Masciantonio v The Queen

[1994] HCATrans 98

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Melbourne        No M63 of 1994

B e t w e e n -

GIOVANNI MASCIANTONIO

Appellant

and

THE QUEEN

Respondent

BRENNAN J
DEANE J
DAWSON J
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 17 NOVEMBER 1994, AT 10.18 AM

Copyright in the High Court of Australia

MR M.S. WEINBERG, QC:   If the Court pleases, in that matter I appear together with my learned friend, MR O.P. HOLDENSON, on behalf of the appellant. (instructed by Valos Black & Associates)

MR B.D. BONGIORNO, QC:   If the Court pleases, I appear with my learned friend, MR T. GYORFFY, for the Crown. (instructed by the Director of Public Prosecutions)

BRENNAN J:   Yes, Mr Bongiorno.  Mr Weinberg.

MR WEINBERG:   If the Court pleases, the Court should have been provided with an outline of submissions and might I commence by apologising for the form in which that outline appears; entirely my fault.  What we have done, Your Honours, is to use the outline that was used for the purpose of a special leave application and simply rename the applicant as the appellant and correct the page numbers so that they accord with the appeal book.  At least the Court may be heartened by the fact that I do not propose to depart from any arguments that were raised in support of the application for special leave.

BRENNAN J:   You had better give us a little time to have a look at it, Mr Weinberg.

MR WEINBERG:   If the Court pleases.

BRENNAN J:   Yes, Mr Weinberg.

MR WEINBERG:  If the Court pleases, the short point raised in this appeal is whether the Appeal Division of the Supreme Court of Victoria was correct in holding that the defence of provocation should not have been left to the jury because provocation was not open, on the best view of the evidence, in favour of the defence. 

The Appeal Division held that provocation should not have been left to the jury.  Your Honours will find that in the decision of the majority of the court, if I may so describe Their Honours in the joint judgment,  Their Honours, Justices Crockett and Marks, at page 489 of the appeal book and in the judgment of Mr Justice Ormiston, at page 529.

I refer to the joint judgment as a majority judgment simply because there are some differences in emphasis and reasoning employed by Their, Justices Crockett and Marks, passages which His Honour Mr Justice Ormiston did not accept as being passages that His Honour thought were correct.

In assessing that short point and that question, it is our submission that it is clearly established that whether the defence of provocation should be left to the jury falls to be resolved by reference to the version of events most favourable to the accused, and this Court so held in Stingel v The Queen, (1990) 171 CLR 312, at page 318, and also at page 334.

It is clear that His Honour, the trial judge, Mr Justice O’Bryan, resolved to leave the defence of provocation to the jury, having been specifically requested by the defence to do so, and over the opposition of the Crown.  His Honour charged the jury, in relation to provocation, at appeal book pages 352 to 359, and might I invite the Court to go to those passages.  Your Honours will see that the charge in relation to provocation commences at the bottom of page 352, and general directions are given about provocation at page 353.  His Honour, at page 354, informs the jury at the top of the page that they will note when he explains:

the doctrine of provocation that the law takes the view that there must be a reasonable proportionality between the provocation offered and the resulting killing, and in this case it may be very important to bear in mind that there must be reasonable proportionality between the provocation offered and the resulting killing.

If one then passes to page 355, His Honour tells the jury at line 2:

The second element is that the law will only concede the existence of provocation if there is some kind of proportion between the provocation and the murderous act.

And His Honour tells the jury, at page 355, about the evidence:

which, in combination, are relied upon by the accused to constitute provocation on the 19th of June.

I should tell Your Honours that 19 June 1991 was a Wednesday.  The events that are of importance, so far as this issue is concerned, really begin on the Monday, 17 June; so there is a two‑day period between the Monday and the Wednesday that is particular significant. His Honour said:

The proximate acts of the deceased are, firstly, the events of Monday, 17th June -

His Honour talks about those.  What had happened on that day was that the deceased and the deceased’s wife, who was the daughter of the appellant, separated for the second time.  The deceased in effect left the matrimonial home again some months after he had originally separated from the appellant’s daughter.  The original separation had - - -

BRENNAN J:   Mr Weinberg, at page 480 the joint judgment sets out the material upon which Their Honours proceeded to determine whether there was sufficient basis for a defence.

MR WEINBERG:   Yes, Your Honour.  I will not - - -

BRENNAN J:   Do you accept that statement at page 480 and following?

MR WEINBERG:   It is an accurate but not complete summary, Your Honour.

BRENNAN J:   And to the extent to which it needs supplementing in your submission, you will   supplement - - -

MR WEINBERG:   I will supplement it, yes, Your Honour.  Might I take Your Honour to one passage, which is important in His Honour’s charge, on provocation at this point.  It is at page 357 at line 3.  Your Honours will see that what His Honour told the jury was:

If the accused lost his self‑control during the first stage -

what His Honour is referring to as the ”first stage” is the episode at the Fiat car when a number of stab wounds were plainly inflicted upon the deceased by the appellant.  What His Honour refers to as the “second stage” is the episode which occurred some seconds later after the deceased had moved from that position, about 10 or 12 feet, to the footpath, the appellant having followed him to that position and stabbed him again a further two or three times, it would seem, on the evidence.  So what His Honour is saying to the jury is:

If the accused lost his self‑control during the first stage, was he still out of control when he did the acts which you find he did when the deceased man was lying immobilized on the footpath?  You will remember the evidence of the eyewitnesses in regard to what they saw done to the deceased man as he lay on the footpath.

If the accused was not out of control then, and he received a fatal injury at that stage, it may be difficult to conclude that the killing was as a result of the accused being out of control.  Then the Crown would have proved the killing was unprovoked.

That passage is important in the light of what subsequently occurs when His Honour comes back to the issue of provocation.

May we now take the Court to page 409 of the appeal book.  This is the passage of which complaint was made in the Court of Criminal Appeal.  It is the passage which appears at line 18, but to place it in context, the Court should look at the paragraph immediately above this passage.  Your Honours will see that having commented upon the history of the family evidence concerning the deceased man’s conduct, what His Honour told the jury at line 9 is this:

If I may make this comment to you which you can disregard, if you like:  this argument would seem to me to be somewhat transparent.

The argument being the argument relied upon by the defence.

The evidence, if accepted, was clearly prejudicial and may lack weight in terms of supporting the accused’s story.  Does it make the accused’s evidence in 1993 more credible because the deceased man punched a hole in a door 10 years ago, or threw a telephone at Aunt Rosa many years ago?  The connection appears to me to be very obscure.

