Peniamina v The Queen

[2020] HCATrans 165

[2020] HCATrans 165

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B32 of 2020

B e t w e e n -

ARONA PENIAMINA

Appellant

and

THE QUEEN

Respondent

BELL J
GAGELER J
KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION TO BRISBANE AND MELBOURNE

ON THURSDAY, 15 OCTOBER 2020, AT 9.45 AM

Copyright in the High Court of Australia

BELL J:   To avoid any difficulties in terms of movement of counsel to the lectern and back I might announce the appearances.  It might be noted that Justice Gageler and I are sitting in Canberra; Justices Keane and Edelman are sitting in Brisbane, by video link to Canberra; and Justice Gordon is sitting by video link from Melbourne.

For the appellant, MR M.J. COPLEY, QC appears with MS K. PRSKALO.  (instructed by Legal Aid Queensland)

For the respondent, MR T.A. FULLER, QC appears with MS D. BALIC.  (instructed by Office of the Director of Public Prosecutions (Qld))

Yes, thank you, Mr Copley.

MR COPLEY: Your Honours, this appeal concerns the proper construction of section 304(3) of the Criminal Code (Qld) which potentially imposes some limitations on the availability of provocation to reduce murder to manslaughter for an accused person who is on trial for a count of the murder of his spouse or wife or partner.

More particularly, the appeal is concerned with the proper construction of the phrase “if the sudden provocation is based on”, in paragraph (c) of section 304(3) of the Code. So if I can take your Honours to section 304 now, which is found in the joint book of authorities at pages 6 to 7, and section 304(1) provides the excuse which reduces murder to manslaughter if a person:

unlawfully kills another under circumstances which –

but for 304:

would constitute murder, [if he] does the act which causes death in the heat of passion caused by sudden provocation –

I need not at this point read further than that.  I would ask your Honours to notice that subsection (2) then says that:

Subsection (1) does not apply if the sudden provocation is based on words alone, other than in circumstances of a most extreme and exceptional character.

Then subsection (3) says:

Also, subsection (1) does not apply, other than in circumstances of a most extreme and exceptional character, if –

three situations exist.  The first two do exist.  The third one we are concerned with:

(c)the sudden provocation is based on anything done by the deceased or anything the person believes the deceased has done—

To summarise it, to end, change or foreshadow an end or a change to the relationship or anything the accused believes the deceased has done to end, change or foreshadow an ending or change to the relationship.  Of the other provisions, it is worth noticing that subsection (5) says:

Subsection (3)(c)(i) applies even if the relationship has ended before the sudden provocation and killing happens.

and subsection (7) says:

On a charge of murder, it is for the defence to prove that the person charged is, under this section, liable to be convicted of manslaughter only.

Briefly stated, or stated as succinctly as it can be, the contention is that whether section 304(3) is engaged in a trial on a count of murder depends upon the conduct of the deceased that the accused points to or relies upon as causative of his loss of self‑control. This is how the phrase if:

the sudden provocation is based on –

in section 304(3)(c) should be understood. So, for example, if the accused asserts that he lost his self‑control and killed his wife because she acted to leave their marriage, or if he asserts that he lost his self‑control and killed her because he believed that she was going to leave their marriage, he will have to overcome what we call the hurdle imposed by subsection (3) before provocation will reduce the murder to manslaughter.

In speaking only of a thing done or believed was done, subsection (3) recognises the importance to the operation of the defence of provocation of identifying the conduct of the deceased that caused an accused to lose his self‑control.  No provision is made for a thing that might have been done, because it is unnecessary to do so when the subsection recognises that an accused’s belief might supply a basis upon which he lost self‑control.

EDELMAN J:   Mr Copley, do you accept that people are sometimes motivated in their actions by a number of reasons?

MR COPLEY:   Yes, that is a proposition that is not arguable, really; in any particular case there might be a number of motivations.

EDELMAN J:   And that a “provocation” therefore can be based upon several different reasons?

MR COPLEY:   If the evidence so discloses, yes.

EDELMAN J:   And that those different reasons might be reasons based upon circumstances that do not arise immediately at the time of the provocation, although they are immediately present in the mind of the party said to have been provoked.

MR COPLEY:   Well, the person ‑ the accused only has provocation available to him.  If he can point to an act or words or, better put it neutrally, conduct or behaviour of the deceased that actually caused him to lose his self‑control, and it is possible that actions preceding the event that he identifies as causative of his loss of self‑control, might play a part in his losing of self‑control.  So, for example, if certain words are said that carry a particular sting in their tail because they have been uttered before, in other contexts, or refer to some other, say embarrassing, event between a husband and wife, then yes, what your Honour puts to me is so.

But fundamentally, the appellant’s position is that for provocation under section 304(1) to operate, there has to be an identification of conduct by the accused, causative of his loss of self‑control and that position has become all the clearer since these amendments in 2011 because it has shifted the onus to the accused person to make good the defence.  So, in the past it might have been adequate enough for there to be a number of possibilities lurking in the evidence that the prosecution had to negative, and the argument might have been, well if it was this then provocation fails for that reason, or if it was that conduct, provocation fails for this.

But now that the onus of proof has been shifted to the accused person, the contention is that he has to, if he is to have any prospect of acquittal, demonstrate precisely to the jury, because he has to show more probably than not that conduct occurred, and that it had the effect that he claims it had had.  So, my answer has gone for some time, I am sorry, your Honour, but that is as full as I can deal with that question.

