sting quite comfortably but does not provide a boundary to it.  The real sting had a homosexual advance.  Justice Peek’s observation is in times gone by that might have been good enough but he does not there say that I am now changing my mind as to what I have said at paragraphs 98 to 102.  I am just saying that because what I have identified as the real sting included this, that in times gone by, that would have been good enough.  His Honour’s point is to point up what he says at paragraph 234 and that is the observation that a partial defence of provocation and its success will always turn upon the values of a contemporary society.

KEANE J:   Why is not the best measure of the values and what is acceptable to contemporary society a view of the jury?

MR HINTON:   That is a loaded question, with respect.

KEANE J:   We are talking about – the jury is often described as the constitutional tribunal of fact.  This seems to me to be ‑ ‑ ‑

MR HINTON:   A quintessential jury question.

KEANE J:   Yes.

MR HINTON:   At one level, one cannot disagree with your Honour.  The jury is put in that position, interposed between the King and the King’s justices to ensure that the people get justice according to what the people decide.  So, your Honour is quite right, but the answer is this is not a case of does a court of criminal appeal – sorry, I withdraw that.  This is a question of law to be determined by a trial judge, hence my starting point, and then in application of the proviso by a court of criminal appeal or, indeed, this Court.  So, as this Court said in Weiss, you cannot then, in applying the proviso, lay claim any more to a right to certain matters being decided by a jury because the very fact of the application of the proviso as construed in Weiss has the consequence that the jury is subject to appellate intervention.  Is that a convenient moment, subject to Justice Keane being satisfied with the answer.

FRENCH CJ:   Yes, the Court will adjourn until 2.15 pm.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

FRENCH CJ:   Yes, Mr Solicitor.

MR HINTON:   If the Court pleases, can I deal with two other aspects of your Honour Justice Keane’s question?  It included, as I recall, referring to Justice Peek as concluding that this was no longer a question for a jury and that he had regard to material that had not been seen by the parties.  It is important that I perhaps re‑cover some ground.  I do not want to repeat what I said, but it is important that submissions I made before lunch also be seen through the prism of the Weiss Case.  So I will take your Honours to a few of the important passages in Weiss as I answer those other two aspects of your Honour Justice Keane’s question.

My starting point though again is to take your Honours back to volume 2 of the appeal book and paragraph 236 and, as your Honour Justice Bell has pointed out on a number of occasions to my learned friend, Justice Peek took the evidence at its highest in favour of the appellant and concluded that “no reasonable jury could fail to find” and so on.

Your Honour Justice Bell referred the Court to that portion of Justice Windeyer’s judgment in Parker where he refers to Chief Justice Dixon’s judgment and the importance of observing the task of a trial judge.  What we have here is Justice Peek saying, “no jury, no reasonable jury”, and if that is his conclusion then he is quite right, with respect, in arriving at his ultimate conclusion that the proviso was to apply.  If “no reasonable jury could fail to find”, et cetera, then the defence should not have been left.  That of course, as we saw before lunch, mirrors those words in Stingel.

I have to say something about Moffa quite quickly.  My learned friend took your Honours to a number of passages in Moffa in the judgment of the Chief Justice and, indeed, Justice Mason. Your Honours will find that at tab 12, 138 CLR 601. The first passage that my learned friend took your Honours to started at the bottom of 606 and went over to 607. What was leapt over was that part of the passage five lines down on page 607, critical in this case:

unless it is quite clear that no reasonable person could possibly conclude –

That is what Justice Peek concluded and if he arrived at that conclusion then, as I have submitted, quite rightly the defence should not have been left – the partial defence.  So nothing in Moffa is inconsistent with what Justice Peek has done and when one refers again to Justice Mason’s decision at page 622 at about line 6, again it is consistent:

The question for us is whether it can be said that no reasonable man could answer –

But there is nothing inconsistent with what Justice Peek has done and the authorities of Moffa or Parker or indeed going back I think it is to Packett and Chief Justice Dixon’s important principle there as to when a defence should be left, and indeed of course, as we have said, it follows Stingel.  Now, can I take you ‑ ‑ ‑

BELL J:   But, Mr Solicitor, can I just take this up with you?  Admittedly Moffa was 1977, but in 1977 this Court rejected the view that provocation in the nature of sneering at a man about his attractiveness and boasting of affairs with others was not capable of causing an ordinary man to lose self‑control and form the requisite intention.  Well, now, how do we reach a point where a court concludes that an unwelcome sexual advance of the kind in question here accompanied by an offer of money in front of a person’s partner does not have the capacity to do that?  How does the court form that determination?

MR HINTON:   Can I answer that this way?  Firstly, we cannot deal with a class.  We cannot say, “This class of case will never”, because every case will always turn on its facts, and no two cases will ever neatly fit within a class.  So just to say, for example, that a homosexual overture “will never”, of course postulates a class that only deals in isolation with a homosexual overture and not all the circumstances in which it was made.  So, to that extent, Moffa - and as I recall – does not say that we certainly have a class.  What it does say is, because there was at that time that debate about whether or not words by themselves could ever be provocative conduct, it does say that you cannot exclude words - insults.

So my answer to your Honour Justice Bell is we do not have a class, you cannot exclude insults, but you have to decide each case on its own evidence.  So how here do we decide this case?  You are in the position of the jury, just as you are when it comes to applying the proviso normally and determining whether or not, for example, the jury ought to have had a reasonable doubt.  The jury will have a reasonable doubt if your Honours have a reasonable doubt, the authorities tell us; the same here.

NETTLE J:   Do we have the benefit of the extensive academic literature to which Mr Justice Peek referred?