That was a comment by His Honour about an argument advanced by Mr Francis as to the relevance of some background history between the deceased and his wife and family matters.  His Honour, then in the next paragraph, said this:

The dispute between the pathologists is obviously an important matter in terms of the defences relied upon, because, if the deceased received a fatal injury near the Fiat, the defences of accident and automatism and lack of intent, self‑defence and provocation would all be very relevant and open.  But, if the fatal injury occurred when the deceased had collapsed on the footpath and was still being attacked by the accused, defences of accident, lack of intent, self‑defence and provocation, would appear not to be open and to have no relevance whatsoever in this trial.  Only automatism would then remain.

That passage was the subject of complaint before the Court of Criminal Appeal, and the complaint was that in that passage His Honour had, in effect, withdrawn the issue of provocation from the consideration of the jury upon a particular view of the facts, namely, that the deceased sustained the fatal wound in what His Honour called the second stage of the attack.  In effect, if the jury found the fatal wound was inflicted when the deceased was lying on the ground after the first series of wounds had been inflicted, then provocation would appear not to be open and to have no relevance at all.

It was submitted that that was a misdirection because provocation was well open in those circumstances, if it was open in relation to the first part of the attack as well provided, of course, that the accused was still in a situation where he had lost self‑control.  What His Honour had earlier said to the jury was quite different and, with respect, quite correct.  If the accused had recovered his self‑control in the interim between the two stages, then plainly provocation would not be open in relation to the second stage.  It is not what His Honour said to the jury in this particular passage.

In that passage, we submitted, as we submitted below and we submit to this Court, that His Honour, in effect, almost certainly inadvertently, given that His Honour had determined that provocation should be left, withdrew provocation from the jury if they formed a certain view of the facts, namely, that the fatal wound was inflicted upon the deceased at the second stage, and that was the view of the facts which the Crown sought to have the jury take.  There was medical evidence to support that view of the facts; there was also medical evidence to support the contrary view, namely, that that fatal wound was inflicted during the first series of knife wounds that were sustained at the Fiat motor vehicle.

The Appeal Division accepted our submission that that passage had the effect of withdrawing the defence of provocation from the jury upon that view of the facts.  Your Honours will see that at appeal book page 479 in the judgment of the majority, if I can invite Your Honours to go to that.  What Their Honours said at line 20 is this:

It is another question, however, whether what the judge said to the jury resulted in a substantial miscarriage of justice.  Although the impugned observations of the judge might be thought to be mere comments, they should, we think, be considered as directions.  It is our conclusion ‑

and then Their Honours went on to say that in any event there was no miscarriage because provocation would inevitably have been disproved, that provocation should not have been left upon that hypothesis.  Their Honours had earlier said at line 17 on that page:

No such assumption ought to have been made.  The matter was for the decision of the jury.

The assumption in question is referred to at line 9:

The above underlined sentence appears to contain an assumption, namely, that if the jury concluded that the fatal stabbing did occur while the deceased was on the ground, after threatening bystanders who tried to stop him, he was not out of control.  We suppose that this hypothesis required a necessary inference that the applicant deterred the bystanders because he was bent on carrying out a dispassionate intention.  No such assumption ought to have been made.  The matter was for the decision of the jury.

So the Appeal Division is saying it was a matter for the jury to determine whether or not the accused had regained self‑control in the interim between the first stage and the second stage and that, with respect, is plainly correct.  Then Their Honours are saying:

Although the impugned observations of the judge might be thought to be mere comments, they should, we think, be considered as directions. 

BRENNAN J:   Had regained, or a reasonable person would have regained?

MR WEINBERG:   I am sorry, Your Honour, I did not quite ‑ ‑ ‑

BRENNAN J:   Is it “had regained”?  Is that the relevant inquiry, or is it whether an ordinary person would have regained?

MR WEINBERG:   The onus would rest upon the Crown to establish beyond reasonable doubt that the accused had regained self‑control, in our respectful submission.  If the jury was satisfied beyond reasonable doubt that he had lost self‑control in the first part of the attack, and the Crown were contending that there was a break and there was a recovery of self‑control, provided there was evidence fit to go to the jury to the effect that he was still out of control.

BRENNAN J:   Does that mean that anybody who, once having been provoked to the point of losing self‑control, continues on a murderous rampage, the defence of provocation is open?

MR WEINBERG:   Provided there is evidence fit to go to the jury ‑ assuming the other elements, of course, as well ‑ that he was acting in a state of loss of self control at the time, yes, Your Honour, it is a matter for the Crown to negative beyond reasonable doubt, in our submission.

BRENNAN J:   Is that consistent with the objective approach in Stingel?

MR WEINBERG:  Yes, Your Honour, it is.  This is a question of whether the accused had lost self-control.  It is the subjective aspect of the matter that I am directing attention to just at the moment and that, with respect, is what the court appears to have been directing its attention to in that passage at line 17.

What the court is concerned with is, has there been a break between the two stages.  Assumption A: the appellant is acting under a loss of self-control and all other conditions of provocation are met; assumption B, some seconds later, he continues to stab the deceased in a slightly different place. 

What approach should be adopted in determining whether, at the time of the second set of stab wounds, he is acting in a state of loss of self-control.  If there is evidence fit to go to the jury, if I may put it that way, that when the second set of stab wounds are inflicted, he is out of control, then, it is for the Crown, consistent with general principle, to show beyond reasonable doubt that he was not acting.

DAWSON J:   Why can you not consider them as two separate incidents and apply all tests in relation to each of the two circumstances?

MR WEINBERG:   You can do that, Your Honour, or you can treat them as one continuous episode.  It does not matter.  Provided there is evidence fit for the jury’s consideration as to whether he is acting in a state of loss of self-control when the second set of wounds are inflicted, then the Crown bears the onus of proving beyond reasonable doubt that he was - - -

DAWSON J:   If you treat them separately, you can conclude that a reasonable person, an ordinary man would have regained the control by the time the second ‑ - -

MR WEINBERG:   That is a different question, Your Honour.  That introduces the objective component.

DAWSON J:   That is why I say why can you not treat the two separately?

MR WEINBERG:   Well, you may be able to, Your Honour, but that is not the matter that the court was addressing in these passages.  What the court was saying, in our respectful submission, was simply that you have got what they call stage one and stage two;  the jury should decide whether or not, given that he was out of control during stage one, he was still out of control seconds later during stage two.

That is a matter for the jury seems to be what the Court of Criminal Appeal was saying and we would say, not only is it a matter for the jury but it is a matter in relation which, assuming there is evidence fit to be considered on that point, the Crown bears the onus.

BRENNAN J:   Nobody doubts that whatever the issue may be, the Crown bears the onus.  The question is, what is the issue?