Now, the conduct of the deceased that this appellant pointed to as causative of his loss of self‑control is to be found, or can be seen, in the summing‑up, which is in the core appeal book at page 40, between lines 9 and 12, where his Honour the learned trial judge said that:

The defence says that the provocation to which Mr Peniamina reacted was Sandra Peniamina’s grabbing of the knife, threatening the accused man with it, and then the cutting of his palm that followed.  That was the provocative act or the provocative acts.

The evidence supportive of that conduct having occurred more probably than not was set out for the jury in the summing‑up at page 43 of the core appeal book, between lines 1 and 24, where the learned trial judge was quoting from the transcript of the interview, which was tendered as part of the prosecution case, and I will not read it all out, but to summarise it, after an incident in the bedroom where he had hit or smacked his wife in the mouth, she had left the bedroom, possibly gone to the kitchen, gone to the kitchen possibly via the bathroom, and then opened something in the kitchen, he thought it might have been a knife, he went into the kitchen, he tried to get the knife off her, she pulled it, and then his hand was cut, and he said that the pain was really, really bad, and that just made me:

more angry and more angry.

He said:

I can’t stop.  I can’t stop that time ‑

And then at line 23, the police officer asked what was he thinking, and his answer was:

Kill her.  I not lie.

That’s what I was thinking.  So that was the conduct that was precisely identified by the appellant, and which the learned trial judge obviously understood was the precise conduct that the appellant said was causative of his loss of self‑control.

Now it might help to notice first of all something about the legislative scheme concerning homicide in Queensland, and I can briefly, very briefly, deal with this, and invite your Honours just to notice these provisions of the Code.  And first of all, at page 9 of the joint appeal book, section 291 states that:

It is unlawful to kill any person unless such killing is –

So far as we are concerned:

excused by law.

293 defines a killing as being that:

any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.

And then at page 11 of the joint appeal book, the Court will see section 300, which says that:

Any person who unlawfully kills another is guilty of a crime, which is called murder or manslaughter, according to the circumstances of the case.

And then the prosecution case for murder is section 302(1)(a) in this case, which is on page 11, that:

if the offender intends to cause the death of the person killed –

or if he intended to do to her:

some grievous bodily harm –

he is guilty of murder.  Then back on page 6 of the joint appeal book, one sees the definition of “manslaughter” in 303, which is simply an unlawful killing under circumstances which do not amount to murder. 

That then brings me back to section 304 of the Code. What I would ask the Court to notice about section 304(3) is the context in which it is situated – and of course by the context I mean where it falls within the paragraph of 304. Also, I would like to make your Honours aware of a little bit of the history of the provision to explain how we got to the situation that we are in today.

So prior to the enactment of the Criminal Code and Other Legislation Amendment Act 2011, 304 consisted just of what is now subsection (1).

BELL J:   Am I right, Mr Copley, in understanding that section 304(1) was in the terms of the draft of the Code by Sir Samuel Griffith?

MR COPLEY:   Yes, your Honour, your Honour is, and it has not been amended, save to cast it into gender‑neutral language, since the Code was enacted in 1901.  So that was a point that I was going to make, but it has now been made.  It was unaffected by the 2011 amendments that were made.  So what this Court had to say about 304 in Pollock v The Queen (2010) 242 CLR 233 still obtains.

The argument is that what was said in that case is also of importance to those other subsections of 304, such as (2), (3) which we are directly concerned with, and (5), which refer to “sudden provocation” because the amendments in 2011 were made in the context of this Court’s authoritative statement about what “sudden provocation” meant, and the legislature chose to use that expression, again in subsections (2), (3) and (5).

If I could take your Honours to Pollock v The Queen (2010) 242 CLR 233 at page 247, paragraph 52, which appears in the joint book of authorities at page 165. Your Honours will be able, of course, to read it for yourselves. But the sentence of particular importance to the appellant is this, the one that says:

Thus, the provision is to be understood as requiring that the provocation both involve conduct of the deceased and have the capacity to provoke an ordinary person (to form the intention to kill or to do grievous bodily harm and to act in the way the accused acted) –

Then we ask you to notice that on page 167 of the joint book of authorities, at paragraph 52, the Court said that:

Keane JA was correct to say –

in the court below in in Pollock:

that the expression “sudden provocation” in s 304 is concerned with the temporary loss of self‑control excited by the provocation.

The appellant emphasises the words “excited by”.  Similarly on the same page in paragraph 54, the first sentence that:

The law requires that the killing occur while the accused is in a state of loss of self‑control that is caused by the provocative conduct –

and the words “caused by” are italicised in that passage, and the appellant emphasises those passages to the Court as well.

So mindful of the onus that rests on the accused to bring himself within 304(1), he must first be able to point to conduct of the deceased or behaviour of the deceased that he asserts caused him to lose self-control.  Then he must prove that the conduct or behaviour he points to actually caused him to lose self-control and induced him to form the intention to kill or do grievous bodily harm and he must prove that the conduct he points to was capable of causing an ordinary person to lose self‑control and form an intention to kill or to do grievous bodily harm.

EDELMAN J:   Mr Copley, do you accept that the question of the conduct that causes the accused to lose self‑control is ultimately a question for the jury, so that even if an accused says that the conduct was X, it is open for the jury to conclude that the conduct was Y?

MR COPLEY:   It is possible that a jury might reason that way, but it is more difficult to imagine that either party at the Bar table would argue that they should reason that way.

