Miller v The Queen

[2020] HCATrans 217

[2020] HCATrans 217

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A19 of 2020

B e t w e e n -

MICHAEL MILLER

Appellant

and

THE QUEEN

Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 9 DECEMBER 2020, AT 10.03 AM

Copyright in the High Court of Australia

MS M.E SHAW, QC:   If the Court pleases, I appear with MR K.G. HANDSHIN, SC for the appellant.  (instructed by Barbaro Thilthorpe Lawyers)

MR M.G. HINTON, QC:   If the Court pleases, I appear with my learned friend, MR R.M. WILLIAMS, for the respondent.  (instructed by Office of the Director of Public Prosecutions (SA))

KIEFEL CJ:   Yes, Ms Shaw.

MS SHAW:   If the Court pleases.  By way of an initial overview, the defence case at trial was accident.  The trial judge left self‑defence and excessive self‑defence.  Provocation was not left.  However, the prosecutor acknowledged that the objective limb was not completely unarguable.  More importantly, insofar as sentencing remarks of the trial judge were concerned, his Honour accepted the appellant’s account in all material respects up to his response to the deceased’s attack and he found that the killing was not premeditated. 

The Court of Criminal Appeal rejected the appellant’s contention that that provocation ought to have been left, finding that although the subjective limb arose on the evidence, the appellant’s argument failed on the objective limb.  The respondent challenges the conclusion of the Court of Criminal Appeal with respect to the subjective limb.

The unifying premise behind both grounds of appeal at appeal book 298 is that the Court of Criminal Appeal mistook its role in addressing the threshold question whether provocation ought to have been left.  The task for the Court of Criminal Appeal was to identify the provocation matrix most favourable to the appellant from the mosaic of evidence that presented an issue of provocation in its most favourable light. 

That required the Court of Criminal Appeal to frame the entirety of the scenario that unfolded on 1 February 2017, contextualised where appropriate by matters of history without engaging in a selective fact‑finding exercise that would see, in our submission:  firstly, aspects of a provocation matrix discarded; secondly, the sting of the provocation diluted because of the Court of Criminal Appeal’s estimate of the degree of outrage it considered the appellant experienced; and, thirdly, considering the objective limb on the basis that it permitted the Court of Criminal Appeal to make an evaluative judgment about whether this was an appropriate case to lead provocation.

In our submission, going to the underlying principles, the duty to leave provocation arises…..competing arguments and opposing considerations.  It would be open to the jury, acting reasonably, to find that the prosecution has not negatived provocation beyond reasonable doubt.  Whether it should be so concluded is a matter exclusively for the jury regardless of the Court’s view of the matter.

I refer to the judgment of this Court in Lindsay v The Queen (2015) 255 CLR 272, at the joint book of authorities at page 90, at paragraph 16, as to the threshold question of law. There, the plurality said:

The threshold question of law is whether there is material in the evidence which sufficiently raises the issue to leave the partial defence for the jury’s consideration.  The determination of the threshold question requires the trial judge (and the appellate court) to consider the sufficiency of the evidence to allow that an ordinary person provoked to the degree the accused was provoked might form the intention to kill or to do grievous bodily harm and act upon that intention, as the accused did, so as to give effect to it.  The respective roles of judge and jury in the latter determination was the issue raised by the first ground of appeal –

in Lindsay. Further, as to when provocation must be left to the jury, at paragraph 19, at page 280 – referring to Chief Justice Barwick’s conclusion in Moffa v The Queen where Chief Justice Barwick had concluded that the circumstances viewed in their entirety did not consist solely of words, the plurality said:

It followed that the court was not authorised to take the issue from the jury unless it was quite clear that no reasonable person could possibly conclude, in the situation viewed most favourably from the standpoint of the accused, that no ordinary man could have so far lost his self‑control as to form an intent to at least do grievous bodily harm to his wife.  Whether it should be so concluded was a matter exclusively for the jury regardless of the court’s view of the matter.

At paragraph 26 in Lindsay at page 283, the plurality observed the question for the trial judge and the appellate court is the same:

whether “on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense”.

The version of events most favourable to the appellant in the present case was to be discerned from a combination of the appellant’s evidence, evidence of other witnesses and the triple‑0 call that was engaged during the course of the events leading to the stabbing and, in large measure, as articulated by the trial judge when sentencing the appellant on a basis consistent with the jury verdict.

KEANE J:   Ms Shaw, do you accept that in applying the relevant test one looks at the evidence as a whole, not to bits of the mosaic - one does indeed look at all the evidence to determine what a reasonable jury might make of it?

MS SHAW:   Your Honour, what we quibble with perhaps is, in approaching from the point of view of what a reasonable jury would make of it, one is descending into fact finding because, in essence, as we submit in our reply at paragraph 8 in particular and paragraph 9, a jury is entitled to accept part of a witness’ evidence and arrive at a view that does not represent either party’s case.

So, if one is approaching what is the factual matrix, our submission is that it is not permissible to descend to an evaluation of that factual matrix.  Perhaps the best example of that is the way in which this Court, for example, in The Queen v Moffa and his Honour Chief Justice Barwick and, indeed, Justice Mason were dealing with a case where the appellant had made an unsworn statement and the premise of the Court’s judgment, in essence, was that it was necessary to assume that what the applicant in that case had said in her unsworn statement was true, without going to the next stage and considering whether or not a jury would accept that as reasonable.

In our respectful submission, one does have to assume a version of facts most favourable to the accused, in this case, in essence, the…..will be that the Court of Appeal was obliged to assume that the jury might accept all of the appellant’s evidence, as indeed was the approach of the sentencing judge, up until the appellant responded to being struck with a pole three times.

I want to take the Court to the appellant’s evidence and to the sentencing judge’s remarks because plainly if the sentencing judge found that the version of events given by the appellant up until the point at which he responded to being struck with the pole was accepted in material respects, as his Honour did, then, in our respectful submission, that plainly was a version of facts most favourable to the accused which the Court of Criminal Appeal could not evaluate a step further in order to ask the question whether a jury might accept that or not.

KIEFEL CJ:   Ms Shaw, it is not just a question of whether it was open to the jury.  Lindsay requires that the question is whether a jury acting reasonably in relation to the evidence could come to the view.

MS SHAW:   Yes, we accept that, your Honour, and the way in which provocation is addressed though is that one is considering whether or not, from the starting point, that this partial defence which is really underpinning it is the lack of malice aforethought, that is, the lack of premeditation, whether the jury should have that option withdrawn from them and so that ‑ ‑ ‑ 

KIEFEL CJ:   Ms Shaw, can you consistently though say that there was no forethought when the issue of self‑defence was raised here of a kind which saw the accused go armed with the distinct prospect that he would be encountering the deceased?

MS SHAW:   Your Honour, that is one version of the events that might have been available, but the other version, of course, was ‑ ‑ ‑ 

KEANE J:   But that is the only version - Ms Shaw, on the evidence that is the only version, is it not?  The only version is that he went armed with a knife because he anticipated an encounter with the deceased.  There is no competing version about that, surely.

MS SHAW:   But, with respect, we submit there is in that the background to the appellant taking that knife was that his neighbour, Ms Jessica Bridgland, had, in essence, been on friendly terms with him when she initially moved in next door.  She had confided in him about having been assaulted by the deceased.  He saw the bruises on her, and he helped her with an intervention order. 