MR WEINBERG:   It is, Your Honour, and I will come back to that if I may in just a few moments.  If I can just establish this point that the Appeal Division took the view that this was, in effect, a direction rather than comment, and certainly Mr Justice Ormiston at pages 516 and 517 of the appeal book came to the same conclusion.  And His Honour said at line 12 at page 516:

That exception is the comment, fairly to be treated as a direction, that if the fatal would occurred after the deceased had collapsed onto the footpath, then the “defence” of provocation, among other defences, was not available to the accused.  I am inclined to the opinion that this observation (set out in full in the judgment of Crockett and Marks, JJ) was a slip and that the trial judge, consistent with his earlier observations (likewise set out in full), intended to state only that the claim of provocation was not relevant if the jury were satisfied that the accused was no longer out of control.  It may well be that his Honour implied that the circumstances pointed to such a conclusion but that was, of course, for the jury to determine, if there had been evidence of provocation fit to be left for their consideration.

However, I would agree with Crockett and Marks, JJ that the trial judge’s later comment was not qualified by any reference to the possibility that the jury might find that the accused was still out of control and so it was an erroneous direction which the jury may have relied upon to dispose of the issue of provocation and thereby to convict the applicant.

It is thus necessary to see whether there was in fact a miscarriage of justice resulting from this apparent misdirection.  If there was evidence of provocation fit to go to the jury, then there should be a re-trial but, if there was not, no miscarriage will have occurred.

So the only point I make is that in the Appeal Division Their Honours took the view that that passage, that I have taken the Court to from His Honour’s charge to the jury, was properly to be understood and would have been understood, in Their Honour’s view, not as a comment, because it was separated from the preceding passage which had been designated a comment and was on a totally different subject-matter, but would have been understood by the jury as a direction in effect of law, that if they took a particular view of the facts, that was the end of provocation; there was nothing for them to consider other than automatism.  That is the view that the Appeal Division took.  What sustained this conviction in the Appeal Division was the overall conclusion by Justices Crockett and Marks that provocation should not have been left to the jury at all, upon that hypothesis, and Mr Justice Ormiston’s conclusion that provocation should not have been left to the jury at all.

Now, in our respectful submission, if one analyses the reasoning adopted by the majority and by Mr Justice Ormiston as to why Their Honours said provocation should not have been left to the jury in the circumstances of this case, then one finds, with great respect, a number of errors which we submit will not withstand close scrutiny.

We will take the Court, if we may, to Their Honours, the joint judgment, Justices Crockett and Marks, and I appreciate the Court Have read the judgment, but if we could summarise those parts of the judgment that we submit contain the errors.  If I can invite the Court to go to page 480, Your Honours will see that Their Honours commence at line 3 with the observation that it was particularly persuasive, in Their Honours minds:

that wound No 5, an admitted fatal wound, was administered while the deceased was on the ground.

Their Honours state their conclusions for that.  What Their Honours have done is to look at a photograph which apparently shows blood flowing upwards from that fatal wound, and conclude that it was more likely that that fatal wound was inflicted while the deceased was prone on the ground than if he had been standing up where you would have expected the blood to flow downwards.  That was one factor that Their Honours took into account.  It was a major issue at the trial.  Two pathologists were called on behalf of the defence who said that, in their opinion, that fatal wound was inflicted while the deceased was standing up.  They based that on angle of wound and various other matters.  A pathologist for the Crown had taken another view.  But it is clearly a matter for the jury on any view, in our respectful submission.

Their Honours then summarise the evidence most favourable to the applicant, bearing on provocation.  Your Honours will see that at page 480.  That is an important sentence.  I invite Your Honours to look at that:

The evidence most favourable to the applicant bearing on provocation may be summarized as follows.

Their Honours set out the history of the family relationship.  There is a typographical error in line 23 - that should be 1990 rather than 1980:

The deceased had physically assaulted her on more than one occasion, had left her and her children in 1990 before leaving her again a matter of days before his death. 

The days in fact was Monday 17 June 1991.  So, set out at page 481 is the demand for money “with which to travel to Italy”, which was made on Monday, 17 June - money which she refused to give “because she could or would not”.  The taking of the furniture and property of the marriage is set out, and the fact that the appellant became aware of that treatment.

Thereafter, the court moves to Wednesday, 19 June, and speaks of what had occurred on that afternoon when the appellant was told to “piss off” when he approached the deceased to have a “discussion about the marriage”.

And then what is set out is the evidence in‑chief of the appellant, or part of the evidence in‑chief over the next two or three pages.  Now, I would say to the Court that is by no means, in our submission, the view of the evidence most favourable to the appellant.  Indeed, it might be regarded as the view of the evidence bearing on provocation least favourable to the appellant because, as was noted by Mr Justice Orminston, in a number of the statements made to the police, immediately after he gave himself up to the police, he states the events in different terms, placing much more emphasis upon anger and loss of self‑control than he does in these answers given during the evidence in‑chief where he appears to have relied upon the defence of self‑defence, a   situation - - -

BRENNAN J:   What facts do you wish to draw our attention to?

MR WEINBERG:   I will take the Court to them.  They are the answers given to the police in the various interviews, but if I can come back to that.  All I am saying is this is an accurate summary of the evidence in‑chief, or part of it, but it is not the view of the evidence most favourable to the appellant.  It is nothing like the view of the evidence most favourable to the appellant on the issue of provocation. 

At page 485, the top of the page, what Their Honours say is:

From the above it appears that the applicant did not say (although he did during the re‑enactment) -

so they refer to one statement during the course of - there was a re-enactment of the incident which was videotaped by the police -

(although he did during the re-enactment) that he had lost his self-control.  What he said indicated the contrary -

Their Honours say -

namely, that he obtained the knife to “scare” the deceased.  The only evidence which suggests that the applicant did lose control was that of his conduct in stabbing the deceased a number of times -

That is not accurate either because there was in fact eyewitness evidence which tended to show, very strongly, that the appellant was out of control during this particular episode, and I want to take the Court to that in just a few moments.  Then Their Honours went on to say:

But if there was conduct of the deceased which constituted a provocative “trigger” it was no more than his telling the applicant to “Piss off”, pushing him and kicking at him.  He did not in fact kick him.  The kick missed.  The push, the applicant said, caused him to fall and feel pain in his elbow.  There was no evidence how the injury later observed on the applicant’s elbow was caused -

and then Their Honours say:

The words “Piss off” are not in themselves capable of constituting provocation.  They were clearly not of the violent kind capable of providing an exception to the common law rule that words alone are insufficient to found the defence of provocation.

And then Their Honours summarise the matter in this way:

At its highest for the applicant the case may be considered as constituted by the deceased telling the applicant to “Piss off” accompanied by or followed by a push sufficient to make the applicant fall and feel pain in his elbow.  We assume, despite there being other evidence to put this version very much in doubt, that it was accepted by the jury.