EDELMAN J:   It may be, for example, as in a case like this case, that the accused wants the conduct that caused the loss of self‑control to be characterised very narrowly and the Crown might want the conduct that caused the loss of self‑control to be characterised more broadly.  Would that not ultimately be a question for the jury?

MR COPLEY:   Yes, it would be, but if the Crown was arguing that there was conduct which caused him to lose self-control, the Crown would be effectively conceding to the jury that the first limb of the defence of provocation has been made out – that is to say that the accused formed his intention to kill or do grievous bodily harm because he was deprived of his power of self-control by something that the deceased did.

Now, they could go on to then attempt to negative the defence by saying that no ordinary person in the accused’s position would so lose his self‑control in relation to that conduct as to kill or do grievous bodily harm, but that would, I would suggest, be the consequence of the proposition that your Honour is putting to me.

BELL J:   Looking at the way the matter was left at the appellant’s trial, the jury was instructed that the appellant relied on the conduct of the deceased in holding the knife, as I understand it, in the way that the undercover police officer described the appellant as having indicated to him – that is, in an aggressive, downward manner.

MR COPLEY:   Yes.

BELL J:   The jury was told that was the defence case and that the prosecution’s case was that the appellant had acted in relation to the knife merely as a continuation of events that had started earlier with an argument with the wife and with him punching her in the face, causing her mouth to bleed.  This was just a continuation of an angry response to the initial argument.  Is that a fair way of putting it?

MR COPLEY:   It is, your Honour.

BELL J:   Now, unless the jury were satisfied that it was more likely than not that the wife’s conduct, in aggressively holding the knife in the way the appellant had described to the undercover police officer, were the case, that was the end of provocation as far as the appellant was concerned.  He simply would not have passed through the 304(1) test because, on his account, he had lost his self‑control at the moment his wife had aggressively presented the knife and he had grabbed it and cut himself and the jury were not satisfied that that was more likely than not the case.  Is that right?

MR COPLEY:   That is right.  If they were not satisfied that it was more probable than not that that is what caused him to lose self‑control, then there was no basis for them to further consider provocation.

BELL J:   Is there a second reason for there being no basis to consider provocation in those circumstances this, that apart from the accused’s identification of the act being the aggressive holding of the knife, if the jury considered that what had happened was that the wife had been punched in the face, had gone into the kitchen and taken a knife to defend herself, then it is very difficult to see, is it not, Mr Copley, that the objective arm of provocation under 304(1) could be satisfied?

MR COPLEY:   Yes, your Honour, I would agree with that.

BELL J:   In a sense, one might think the way the parties approached the matter at trial and, to that extent, in the way the directions were given to the jury, tended to overlook a critical aspect of the different ways the case was put because unless the jury were persuaded of the likelihood that the wife had acted aggressively with the knife in some way quite disproportionate to anything that had occurred earlier, one would have thought as a matter of law there might be a lively issue about the capacity of the accused’s account to support provocation, and I am talking of provocation under 304(1).

MR COPLEY:   Yes, and as I understand, your Honour is having in mind the objective test aspect of it.

BELL J:   Yes, but the minimum powers of self‑control of an ordinary person might be thought to necessarily reject that a man who punches his wife, causing her mouth to bleed and leading her to pick up a knife to defend herself, might be so provoked as to form the requisite intention to make the act murder.

MR COPLEY:   Yes.

BELL J:   I raise that; I appreciate it is not the way the matter has been put ‑ ‑ ‑

MR COPLEY:   No.

BELL J: ‑ ‑ ‑ but in some ways it may be that some of the concerns about the operation of section 304(3) tended to obscure what might be thought to be the more obvious difficulty, to the extent there was a difficulty, with the appellant’s case on provocation.

MR COPLEY: Yes. Without wishing to digress too far away from the central point or to, perhaps, take this discussion somewhere that your Honour does not intend for me to go, in Canada, the Criminal Code does not allow provocation to operate in relation to a lawful act. So, if this case had occurred in Canada, then there might have been a very real difficulty in the accused having provocation available to him or for a jury to exculpate him on that basis because it could well have been argued that the wife’s action in fetching a knife was simply done in self‑defence.

BELL J:   In the way the matter was put, your contention is it was a factual question for the jury to determine whether or not the wife’s action in picking up the knife and holding it in the way that the appellant described was ‑ ‑ ‑

MR COPLEY:   Causative.

BELL J:   Well, no, it is accepted his case was that it was causative but again, coming back to the notion of the objective aspect of the test, surely it must have been his case that that was quite disproportionate to anything that had occurred and, therefore, could not be seen simply as the wife defending herself.

MR COPLEY:   Yes.  I would have to check the addresses to see if the defence counsel precisely put the position as precisely as your Honour did there.

BELL J:   Yes.

MR COPLEY:   But he certainly contended, in his submission, that an ordinary person could well have reacted in the way that the accused did to that cut to his hand, in all the circumstances.

KEANE J:   Mr Copley, what about the situation where while that case is open – that is to say, that the immediate cause of the killing and the loss of control was the brandishing of the knife, what about the case where in the mix of motivations that prompt that reaction by the accused, is a belief that his wife wants to leave him?  So that, insofar as the case – the defence case – is that the killing was immediately caused by a reaction to the brandishing of the knife, it was also based on resentment at his belief that she was leaving him.