MR HINTON:   No, you do not.  Can I come back to that, because I will purport to deal with that?  I cannot tell you what it is.  My learned friends did not see it; neither did we.  The question is, does it matter?

KIEFEL J:   But that means we are reviewing the application of the proviso on a different record.

MR HINTON:   You are reviewing – well ‑ ‑ ‑

KIEFEL J:   On an incomplete record, does it not?

MR HINTON:   Yes, reviewing, but applying, if you find error – proceeding to apply the proviso on the complete record, because you do not have academic literature.

KIEFEL J:   I should take a step back.  Justice Peek was not applying the proviso on the record of the trial but something more.

MR HINTON:   Yes, and the question is what?  My learned friends say you have to construe those words in paragraph 236 as though he had regard to some sort of academic literature that was in the nature of evidence, that informed him as to what the standards were of the ordinary person.  We say, with respect, that no academic literature could have done that.  You cannot do that.  It is a hypothetical standard.

KEANE J:   It might if it was academic literature from disciplines of sociology.  There might be sociological studies that bear on this.  There might be survey evidence that people have expressed their views, but one can be certain that it is not the academic legal literature that discusses the cases because none of that, so far as I know, presumes to talk about what the attitudes of ordinary people are or what ordinary attitudes are.

MR HINTON:   Our contention is that it is more likely – and I cannot put it admittedly any higher than more likely – I cannot tell you what it was.  But it is more likely that the extensive academic literature was in the nature of legal literature and we say that because of what his Honour says at paragraph 238.  Your Honours may be aware that after Green there was quite considerable ‑ ‑ ‑

BELL J:   There was a deal of academic debate ‑ ‑ ‑­­

MR HINTON:   There was.

BELL J:   ‑ ‑ ‑ and if one reads 236 with 238, it might be a reasonable inference that his Honour was referring to that.

MR HINTON:   That is what we put to your Honours.  We cannot put it any higher than a reasonable inference.  So we cannot tell you what it was, but I come back to my point, how would it help applying that hypothetical standard to this case?  Your Honour Justice Keane puts to me, well, what if we have got survey evidence, but of course the survey evidence would be particular to the nature of the survey.  It still does not help you work out how that hypothetical standard would apply in this case where that hypothetical ordinary person is confronted by provocative conduct of the gravity that confronted the accused viewed – the appellant viewed from this viewpoint.

When you break it down to the ultimate task, it does not matter what was in it.  It cannot help you because you have to apply a hypothetical against the background of identifying the gravity of the provocative conduct in this case.  So nothing unless it is on all fours with this case – which, with respect, it just could not possibly be – can actually help you.  Can I take your Honours quickly to Weiss’s Case because, as I said, it is important that what was done be viewed through the prism of what was decided by this Court in Weiss and it features largely in my answer to your Honour Justice Keane.  Weiss is I think tab 22, volume ‑ ‑ ‑

KIEFEL J:   Just before you turn to Weiss, Mr Solicitor, if we take the view that paragraph 236 of the judgment of Justice Peek was that his Honour was referring to academic literature relating to how ordinary people would behave and whether they would lose self‑control and that that academic literature extended the record beyond academic commentary about Green’s Case and that therefore that there was an error in the application of the proviso, what do you say this Court should do, assuming that position to be reached?

MR HINTON:   If you find error, our submission is you stand in the shoes of the Court of Criminal Appeal.

NETTLE J:   We do anyway, do we not, on this appeal?  The question is simply whether we think there was no evidence capable of sustaining provocation.

MR HINTON:   Well, there is an interesting question about that, and that is, can you go straight to that or do you have to find error first?  Can we stand here and say, “Look, don’t worry about anything else, just apply the proviso yourselves”, or do we start with find error and then go to the proviso?

FRENCH CJ:   How is the proviso engaged?  If the issue of provocation should not have been left to the jury, how was there a miscarriage of justice?  That is the anterior question, is it not, before one engages the proviso, whether there is a miscarriage of justice?

MR HINTON:   Yes.  So if your Honours conclude that Justice Peek’s approach to the application of the proviso – let us just limit it to, say, what possibly that extensive academic literature was, if your Honours conclude ‑ ‑ ‑

FRENCH CJ:   Are you going to answer my question?

MR HINTON:   I am.  If you conclude that that is wrong, then you are in the position where the miscarriage of justice remains the finding of the majority as to the inadequacy of the directions of the trial judge.  That remains the miscarriage.

FRENCH CJ:   On a defence which should never have been left to the jury?

MR HINTON:   Well ‑ ‑ ‑

FRENCH CJ:   I am just looking at what Justice Gibbs had to say at 617 in Moffa ‑ ‑ ‑

MR HINTON:   Might be at cross-purposes.

FRENCH CJ:   ‑ ‑ ‑ where he said:

Since the issue of provocation should not have been left to the jury, any misdirection on that issue could not have caused a miscarriage of justice.

MR HINTON:   That is my case.

FRENCH CJ:   The proviso does not come in.  It is just a question of whether there is a miscarriage of justice engaging the power of the court under 353 of the Criminal Law Consolidation Act, is it not?

MR HINTON:   I take your Honour’s point, that is ultimately where the Court of Criminal Appeal arrived.  No miscarriage of justice because it should never have been left, yes.

FRENCH CJ:   Well, no, the Court of Criminal Appeal said no substantial miscarriage of justice.

MR HINTON:   Sorry, your Honour.

FRENCH CJ:   They say miscarriage of justice because there were wrong directions, but no substantial miscarriage of justice because the defence on which there was misdirection should never have been left to the jury.  That is the logic of the Court of Criminal Appeal as I understand it.  The proposition I am putting to you as an alternative is, if you are right, there was no miscarriage of justice simpliciter because ‑ ‑ ‑

MR HINTON:   It should never have been left ‑ ‑ ‑

FRENCH CJ:   ‑ ‑ ‑ the defence should never have been left to the jury.