Thereafter, she came over to use his phone and he realised she was talking to the deceased.  Their relationship therefore broke down and thereafter, on the accused’s evidence - and it was supported by other evidence along the way, which I will refer to briefly, and which was accepted by the trial judge - the deceased heard shouting that made him concerned that there was violence going on.  When he went outside the deceased came out, argued with him and then produced two knives to him, threatened him.  He ran away.  It was reported to the police, as his Honour Justice Peek found in sentencing, and thereafter the deceased went into custody. 

So during that period he was not concerned immediately about his safety, although he was informed by Mr Sutton that the deceased had pulled knives on him.  Then whilst the deceased was in custody there was an altercation with Ms Bridgland where she had spat on him and he had spat on her and she had responded with a threat that when the deceased, her “old man”, as she called him, came out of custody, that he would murder the appellant.

So, from that time until the deceased came out of custody, which was approximately a week or two weeks – 17 January 2017 – the appellant was aware that this threat was hanging over his head and at the time that the deceased was, in essence, due to come out of custody, Shane Bridgland informed him or teased him about the fact the deceased was going to come out of custody. 

Bearing in mind what had occurred, the appellant commenced to lock all the internal doors of his house so that if the deceased did come in he would hear him come through.  He put a shovel by his door and he put a knife on his table.  Then in the few days before the events of 1 February, as the trial judge accepted or the sentencing judge accepted, he had heard a person he had believed to be the deceased call out to him to, in essence, come out and he wanted to fight him.

KIEFEL CJ:   Ms Shaw, all that you have said to this point one may accept as relevant to self‑defence, the fear that the accused said that was instilled in him by what was said, and some threats.  But how does it inform the acts of provocation that you rely on?  Indeed, what do you identify as the acts of provocation?

MS SHAW:   Your Honour, what we identify as the acts of provocation, if I can take your Honour to his Honour’s sentencing remarks, because his Honour does set them out in detail, in particular his Honour’s sentencing remarks commencing at page 217 of the appeal book where his Honour accepted that the appellant became “truly apprehensive” when he heard rumours that the deceased was going to be living next door. 

Then at page 218 his Honour describes the movements of the appellant on the day of 1 February and how he was going to go and see Mr Bridgland.  He was upset.  He was unsure about leaving the house because he was scared of the deceased and he thought he could come out at any time.  He was still feeling anxious.  He was someone who took medication for his anxiety and he also suffered from depression.  But he decided to take the knife in a bag because he thought it would scare off the deceased and deter him if he did come out.

Justice Peek accepted that the appellant walked quietly past the deceased’s house, that he saw a silhouette in the doorway and then he saw the deceased moving very fast out of the house and towards the fence, that the deceased was being loud and abusive.  The appellant retreated into the middle of the road - as he said, he felt safer, being a place where everyone could see him.

Then his Honour set out the evidence of the appellant that when he saw the deceased he panicked, he was anxious and glued to the spot.  He said that these were the sorts of feelings he took his medication to avoid.  The appellant – once the deceased emerged, he produced the knife to warn off the deceased to keep away from him.  The deceased was yelling.  The appellant said he was also yelling loudly at the deceased because he hoped the noise would attract attention from nearby people and in fact it did.

Mr Sneddon came from the next street.  Lillian Bridgland came out and others across the road were able to observe the events.  The appellant told the deceased that the knife was to defend himself and he saw Jessica Bridgland on the phone and thought it was to the police, and then he saw Lillian Bridgland using the phone.

From this point on, the events are the subject of a recording.  To summarise the key features of the events before I go to some of those specific passages, the deceased gestured with a metal rod in a javelin fashion to the appellant and said, “I could spear you from here, I could run you through with this”.  This is at a stage where the appellant, in essence, has backed off into the middle of a public road and the deceased is essentially threatening him from his front yard and picking up a pole and acting in the way that the appellant described.

The appellant said he did not turn and run because he said he needed to watch the deceased so he could dodge it if he threw it.  Jessica Bridgland was encouraging the deceased in his conduct and at one stage she said, “kill him, Danny, kill him!”  At one point, the deceased walked within arm’s reach of the appellant and said, “If you are going to stab me, stab me now”, but the appellant did not.  When the deceased asked him why he had a knife, the appellant replied, “to defend myself, stay away from me”.  The deceased returned inside, and he came out.  When he came out, the appellant retreated to the middle of the road and then the deceased ran at him, swinging the pole, hitting him.

This was in the context of the deceased having repeatedly goaded the appellant into stabbing him and repeatedly goaded the appellant to fight him and then even though the appellant had produced a knife, the deceased in any event ran at him swinging the pole, that is, in effect, implying that he was taking the view that the appellant would not have the manhood to respond to being struck with a pole.

It was at that stage the appellant swung his bag and took the pole from the deceased and then it happened that the appellant stabbed the deceased.  The appellant said that he was still scared once he had taken the metal pole because the deceased had pulled knives on him previously and he thought that the deceased might stab him.

His Honour referred to passages from the triple‑0 call, commencing at the summing‑up at appeal book 223.  That call goes for 13 minutes in terms of the transcription, which is an indication of how long the taunting, the goading and the threats persisted without a response from the appellant in terms of other than trying to fend him off.

In the respondent’s book of further materials at 36 there is a transcription which has, under each page, a time that permits an indication of when, in the sequence of these 13 minutes, these various statements were made by the deceased to the appellant.

At 223, his Honour refers to question 49.  Question 49 is in the respondent’s book of further materials at page 41, and that is after four minutes have elapsed whilst the police have been on the other end of the line.  One can see from question 49 that, for example, Lillian Bridgland is describing that the appellant was:

swinging the knife around and my sister’s boyfriend wants to fight him on the road but I, I’m trying to get him to go inside.

She then describes the incident ‑ ‑ ‑

KIEFEL CJ:   Ms Shaw, do you say that, at this point when the appellant is swinging the knife around, he is acting under provocation or is that yet to come?

MS SHAW:   It is a build‑up, your Honour.  This is part of the deceased provoking him to, in essence, using the knife but confident that he will not.

KIEFEL CJ:   At what point do you say that the appellant lost control?

MS SHAW:   He lost control, as his Honour found – he acted impulsively after he had taken the pole off the deceased when he was being struck.  In our respectful submission, the build‑up to that particular episode – 13 minutes or nine minutes after this part where the first pole is being used as a threat – your Honours will see at question 52:

Now has a stick.

Question 54, at page 42 of the respondent’s materials:

My sister’s boyfriend’s got a stick.

She is telling him – question 57:

You have to get inside Jessie. 

Then, she goes on to say at page 43, question 60:

A pole?

. . . my sister’s boyfriend’s got a skinny, tiny, tiny, small pole –

Then, at question 62, there is a reference to “Cocksucker”.  Your Honours, the appellant gave evidence that he did not say that.  I mention that because his Honour Justice Stanley finds he did, whereas Justice Peek, in his sentencing remarks said at 223 that he could not find that the appellant said that.  That is merely to advert to the fact‑finding approach that we complained about in relation to the approach of the Court of Criminal Appeal. 