On that assumption, the facts may be compared with those in Stingel. 

And then Their Honours, on page 486, set out the facts of Stingel, and note that this Court in Stingel concluded that, in that case, the defence of provocation should not have been left to the jury.  That is set out at the bottom of page 486, and, at the top of page 487, Their Honours reason as follows:

In the present case, it may equally be said that the general psychological condition of the applicant, of which much was made at the trial, similarly detracted from those powers.  The evidence did not allow that psychological state to be attributed to the conduct of the deceased towards the applicant’s daughter.  Moreover, there was no evidence that the background conduct of the deceased, although relevant ‑

Their Honours say ‑

was directed towards the applicant himself.

In Stingel the words spoken by the deceased were more violent in essence than those attributed to the deceased here ‑

If I can remind the Court, in Stingel, the words were, “Piss off, you cunt”; in this case they were, “Piss off”.  So, Their Honours say they were more violent words in Stingel ‑

Although no physical violence at the critical time was offered the deceased in Stingel his conduct with the woman in the context of his earlier conduct towards the accused might qualify as no less provocative than “the push of, and kick at” the applicant here.  The degree of violence offered by the deceased and how it came about were left imprecise and uncertain by the applicant in his evidence and in his descriptions to the police.

What Their Honours appear to be saying is, “We have compared this case with Stingel’s case.  In Stingel’s case the High Court said that was not enough; in this case, we take the view that there was not anything much more than occurred in Stingel’s case, so, by parity of reasoning, we will also say this was not enough”; if I am not doing an injustice to the reasoning the Court has adopted.  And then the Court adds another reason, at the bottom of page 487:

On any view, no jury could regard the stabbing of the deceased by the applicant when he was on the ground in a state of collapse as other than wholly disproportionate to what the deceased previously said and did.  In Lee Chun‑Chuen the deceased also was alleged to have initiated the violence....The Judicial Committee held there was no provocation issue to go to the jury.

Now, in that passage at line 25, the court seems to be saying that one draws a distinction between the stabbing on the ground and the stabbing at the Fiat.  The first five, six or seven wounds that were inflicted at the Fiat might well, by implication, have fallen within the ambit of proportional conduct, but the episode 30 seconds later, or whatever the period was, where a further two wounds, or three wounds, were inflicted, was wholly disproportionate of the provocation offered.

That is the way we understand what Their Honours are saying in that particular passage, that the second stage falls foul of the objective test because of the wholly disproportionate principle, if I may so describe it.  That is an application of that principle, which, we will be submitting, is not in accordance with the authorities and is fundamentally unsound, that one does not approach the matter of proportionality in that way.  One does not draw this artificial line between the series of five, six or seven stab wounds, committed whilst two men are struggling for a knife, and a further two wounds inflicted a few seconds later, after one has fallen to the ground.

Of course, if there has been a regaining of self‑control, that is the end of provocation.  One accepts that, and His Honour so told the jury, but that is quite different from saying, the response, once the deceased had fallen to the ground, is wholly disproportionate to the provocation offered.  We will be taking the Court to some authorities on that proportionality principle in just a few moments.  The court then went on, at page 488, to say this:

The applicant was not entitled to rely on the background conduct of the applicant alone.

We do not understand that sentence, and we have checked the authorised version of the report at (1994) 1 VR 577, at page 600 at line 25, and the sentence appears in that form. We can only think that Their Honours had not intended to say it, and that the word “applicant” in the second part of that sentence may have been intended to be “deceased”. Perhaps Their Honours did, but I just do not understand the sentence.

Then the court went on to Parker’s case and talked about “suddenness” and the requirement that the appellant must respond “on the sudden”, the common law concept.  Then at the bottom of page 488:

Even so, and allowing that the Crown may have failed in that regard -

that is, demonstrating that the accused did not lose self‑control himself ‑

no jury could have been other than satisfied that an ordinary person would not have continued as the appellant, on the present hypothesis of the facts, did namely, to attack the deceased when he was lying helpless on the ground from the stab wounds inflicted at the side of the Fiat motor car.

So that fortifies our submission that what the joint judgment is saying is that whatever you might say about episode one stage one, there might have been enough evidence to leave provocation to the jury in relation to that first flurry of knife wounds.  When a few seconds later he goes over to the deceased who is lying prone and stabs him again, that is not proportionate.  That is beyond the proportionality principle, and for that reason, on this view of the facts provocation should not have been left to the jury.

That is our submission to the Court.  That that is the way that the joint judgment approached this matter.  Then Their Honours say at 489:

We consider for these reasons that, even on the assumption that the Judge to an extent took away provocation, there was no miscarriage of justice, because provocation was not open on the best view of the evidence in favour of the defence.

Mr Justice Ormiston reasoned differently, came to the same conclusion but in a quite different way.  If I can take Your Honours to ‑ ‑ ‑

McHUGH J:   Do you not have to face up to the fact that although the Court of Criminal Appeal may have narrowed it, should provocation have been left at all on any view of the case?

MR WEINBERG:   Yes, Your Honour, we do.  All I am saying is that Their Honours in the joint judgment appear to have said on any view it should not have been left in relation to episode two.  Their Honours have not said it should not have been left in relation to stage one.

McHUGH J:   No, I appreciate that.

MR WEINBERG:   Your Honour is quite correct.  We do have to face up to the question that Your Honour has put to me precisely, and we propose to do that.  If I can invite the Court to go to the judgment of His Honour Mr Justice Ormiston which commences ‑ ‑ ‑

BRENNAN J:   Before you do, what is wrong with that sentence at 488?

MR WEINBERG:   At the bottom of the page?

BRENNAN J:   Yes.

MR WEINBERG:   What is wrong with it, Your Honour, is that it involves an application of the principle of proportionality as it is discussed in the cases which says that five knife wounds or seven knife wounds inflicted in a flurry of wounds in an attack, in a fight, et cetera, at a car, may be proportionate, may give rise to provocation, may in every sense allow provocation to go to the jury.  But if the accused, while still in a state of loss of self‑control because if he is not in a loss of self‑control there is nothing to talk about, while still having lost self‑control goes on and stabs the deceased a further two times seconds later after he has fallen to the ground, that is the end of provocation.

McHUGH J:   But does not the ordinary man have to also be still out of control at that stage?

MR WEINBERG:   Might not the ordinary man have to be still out of control?  Yes, Your Honour.

BRENNAN J:   Well, what is wrong with it on the proportionate?  Put it all together.  The ones next to the car, if they wish to say that, are proportionate.  But when you look at what he did all together, it is quite disproportionate.

MR WEINBERG:   Your Honour, seven stab wounds are proportionate - - -

BRENNAN J:   It is not just a question of number, it is a question of situation.