MR HINTON:   I embrace that, if your Honour pleases.

BELL J:   One aspect that perhaps needs to be taken into consideration, Mr Solicitor, is the appeal is against the trial that was had.  Except for present purposes that the majority were right to conclude the defence ought not to – or the partial defence ought not to have been left, nonetheless it was.  That affected forensic decisions that were made and on one view the majority was right to then go on and consider whether in light of the conduct of the trial and the - there was a substantial miscarriage arising out of the wrong leaving of the defence.

MR HINTON:   Your Honour is right and your Honour then is not inconsistent with the Chief Justice because your Honour quite rightly points to that, well, what were the ramifications  for the parties in the conduct of the case, and that then potentially enlivens it, yes, your Honour.

FRENCH CJ:   I notice that the Full Court in Moffa – the Court of Criminal Appeal in Moffa which dismissed the appeal did not make any reference – I presume the proviso was in place at that time?

MR HINTON:   Yes, your Honour.

FRENCH CJ:   They just dismissed the appeal on the basis that the defence should never have been left.

MR HINTON:   As Justice Peek points out, it has long been accepted in this State that the proviso is always there floating and until we started to pick the proviso apart in more recent times, it is strange how a provision such as section 353 that has been around for over a hundred years really only in the last 10 years has begun to be plumbed to its depths.  So it is understandable in terms of the time context that Moffa was decided. 

But I do want to take your Honours to Weiss just quickly and to paragraphs 18 and 19.  They answer that question your Honour Justice Keane put to me as to, well, is this not a question for the jury, and my answer to your Honour is no, because of common form appeal provision and the duty it burdens a Court of Criminal Appeal with.  I point out in particular at about halfway through paragraph 18:

By using the words “substantial” and “actually occurred” in the proviso, the legislature evidently intended to require consideration of matters –

Indeed, repeated in the first part of paragraph 19.  That answers your Honour Justice Keane’s question, with respect.  I then referred – I think it was your Honour Justice Kiefel in passing - the danger of Mraz’s Case and that discussion about the right to a trial and the reason I referred your Honour to that was because of Justice Toohey’s judgment in Green’s Case and your Honour will find at paragraph 27 of Weiss the danger of referring to a right where the common form appeal provision contemplates appellate intervention.  Again, against the background of what the Chief Justice said in Green’s Case, one should have regard to paragraphs 32 and 33 and those expressions of the loss of a chance fairly open of an acquittal, because you will remember that is similar to the phrase Chief Justice Brennan uses in Green’s Case.  But finally there is paragraph 35 which identifies:

The fundamental task committed to the appellate court –

and that is my answer to your Honour Justice Keane’s question.

NETTLE J:   Is there anything wrong with the test of asking whether the accused was deprived of a chance fairly open of being acquitted?  Is that not the way that one still approaches the application of the proviso, statutory or common, not general law?

MR HINTON:   No, with respect – well, what paragraphs 32 and 33 tell us, if you are going to use those expressions be cautious, do not travel too far from the language of the common form appeal provision itself.

NETTLE J:   Okay, but the language will only take you so far at the end of the day.  To something is a substantial miscarriage is not particularly revealing.  You have got to ask what does it mean, and the question is, was the accused:

deprived of a “chance which was fairly open . . . of being acquitted” or –

in this case getting a lesser verdict, do you not?  How else do you do it?

MR HINTON:   I suppose the answer is – well, your Honour’s answer is loaded.  You have to look at what is the effect of the error identified and not did it have this consequence, because ultimately the proviso allows the court to hold that no substantial miscarriage has occurred provided the court itself is satisfied that the accused was proven guilty beyond reasonable doubt.  So it is really the standard of proof that ultimately guides the application of the proviso, rather than questions as to was he denied the opportunity of – has he lost reasonable opportunity of gaining an acquittal.

NETTLE J:   Well, certainly following Weiss intermediate courts of appeal took the view for a while that one just made up one’s own mind as to whether the accused was guilty beyond reasonable doubt, but I had rather taken it the High Court had since then given further indications that, properly understood, Weiss does not detract from the view that one must be able to say that the jury were bound to convict.

MR HINTON:   It does not detract from the view that the court must arrive at a conclusion that that is the conclusion.  The difference is I do not interpose the word that the jury were bound to, because the function is committed to the court and the court, as Weiss tells us, does not interpose some hypothetical jury.  But my point here is that is exactly the position that Justice Peek finds himself in.  He now has to decide that objective limb.  He does not interpose what a reasonable jury would do.  He has to answer the question.

BELL J:   I am not sure that that is what his Honour did.  Did not his Honour consider that the error lay in leaving a defence for the jury’s consideration upon a view that the evidence did not support the defence?  That is different to a conclusion of an appellate court that the defence did not avail.  In other words, Justice Peek was applying a test that looked at whether there was legal error in leaving provocation.  He was not engaging in a Weiss-type analysis, so it seems to me.

MR HINTON:   With respect, is not that the outcome of his consideration at paragraph 244 of the strength of the prosecution case, and 245 and 246, because as your Honour will know, you do not go to provocation until you are first satisfied of murder?  If the appeal is all over provocation, once you take that out, you are left with satisfaction.

BELL J:   The point that I am raising with you is that on this critical issue, what Justice Peek was concerned with was not coming to a concluded view about whether he was persuaded provocation did not run, but that the minimum standard of self-control of the ordinary person did not admit of provocation being available in this case.  They are different questions.