Then, Lillian Bridgland goes on to describe the appellant going inside momentarily and his Honour Justice Peek, in his remarks at page 224, details how the deceased went inside momentarily and noted that the deceased reignited the situation by coming outside again.  At page 224 his Honour relates the triple‑0 transcript description from question 65, and in particular, and this is at about 545 at page 44, that:

Danny’s trying to box on with the man –

That is, that the deceased was, in essence, shaping up to him and attempting to entice him into a fight, and then at question 67, which is at page 44 of the respondent’s further materials, Lillian is saying:

Danny, stop it!  The policeman’s coming

This was part of the appellant’s evidence, that he believed the police were coming, and he was attempting to keep the deceased at bay until they arrived.  So that statement, the policeman is coming, occurs before 6.48 in the events on the road.  Then at page 224, his Honour sets out the transcript where it records, from question 70, which is at page 44 of the respondent’s further materials, that the deceased was trying:

to bring him out for a fight -

and that the appellant was backing away, and then at page 225 his Honour reports that the deceased was shaping up to the appellant at a time when the appellant is described as pointing the knife at the deceased.  In other words, conduct where he is shaping up to the appellant despite the fact the appellant is pointing a knife at him, and he has said, if you come near me, I will defend myself.  Then, more importantly, coming to the last two minutes, and just at question 71, for example, Ms Bridgland says:

What’s he doing with the knife?

Lillian:  He’s trying to back away but Danny’s trying to fight him.

She calls out:

Jessie you dopey!

That, of course, is the deceased.  Then she describes the sister as picking up a rock and chucking it at the appellant, and then, in the answer, get away, that, at appeal book 224, is said to be by Mr Miller.  Then, coming closer to the events, particularly at question 83, Lillian says to the deceased:

Jessie, you and Danny get the fuck inside.

Jessie, the sister, I should say - Danny the deceased, I might have said wrongly before that Jessie was the deceased, but Jessie is Jessica Bridgland, the sister, and Jessica  Bridgland refuses, and says to her sister:

just come here.

Then Lillian again says:

Get inside.  I’m on the phone to the police.  Do you want him to get locked up Jessie?

Jessica says:

No.  He’s caused it.

Then she says, on the phone to the police:

my sister’s bossing me because I told you that they got alcohol in their systems.

Then, further on, coming to what are really the last two minutes of this back and forth by the deceased, coming out to the appellant in particular, and the appellant’s evidence that he was calling out and yelling, trying to attract attention to it so other people would come, he thought there was safety if he remained away from the deceased and if there were other people around.  So his Honour Justice Peek picks up the phone call, at question 97, and this is at page 49 of the respondent’s further materials, and just before the 11‑minute mark.  So this is within two minutes of the actual rush by the deceased at the appellant with the pole.  Then Lillian Bridgland says that she tells the police that:

I don’t think he’ll go near him –

this is the deceased:

because he’s got a knife –

and then she refers to the:

They just keep arguing and ditching rocks and sticks –

that is, Jessica Bridgland ditching rocks and sticks at the appellant.  Then it is recorded that the appellant said:

You come at me I’ll defend myself.

Fuck.  Stay away from me you dog.

Lillian:  And then Danny’s walking up to him trying to act big and –

the appellant, she says:

He’s pointing at the knife to say keep away from him.

Then she records the appellant as saying, or:

singing out that Danny’s pulled out weapons and all this stuff –

and the appellant’s evidence was that what came to his mind when this was occurring, and consistent with what is reported he called out, was the earlier incident where he had been approached by the deceased and he pulled a knife and a shiv on him threatening him, and the appellant had run away.  So that has come back as part of what we submit is contributing to his fear and his panic that he describes in his evidence.  Lillian says:

And he’s singing out that Danny’s pulled out weapons and all this stuff –

and then at question 100 - Justice Peek deals with this at page 226.  This is just before the 12.03-minute mark.  So it is a minute and a half before the final rush by the deceased.  What Justice Peek describes, and which is consistent with the evidence, where Lillian describes:

He put it down but he’s standing there on the road like couple inches to him trying to, trying to start him off more.

. . . 

Lillian:  Like he’s tormenting the guy with the knife.

. . . 

And Danny’s tormenting the guy with the knife.

 . . . 

And that’s what’s setting him off more.

So this is one minute, in essence, from before – one and a half minutes before the deceased rushed at him.  So what Lillian has described is deliberate provocation, deliberate tormenting and deliberate taunting of the appellant by the deceased.  Then the next stage in the taunting, and we submit emasculation of someone who is in essence feeling free to behave like this even though he has a knife, but – I should say, your Honours, that as my learned junior reminds me, our submission is that it would have been open to the jury to make that finding about this conduct.  But that between 12.03 and 13.06, the next step is that the deceased says at – this is question 102:

And now he just took off his top.  I think he’s trying to fight him.

. . . 

Yes.  He’s trying to fight the other guy with the knife.

So this was a further taunting by taking off his top and, even though the appellant has a knife, trying to fight him, and Lillian says:

And the other one’s telling him to fuck off.

Again yelling out, as he said, to try and deal with a situation which he said he found confusing.  He did not know what to do.  He was panicked, he was scared, and he said – and this is at 103:

Come at me and I’ll fuck, I’ll fucking defend myself you cunt.  If you come at me I’ll [indecipherable] myself.

This is less than a minute before the appellant does come at him despite what ‑ ‑ ‑

KEANE J:   Ms Shaw, this is all the acts of a man, who on the face of things, is acting to defend himself and, arguably, acting reasonably in doing so, but certainly on the basis of this evidence, this is the acts of a man who is in control of himself, as he himself said in evidence he was.

MS SHAW:   Your Honour, what he said was he was panicked.  At one stage he felt frozen.  He had all the anxiety feelings that he had when he had not taken his medication.  He was confused.  He did not know what was going on.  In essence ‑ ‑ ‑

KEANE J:   As any reasonable person would be in this situation.  He was acting perfectly rationally to the situation he found himself in and was conducting himself accordingly and was in control of himself on the face of this, as he himself swore he was.

MS SHAW:   Your Honour, two things about that.  One, what the law of provocation, if I can call it that, focuses on is whether or not someone’s emotions have caused them to react in a way that means that their conduct, even though they formed intention, is not to be treated with the same malice aforethought as someone who did form a premeditated intention.

KIEFEL CJ:   Ms Shaw, so much can be accepted, but feeling panicked, afraid and agitated does not amount to a loss of self‑control, does it?

MS SHAW:   Your Honour, what it does is it demonstrates that, rather than him forming an intention driven by revenge or retribution, he forms an intention as a result of – this was what was open to the jury to find – as a result of the entire build‑up that impacted on his emotions and made him feel panicked and fearful. 

But just as in Van Den Hoek v The Queen where the appellant’s defence was self‑defence and her account was that after she pulled the deceased off the lounge she picked up a knife and stabbed him, her account was that this was self‑defence, but in effect the Court took the view, in particular a judgment of his Honour Justice Mason, that the law of provocation is not confined to anger and resentment.  It can be a mixture of fear and panic.  The critical point is whether or not the intention to kill or cause grievous bodily harm - it can be shown that it was not formed because of anger or resentment.

KIEFEL CJ:   Accepting what you say that in some cases being panicked, afraid or agitated may be a sufficient emotional circumstance to explain a loss of self‑control it would be, in each case, a question of degree.  Here, the stabbing in question was arguably explicable by accident in the process of a course of self‑defence. 

MS SHAW:   That is true and that was the ‑ ‑ ‑

KIEFEL CJ:   How can that sit with the notion of it being a deliberate action provoked and attributable to loss of self‑control?

MS SHAW:   There are two points we wish to make, your Honour, in response.  The first is that in fact the appellant’s immediate explanation for what occurred in the triple‑0 call to the ambulance – because when he called the ambulance it was that the deceased kept coming at him and he defended himself – and he said that when he was spoken to by the police.

So, there was an account that, in essence – and why his Honour left self‑defence to the jury was because it was open – on one version of the events – to find that the appellant did, in fact, form an intention to kill but he did so in the context of self‑defence.  That, of course, is the Pemble principle that if there arises, on the evidence, any pathway to an acquittal or manslaughter in relation to a charge of murder, a trial judge is duty bound to leave it.  Of course, we submit, provocation is in the same category.