MR WEINBERG:  It is a question of situation.  They are all knife wounds inflicted by the deceased ex hypothesi whilst in a continuing state of loss of self-control because we assume for the purpose of this principle that he is under a loss of self-control throughout the entire episode.  The episode is a very short episode.  Seven stab wounds is within the principle of proportionality but two further stab wounds inflicted seconds later, whilst he is out of control still, is disproportionate.

DEANE J:   But that reverses the question.  I mean there is a qualitative difference whether one likes it or not between stabbing a person five times in a fight over a knife and stabbing a person after you have already reduced him to the stage where he is lying helpless and defenceless on the ground.

MR WEINBERG:   I accept that, Your Honour, with great respect - - -

DEANE J:   Which means there is a qualitative difference in the question of proportionality if the action causing death terminates before what happens on the ground and if the action causing death is the stabbing of a man as he lies defenceless on the ground.

MR WEINBERG:   I accept what Your Honour says about there being a distinction between stabbing a man at the car in the immediate - they are both in the immediate aftermath of the provocation, I should say.

Our submission is that nothing very much turns wupon any temporal passage that has elapsed between the two stages although one can erect a construct which says stage one and stage two and it is convenient to do so.  It is, for the purpose of this analysis on proportionality, a series of exactly the same kinds of acts, namely stabbing the deceased with intent to kill whilst under loss of self-control in the face of provocation. 

One hypothesises that and what one says is, yes, we can accept that what you did in the first flurry of knife wounds might have fallen within the ambit of what an ordinary person who lost self-control might have done but once it gets to another two wounds, an ordinary person who, for this purpose has lost self‑control, could not have gone and done that.  We simply submit that is drawing distinctions which are difficult.

DEANE J:   What you say, it seems to me, to reverse the process in that the first thing in terms of proportionality must be to define the relevant acts.

MR WEINBERG:   Yes, Your Honour.

DEANE J:   If one forms the view that there is a qualitative difference between stabbing in a fight over possession of a knife and stabbing somebody whom you have reduced to a state of hopelessness on the ground, your argument may ultimately still prevail, but you can no longer talk about the loss of control carrying through because if it can carry through you have already answered the question of proportionality.

MR WEINBERG:   Yes, Your Honour, that is the point and indeed that is our argument, that what the Court has done in its application of the proportionality principle, in effect, resuscitates the proportionality principle as a separate part of the doctrine of provocation.

DEANE J:   I see the force of that, but what I was suggesting to you is, if it carries through to stabbing on the ground, it is a different question of proportionality, which means you cannot simply talk in terms of loss of control carrying through; you must readdress the question of proportionality.  And if the answer to the first question had been, “Oh, it is border line that the five stabbings in a fight for control really is in the area where we should just leave it to the jury”, non constat that there may not be an absolutely different answer to the question of proportionality in the second scenario.  That was all I was suggesting you might deal with.

MR WEINBERG:   I understand that, Your Honour, and our submission about proportionality is that at bottom it is an evidentiary principle to assist a jury in resolving the threshold ordinary person test, it has no greater status than that, and certainly, in an appropriate case, disproportion of a particularly gross kind, so that one has a minor assault of some kind responded to by taking out a weapon and killing the deceased, would lead a judge to not leave the issue to the jury, because the judge would take the view, quite properly, that in those circumstances the response was so disproportionate to the relatively trivial provocation offered, that the answer to the objective test could not be anything other than that the Crown would demonstrate, if it had to, that no ordinary person might have acted in that way.

That is a very different matter, in our submission, from saying ‑ and we accept the force of what Your Honour puts to us ‑ five wounds, seven wounds inflicted in a flurry, if I might put it that way, in response to provocation where a person has lost self‑control whilst doing that, and on this hypothesis is still under that same loss of self‑control, albeit he is doing something different, he is stabbing the deceased who is no longer fighting with him.  We simply say that one does not weigh these things to a nicety and nothing in the proportionality principle was intended to say that one weighs to a nicety. 

Once one accepts that the provocation offered was sufficient to have justified an ordinary man to produce a knife, he might have produced a knife, he might have formed the intent to kill, he might have stabbed the deceased on a number of occasions, in our respectful submission, to then say, “But we can draw a cut‑off point which is so clear that the issue will not be left to the jury beyond the first five or seven stab wounds.  It would have been left to the jury if there had been seven stab wounds, but I, the trial judge, will not leave the issue to the jury, because it has gone beyond that and I say that no jury could have accepted that an ordinary man who had lost self‑control, who ex hypothesi had lost self‑control to the degree that he formed the intent to kill, to use a knife and to inflict multiple stab wounds, might have lost self‑control to the extent of inflicting a further two stab wounds”.

BRENNAN J:   It seems to me to come back to the question I first asked you.  If you want to put proportionality merely, as it were, as an evidentiary aid to the determination of the objective question of what the ordinary man might do, then why is it that in relation to looking at the totality of the transaction, including what happened on the ground, one would say this would not be such that an ordinary man would have lost control.

MR WEINBERG:   Your Honour, when we talk about the ordinary man, might we at least have regard to those matters that the ordinary man is to be fixed with for the purpose of applying that test.  It is not the ordinary stranger who has come along and had a confrontation of some kind with a total stranger.  It is not as though ‑ ‑ ‑

BRENNAN J:   No, that is a different question.  The question that we are talking about is:  assuming that as a matter of fact Their Honours are right at the bottom of page 488, where is the error of law?  You have not yet come to the question, it seems to me, of whether or not Their Honours were right in fact.

MR WEINBERG:   We say that Their Honours are wrong in saying that no ordinary person, relevantly circumstanced, in the same position ‑ if I can put it that way ‑ as the appellant was on that day, putting aside the matters which Stingel says one cannot have regard to, that no ordinary person might have in the face of relevant provocation done the following things:  (a) might have lost self‑control; (b) might have formed an intent to kill or an intent to inflict really serious harm; (c) might have determined to use a knife; (d) might have determined to use a knife repeatedly. 

All of those matters seem to be accepted by Their Honours as within the parameters of provocation, and we would say correctly accepted by Their Honours as within the parameters of provocation, if one has regard to the ordinary man relevantly circumstanced in the way that the appellant was circumstanced on that day. 

Where Their Honours draw the line, it seems to us with respect, is to say, “We won’t have that in relation to the ordinary man, upon the hypothesis that the fatal wound was inflicted 30 seconds later, 10 feet from the scene; though, for the purpose of saying that, we accept that the accused was still under a complete loss of self‑control as a result of provocation and we accept that the ordinary person would have been still under a loss of self‑control, because if one doesn’t get to that point then we don’t need to worry about proportionality.”