MR HINTON:   It definitely concludes the latter, but once you conclude the latter, you do not leave the defence.  Once you do not leave the defence, you are at the point where the jury must have decided murder; you are satisfied beyond reasonable doubt; the burden that Weiss places upon you in the application of the proviso – you can only apply the proviso if it is judged.

I have dealt with the academic literature.  Can I just deal quickly with some questions of fact, and then I am done with respect to the application of the proviso.  What is important, firstly, is to identify the question, and we have done that on the third page of our oral hand-up – the question that confronted Justice Peek – and indeed, if your Honours proceed then to determine the application of the proviso, as we urge you should do if there is error found, then the question we have identified there under the subheading “The objective limb”, referring to Stingel’s Case.

Here, there is no evidence from the appellant.  There is no unsworn statement; there is no record of interview; there is nothing.  So unlike Dutton, Romano, Stingel and Green, you do not have any direct evidence from the appellant if he entered the witness box, nor do you have any out‑of‑court statements admitted.  The jury did not have any evidence that allowed them to assess any particular sensitivity, so you cannot conclude that the appellant is homophobic, for example.  True, there is evidence that he said “I am not gay”, but that does not mean he has any particular sensitivity or hostility toward homosexual advance, distinguishable then from circumstances such as Green where you had that abuse evidence.  You have no evidence ‑ ‑ ‑

BELL J:   Mr Solicitor, there was evidence upon which it is accepted it was open to the jury to conclude that the appellant lost his self‑control.

MR HINTON:   Absolutely.

BELL J:   How does it help us ‑ ‑ ‑

MR HINTON:   Because you have to, on the objective limb – the first part is, you have to assess the gravity ‑ ‑ ‑

BELL J:   Mr Solicitor, I think after this morning, you can accept that we understand that.  The matter that I am taking up with you is, accepting that Justice Peek took the case at its highest, assessing the true sting of the provocation, how does the Crown put its case for the conclusion that the objective test could not be overcome?

MR HINTON:   Roman numeral (iv) in our oral hand‑up, if your Honour pleases.  Each of those dot points, of course, has to be considered against – and I am sorry if I am unnecessarily crossing swords with your Honour Justice Bell, but you have to consider those dot points against an assessment of the gravity.  That is why I was putting to your Honour – and I am sorry if I have repeated myself – the factual matters here, “you do not have”, “you cannot”.  It is very difficult to assess the gravity here.  All you have got is a number of objective facts.  What inference do you draw from him saying “do not do that, I am not gay”?  What inference do you draw from that coupled with the second approach as to how grave this provocative conduct was, because it is only then that you can ask the question posed as to whether any jury – and we have to put it that high – acting reasonably could fail.

We say that this is a case where no jury acting reasonably could fail to be satisfied that the appellant’s reaction fell far below the minimum limits of the range of powers of self‑control expected of a 29‑year‑old.  We say that because of the dot points we put at (iv).  My learned friend says, and I have to deal with this, that you can make something of this man’s Aboriginality.  With respect, you cannot.  To suggest that there is any racial element to this it would be open to your Honours to infer on the basis of the evidence, with respect, you just cannot make that inference.

NETTLE J:   Could not a jury draw that inference?  If a white man had offered a black man $200 for homosexual sexual relations, could they not draw the inference that he did so because he looked down upon him?

MR HINTON:   Not without more, your Honour; equally open to say he fancied him.  Why?  Because he is Aboriginal did he look down upon him?  But that is what is put to you.  You could not draw that inference.  Equally ‑ ‑ ‑

FRENCH CJ:   Your dot points are pretty anodyne.  It could describe an invitation by someone to another person by tinder in a bar when the person is out with his family.  It seems to be decontextualized.

MR HINTON:   Agreed, and that is where we get into the realms of speculation.  This is all we have got, and when you look at all we have got and you ask what would the ordinary person confronted by this – you arrive at the same conclusion, in my submission, as Justice Peek did.  If the Court pleases, those are my submissions on the issue.

FRENCH CJ:   Thank you.  Yes, Ms Shaw.

MS SHAW:   Your Honours, first of all it is noteworthy that, as I recall, this is the first time it had been suggested by the respondent that this is a rare case.  Of course, at trial, that was not the suggestion.  It was agreed that it should be left.  At the Court of Criminal Appeal, it was not suggested that it was a rare case.  There were no opposition or suggestion at the Court of Appeal that provocation should not have been left by the respondent.

That means that, insofar as the issue that your Honour the Chief Justice raised in relation to the issue of miscarriage is concerned, the Crown, having put a position at the Court of Appeal that the arguments of the appellant could be met by reason of their persuading the court that the directions were satisfactory, in our adversary system the Crown never joined issue on whether or not provocation should have been left.

So, what his Honour Justice Peek has done is effectively engaged in a line of decision‑making that was not the subject of a position by the respondent and was certainly not the subject of submissions by the appellant.  So, in our respectful submission, the fact that the Crown are now saying it is rare is a reflection that this is very much an area where individual minds differ.

It was not the view of the prosecutor at first instance, it was not the view of the prosecutor on the appeal, and at the time of the leave to appeal stage, if I can take your Honours to our outline, paragraph 57 in our written submissions, we set out the position that the respondent took as to the gravity of the provocative conduct and the ordinary man test at the time that it opposed the application of the special leave.  At that time, the respondent’s position was that effectively, the ordinary man; that is, the ordinary man with ordinary powers of self‑control, could have perceived what occurred in such a way that he:

might punch or shove Mr Negre or throw him bodily from the house.