MR COPLEY:   Well, that would be a matter, if it existed in this case, that could only be proven – and I have to keep in mind where the onus lies now – by inference because the party that bore the onus of proof was asserting, “the act that caused me to”, to use his words, “make me more angry, more angry, you know what I mean.  I can’t stop.  I can’t stop that time”, was the cutting of the knife – of the palm of the hand with the knife.

KEANE J:   But there is also the other evidence where he was saying all he wanted was the truth, why did she lie to him, his obvious distress at his belief that she had an affair, that she was keeping from him – that is evidence.  Why would it not be an available inference, whoever bears the onus, that while the immediate cause of his response to the situation was the brandishing of the knife, that in the mix was his desperate concern that she was leaving him?

MR COPLEY:   Well, if your Honour is asking me to proceed on the basis that he could have lost his self‑control because of a combination of the knife and other considerations, then my response is that that is not how the case was argued below.  It is a view of the facts that might be, as it were, a fresh or a different view of the facts of the case.

KEANE J: It seems to be the way Justice Morrison has viewed the application of section 304(3)(c) in this case.

MR COPLEY:   Yes.

EDELMAN J:   How can any other inference be open once you – or how can that inference not be open once you accept that people are sometimes motivated by a number of reasons and that the suspicion that she was going to leave him was a possible motivation?

MR COPLEY:   Well, it was not contended that he lost his self‑control at all by the prosecution.  They said that he did not.  The appellant argued that he did, and that he based it only on the act with the knife.

So the view that he might have lost his self‑control due to antecedent acts, whilst not wanting to get into questions of substantial causation or anything of that nature, might well have raised the difficulty for the accused that it would have been well nigh impossible to show that to be so, because he had not acted on the sudden in relation to those earlier actions.

If the assumption that underlies everything in this case is correct, that she changed bedrooms as a marker of a change of relationship – I say it like that because, for example, there was no evidence as to why she had moved bedrooms ‑ the contention is that in utilising, in subsection (3), the expression:

the sudden provocation –

Subsection (3) takes as its reference point the conduct that the accused relies upon as causative of his loss of self‑control, and if that conduct accords with the description in (3)(c), or perhaps even more favourably for the accused, if he believes the conduct was done in pursuit of an end or change to the relationship then he must prove that the circumstances were of an extreme and exceptional character before he could be acquitted of murder.

It appears to be common ground between the parties that the expression “the sudden provocation” must have the same meaning as it has in (3), as in (2), as in (1).

KEANE J:   That seems certainly to be true.  The difficulty is that, as the passages that you have taken us to from Pollock show, sudden provocation bears a dual aspect.  It is both the provocation and the capacity of the provocation to result in a loss of self‑control and subsection (3)(c) recognises that in speaking of the belief of the accused.  It is looking at that aspect of the dual aspect of the expression “sudden provocation”.

MR COPLEY:   Yes.

KEANE J:   In a context in which subsection (3) speaks of “based on” rather than “caused by”, which one would ordinarily take to be casting a wider net in terms of causal connection.

MR COPLEY:   Well, it could be possible that the expression “based on” was to accommodate the belief aspect of things in the sense that, if a person merely believes honestly that she is doing X, Y or Z but she is not in fact doing it, then it might be difficult to say that his conduct was caused by her infidelity, as opposed to it being based upon her infidelity because he believed, based on this scintilla of evidence and that scintilla of evidence that it all amounted to an affair. 

That might be an explanation for the use of the words “based on”, but of course it could be said against me that subsection (2) uses the words “based on” too.  It says “if the sudden provocation is based on words alone” then you will not have it unless the circumstances are extreme or exceptional.

BELL J:   Mr Copley, one possible reason for the use of the words “based on” in subsections (2) and (3) might be the recommendations made by the Queensland Law Reform Commission in their report on the partial defence of provocation in 2008.  Would that be so?

MR COPLEY:   It could be, your Honour, but you will be mindful of the fact that I said in my written submission that one did not derive very much assistance from that document beyond showing that that was perhaps the genesis for the decision to make these amendments.

BELL J:   In the recommendations made both to embed in the Code what was described as the Buttigieg limitation and in the recommendation made in relation to a person’s choice to leave a relationship, the Commission used the language of “based on”, I think.

MR COPLEY:   Yes.  Well, I mean at page 346 of the joint authorities book, in paragraph 21.88 in the last sentence:

provocation cannot be based on the deceased’s choice about a relationship.

BELL J:   Yes, and if one looks then at what informed that recommendation, one goes back to a survey of cases in Queensland in which provocation had been raised and had either succeeded or failed and the implicit criticism of its success in a case of Auberson ‑ this is in paragraph 21.8 on page 331 of the joint authority; it is page 466 of the report.

Auberson was convicted of manslaughter.  His wife had left him two weeks before he killed her.  At a meeting he arranged and responding to his question she confirmed that their relationship was over and that she had a boyfriend.  According to Auberson, she threatened to go for his superannuation and in retaliation he strangled her, beat her and cut her throat with a Stanley knife and the jury returned a verdict of guilty of manslaughter.

When one looks at the discussion and then the recommendation that follows, on a view, what was sought to be achieved by the introduction of subsection (3) was legislative recognition that where the conduct relied upon as causative of the sudden provocation involves an indication of an intention to leave a relationship or to change the nature of it, the defence would not run.

MR COPLEY:   Absent extreme or exceptional circumstances.

BELL J:    Yes ‑ absent, yes.