BRENNAN J:   Is that not the very point?  If you say that proportionality is relevant to that question, it does not assist your argument to say, “Well, proportionality is only relevant to that and therefore you don’t have to look at proportionality as to what happened on the ground.”  You have to measure up to it one way or the other, either in terms of proportionality simpliciter or in terms of ordinariness.

MR WEINBERG:   We accept proportionality, Your Honour, insofar as it says that when one considers the application of the proportionality test as an evidentiary aid to the ordinary person test, or the ordinary person condition, what it requires you to do is to ask whether an ordinary person might have lost self‑control.  We accept that.  That is clear.  We accept the proportionality principle operating in so far as it says, “You have to go further than that.”  Not just ask, “Might an ordinary person have lost self‑control?”  You have go further and ask, “Might it have caused an ordinary person to form an intent to kill or cause grievous bodily harm?”

We accept that one has to go further than that.  We accept that you have to show that an ordinary person might have determined to use a knife.  We accept that you have to go further than that, that you have to show that an ordinary person might have decided to inflict a whole bevy of stab wounds upon the deceased as a result of the provocation offered.

The point that we cavil at is that there is anything in the proportionality principle which says that there is a limit to the number of wounds that can be regarded as proportionate when considering an ordinary person who has lost self‑control.  It flies in the face of nature to say that inflicting more wounds in these circumstances does not show greater loss of self‑control, so far as this particular accused is concerned, on the subjective aspect.  The more he does to this body, the more wounds he inflicts even after death, the greater the likelihood is that he is still out of self‑control.  That much everybody seems to accept.  But what then the proportionality principle would be doing is to say, “Well, we’ll measure the amount of death dealing blows that can be given in response to this provocation. 

If the provocation had been greater, then more death dealing blows might have been justified.  If it had been a much worse provocation, assume the facts had shown far graver provocation, then this would have been all right.”  But this measure of provocation which was, for the purpose of this hypothesis, sufficient to cause this accused and an ordinary person to go at least as far as forming the intent to kill with multiple stab wounds, cannot go so far as to permit him to inflict two extra stab wounds in the qualified conditions that Your Honour Justice Deane has said.  And that,we simply say, if that is the way the proportionality principle works then it really is not serving the objectives of the ordinary person test at all. 

That test is, of course, designed to ensure that there is a minimal standard of self‑control that is expected.  The test does not, in our submission, require that there be that measuring of nicety, if I may put it that way, that weighing of the number of stab wounds that are inflicted, and a cut‑off point at which one can - upon a perfectly rational basis, I accept what Your Honour Justice Deane says - draw a distinction between the man who is standing up and the man is lying down.  But it does not accord with principle, in our submission, to say that the test properly applied leads to that conclusion, and it is the application of the test that we complain of, that is the error of law that we identified and we seek to place before this Court.

It is just, in our submission, not a correct application of a proportionality doctrine to say, you can go so far - all of that is accepted, that would be within the realms, that would be left to the jury - but the extra two wounds inflicted in these circumstances make it disproportionate.  I do not know that I have answered all Your Honour’s questions, but I think I have made the point that we wish to make in relation to that matter.

If I can come back to Mr Justice Ormiston, His Honour commences to deal with the issues at page 500 of the appeal book.  What His Honour says at page 500 is that His Honour has had the benefit of reading in draft form the judgment of Mr Justice Crockett and Mr Justice Marks, agrees the application should be dismissed and then says:

However, with great respect, I do not agree entirely with the reasoning which leads them to their conclusions and in particular I should like to express my own reasoning as to the grounds of appeal relating to provocation.

The next 16 pages of His Honour judgment are taken up with a different debate which is not the debate before this Court.  That was an unsuccessful attempt on my part to persuade the Court of Criminal Appeal that Stingel did not represent the common law.  The court took the view that it did.  So, I pass to page 517.  I have read to the Court the passages at the top of page 517 and Your Honours will then see the manner in which Justice Ormiston approached the question, at line 8:

For this purpose one must ask whether “no jury, acting reasonably, could fail to be satisfied beyond reasonable doubt that the conduct of the deceased...was not of such a nature as to be sufficient to deprive any hypothetical ordinary [person of the applicant’s age] of the power of self‑control to the extent that he would go to his own car, obtain a...knife and fatally stab the deceased with it”, to adapt the language of the High Court in Stingel’s case when deciding that the trial judge was correct in declining to leave the issue of provocation to the jury in that case.  In answering this question this Court must, as must a trial judge, “exercise caution” before concluding that there is no material fit to be left to a jury:

That is what Your Honours said at page 334 of Stingel’s case.  In effect, it was a task - in determining whether or not one should leave provocation, it was only as a matter of - I think what Your Honours were implying was that if one were in doubt it would be appropriate to leave provocation - is the way that I would interpolate what Your Honours were saying at that page.  I will come back to that.

With that test and with that warning firmly in mind, I have read and reread the evidence to see whether I should reach the same conclusion as Crockett and Marks, JJ., namely there was no such evidence.  In the end I have reached the same conclusion but not for precisely the same reasons, primarily because I do not feel that the facts in Stingel’s case are suitably analogous to those before the Court on this application.  The relationship between the parties in that case was so different that I have found the factual conclusion there of relatively little assistance. 

In particular, if we may say of Stingel’s case, the key feature in that case that had to be disregarded when applying the ordinary person test, was the infatuation ‑ the particular infatuation that the young man had with the woman who he saw having sex in the car with the deceased.  What the Court said was, in Stingel, that is relevant to the gravity of the provocation but not to the ordinary person test.  We do not have an ordinary, infatuated person - it was a peculiar infatuation - and when one takes that out then the ordinary person test must fail in Stingel.
     There is nothing of that kind in this case and, with respect, Mr Justice Ormiston was correct in saying that Their Honours Justices Crockett and Marks should not have approached the exercise of determining whether there was sufficient evidence of provocation to go to the jury by comparing a particular fact situation in another case in which this Court had said there was not in the particular circumstances of that case or particular reasons sufficient evidence to go to the jury. 