So, the Crown position was that the ordinary man would only have responded insofar as proceeding to some violence, but not to an intent to kill.  Now, we raise that because, of course, the onus is on the Crown to exclude the possibility of provocation beyond reasonable doubt.  If it is open, the jury consider it; the Crown has to negative it.  So, the Crown’s position that at the leave stage that this provocation would only go so far as resulting in violence but not violence of the order in fact perpetrated, is precisely where his Honour Justice Priestley stood in the Court of Appeal in Green.  In other words, once the court got to the point of deciding, here was a response in violence, in the consideration of the ordinary man test, it would not have been of that order.

What the High Court has said is, that is a jury question.  In our respectful submission, that is confirmed by reason of the judgment in particular of this Court in Pollock, where it has now been recognised that questions of proportionality, questions of interval, questions of whether or not the provocation might have abated, are all absorbed in the ordinary man test.  So the risk is that the court must caution, and the Court of Appeal must caution itself, against reversing the onus.  The question is simply whether it was open, like - almost like an element of the offence.  The Crown must exclude it if it is open, and an accused is not to be deprived of that possibility by reason of an onus that appears to be transferred to the accused.

So, in our respectful submission, the argument that this is a rare case is exposed as fraught with error by the way in which the prosecution have approached this case from the beginning.  Of course, I omitted from that the trial judge’s perception.  The trial judge took the view that the matter was open, and his Honour Justice Gray, although he said it was barely open, also did not approach the case on the basis that the provocation should not have been left.  So, again it is an indication that, amongst those who have had a role in this case, there are differing views, and it cannot be said in those circumstances that it was not open to a juror – a reasonable juror – to take a view consistent with that taken by his Honour Justice Sulan, the trial judge.

KIEFEL J:   If you are right in that and the matter ought to have been left to the jury, do you say that Justice Peek does not – his reasons do not deal with that alternative scenario where it should have been left to the jury, therefore, has there been substantial miscarriage of justice in relation to the directions given and, if that is the case, should the proviso be applied?  Those steps have not occurred in this case.

MS SHAW:   No, they have not occurred because his Honour did not take the approach that your Honour the Chief Justice raised of, he could have said there is no miscarriage it should not have been left.  He has gone to the stage of deciding there is a miscarriage, there are errors of law, “Now I am going to decide whether or not the ordinary man test can be satisfied so that the proviso should apply”.  In our respectful submission, that is an incorrect approach.

KIEFEL J:   I think his Honour approached it by saying there has been a miscarriage in the directions.

MS SHAW:   Yes.

KIEFEL J:   But, applying the proviso to see if it is a substantial miscarriage, “I will determine whether it should have been left to the jury in any event because then the misdirections become irrelevant”.

MS SHAW:   I agree in terms of the logic of that.  But our submission is – and I will not repeat it – that when he has embarked upon this new stage, he has adopted a different approach in the sense of incorporated into those reasons matters that are clearly irrelevant to the ordinary man test.  One does not know at that stage, therefore, if he is ‑ ‑ ‑

KIEFEL J:   But that, if you are correct, simply knocks down the correctness of his Honour’s view that there was no substantial misdirection on that approach because the matter ought to have gone to the jury.  That would have left consideration for whether the misdirections were themselves substantial and whether any other aspects of the – and whether the proviso in the Weiss test should be applied, which would involve his Honour determining for himself whether or not he was satisfied beyond reasonable doubt of the guilt of the offence charged.

None of those matters were gone into.  That is when I rather inaptly attempted to ask the Solicitor what do we do?  I mean, on one approach, paragraph 236 of Justice Peek’s judgment does not provide an answer – does not provide his answer to the Weiss proviso provision of what would have occurred here if the correct view had been that the matter should have been left to the jury, and the misdirections considered.

MS SHAW:   I could respond by saying it is a good reason why the adversarial system requires the respondent’s position to be, and the appellant’s position to be, that which actually issue is joined because, if it was, then these answers might be clearer.  But can I perhaps come ‑ ‑ ‑

KIEFEL J:   You mean the alternative bases would have been ‑ ‑ ‑

MS SHAW:   Would have been spelt out.

KIEFEL J:   ‑ ‑ ‑ addressed in argument?

MS SHAW:   That is right, and they would have been addressed in his judgment.  But, because the Crown did not put that position, there was no issue taken and therefore this has almost come over the top and presented a result which has not been the subject of a position taken by the respondent.

KIEFEL J:   And, it potentially leaves this Court in a position where the judgment takes the matter thus far and then leaves the balance to be worked through if a point of error is reached.

MS SHAW:   Can I perhaps take the Court on this topic to what I alluded to earlier in my reasons in relation to Pollock v The Queen (2010) 242 CLR 233, number 18 in the book, and in particular the suggestion by my learned friend that Weiss has some different standing in this area?  At paragraph 70 in Pollock, the Court said:

The directions wrongly invited the jury to exclude that the appellant was acting under provocation if the jury found that there had been any interval between the deceased’s provocative conduct and the act causing death.  In the light of the way the parties had put their cases it cannot be said that the misdirection did not deprive the appellant of a chance fairly open to him of being acquitted of murder.  It follows that the appeal must be allowed.

So the expression “a chance fairly open”, which is obviously the expression coming from Mraz, is applied by this Court in Pollock in relation to the issue of provocation.  Can I, your Honours, address or respond to the submission made that his Honour in his judgment proper addressed the question of the sting in a way in which - and in all ways in which, we would submit – a jury would be entitled to view it, because at the end of the day – and I am referring, of course, to my friend’s reference to appeal book 999 to 1000, and in particular, the paragraph at 101 and 102.

I draw to the Court’s attention that the way in which his Honour appears to have viewed the sting is that it fundamentally is an imputation that the appellant was a homosexual and that that was the issue of embarrassment, and that therefore he could be offended because he was not a homosexual.