MR COPLEY:   We accept that that is the policy that seems to be behind subsection (3), yes.

KEANE J:   Mr Copley, just in that regard as to the policy behind subsection (3), on page 79 of the core appeal book in the reasons of Justice McMurdo at paragraph [50], his Honour speaks of the evident policy of 304(3) as being based upon a notion that:

an ordinary person would not lose self‑control, and kill with murderous intent, in response to the other party to the relationship doing something to end or change it.

His Honour then refers to the explanatory note to the Bill and that note says of subsection (3):

“The subsection deals with an unacceptable response by a party to a domestic relationship, to an event affecting the relationship, arising from a choice made by the deceased about the relationship.”

What do you say to the suggestion that Justice McMurdo’s view that 304(3) is concerned with a legislative view as to what might or might not cause a loss of self‑control is wrong and that the policy of the section is that whether or not self‑control has been lost, both subjectively and objectively, the loss of the self‑control that involves a response - if you like a controlling response - a controlling response by one party to the relationship to the attempt by the other to end it is unacceptable and that what the policy of the legislation is serving is to say that, even if you have lost your self‑control and even if someone in your situation would have lost his or her self‑control, if the basis for losing it is that it is a response to the ending the relationship, that is simply not acceptable and cannot - even if one gets through 304(1), cannot be allowed to establish the partial defence.

MR COPLEY:   I say that if the accused lost his self‑control and if he attributes his loss of self‑control to something that his wife has done to end, change, alter or foreshadow a change in their relationship then, if he surmounts the subjective and objective aspects of the test, he cannot be acquitted of murder unless the circumstances are extreme and exceptional.

EDELMAN J:   When you say he attributes it to, do you mean attributes entirely to, or do you accept that it could be he attributes it at least in part to, given that people are almost always motivated by more than one factor?

MR COPLEY:   I say he attributes it to entirely.  I use the word “attributed” as another word for “cause”.  When his Honour Justice Keane was putting his question to me he spoke of it being “the basis of”.  My response, essentially, is ‑ ‑ ‑

EDELMAN J:   Yes, but in law, as in life, there is almost nothing that has only one cause.  Almost every event in life has multiple causes.  Are you saying that it is only where the accused relies as the only possible cause of the provocation, of the sudden provocation being the change in the nature of the relationship, that subsection (3) would be enlivened?

MR COPLEY:   Yes, because he is the person who bears the onus of proof.  He is the person upon whom the obligation falls to identify the conduct or the believed conduct that he says caused him or induced him to lose his self‑control and kill his wife.  The circumstance that they have changed the onus of proof around, I would submit rather supports that contention – or to put it this way, the contention has more force now that the onus of proof rests on the defendant because in the past, provocation would be left if it was open on the prosecution case.

If the accused made a number of remarks in the course of his interview suggestive of a loss of self‑control, there may have been some ambiguity about which ones he was relying upon, but it was enough for it to be raised and then the prosecution simply had to negative it.  But now that it has been turned around and the defendant in a case has to prove it, then the starting point is he has to prove (a), that the conduct occurred or that he believed it occurred.  He has to identify what that conduct was.  It is either conduct that he believes was done to end the relationship or it was conduct that was simply, demonstrably, and obviously a reaction to the ending of the relationship that he lost his self‑control.

EDELMAN J:   Just so I understand the submission then, your submission is that if the accused in this case had said, well, it was a combination of factors – a combination of the advancing with the knife and the cutting of the palm, together with my frustration and anger at the thought that she was going to leave me, that led me to lose self‑control, that that case would not enliven subsection (3).

MR COPLEY:   I would have to say that that case would enliven subsection (3) because on the example your Honour posited to me, one of the things he said was that I believed – I lost my self-control because I believed she was going to leave me – plus the knife.

EDELMAN J:   So, in part, is sufficient.

MR COPLEY:   I beg your pardon, your Honour.

EDELMAN J:   So, a cause in part is sufficient.

MR COPLEY:   Yes, but that is because in the example that your Honour gave to me there is evidence that he said, these are the reasons, (a) and (b), that I lost my self-control and on the example your Honour posited one of them was her decision to leave.  So maybe, on reflection, I was too hasty to say there could only ever be one cause.  Of course, there can be many causes for why a person does something but sometimes there can only be one reason and in this particular case the party who bore the burden of proof only identified the one reason that caused him to lose self‑control – and that was the knife.

So we contend that, adopting what was said in Pollock about what “sudden provocation” means does lead to the conclusion reached by Justice McMurdo in his dissenting judgment at paragraph [48] on page 79 of the appeal book, that subsection (3) arises where the:

accused’s loss of self‑control was caused by –

behaviour or conduct of the deceased:

to end or change the relationship –

or where he attributes his loss of self‑control to that, or to a belief that she had acted to end or change the relationship.  It is not engaged, we say, as Justice McMurdo said at paragraph [85] of his judgment, merely if the deceased’s conduct, upon which the accused relies, also occurred in the context of a changing relationship.  The relevant connection is between the conduct of the deceased and the loss of self‑control in the sense that the former must have caused the latter.

Now, the argument is that the position, or our position, is well supported and well-illustrated by considering first of all section 304(2).  So applying what was said in Pollock, if an accused case is that words said by the deceased caused him to lose self‑control, then the onus would be on him to prove that those words were said now, and that they had the effect asserted.  If the jury was satisfied that the words said did cause him to lose self‑control, as well as satisfied that the objective test was proven, then he would have to overcome the hurdle of proving that the circumstances were extremely exceptional before murder would be reduced to manslaughter, due to a loss of self‑control caused by words alone.