His Honour then went on to cite - and this is where it becomes important to Your Honour’s question to me about proportionality - the celebrated passage from the speech of the House of Lords in Holmes v DPP about proportionality.  His Honour says, at line 13:

For this purpose the deceased’s conduct “must have been capable of provoking an ordinary person not merely to some retaliation, but to retaliation ‘to the degree and method and continuance of violence which produces the death’ -

That is an expression taken precisely from Holmes’ case.  It is not an expression which has always found favour with appellate courts.  The proportionality principle has been expressed in different ways; sometimes it is expressed simply by saying, “to do the acts that the accused did”, which is a more general way of expressing it, but the House of Lords certainly used that tripartite formulation, “retaliation ‘to the degree and method and continuance of violence.....’” in Holmes’ case.  Then His Honour said:

By far the most comprehensive version, from the applicant’s viewpoint, was that given in his evidence‑in‑chief -

That, with respect, is not so.  By far the most comprehensive version was the answers that the appellant gave to the police immediately after he was apprehended or gave himself up to the police on the night in question.  But His Honour said:

By far the most comprehensive version, from the applicant’s viewpoint, was that given in his evidence‑in‑chief, the essential part of which is set out in the judgment of Crockett and Marks JJ.  From that it seems that the applicant deliberately sought out the deceased to upbraid him for his conduct towards his daughter.  That conduct, which on the evidence could not be described as commendable, nevertheless was not said by the applicant to have itself provoked him to the killing or even to have contributed to his reaction to the deceased’s conduct on the afternoon in question.

And might we ask the Court to note that particular sentence at the bottom of page 518.  His Honour is plainly placing very considerable weight upon the appellant’s own description of what it was that actuated him in reaching for the knife and stabbing the deceased, and what His Honour is saying is, the appellant does not say, and has not said, that what actuated him to do that was the treatment that the deceased had meted out to his daughter, either in years past - and I do not place very much weight on that, I should say, for the purpose of this argument - but the treatment that the appellant had meted out to his daughter in the day or two immediately preceding this episode - a matter that I do place very considerable weight upon and a matter that was very much stressed by the appellant, not in his evidence in‑chief, but certainly in his answers to questions put to him by the police, which were placed before the jury as we say the version of facts most favourable to the appellant in support of leaving provocation to the jury.

His Honour says, in effect, because the appellant has not said that he was angry, in part, because of what had been done to his daughter in the day or two immediately preceding to this event, one can discount, or not have regard to that, one can confine oneself, in effect, to the acts and words that occurred at the scene.

We say that reflects an error of fact and an error of approach because it is not the case, in our respectful submission, that merely because a series of matters that have occurred between the deceased and the daughter of the appellant of which the appellant was aware which led him to go and confront the deceased on the afternoon in question were not said by him to have caused him to lose self-control or that a jury would not be entitled to take those matters into account when determining whether or not what occurred at the scene was provocative, was conduct which might have caused an ordinary person in the situation of the accused to have lost self-control.

So His Honour then describes the episode immediately preceding the killing at page 519, sets that out and then says again at page 519 at line 12:

the accused did not say that it led to any such reaction or to any loss of control.  Rather he said he was “very scared” and believed the deceased “was going to kill” him.

That is what he said in his evidence in-chief.  It is not what he said in his answers to the police.

DEANE J:    But the problem in that approach is that it approaches provocation on the basis of the case the accused has made for self-defence, without taking account of the fact that provocation only really becomes relevant if the self-defence case is rejected.

MR WEINBERG:   Yes, Your Honour.

DEANE J:   I mean obviously here, when you came to provocation, you would have to say, a person in the situation of the accused, with the reasonable belief he had about the way his daughter had been treated, and need to complain about that.

MR WEINBERG:   Yes, Your Honour.  That is so, Your Honour.  And further to that, of course, lies the usual conundrum of a defendant who is trying to run two defences which sometimes do not sit altogether happily with each other.

The answers he gave to the police at the outset were strongly in favour of a provocation defence.  The evidence he gave at the trial was much more strongly tending towards a self-defence defence.

That does not, in our respectful submission, absolve a trial judge from taking a look at the evidence in its totality and considering the evidence in the most favourable point of view of the defence in relation to the issue of provocation and evaluating the evidence in that way and I will come to the authorities on that again in just a few moments.

Your Honours, so again, at page 519, Mr Justice Ormiston refers to the fact that the accused in his evidence in-chief, does not seem to say that he did what he did because he lost self-control, although he had said it earlier. 

And at page 520, His Honour talks about the episode in question, and says at line 9:

He gave the barest details of his conversation with the deceased and so far as one can gather, after the applicant raised the deceased’s treatment of his wife, the deceased simply refused to discuss the matter and to emphasize his refusal told him to “piss off” or “get lost” (as was stated in an early interview) and then pushed him away.  In the circumstances that could hardly be regarded as provocative in the relevant sense.  Moreover the applicant did not say at any time that one of the contributing causes to any loss of control or anger was the behaviour of the deceased towards his wife, although a discussion about that was clearly the motive for the applicant wishing to see the deceased. 

It is our submission that if there has been a series of episodes involving the relationship between the deceased and his wife, which are of a kind that could be regarded as provocative conduct ‑ provocative conduct need not in our submission be directed directly at the appellant; if the conduct in question were directed at a near relative of the appellant, in our submission, that would be perfectly capable of amounting to provocation and so much is almost trite law that if a person’s child were attacked in his presence by someone, it can scarcely that that could not raise an issue of provocation because the conduct in question was directed not towards the appellant but towards his child in his presence.

So what we say is that if the conduct of the deceased towards the appellant’s wife, in the day or two immediately leading up to this episode, was of such a nature that it motivated the appellant to go and remonstrate with the deceased, as it did, on any view of the evidence, and it may not have caused him to go there with a sense of anger, as he said ‑ there is nothing peculiar about that ‑ he went there to remonstrate with him; to talk to him, not in any sense of rage, but then to say, that fact that he does not say he went there angrily because of those matters, means that none of those matters can be taken into account when evaluating what occurred at the scene of the killing.

That is wrong, in our respectful submission, and a jury would be well entitled to say, “Certainly the word `piss off’ by itself is not sufficient; certainly a kick at even your father‑in‑law might be insulting, but might not be sufficient; certainly a push of your father‑in‑law, inflicting a nasty injury to the elbow of your father‑in‑law, as he falls to either the ground or the car, might not be sufficient, but accumulated ‑ put it in the context of why he went there on that day to speak to the son‑in‑law and what had occurred in the day or two immediately preceding it, and it takes on a different complexion.”  And, when we talk about the ordinary person, we talk about the ordinary person, in our submission, similarly circumstanced, that is, the ordinary father‑in‑law, mother‑in‑law, faced with the lead‑up, the background to that particular matter, not vesting that person with any characteristics or attributed. 

We do not argue the fact that Mr Masciantonio was Italian is a matter that can be taken into account. Stingel says it cannot.  We do not argue that the fact that he is a person who might be volatile can be taken into account.  Stingel says it cannot.  But we do say that nothing in Stingel says that, when you consider the ordinary‑man test, you disembody the ordinary man; you place him in a vacuum at the scene, and you evaluate the provocative conduct from a point of view of the ordinary man as though the ordinary man was an ordinary stranger.