In our respectful submission, that is not the nature of the sting at all.  The nature of the sting is not the innuendo that he was a homosexual, but that he was a heterosexual who was willing – despite the presence of his wife – to engage in sex with a male for a few dollars, and despite a threat of violence if he persisted.  Now, his Honour is focused on the suggestion that Mr Lindsay may perceive this was an imputation he was homosexual, rather than focusing on the suggestion that this was an attack on his integrity as a heterosexual man.  He would stoop ‑ ‑ ‑

BELL J:   Well, at paragraph 102 his Honour talks of the repeated offers to pay the appellant for sex as challenging his sexuality and integrity.

MS SHAW:   Yes, I agree with that, your Honour, but it is the suggestion that the offence is taken because of the imputation that he is homosexual, but that is not the real offence that is at the heart of this.  In our respectful submission, the focus by his Honour on the homosexual aspect is, to some extent, perhaps reflected in what his Honour says at paragraph 111, when he refers to the possibility of the suggestion of homosexuality being taken seriously; that is, that Mr Lindsay was a homosexual.  That that was his Honour’s train of thinking is borne out by his interpretation of the evidence that because Ms Ninos described the deceased as having –

slim build . . . really long brown hair, light brown shiny hair –

that that had some import into the suggestion of homosexuality.  In our respectful submission, that might be a view his Honour Justice Peek has, but it would not be necessarily a view a jury would take that that would have anything to do whether or not someone was homosexual.

BELL J:   Surely either the point is good, that it was an error to conclude that the Crown must inevitably fail – must inevitably succeed on the objective test, or it was not.

MS SHAW:   Yes.

BELL J:   Going into the evidence of the matters that you have just taken us to is hardly your strong point, Ms Shaw.

MS SHAW:   Yes, I agree, your Honour, that at the end of the day it is a matter for this Court as to whether not, as his Honour Justice Brennan said, there were matters that in the reasonable ordinary man test that ought better have been - ought to have been the province of the jury.  Your Honours, in relation to the – the only other matter, your Honours, is we have not addressed our outline in relation to the proviso, which is at point 13 of our outline.  In our respectful submission, we submit that in terms of whether or not the proviso ought to apply, the respondent was required to invite the Court of Appeal to apply the proviso if it was to be invoked by the court.

The fact that there is the power under the common form provision to apply the proviso does not mean that it is always in play.  In our respectful submission, what his Honour Justice Fullugar said in Mraz v The Queen (1955) 93 CLR 493, in our book at number 13 of volume 2, at page 514 remains good law; namely, that upon the demonstration of error or miscarriage of justice:

It is for the Crown to make it clear that there is no real possibility that justice has miscarried.

Further, in our respectful submission, that remains consistent with judgments of this Court.  We have not referred to TKWJ v The Queen (2002) 212 CLR 124 in our list, but we point out in the judgment of his Honour Justice McHugh, he pointed out that the proviso operates on the hypothesis that there has been leading error, that prima facie requires the conviction to be set aside, and then the issue becomes whether the Crown has shown that no substantial miscarriage of justice occurred because the error could not have affected the result.

BELL J:   But neither in Mraz, nor I think in the case that you just took us to, was the point being taken, as I understand it that you take, that if the proviso is not in terms relied upon, notwithstanding no issue of procedural fairness arises because the court raises the matter, as it did here, the court is precluded from applying the proviso.  Now, that is a very different proposition, and it does not necessarily sit well with the decisions of this Court that have touched on the application of the proviso when there has been no notice of contention in this Court.

MS SHAW:   Your Honour, we accept that it might well be a case by case result, but we submit that our system is essentially accusatorial and adversarial and that this is not just about procedural fairness, because here the fundamental consideration at play was the position the Crown took, because the position the Crown took below meant that once provocation went to the jury and it was left to the jury, the Crown were in a position where, quite properly, they were entitled to exploit the inconsistency between the appellant’s main case and provocation and describe to the jury that the issue of provocation in view of his prime position was an insult to their intelligence.

So, effectively, their position on the appeal when they decided not to argue that it should not have been left might well have been the subject of very important forensic considerations; namely, we have taken this position below, we do not think it is appropriate that we have a different position on appeal, because it goes to the heart of whether or not the appeal ought to be allowed or not, and in those circumstances, there might be forensic reasons why the Crown takes a particular position.  It might be different, your Honour, for example if the Crown had always argued that conviction was inevitable, and the only basis upon which the proviso was sought to be engaged or was relevant was that, “We have always said the conviction is inevitable; we maintain it”.

Here, the question of the proviso arises in a situation where the Crown had a position at the Court of Appeal which is different to the position they were putting to this Court.  If their position at the Court of Appeal held and Justice Peek did not take a contrary view, the appeal would have been allowed.  That is why, in the circumstances of this case, in our respectful submission, this is a situation where the position of the Crown below and at the Court of Appeal is important in relation to whether or not a court of its own motion should invoke the proviso.  We say that it cannot be said that it is always in play when the Crown carries the onus.

If the Crown carries the onus, it must discharge it, and part of the application of the proviso requires that the Crown lay out the basis upon which they say the proviso can apply, and in this case they would have had to lay out why it was that on any version of the facts it was not open.  That is, on the most favourable view, on the various views, a reasonable jury could not have come to that result but, more importantly, it was not open to a judge to lead it.  That, in my respectful submission, would then give the appellant the opportunity to respond and it would result in the court adjudicating on it.  That did not happen in this case.

BELL J:   What did happen was that the issue was squarely raised and was canvassed in the course of submissions, so that you are not in the position of being taken by surprise.