But on the other hand, if the accused said that words uttered and actions performed by the deceased were the things that caused him to lose self‑control, then as long as he could prove all the elements of 304(1), he would not have to engage with the hurdle in subsection (2), because he would not be relying on words alone as causative of self‑control. 

So that, I suppose, is, out of my own mouth, an example of a scenario where there is more than one causal factor, but the example I have given focuses on identifying what it is that the accused is relying upon as causative of the loss of self‑control.  He bears the burden of proof of the defence.  He effectively, through his case, determines its parameters.

Now, we are aware that in the judgment of Justice Applegarth there was a passage where his Honour said, well, an accused person could effectively plot a path through the section by nominating this as opposed to that.  All we can say about that possibility is yes, it exists.  The same could be said in relation to self‑defence under the Code.  The accused could assert that “I was unlawfully assaulted, and I did not provoke it, and I believed, on the following grounds, which I believe are all reasonable, too, by the way, that I was about to be killed or suffer grievous bodily harm”. 

But in this particular case, we were dealing with a Samoan man who was speaking in broken English, who was speaking to the police in the back of a police car whilst his wife expired on the driveway, and these utterances were made clearly, clearly in the stress of extreme emotion by him.

EDELMAN J:   Is it your submission that the matters upon which the sudden provocation is based can only be determined by what is put by the accused person?  In other words, anything the prosecution submits must be disregarded.  Or is it your submission that in this case the prosecution did not make any case that there were matters or evidence concerning a change in the nature of the relationship which was a matter upon which the sudden provocation was based.

MR COPLEY:   The prosecution certainly contended that the relationship was changing, or had in fact changed, or was continually changing, therefore they contended that 304(3) was engaged, but they never made the link.  If that was the sudden provocation, they never articulated to the jury how something that she had done when she returned from New Zealand at the end of February by moving into the bedroom caused the loss of self‑control, they never made that link.

Their case was twofold, “subsection (3) in engaged, and the circumstances are not extreme and exceptional enough.  And also, he did not lose his self‑control, ladies and gentlemen”, was the argument.  “This was simply an anger‑driven murder by a man who had just been angry and angry for weeks.  And he had plenty of opportunity”, the argument was, “to regain his self‑control because the incident in the kitchen was separated in time from the incident on the driveway”, was the argument.

GORDON J:   Mr Copley, may I ask a question.  Is that not a submission directed to the objective limb of 304(1)?  The Crown may put its case on the basis that 304(3) applied but are not all of those matters going to, in effect, the objective limb of (1)?

MR COPLEY:   Well, they could well do so, your Honour, yes.

GORDON J:   In a sense, is that not the context in which those circumstances and the other facts and matters that might have been taken into account come to bear?

MR COPLEY:   Yes.

BELL J:   Did the prosecution make any submission that the evidence did not give rise to the defence?

MR COPLEY:   No – the defence in 304(1)?

BELL J:   Yes.

MR COPLEY:   No, they did not.  It seemed to be accepted from the off that provocation was going to be an issue because they knew the basis of the plea and the only live question, really, then became whether subsection (3) needed to be left to the jury.

GORDON J:   I am sorry to be difficult, but is that not a misunderstanding of the way 304(1) operates?  In other words, if one takes the objective limb, one of the questions for the jury – and one would expect to at least argue on this case – that it was to be put to the jury that the objective limb was not satisfied because of – to pick up Justices Edelman’s and Justice Keane’s questions – there are other matters that went into the mix.  In other words, if you take 304(1) as the requirement to be satisfied to get to sudden provocation, which is then picked up in 304(3), one has to get through the objective limb first.

MR COPLEY:   Yes, but the prosecution did not argue that his Honour should not have directed the jury about 304(1), and I think from memory that was the question that your Honour the presiding Judge asked me that gave the response that your Honour Justice Gordon then asked me to consider.

BELL J:   One might think there was, at least, an open argument that, as a matter of law, it was not open to find that a person possessed of the minimum powers of self‑control might have been so provoked by his wife defending herself from his earlier attack as to engage the partial defence but I appreciate that is not the way the matter was run.

MR COPLEY:   Well, that is right.  They did make an argument to the jury, of course, that the objective test was not met in their submissions to the jury, that an ordinary person simply would not have done this.  That was certainly an argument they advanced, and one can see that at page 45 of the respondent’s book of further materials.

BELL J:   Mr Copley, if you go to the combined appeal book at page 82 Justice McMurdo sets out some of the written directions that were given to the jury.  And if one looks at those one sees in the way the jury was directed before they came to any consideration of sub (3) it was necessary for them to be satisfied that it was more likely than not that the appellant killed his wife in the heat of passion, caused by sudden provocation, before there was time for his passion to cool and the sudden provocation there is the cutting of the hand with the knife.

They had to be satisfied that in the same situation an ordinary person might have been so provoked as to lose his self‑control and form the intent to kill or to do grievous bodily harm.  So both of those things had to be satisfied before they then got to the item numbered 7 which directed attention to whether the sudden provocation was not based on anything the deceased had done to change the nature of the relationship.

So there is somewhat of a slide on one view from the sudden provocation in paragraph 5, if one takes that to be a reference to the temporary loss of self‑control excited by the cutting of the hand with the knife, to the sudden provocation which is concerned with things that the deceased had done preceding that incident to change the relationship.