So that if, indeed, the jury found that he did form an intention to kill – and obviously their verdict confirms that – then what has been withdrawn from – and their verdict confirms that his response was not reasonable – that his response was not in genuine self‑defence because excessive self‑defence was excluded – but they did not have available to them the possibility of what might have been the explanation and the one that really his Honour Justice Peek found that, up until the time that he swung the pole – the deceased swung the pole at him – the stabbing was not premeditated in any way and, more importantly, it was impulsive. 

Accepting the jury verdict that there was no premeditation up until the deceased ran at him and he took the pole off him and accepting, as his Honour found, we submit, it was open to a jury to find that it was an impulsive act, if it was an impulsive act it was not premeditated and plainly there is provocative conduct by the deceased, not just ‑ ‑ ‑

KIEFEL CJ:   Ms Shaw, when you say it was an impulsive act – the action that occurred, as I recall it, is that the appellant grabbed the pole that the deceased was pushing at him with one hand and there seemed to be a co‑ordinate movement with his hand holding the knife when he pushed it into the deceased.  It is just a little difficult to see that that – as Justice Keane has otherwise said about the matters leading to this – suggests that a lack of rational thought and a loss of self‑control.  It just seems to be a responsive action to being attacked, which is to say we are in the realm of self‑defence and that is all we are in the realm of. 

MS SHAW:   Your Honour, with respect, one of the matters that was discussed in Van Den Hoek was the inconsistency between self‑defence, as was the defence of Mr Van Den Hoek, and provocation.  What his Honour Justice Mason said in Van Den Hoek was that the fact that there is an inconsistency is explicable in terms of the fact that one of the issues was self‑defence, and the way in which the Court, this Court in Van Den Hoek approached it was, in essence, there is provocative conduct, there is response to the provocative conduct, the question of the loss of self‑control, that is, the explanation for the response, rather than being out of revenge or resentment, but rather out of panic, anger, or fear, can be a matter of inference and the question ‑ ‑ ‑ 

KIEFEL CJ:   Well, these can come down to nuances, can they not?  The fact that you strike at someone in response without thinking about what you are doing is not really indicative of loss of self‑control.  Loss of self‑control is much more than that, is it not?

MS SHAW:   I agree, your Honour, but the jury rejected that the appellant only acted impulsively.  What Justice Peek was saying was that he acted ‑ ‑ ‑

KIEFEL CJ:   Well, the jury might have thought that he acted with forethought.

MS SHAW:   Well, except that is one version of the events, but ‑ ‑ ‑ 

KIEFEL CJ:   That is in relation to self‑defence.  In any event, that is not what we are concerned with today.

MS SHAW:   That is true, but, your Honour, my submission is that the question of whether or not there has been a loss of self‑control, which is the critical question in terms of whether it was by any possibility, to adopt the language of Chief Justice Dixon in Parker, by any possibility could the jury have found a case for provocation on the facts then, here, in our respectful submission, the seminal features of what occurred do give rise to the potential, or the possibility that a jury could take a view of the facts, bearing in mind that there is no doubt there is a provocative act, there is no doubt the response is to the provocative act, that, having found an intention to kill, the jury had to exclude the possibility, and this is the ultimate question, before it even did go for them, that that response was as a result of the appellant, based on his fear, his panic, his confusion, his anxiety, stabbing the deceased because he lost self‑control rather than because he was, in essence, intending to achieve retribution.

That fine distinction between those two intentions is important in two respects.  It is discussed by Chief Justice Gleeson in Chhay’s Case, because it is a very fine distinction.  If, indeed, one needed to exclude provocation, one had to, and this is for the jury’s ultimate decision, not whether it goes to them in the first place, one had to exclude the possibility that, bearing in mind the entire history, and as I said it still continues up until after he took his top off, that the appellant had once again said, if you come at me I will defend myself, and then the deceased picked up a shovel, then he picked up a pole, and according to Mr Sneddon, he ran at him. 

GORDON J:   Ms Shaw, may I ask a question?  Much of the…..put this morning, which are very detailed, do you accept that when you read Justice Stanley’s decision as a whole, one has to take into account the very detailed setting out of the circumstances at paragraphs 5 to 114 when you read 135 to 140?

MS SHAW:   Your Honour, not in this case, with respect, because yes you take it into account and you are aware of it – that is, his Honour set out what indeed where key features of the appellant’s argument and the appellant’s evidence.  However, where his Honour ‑ ‑ ‑

GORDON J:   If you read the decisions as a whole, one takes into account the whole of paragraphs 5 to 114 and one sees many, if not all of the matters that you have taken us to this morning and I had understood your argument this morning really to say that there was a conflation of the threshold issue and the ultimate issue.

MS SHAW:   Yes.  Can I perhaps by way of example to respond to your Honour’s question take the Court to the…..judgment at amended application book.  The judgment is at appeal book 2554.  In particular, before I come to the judgment in detail, can I take your Honours directly to page 282 of the appeal book and paragraph 143 and refer to the first line where his Honour says:

That leaves consideration of whether there was a sufficient basis in the evidence to leave provocation to the jury on the objective limb.  Again consideration of the objective limb must be undertaken with the caution to which that High Court refers in Lindsay, particularly where there is evidence capable of supporting the subjective limb –

as his Honour had found:

However it is the function of this Court, as it was the function of the trial judge, to fix the boundaries of the minimum powers of self‑control that must be observed before it is open to the jury to find that murder is reduced to manslaughter by reason of provocation.  This is a question of opinion or evaluative fact.  Implicit in the observations of the plurality in Lindsay is the recognition that there will be circumstances where notwithstanding the existence of evidence capable of supporting the subjective limb, provocation should not be left to the jury.

His Honour then sets out what he frames as the provocation matrix at its highest and, in our respectful submission, what his Honour has done, which I will take the Court back to, has in essence made value judgments about the evidence of the appellant and the other evidence in the case and arrived at a view that:

At its highest, the deceased verbally abused the applicant in foul language that substantially matched the foul language the applicant hurled at the deceased.  Each challenged the other’s manhood with taunts about fighting like a man.  The deceased threatened . . . the applicant with a rod but abandoned the rod some minutes before the fatal wound was inflicted.  The deceased struck the applicant with a pole, up to three times, but without the applicant suffering any injury.  In any event, by the time the applicant stabbed the deceased the deceased had been disarmed.

So, in our respectful submission, what his Honour has done, although he did set out in quite some detail the appellant’s evidence, he did set out the other evidence in the case, for example, from Lillian Bridgland and from Mr Sneddon about the conduct of the deceased and he did set out the events as they were recorded in the triple‑0 call, when he came to decide the objective limb he limited the matrix of the provocation to, in essence, evaluation of the evidence to indeed undermine what could be viewed by a jury as the totality of the conduct of the deceased and the…..which it was viewed by the appellant that in fact a jury might have approached in a different way. 

In our respectful submission, those four topics were not the totality of the provocation matrix and it appears, we submit, that his Honour has wrongly adopted the statements by this Court in Lindsay at paragraph 16 about the objective test being a matter of opinion or evaluative fact to assume or to reason from that that therefore his role in the Court of Appeal is to undertake that opinion or evaluative fact process and, in our respectful submission, that is where his Honour fell into error.