MS SHAW:   Can I put it this way, your Honour?  What was raised in submission by one judge, the Chief Justice, was that it was not open, and the court was referred to Green.  What was raised by his Honour Justice Peek was, we do not know where, if this fell, whether it was at the subjective limb or the objective limb, which was countered with the suggestion that miscarriage or the proviso was on the table, and of course, the third judge took a different view to the other two judges.  When the proviso was raised, the appellant said the onus is on the Crown to discharge it.  The Crown did not seek to discharge it.  They did not seek to lay out the case that was necessary for the court to consider in order to decide that the proviso was in play and had been discharged.

So that, in our respectful submission, is a fundamental error in the way in which the proviso was applied in this case, and the appellant did not get to respond to the basis upon which his Honour Justice Peek has finally concluded the matter in the course of his judgment or, indeed, to address the sting that his Honour Justice Peek formulated, which might well have been the subject of further submissions.  So, in our respectful submission, it is not appropriate for the Court of Appeal to apply the proviso unless it has been invoked by the Crown, and unless the burden under the proviso has been discharged and, most importantly, unless they have laid out the basis upon which the proviso indeed could be discharged.

KEANE J:   So you are saying that, even if the Court comes to the view in its consideration of the matter that it considers that no substantial miscarriage of justice has actually occurred, it may not do as the section says, dismiss the appeal, unless these things have happened?

MS SHAW:   Your Honour, we referred to an example in our outline at paragraph – I am sorry your Honours, if I can refer to a case ‑ ‑ ‑

KIEFEL J:   Do you go that far, Ms Shaw, or is your position that Court should not entertain, rather than cannot entertain, the proviso?

MS SHAW:   What I said in the circumstances of this case, the Court ought not to have entertained the proviso when it had not been invoked by the Crown on the basis that provocation should not have been led.  We refer, by example, Italiano v Western Australia. I appreciate it is a Court of Appeal decision in [2014] WASCA 260 at 95 where the Court said that, having found that there was error, the Crown not having sought to invoke the proviso, there would be a retrial. So this is a matter that the Crown can either seek to do or not seek to do and because the onus is on the Crown, if the proviso is to be engaged, the Crown must invoke it in order to discharge the onus.

NETTLE J:   Ms Shaw, as I understand your position, it is enough for you to win this point to allude to the fact that, although the issue of the proviso was raised in the Court of Criminal Appeal, neither the Crown nor the court exposed to you the basis of application on which the proviso was ultimately determined to apply.  Is that correct?

MS SHAW:   That is our position.

NETTLE J:   That is sufficient for you to win this point, is it not?

MS SHAW:    It is.  In our respectful submission, the fact that the material is in the judgment under the proviso section which this Court has asked what is it, demonstrates that clearly we did not have sufficient notice of what was going to be in issue in the application of proviso.  These are matters that his Honour Justice Peek has called in aid.  They are not matters that we know whether the Crown had a view on, or not.  In our respectful submission, the Crown have an important role in their responsibility to fairness to take a position on provocation as to whether it is open based on the evidence that they have heard and then on appeal, take a position on the question of provocation as to whether it is open to a jury.

BELL J:   Ms Shaw, if the Court were right that the minimum standard of self‑control of an ordinary person did not admit of the reduction of this offence to manslaughter on the basis of provocation, if the Court was right on that conclusion, the Chief Justice had raised in the course of submissions that the issue of the objective test was a matter to be addressed, and there was discussion of that matter.  If the Court concluded as a matter of law as it is that provocation simply was not open, you say, nonetheless, notwithstanding the wording of 353 in the way the matter was conducted, the Court was obliged to uphold the appeal and direct a retrial?

MS SHAW:   That is so, that is our submission.  That is what happened in Italiano.

BELL J:   How does that proposition stand with, for example, the statement that the Crown relies on in Baiada Poultry and the position that this Court has taken that, notwithstanding the absence of a notice of contention, a proviso may be invoked?

MS SHAW:   In our respectful submission, the effect of Baiada is that, once the Court decides there is a substantial miscarriage of justice, the proviso having been invoked, then it must dismiss the appeal.  It does not say it is mandatory to invoke the proviso.  It says that is the outcome.  It is a question of law.  If the proviso is engaged and if the Court finds there is a substantial miscarriage of justice it has no discretion at that stage not to dismiss the appeal.

FRENCH CJ:   But do you accept that it was open to the Court to decide that if provocation should not have been left to the jury, there was no miscarriage of justice?

MS SHAW:   But, your Honour, the only ‑ ‑ ‑

FRENCH CJ:   The anterior question before any question of provisos at all.

MS SHAW:   Yes.  I accept that, your Honour, but the anterior question before that is, in order for the Court to consider that proposition, in our respectful submission, it needed to look at whether or not, is it the position that was put by the Crown below?  Is it the position being put now?  If the Crown is not putting that position before the Court of Appeal, then at least the Court of Appeal needs to ask ‑ ‑ ‑

FRENCH CJ:   Subject to that, an appropriate line of logic would have been ‑ ‑ ‑

MS SHAW:   Yes.

FRENCH CJ:   ‑ ‑ ‑ there were misdirections ‑ ‑ ‑

MS SHAW:   Yes.

FRENCH CJ:   ‑ ‑ ‑ but the provocation defence should never have been left.  Therefore, there was no miscarriage of justice, so that do not get to first base.  No question of the proviso.

MS SHAW:   I accept that would be the logic applying the approach in particular of Justice Gibbs in Moffa but we submit, of course, that ‑ ‑ ‑

FRENCH CJ:   Yes, I understand.