MR COPLEY:   Yes.  Yes, there is.  So, I have given the submission to the Court as to how subsection (2) would operate, if it is going to be engaged, without words alone.  Change to a domestic relationship, of course, can and probably most often would come through a combination of words and conduct and it comes to this, that if the accused’s case was that he lost his self‑control and killed his wife when she announced that she was leaving him and was packing her bags or, for example, packing his bag, the onus would be on him to prove that those words and that conduct was engaged in, that those things were the things that caused him to lose self‑control and that he killed her whilst deprived of self‑control.

Then assuming the objective test is overcome by the defendant at a trial, he would then have the hurdle of proving to the jury that the circumstances were of a most extreme and exceptional character, that his killing should be excused as manslaughter, his killing of his wife due to her leaving the marriage should be so excused.

But it was no part of the appellant’s case in this case that the deceased’s actions with the knife were actions done to end, change or indicate or foreshadow an end or a change to their relationship and it was no part of his case that he believed her actions were for any of these purposes.

Now, some might say, well, perhaps he was a simple thinker or whatever, or he was not sophisticated enough to understand that that was what was lurking behind all of this, but that is beside the point because the section speaks of was the action done for this purpose and that is what caused the accused to lose his self‑control or did he believe it to be done.  There is simply no evidence that he believed it, the action which caused him to lose self‑control, to be done to leave the relationship.

The argument is that those who constituted the majority below focus their attention on the words “is based on” and did so in such a way as to isolate those words from the rest of the expression “the sudden provocation”, and at paragraph 22 in the judgment of Justice Morrison, for example, on page 72 of the core appeal book, his Honour said:

Section 304(3) . . . “does not apply” . . . if the sudden provocation “is based on ‑

He emphasised those words in that judgment and he said:

The use of the phrase “is based” directs attention to a factual issue, namely whether the sudden provocation is, in fact, based on things done by the deceased to end or change the . . . relationship.

Well, the appellant’s contention is the sudden provocation is what the accused identifies it to be.  The difficulty with the way that Justices Morrison and Applegarth analysed the case is that it invited the jury to delve into, arguably, the thought processes or the mind of the deceased person.  Why did she take up the knife?  Was she taking up the knife as an indication of an end or a change to the relationship when there is no evidence from the deceased – as, of course, there could not be – as to what prompted her to take up the knife?  Justice McMurdo said, the obvious explanation is that it was a reaction to being hit.  So, it was to ward off a further hit, or in anger, or out of self‑defence.  Beyond that, one gets completely into the area of speculation as to what was motivating the deceased person.

So, on the majority’s interpretation of the section which concerns a defence that the accused must prove, which very importantly focuses on the reaction of the accused person to behaviour, which is looking into his state of mind as well as the objective component, on their interpretation requires the jury also to be looking into the motivations of the deceased person in an effort to determine whether or not – more probably than not – a change, or an ending of the relationship, bespoke her taking up the knife.  That, in the appellant’s contention, makes it an impossibility for the jury.  Also, how does the person, the party who bears the onus of proof, prove more probably than not that that was not the case.

EDELMAN J:   Mr Copley, can I just ask you about paragraphs 29 and 30 of Justice Morrison’s judgment on page 74 of the appeal book, which sets out the submissions that are made by ‑ or two of the submissions that are made by the prosecutor, which on one view is the prosecutor attempting to establish a link between an inference as to the basis of the appellant’s acts, and the sudden provocation.  Do you say that those submissions by the prosecutor were wrong, were not open to be made, or should have been disregarded by the jury?

MR COPLEY:   They were ones that the prosecutors should not have been permitted to make because his Honour should not have determined that 304(3) should ‑ his Honour should have determined that 304(3) was not engaged on the evidence.  She could have made submissions to the jury that, in the context of this relationship, the following things had occurred, therefore he was just an angry man, and that it was effectively a slow boil, and it was really just out of anger that he killed, that it was not out of any loss of self‑control.  She could have said, for example, the relationship had a lot of apparent reverses in recent weeks or months, she could have made those submissions but just not in the context of 304(3).

EDELMAN J:   So it was not open for the prosecution to invite the inferences that she did in paragraphs 29 and 30.

MR COPLEY:   Well, I suppose it was open because the learned trial judge said 304(3) will be left, but no, it was not open, because the judge was wrong to say that he would be leaving that provision for the jury to consider, is the answer.

BELL J:   But the matters might have been properly the subject of submission in support of the contention that the appellant had not established, on the balance of probability, that it was the actions of the deceased with the knife that caused him to lose his self‑control.

MR COPLEY:   Yes, true, correct.  And also, I should also add, just to finish my answer to you, Justice Edelman, that if it had been proper for the judge to leave 304(3), then the prosecutor’s submissions would have been ones she was entitled to make, because subsection (6) of 304 says that:

For proof of circumstances of a most extreme and exceptional character . . . regard may be had to any history of violence –

Now, assuming – and I am rushing over this really – moving your bed from the master bedroom to the spare bedroom, it is difficult to understand how that could be violence.  But if there was some antecedent act of violence or disruption between them, then that could have been relevant if subsection (3) was a matter legitimately raised on the evidence.  So the complaint all goes back to this question of whether or not it was legitimate to leave 304(3) to the jury.