The role of the Court of Appeal is not to consider what it, the Court of Appeal, views as the evidence at its highest, having considered competing arguments and competing considerations, but rather the role of the Court of Appeal is to adopt the approach that a jury, as this jury were directed, is entitled to accept parts of a witness’ evidence and other parts and entitled to accept the appellant’s evidence in total or reject it and therefore, as his Honour Justice Peek did, they were entitled to accept the appellant’s evidence in its entirety up until he responded to the deceased, beating him with the pole.

If your Honours please, can I perhaps go back into the judgment and make the submission that indeed both in relation to the objective test and in relation to the subjective test, his Honour wrongly interspersed competing arguments and considerations rather than taking the evidence at its highest.  For example, if one then goes to the analysis that commences at page 280, his Honour sets out what he considers to be the conduct most favourable to the accused and that of course extends beyond what his Honour arrived at at paragraph 143 in terms of the provocation matrix at its highest. 

In our respectful submission, that in itself demonstrates a misunderstanding of the correct approach to determine what is the provocation matrix at its highest, because in that summary at 135 his Honour does not include the modifying features to the conduct.  He refers to the fact that:

the evidence of the deceased’s conduct that could be characterised as provocative was his verbal abuse of the applicant on the street outside Jessica Bridgland’s residence; his taunting of the applicant to put down the knife and “fight like a man”; the removal of his shirt and his challenge to the applicant to stab him; his shaping up to fight; his arming himself with a rod and the threat to “spear” the applicant with it; and his attack on the applicant with a pole which he used to strike the applicant up to three times immediately prior to the applicant disarming him and inflicting the fatal stab wound.

Now all of those matters were, in effect, the subject of evidence through the triple -0 call, as well as Lillian Bridgland and Mr Sneddon.

GAGELER J:   Ms Shaw, could I just understand where you are in your outline.  Is this the point in paragraph 14 that you are addressing us on now?

MS SHAW:   It is, your Honour.  I apologise.

GAGELER J:   Thank you.

MS SHAW:   I was responding to the earlier question.  Can I be permitted to perhaps go through the earlier part of my outline, your Honours, just to lead to that because I wanted to, in essence, refer the Court to the specific evidence or the findings of his Honour which underpin our submissions in…..the question of whether, by any possibility, the jury might find that they could draw an inference that there was a loss of self‑control.

In that respect, I refer the Court to his Honour Justice Peek’s sentencing remarks, in particular at page 229, where he described the deceased as jumping over the fence and taking his top off and walking towards him with his hands behind his back, to within a few feet:

and said, “if you are going to stab me, stab me”.

Then to Mr Sneddon at page 230 telling him to go inside, and describing the deceased taking his shirt off and running at the appellant, and swinging the pole hard with both hands, hitting the appellant twice before the appellant grabbed the pole.  His Honour Justice Peek found, and this was of course the appellant’s case, that:

the stab happened very quickly –

as part of the motion disarming the deceased, although at the moment of contact the deceased had already held hold of the pole. His Honour found that immediately following the disarming of the deceased, the appellant impulsively lunged forward with the knife and then refers to the appellant’s account to the ambulance officer that:

it was very quick and I didn’t want to stab him at all.  I gave him every chance to leave me alone, he kept on coming at me” -

and he lunged with the knife.  His Honour found, therefore, consistently with the jury verdict, that it was based on statements in the triple‑0 call that once the appellant had disarmed the deceased there was no need for self‑defence and ‑ - -

KEANE J:   Ms Shaw, can I ask you, do you accept, when you are reading us these findings, that Justice Peek is correct to say that he acts upon the evidence of your client that he “didn’t want to stab” the deceased?

MS SHAW:   Your Honour, he is acting on that evidence up until the time that the deceased runs at him because he says it is from that time on that he does not accept the appellant’s evidence.  In effect, once the deceased strikes the appellant, his Honour finds that that in essence caused him to form the intention to kill or cause grievous bodily harm, and up until that point in time, he did not have any intention to stab him.

That is why his Honour found that the stabbing was not premeditated and that, in essence, what his Honour found at 232, that the jury verdict was based upon what happened after the appellant had successfully disarmed the deceased in circumstances where it was no longer reasonable and necessary, or reasonable to take the action of stabbing that he took.

So, in essence, what his Honour said was that the formation of the intention to kill or cause grievous bodily harm was a consequence of the deceased striking him with the pole and he formed that intention in response to the striking with a pole.  What the appellant’s submission is, that those are the fundamental planks upon which it is open to a jury to infer that the appellant’s act of forming the intention to kill was as a result of the emotions that he described, namely panic and fear rather than as a result of an intention to achieve retribution and he ‑ ‑ ‑ 

KIEFEL CJ:   Ms Shaw, what do you say about the view that Justice Peek expressed at the bottom of page 231 of the appeal book, top of 232, where he is talking about how the stab happened very quickly and as part of the motion in disarming Coombs and then, the next paragraph, and that the appellant had given evidence that he had actually lost balance and that is how the stabbing motion occurred.  How does that fit with the notion of loss of self‑control?

MS SHAW:   His Honour rejected that evidence, as he was obliged to, because it was inconsistent with the jury verdict.  What his Honour found was that this was not a case where he lost balance, this was not a case where it occurred by accident.  The jury verdict meant that once he had obtained the pole off the deceased, he then formed an intention to kill or cause grievous bodily harm, and it was not conduct that was on the basis of self‑defence or excessive ‑ ‑ ‑ 

KIEFEL CJ:   Yes, it is inconsistent with self‑defence, but if you are right and the matter ought to have gone to the jury on the basis of the partial defence of provocation, that statement would have been relevant to the prosecution’s case, would it not?

MS SHAW:   Is your Honour referring to the ‑ ‑ ‑ 

KIEFEL CJ:   The loss of balance.

MS SHAW:   The prosecution case was obviously it was not accident, sorry, your Honour ‑ ‑ ‑ 

KIEFEL CJ:   It could have used that evidence to negative the partial defence of provocation, could it not, if the matter had gone to the jury, as you say it should have.

MS SHAW:   Well, your Honour, if that was used to negative provocation it would mean - that would have as its premise the reasonable possibility of accident, and that would be an acquittal.  So what I am really putting to the Court ‑ ‑ ‑

KIEFEL CJ:  Either way, you cannot say it is irrelevant even if – it is one thing to say Justice Peek had to put it to one side because it was inconsistent with self‑defence – it is another thing to say that it is irrelevant overall if all of those matters went before the jury.

MS SHAW:   If one adopts the – there are two responses, your Honour.  One is that, of course, the very fact of putting self‑defence was inconsistent with accident.  That was based on the appellant’s statements and based on as if the appellant had not given evidence at all – the conduct that occurred.  The second, more important point, is that these are not factual hypotheses that are being considered.  These are, essentially, matters that the prosecution has to exclude. 

So, the prosecution, under Pemble, have to exclude any avenue that would give rise to manslaughter and what the language around provocation is, the question is whether or not provocation should be withdrawn from the jury.  His Honour Chief Justice Dixon in Parker’s Case describes it - one must approach it on the basis that it has been left and somehow or other it was not acted on.

So, in essence, what we submit is one cannot compare the issues of leaving provocation, which is merely a partial defence that mitigates the intention for murder, to considerations that might be factually based as hypotheses.  What one is concerned with is here, indeed, there was evidence from the appellant that it was open to the jury to accept that part of his evidence that he was afraid, that he did panic, that his emotions were, in essence, deregulated and that it was that emotional deregulation that caused him, on the spur of the moment, to have a sudden and temporary loss of self‑control.