BRENNAN J:   No, the question is:  would an ordinary man, having felt, on his daughter’s behalf, the stings of the last couple of days, in the background of the history before it; wishing to remonstrate with their son‑in‑law, who is dealt with in this way by his son‑in‑law, have reacted in the way and in the manner and with the continuance that this man did?

The question of the duration of the murderous intent or of the loss of control, and the duration of, or the continuance of the violence as derived from Holmes’ case, which provoked the discussion this morning, is, in our submission, to some extent beside the point, because here you have got a situation where the response of the accused - and whether you take it in the way that I put it to the Court in terms of two events, or two scenarios, two possible, theoretically possible scenarios for the death - or whether you take it that the appropriate approach for the judge was to say, having looked at what the potential operative provocation was, and looking, on the best view of the evidence, at the response to that provocation, taken as a whole - or whether you take it in two separate pieces, in our submission, one arrives at the same result.

So that it does not matter whether, to use the phrase in Holmes’ case, the degree and method and continuance of violence, or to use the phrase that I think was adopted in Stingel of the extent and degree, in our submission, in this instance, on these facts, is a distinction without a difference.  There is nothing in the proposition that one is different to the other.

If one looks at it as two separate scenarios, as two separate incidents, one following the other, as Mr Justice McHugh said in argument this morning, ultimately the question is, what, at the point at which the death occurs, the point at which the murder occurs, or that which would be murder save the provocation, is the point at which the question of provocation is relevant from the jury’s point of view, but they are looking at a man at that point who has already responded in some way over the preceding minutes or seconds, however long this whole episode took; it was probably only seconds if not very few minutes.  So that the question raised, or the phrase in Holmes of “degree and method and continuance of violence”, whether one looks at it as a whole scenario or whether one looks at it as that which is operating right at the very end, in our submission, is of no consequence.

We do not see in anything our learned friends put to this morning any matter of law with which the Crown would take issue and that really the issue gets down in the end to a question of whether, on an analysis of the facts, the Court of Criminal Appeal was correct in determining that the issue should not have gone to the jury. 

Unless there are other matters that the Court considers that I have not addressed from the Crown’s point of view and seeks to question me on those, there are no further submissions I propose to put.

BRENNAN J:   Thank you, Mr Bongiorno.  Mr Weinberg.

MR WEINBERG:   If the Court pleases, could we simply say this:  the trial judge, in this case, did have the advantage of not simply reading a transcript, but also seeing and hearing the evidence, and His Honour, an experienced justice of the Supreme Court, was plainly, we would submit, of the view that provocation should have been left.  That is a matter that should be borne in mind in terms of assessing whether or not the Full Court, in these circumstances, were justified in, as it were, saying that His Honour was so clearly wrong about that, that no miscarriage of justice occurred in the circumstances of this case.

The other matter that I neglected to draw to the Court’s attention is that, this very week, a decision of the New South Wales Court of Criminal Appeal was delivered, and I was not able to put it in the list of authorities, but it is a useful and instructive decision.  The case is Reg v Chhay, and we have copies for the Court.  If we could just, for a moment, draw the Court’s attention to the judgment of the Chief Justice of New South Wales.

It is a case which rests upon, what has sometimes loosely been described as, “battered wife syndrome”, as forming the basis of provocation, and the particular issue that had to be considered by the Court of Criminal Appeal in that case was whether the question of provocation had been approached on too narrow a basis. 

What had happened was that the appellant raised provocation at the trial, but the trial judge had formed the view that it could only be considered by the jury if they accepted as a possibility the appellant’s story of a knife attack, and not if they rejected that story.  And the jury were directed in those terms. 

The Court of Criminal Appeal rejected that too narrow basis upon which the case was put and, at the bottom of page 6 and the top of page 7, Your Honours will see the alternative basis upon which it was said there was sufficient provocation to have warranted the issue being left to the jury on a wider basis.  It consisted largely of the history of taunts and ill‑treatment; swearing at the appellant and blaming her for a good many things.  It is set out at the bottom of page 6 and the top of page 7.  The importance of the point of principle that is contained within the judgment of Chief Justice Gleeson is set out at page 10, at about point 7, where His Honour, after citing a passage, which is set out ‑ I think it is an English case, Ahluwulia, referred to at the bottom of page 9.  His Honour the Chief Justice of New South Wales says, at page 10:

The above passage recognises, as a matter of common law, that it is essential that at the time of the killing there was a sudden and temporary  loss of self‑control caused by the alleged provocation but, at the same time, it denies that the killing need follow immediately upon the provocative act or conduct of the deceased. It accepts the possibility of a significant interval of time between such act or conduct and the accused’s sudden and temporary loss of self‑control.  However, it observes that, as a matter of fact, the longer the interval, the more difficult it will usually be to attribute the actions of the accused to loss of self‑control rather than, for example, the deliberate and cold‑blooded implementation of a desire for revenge.

The other passage is at - - -

DAWSON J:   It is a very odd concept, is it not?

MR WEINBERG:   It is, Your Honour.  At 14 point 9, in applying that law to the present case and that statement of principle, Chief Justice Gleeson said this, bottom of page 14:

It is true that the appellant did not give evidence, or say in her unsworn statement, that she lost her self‑control, but it is settled that this is not determinative: Van Den Hoek; Lee Chun‑Chuen.  The combination of the history of the deceased’s conduct towards the appellant, the taunts and threats made to her on the evening of 6 August 1991, and the consideration that she was acknowledged on all sides to be a person of quiet, gentle and submissive disposition, together would have entitled a jury to conclude that when the appellant killed the deceased on the morning of 7 August, her actions were as a result of a loss of self‑control.

DAWSON J:   She killed him by cutting his throat while he was asleep.

MR WEINBERG:   Yes.  Your Honour, that was said to be sufficient to leave provocation to the jury.  All I would say is that if we are going to compare cases with cases, this one is a lot stronger than that one.

McHUGH J:   That is because of the particular problems of the battered wife who burns slowly, is that not the theory, and suddenly erupts?

MR WEINBERG:   Your Honour, I am not going to get into that debate.  All I am going to say, Your Honour, is that there is a principle of equality before the law, spoken of by this Court in Stingle’s case and, in our respectful submission, consistency of principle and treatment would say that the kinds of matters that I was talking about this morning readily are matters that ought to have been taken into account in assessing whether this was provocation.  I have no further submissions, if the Court pleases.

BRENNAN J:   Thank you, Mr Weinberg.  Mr Bongiorno, do you have anything to say about that last case?

MR BONGIORNO:   No, Your Honour.

BRENNAN J:   The Court will consider its decision in this matter and will adjourn to Sydney at 9.30 am tomorrow morning.

AT 2.42 PM THE MATTER WAS ADJOURNED SINE DIE