MS SHAW:   ‑ ‑ ‑ the trial here took on a different complexion because of the way in which the Crown approached provocation, both at trial and obviously on appeal, so it did effect the way in which the trial was conducted.  Your Honours, the only other matter is that in relation to what my learned friend was asked to point to as to the gravity of the provocative conduct, and the way in which he approached it.  In our respectful submission, the framing of the question by the respondent has been in terms of “is there evidence”.

In fact the question is, can the Crown negate inferences that are open on the evidence that might be available to a jury to take a particular view and that is why, in our respectful submission, this Court has said repeatedly, those are quintessentially a jury question because the view that the jury might take of inferences, bearing in mind the Crown must exclude those inferences or provocation to be excluded, is a matter upon which minds might differ, including judges and juries.  If the Court pleases.

FRENCH CJ:   Mr Solicitor, I just want to make sure that you understood that you were addressing your entire argument previously.

MR HINTON:   I did not, your Honour.  If it please the Court ‑ ‑ ‑

FRENCH CJ:   You wanted to say something further about provocation?

MR HINTON:   The only argument I did not deal with because I thought I was just dealing with the question of whether or not it should be left, was the construction of section 353 and whether or not it was conditioned upon an application by the Crown.  I do not really need to go beyond our written submissions.  Clearly, the text does not support the submission and then when one looks at Weiss and the way in which the proviso has now been construed, there is the obligation to go on, in which case, the obligation is one that the Court is burdened with and that burden cannot be alleviated by anything the Crown does or does not do and that is, in a nutshell, what our written submission says, so we rely upon our written submissions.

If that is correct, then the question here is one of procedural fairness and whether or not there was the opportunity and in our written submissions we take your Honours through the transcript of the proceeding.  It is included in appeal book volume 2, before the Court of Criminal Appeal, and the interchange between the Chief Justice in particular, and my learned friend and we say that was sufficient.

We also refer your Honours to Pantorno’s Case and Autodesk as to what is sufficient and indeed the judgment of Justice Hayne in Friend v Booker, think, where he says, what is important is that the party must know the basis upon which they are ultimately “to lose” is the way he puts it, and here that was revealed.  May I take the opportunity to deal with, your Honour Justice Kiefel’s question.  Sorry if this is a bit of a liberty but I think I misunderstood the significance of it, and indeed, your Honour the Chief Justice’s reasoning as where we go in this case.

On your Honour the Chief Justice’s approach, as I understand it, if provocation should never have been left, there is no miscarriage of justice; you do not get to first base, appeal dismissed and the orders can remain where they are.  If we take Justice Bell’s route, and that is provocation; if you decide that provocation should not have been left, however, as Justice Peek did, you go on to consider, well, what were the ramifications for the conduct of the case, it having been left, and then you consider the application of the proviso, you arrive at the conclusion that Justice Peek was wrong in the application of proviso.  Then we have your Honour Justice Kiefel’s problem and that is, well, we are still left with errors in the directions.  What do we do because no one ever applied proviso to those errors, so we are left with an incomplete treatment of the case by the Court of Criminal Appeal.

The only remedy, it strikes me, for your Honours is to invite the parties to put in a brief written submission as to what is the application of proviso to those errors because we cannot remit, with respect; you stay in the position of the Court of Criminal Appeal.  So, if you arrive at that position ‑ ‑ ‑

KIEFEL J:   Perhaps the answer may be that it has been assumed because of the initial approach taken by Justice Peek, that the misdirections – that there was a miscarriage of justice and it would be substantial if ‑ ‑ ‑

MR HINTON:   But ‑ ‑ ‑

KIEFEL J:   ‑ ‑ ‑ but for ‑ ‑ ‑

MR HINTON:   Yes, your Honour. 

KIEFEL J:   ‑ ‑ ‑ to invoke torts.

MR HINTON:   I am not trying to have a second bite ‑ ‑ ‑

KIEFEL J:   No, but perhaps that is the basis – perhaps I have raised a hypothetical which need not be gone into because this matter has proceeded upon the basis that everything turns upon whether or not the matter should have been left to the jury.  Without that, the misdirections in relation to provocation have been assumed by the parties to be substantial. 

If that is the case, I do not know, I was left in little doubt as to whether that was the case, partly because the appellant has been arguing that the matter was not approached in the way in which Justice Peek dealt with it, so I was left in some doubt about whether or not there was a common position about whether the errors relating to the directions satisfied the description of ‑ ‑ ‑

MR HINTON:   Unfortunately, I cannot categorically answer that question.

KEANE J:   But it is tolerably clear, is it not, that before the Court of Criminal Appeal there was no suggestion by the Crown that if the misdirections that were complained of were made out, the proviso could apply to them.  That was not suggested by the Crown before the Court of Criminal Appeal, was it?

MR HINTON:   It was not suggested.

KEANE J:   No.

MR HINTON:   No, the Crown did not embrace the proviso at all.

KEANE J:   No.

MR HINTON:   The Crown’s argument was that the directions are good enough ‑ ‑ ‑

KEANE J:   The Crown’s argument was that there were not misdirections.

MR HINTON:   Well, yes, in that the directions that were given were good enough, yes.

KEANE J:   Yes.

MR HINTON:   I just ‑ ‑ ‑

BELL J:   We are dealing with an appeal in which it is accepted that there were misdirections relating to the partial defence.  It turns, does it not, on the correctness or otherwise of the conclusion that the defence should not have been left.  If that conclusion is good, Ms Shaw’s argument about the regularity of the application of the proviso arises and you rely on your written submissions in that respect.

MR HINTON:   Yes, your Honour.  The Court pleases.

FRENCH CJ:   Thank you, Mr Solicitor.  The Court will reserve its decision.  The Court adjourns until 10 o’clock tomorrow morning.

AT 3.24 PM THE MATTER WAS ADJOURNED