So, the very essence of provocation is that sudden and temporary loss of self‑control because of your emotions being interfered with.  There is no doubt, in this case – and why self‑defence aligns so strongly with provocation as is explained by Chief Justice King in Earley – that the question of self‑defence – and, indeed, by Justice Mason in Van Den Hoek.  Self‑defence necessarily gives rise to emotional disturbance.  That emotional disturbance in self‑defence is generally fear.  But what Justice Mason said in Van Den Hoek was that it is not just fear which can cause a loss of self‑control or contribute to that deregulation, it is also panic. 

In Van Den Hoek’s Case, of course, as I have said, Mrs Van Den Hoek had gone and got the knife and deliberately stabbed her husband and she ran self‑defence.  But what his Honour Justice Mason said, and the Court in Van Den Hoek held was, well, the jury were entitled to accept or find that the prosecution could not negative that the background to the occurrence of the killing was such that in view of the lead‑up her emotions were affected.  Contrary to her evidence, contrary to…..it was open to the jury to infer that in fact the prosecution could not negative that she suffered a loss of self‑control.   

His Honour Chief Justice Barwick in Moffa’s Case in particular referred to the fact that a loss of self‑control can be inferred from a lack of premeditation because if there is no premeditation it bespeaks a sudden loss of self-control, that is, it contradicts the alternative intention, namely, intending to kill to obtain retribution.

So, in our respectful submission, this does come very much back to Pemble principles about this being one of the avenues to a verdict of manslaughter in relation to murder and the approach must be on the basis that this is not consideration of how a jury might reasonably arrive at a verdict but a consideration of whether or not the jury should be allowed to determine this question.  That is why, in our respectful submission, in Van Den Hoek the Court considered that provocation should have been left.  Your Honours, as I said, at 235 his Honour found ‑ ‑ ‑

KIEFEL CJ:   Ms Shaw, that might be a convenient time for the Court to take its morning break.  Thank you.

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

KIEFEL CJ:   Yes, Ms Shaw.

MS SHAW:   If the Court pleases.  Just to refer to our primary position, and that is that a court does not approach the issue of provocation on the basis that the accused’s evidence is a limiting factor because the question of provocation only arises after murder is proved, that is, that the accused defence has been rejected, and indeed, in the very case of Lindsay, the accused defence was that he was not even there, the entire matrix of the provocative conduct, and the possibility that there was an inference of loss of self‑control depended on the observations and words spoken by other witnesses.

And it is in that context that, because the issue is whether or not the jury should be entitled to decide it, the court does not engage in qualitative assessment or consideration of the competing arguments as Chief Justice Dixon said in Parker’s Case, it does not matter what competing arguments there are, the question is whether or not provocation ought to be withdrawn from the jury, or whether or not a jury ought to be given the opportunity to decide it.  And that is why the question, or the threshold test, is simply could a jury, acting reasonably, have found the prosecution had negatived provocation.

It is an undemanding threshold test, but because the law is reluctant to take away that question from the jury and give them the opportunity to decide.  In this case, in our respectful submission, in contrast to, for example, Lindsay, there was indeed evidence from the appellant that would speak to his emotions, from which a jury would be entitled to find that the prosecution had not negatived a loss of self‑control.

I have referred to some of them in passing but briefly in his evidence at 421 he referred to his fears, at page 463 being “glued to the spot”, “frozen”, he “didn’t know what to do”, he “retreated to the middle of the road”, 424, and that at page 463 he felt panicked, “it was an absolute confusion”, “I did not know what my next move would be.  It’s like he had called my bluff”, and he said at page 487 that he had given the deceased “every chance to go away and he’s kept coming at me”.

He said at 425 that he “was not thinking clearly and I was pretty panicked”, and he said that these were the sorts of feelings that came upon him when he does not take his medication.  He said that the deceased taunted him with a metal rod, saying “he could throw that very far and that it would go straight through me”.  He “felt sick in the stomach”, at 429, and said that he “was too scared to turn my back”, at 430.  He said at 430, “I did not know how to handle this situation, that he “wanted the police to come”. 

It is important that it be Ms Jessica Bridgland who was saying to the deceased, “Kill him Danny, kill him”  He was scared and when he was within arm’s reach of him, he came up and said, “If you’re going to stab me, stab me now”, at 432.  The appellant said, “I froze a bit.  I was shocked.  I didn’t know what to do, and then I walked backwards away from him”.  He referred to being “moderately angry” at 465, that the deceased was a threat to him.

At 469, he was “fearful”, and at 436 he said that when he did – he said when he saw the deceased running towards him – at 436, line 18 – run at him, he felt “panicked”.  So, he gives positive evidence which a jury would have been entitled and we say could have had regard to in determining whether the prosecution had excluded that the intention to stab, intention to kill, was not as a result of a loss of self‑control where there is no doubt that the conduct was established – a response was established.

In Van Den Hoek (1986) 161 CLR 158 at 168 of the judgment, and in the joint book of authorities at 414, but in particular at 161, the plurality said, having referred to the appellant’s evidence that she said “she was terrified and acted as she did to defend herself”, the plurality said:

Neither the fact that the applicant did not expressly say in evidence that she had been deprived of the power of self‑control, nor the fact that counsel in effect told the learned trial judge that provocation was not an issue, absolved the learned trial judge from the necessity of leaving that issue to the jury if there was some evidence fit for its consideration.

Further, at page 162 the plurality said:

The jury were entitled to accept the evidence of the applicant, in its material respects, notwithstanding that on some points there was a conflict between her evidence and other evidence.  If they did accept the material parts of her evidence they were entitled to form the view that the conduct of Mr. Van Den Hoek was provocative and that by reason of that provocation the applicant was driven to lose her self‑control and in consequence to do the acts that resulted in the death.

KIEFEL CJ:   Ms Shaw, where are we in relation to your outline?

MS SHAW:   We are at paragraph 7, your Honours.  I am…..to move through ‑ ‑ ‑

KIEFEL CJ:   I thought we had actually dealt with a lot more of your outline than that.

MS SHAW:   We have, your Honours.  I just wanted to, if I might, refer ‑ ‑ ‑

KIEFEL CJ:   I understand, you are going back to the cases, but has much of what you have said in the following headings been covered by your earlier submissions?

MS SHAW:   It has, but I wanted to, if I might, just refer the Court specifically to a passage in Van Den Hoek at page 169 in the judgment of Justice Mason, as he then was, and in particular in the first paragraph where he also refers to the fact that:

True it is that she did not testify to her sudden loss of self‑control.  But the absence of self‑control may be inferred from her state of fear and anxiety.  That the loss of self‑control was sudden and temporary and that it was caused by the acts of the deceased, deposed to by the applicant, might also be reasonably inferred.

And then further down at 169, referring to Lee Chun‑Chuen:

The jury’s capacity to infer loss of self‑control from appropriate facts is underscored by the comment of Lord Devlin, speaking for the Judicial Committee, in Lee Chun‑Chuen that a jury would be entitled to infer loss of self‑control from facts suggesting a possible loss of self‑control, even if the accused expressly denied loss of temper, especially when the nature of the main defence would account for the falsehood.  Of course, an admission of fear is not as antagonistic to self‑defence as an admission of anger.  None the less the point remains that the absence of direct evidence of loss of self‑control is explicable when self‑defence is an issue with the result that the jury is entitled to infer it in the absence of direct evidence.

If I can then, your Honours, move to our outline, and in particular we make the point at paragraph 9(a) that just as the trial judge found for sentencing purposes that the killing was not premeditated and it was impulsive, that was a view of the facts that the jury were entitled to make.  And in that respect, we refer to the judgment of Chief Justice Barwick in Moffa’s Case at number 7 on the list.  It is the joint book of authorities at 150.  And in particular at 605, where his Honour referred to the fact that the intention to cause death in that case “could well be concluded” by a jury:

that it was formed after and consequential upon the exchanges between the deceased and the applicant on that morning.  There was therefore material upon which it could be concluded that the applicant had lost his self‑control at the time he formed the intent to kill or grievously wound the deceased: and that that was due to what the deceased had said and done immediately before that loss occurred.

And so, in our respectful submission, the absence of premeditation is a basis upon which a jury would be entitled to infer that the explanation or the formation of the intent to kill was the result of a temporary loss of self‑control.  And without going to it, I refer the Court to the remarks in Pollock’s Case, in particular by the Court at page 246, and the rationale for the development of the doctrine that speaks to the lack of premeditation, and further at paragraph 51.

If I can then, your Honours, move to our submission further that another feature of the evidence that supported an inference of loss of self‑control was the fact that the appellant’s state of mind on one of the accounts that he gave when he spoke on the triple‑0 call, he said that what was the explanation for, in essence, the deceased coming at you and he said that, “he’s a psycho”.

So here was a case where the appellant was faced with someone, who emerged from his house was ‑ on the version that was open to the jury to consider, that he emerged from his house goading, taunting and emasculating him, as well as threats of violence and actual violence.

In Pollock’s Case, itself, the inference of loss of self‑control was said to be open on the basis of the ‑ on one version of the events – that is, the account of Mrs Brownlie – the admission in the prison – the account was that, in essence, the deceased had attacked the appellant.  At paragraph 25, this Court referred to that account as, therefore, being capable of involving conduct that would have provoked the appellant and, therefore, it was necessary for the jury to have had led to them two pathways upon which provocation arose even if those pathways depended on different evidence from different witnesses and different constructs of the evidence.

Similarly, in Masciantonio, there was one pathway left in relation to provocation, namely, the attack of the deceased on one side of the car.  However, when the deceased ran to the footpath and the appellant continued to attack him, that second event was not left to the jury as provocation and this Court held that it ought to have been because it was open to the jury to conclude without conducting any assessment of the strength of that provocation, the appellant remained acting under provocation in that case.

We submit that, plainly, the fact of the appellant’s evidence of his emotional state is a basis to infer that he may have lost self‑control for the purposes of the threshold test and, secondly, that the fact of this conduct occurring in the presence of others in a small regional community and continuing after the police had been called, also informs the inference that this was a sudden and temporary loss of self‑control.  We submit that, as we have said – and I will not repeat it – that the very fact of self‑defence being left, in essence, met both the fact of provocation and the response and the question of the inference was a matter that could be raised.

But the evidence – and we refer to this at point 10 – the observation of the appellant going crazy at paragraph 142 – which was the basis for his Honour finding the subjective limb, we submit was, as we have said, part of a sequence of events that I have taken the Court through, that unfolded quickly and that escalated and was to be viewed punitively.

In our respectful submission, what his Honour did in arriving at the subjective limb was, indeed, to limit the provocation matrix.  If I can, perhaps, take the Court to the judgment of the Court of Appeal in relation to the subjective limb?  In particular, at the appeal book, commencing at 135 – taking the Court to 135 – how his Honour laid out various matters that could be regarded by a jury as informing an inference of loss of self‑control and provocative conduct. 

But then at 137, when his Honour comes to address whether or not the threshold test is satisfied in relation to the objective limb, what his Honour does is set out the evidence in relation to the history, but seems to make an assessment of the significance of that, where it says in 137, line 35:

However, that had not resulted in the deceased stabbing, striking or inflicting any injury on the applicant.

Whether or not the fact that the deceased had threatened the applicant with a knife and a shiv, the fact that there was no injury, whether that had significance, in our respectful submission, was an impermissible trespass into an evaluation of that evidence when a jury may have taken a different view of someone who runs away and continues to be in fear when they have had a knife pulled on them, and when they have been informed by someone else that he, too, had had a knife pulled on him by the deceased.

And then, at line 38 in the same paragraph, his Honour refers to the fact that the appellant had said that:

he did not feel safe –

and that:

the deceased caused him anxiety –

and concludes:

But it is notable that the evidence indicates much of the verbal abuse was hurled by the applicant at the deceased, the applicant was on medication for his anxiety and there was no evidence of any actual violence between them.

Well, a jury may have taken the view that, as the appellant said, he was hurling abuse because he was wanting to draw attention to his predicament.  Yes, he was on medication for anxiety, but the appellant said that the feelings he had were those that he took the medication for.  In other words, the expressions of anxiety were not alleviated because of his medication.

And the fact that there was no evidence of actual violence between them, it had to be remembered that the deceased had been in custody and at the time that he had pulled the shiv on him previously, the appellant had run away, and his fears about the deceased were informed by a combination of the deceased’s behaviour and his general propensity to treat Ms Bridgland violently, and having information from others.  And so, when his Honour goes on to say at 138:

There was nothing in the evidence of the nature of their relationship which equates to the power dynamics, particular and individual frailties or cultural differences that the authorities have previously held relevant to an assessment of the alleged provocative conduct.

But we submit that those comparators with other cases do not assist in the threshold test as to the subjective test, the absence of one of those sensitivities might well be relevant when one comes to consider the objective limb because the objective limb would have to be considered in terms of the powers of certain…..  But here, the relationship was plain in terms of power dynamics; on the appellant’s case, the deceased had repeatedly threatened him with violence, and he was afraid of him, and that was the very reason he had kept a knife on his table and did not dare to venture out once he had heard he was home without taking it, or taking ‑ ‑ ‑ 

KIEFEL CJ:   Ms Shaw, I think we have been over these facts a number of times. 

MS SHAW:   Your Honour, can I just ‑ yes, your Honour, I apologise – can I just refer to 140 which is the lead‑in to the way in which his Honour qualifies, again, the factual matrix.  His Honour goes on to say, for example, in 140, that – he refers again to the abuse “being hurled in both directions”, which is qualified, and he makes the finding at line 30 – at line 42:

There is no basis upon which the jury could consider that the verbal abuse hurled at the applicant by the deceased would occasion any great offence.

Again, we submit that is to include a factual finding in his reasons rather than considering whether or not coupled with all of the evidence a jury might have that – take that into account.  At paragraph 141, again his Honour interleaves with matters going to the objective limb, competing arguments, in particular, for example, that the appellant was ‑ that there had been no actual physical ‑ that there had been exercise of “physical restraint” and that the applicant was uninjured as a result of the attack with the pole, and there was “no evidence of a frenzied attack involving multiple stab wounds”.

Of course, that might be relevant in a case where there was not a sudden and temporary loss of self‑control, as was the inference here, and one sees that being raised when there may not be the kind of provocative conduct in advance.  And then his Honour refers to the fact that though the appellant “was not ranting or raving”, and in that way essentially mutes the sting of the various events that the appellant said were affecting him and does not have regard to the build up that I referred the Court to on the basis of the evidence and the view the jury could take.

So, it is in that context that his Honour then concludes at paragraph 142, by essence eliminating all of the other factors that went to the issue of the loss of self‑control, and the extent of the provocation, that Lillian Bridgeland had described the appellant on the roadway going crazy and finds the subjective test is met.  Our submission is that ‑ ‑ ‑ 

KIEFEL CJ:   That is, of course, the subject of a notice of contention and it is the subject of a number of the discussions between you and the Bench earlier today. 

MS SHAW:   Yes, and what I have endeavoured to set out for the Court is the fact that his Honour arrives at that conclusion, that is, that the only evidence, if you like, that – from which an inference of loss of self‑control can be drawn, by a jury, or could draw, was the evidence of Lillian Bridgeland.  And we submit that that was to wrongly limit and discard all of the other evidence that I have taken the Court to as to loss of self‑control.  That is wrongly arriving at an assessment of the facts than taking evidence as is much favourable to the appellant.

So, insofar as the notice of contention is concerned, we submit that his Honour’s error is set out in the way that we have explained because it does not, indeed, approach the issue of the subjective limb and the loss of self‑control on the basis of the version of events most favourable to the appellant.  It is not about, obviously, whether or not the appellant was acting as an automaton, as his Honour Chief Justice Gleeson explained in Chhay’s Case.  It is a question about whether or not there has been an emotional deregulation or a defence with emotions that have been responsible or could have led to the intention to kill which has been established already for the jury.

So, then, when his Honour goes on to – having reduced the provocative matrix in that way – and having reduced what bore upon the inferences as to loss of self‑control, his Honour then proceeds to the objective limb and, in our respectful submission, as I have pointed out, again limits what his Honour has regard to.  In particular, we submit, his Honour has wrongly, for himself, identified what the evidence is at its highest, rather than looking at it from the point of view of what was the most favourable viewpoint in terms of the – from the viewpoint of the accused.

But, your Honours, in that respect, we refer the Court to the statements of this Court in Lindsay, in particular at paragraph 28 of the judgment. As I said, in Lindsay’s Case, the appellant’s account was that he was not there and the way in which the provocation matrix was arrived at was bringing together the evidence of a number of witnesses to arrive at a view that the jury may have taken.

GAGELER J:   …..

MS SHAW:   Yes.  And the appellant did not give evidence that the case he put was that he was not there.  So, at paragraph 28, at page 284, the plurality said that:

The partial defence recognises human frailty and requires that the gravity of the provocation be assessed from the standpoint of the accused, taking into account his or her history and attributes.  Assessment of the response of the ordinary person to the outrage which the provocative conduct might have engendered in the accused will usually depend upon a range of possible findings.  It is this recognition that informed the majority’s conclusion in Green that a reasonable jury could have entertained a reasonable doubt that the prosecution had negatived provocation.

And further, in terms of the role of a court in sifting through the evidence or making judgments about the evidence, particularly in relation to the objective test, at paragraph 82 of the judgment Justice Nettle states that:

Thirdly, although the objective test might aptly be described as “an instrument of policy”, it is necessary to keep in mind that the policy is to limit the defence of provocation to what a reasonable jury might consider to be the standard of the minimum powers of self‑control of an ordinary person.  It is not what academics, the press, pressure groups or judges might hope or wish were the minimum powers of self‑control of an ordinary person.

And therefore, his Honour went on to say:

Thus, as Barwick CJ said in Moffa v The Queen, subject to very limited exceptions, whether it should be concluded that an ordinary man would lose self‑control “is a question exclusively for the jury, however much a court may be inclined to think that a jury should not do so.”

Your Honours, we also refer to the judgment of Chief Justice Barwick in Moffa, in particular at page 606.

KIEFEL CJ:   I think you have already referred us to this aspect of Moffa, have you not?

MS SHAW:   Your Honour, it was related to his Honour observing that insofar as there may be ‑ in that case it is fair to say there were a number of small matters which include the throwing of a telephone at the deceased, what his Honour observed was that it is important that although these, in themselves, are small matters, that there was a threat of physical violence, there was the throwing of the telephone as an expression of contempt, that there were use of naked photographs, they form part of the whole situation.

So, in our submission, his Honour Justice Stanley erred, if you like, in extracting the evidence of Lillian Bridgland on that topic, whereas it should have been viewed in connection with, and cumulatively upon, all of the other evidence that was relevant to an inference that might arise in relation to a loss of self‑control.  It is our respectful submission that, insofar as a lack of sensitivity is concerned, that we have referred to, it has the result that when one applies the objective test, it means that there is not that particular sensitivity that does impact on the ordinary powers of self‑control.

Insofar as what we have put to the Court, as to his Honour Justice Stanley’s approach, we also refer the Court to Chief Justice Brennan’s judgment in Green’s Case at page 346, in particular number four on our list, in particular where his Honour said that:

A reasonable jury might have come to the conclusion that an ordinary person, who was provoked to the degree that the appellant was provoked, could have formed an intent to kill or to inflict grievous bodily harm upon the deceased.  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.  A juryman or woman would not be unreasonable because he or she might accept that the appellant found the deceased’s conduct “revolting” rather than “amorous”.  The case is not like Stingel.  In that case, Stingel sought out and allegedly came upon a scene of consensual sexual activity . . . which inflamed his jealousy.

And so we submit here that, again, Justice Stanley wrongly formed his own view as to the appellant’s responses, rather than taking them at their highest.

Your Honours, in relation to paragraph 143 and his Honour Justice Stanley in effect, we submit, wrongly adopting from paragraph 16 of Lindsay the approach to this task as being one of opinion and…..fact, we submit that it is that misunderstanding of that passage in Lindsay which has resulted in his Honour reducing and limiting the provocation matrix that a jury might be prepared to entertain rather than, as he did, arrive at a different and diluted sting and reduced provocation matrix.

Your Honours, we submit that that is indeed further supported, in our respectful submission, in this respect – we submit that his Honour’s conclusions at paragraph 144 are necessarily the result of the incorrect approach that we have identified.  But at 148 at page 284, his Honour says:

In my view while the provocative conduct might have been capable of provoking the hypothetical ordinary person to some retaliation –

and this is bearing in mind that his Honour has limited what his Honour considers to be the provocative conduct:

it was not capable of provoking the hypothetical ordinary 36‑year‑old to form an intention to inflict grievous bodily harm or to kill and to act upon that intention.

It is our submission that that is where his Honour has again fallen into the role of fact‑finding.  That particular issue, in our respectful submission, was plainly a matter for the jury.  The question is whether a jury might arrive at a view that the prosecution could not negative provocation and whether or not provocation should be withdrawn from him.

We submit in relation to paragraph – this is under our grounds, we have referred to ground 2.1 which, in essence, complains that there has been the collapsing of the role of the Court to determine the threshold question with the fact‑finding process ‑ in relation to paragraph 144, it is plain that his Honour also refers to the onus of proof in relation to the ultimate question and that is in 144 itself and we say that reinforces our submission that, indeed, his Honour has misunderstood the role of the court.

So, for those reasons, if the Court pleases, we submit that the Court of Criminal Appeal has erred in its approach but, more importantly, we submit from the point of view of this Court that provocation ought not to have been withdrawn from the jury.  If the Court pleases.

KIEFEL CJ:   Mr Hinton, before we hear from you, the Court will adjourn to consider the course that it will take.

AT 12.09 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.14 PM:

KIEFEL CJ:   Mr Hinton, we will not need to hear from you.

MR HINTON:   If the Court pleases.

KIEFEL CJ:   This matter raises no question of principle.  Having had the benefit of submissions for the appellant, we are of the view that there is no reason to doubt the correctness of the conclusion of the Court of Criminal Appeal of the Supreme Court of South Australia.  Special leave is revoked.

The Court will now adjourn to 9.30 am tomorrow for pronouncement of orders and otherwise to 9.45 am.

AT 12.15 PM THE MATTER WAS CONCLUDED