GORDON J:   Just so that I am clear, in response to your answer to Justice Bell’s question you accept, do you not, that those submissions could have been made in relation to whether or not 304(1) in a sense both subjective – or really the objective limb of that had been established.

MR COPLEY:   Yes, your Honour.

BELL J:   On your construction of the provision as a whole, it will always be the case that before the jury come to a consideration of subsection (3), it is necessary to get through subsection (1), both the subjective and objective limb, and that might suggest some difficulty in this sense, that the objective limb requires the accused to establish on the balance of probability that an ordinary person might be so provoked as to lose self‑control and kill, and to take a point that I think, as was made by Justice Coldrey in a case that was picked up by the Law Reform Commission, in the 21st century to posit that an ordinary person possessed of the minimum powers of self‑control might be so provoked as to kill his or her partner because of the fact or belief that the partner was going to leave them or to change the nature of the relationship is a big stretch, that there is, on a view, some tension between the two.

MR COPLEY:   Yes.  Well, it does not seem to be a very rational reaction because why does one want to be with a woman if the woman is of the fervent belief that she does not want to be with you?  One’s days are not going to very pleasant.

BELL J:   It may be the answer, Mr Copley, that where subsection (3) arises on your argument, the likely area for debate is whether the defence is raised at all.

MR COPLEY:   Yes.  Yes, well, I mean, the prosecution could contend – one could think they could be absolutist and say to a jury, “Never, under any circumstances”.

BELL J:   The point I am raising with you is it would not get to the jury.

MR COPLEY:   No.  Yes, yes.

BELL J:   But in this case, am I right in my understanding that there was some discussion about whether subparagraph (3) was engaged, and both counsel accepted that it was?

MR COPLEY:   Well, if I can take you to page 32 of the core appeal book, his Honour produced for the jury a draft – sorry, his Honour produced for the counsel a draft of what he was going to direct the jury about.  At page 32 of the core appeal book, in speaking of what was “from paragraph 179 onwards” of the draft, Mr East said at about line 26:

my contention always was that the only sudden provocation the jury needed to consider was being armed with the knife, and that there wasn’t any 304(3)(c) issue for them to consider.

BELL J:   Yes, I see.

MR COPLEY:   So he seemed to be very firm that his Honour did not need to direct on that.  His Honour did not deliver a two‑page or a one‑page ruling on the point, but the case proceeded on the basis that his Honour considered that it was raised, and so did the Crown.

BELL J:   I see.

MR COPLEY:   The defence counsel addressed it as he could in his submissions.

BELL J:   I note the time, Mr Copley.  Would this be a convenient time for the Court to take the morning break?

MR COPLEY:   Certainly, your Honour, yes.

BELL J:   Yes.  The Court will adjourn for 15 minutes.

AT 10.59 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.15 AM:

BELL J:   Yes, Mr Copley.

MR COPLEY:   Just one final matter, your Honours.

BELL J:   Yes.

MR COPLEY:   In paragraph [154] of Justice Applegarth’s judgment at page 101 of the core appeal book, his Honour gave an example of a hypothetical case where he posited that a spouse announces that:

“I’m leaving you and nothing you can say or do will stop me”

and:

the defendant punches the deceased in the face, the deceased grabs a knife to defend herself and in the ensuing struggle the defendant’s hand is badly cut.  The cutting of the hand . . . in the context of what has gone before it, causes the defendant to kill the deceased.  In such a case, a person might say that the “sudden provocation” from the knife cut was “based on” the deceased’s act in trying to leave the relationship, in that it was the foundation –

for leaving the relationship.  My contention is that there is an elision of concepts there similar to what your Honour Justice Bell put to me in the summing‑up from the written document.  The contention is that the accused must prove more probably than not that the deceased engaged in conduct, prove more probably than not that that conduct caused him to lose his self‑control.  If it is argued or thought – and probably will not be thought unless it is argued to the jury – that some other form of conduct was what he was reacting to, then the defence will fail at the point of inquiry required by 304(1) because the accused will not have proven the conduct nominated by him and will not have proven that that nominated conduct had the effect upon him that it needs to have to make 304(1) viable.  Thank you, your Honours.

BELL J:   Thank you, Mr Copley.  Yes, Mr Fuller.

MR FULLER:   Thank you, your Honours.  If I can take up a point that Justice Edelman raised with respect to the circumstances in which there are causation of events, and it really goes to the nub of what provocation is, and I speak of provocation before the amendments to the law in Queensland, and how it was used in a broader sense. 

The issue is that provocation is emotionally based.  It is not a mechanical or mathematical circumstance.  What has been observed in the Queensland Law Reform Commission report that your Honour Justice Bell has already spoken of in the cases that they look towards, is the vexed question that when you have a domestic relationship, and a close domestic engagement between people, as to what the causative effects are of events that, in this case, ended with a homicidal rage.

So that the nub of provocation is about the acts, and again I take the point against my friend, it is not about what the appellant in this case said were the acts, it is in fact what the evidence disclosed were the possible acts for the jury to make a determination of as to what could be capable of provocation against the background of what he made statements to the police with respect to what he said was active upon his mind. 

Then we look to what the Queensland Law Reform Commission spoke of, which was around the freedom of choice of a person within a relationship, and that underlying domestic circumstances that I have already touched upon, and then whether the moral culpability has been reduced, which is what the point of provocation is, looking at the factors that acted upon a person that would justify, in the circumstances, reducing their liability, which are the words under 304(7), their liability from murder to manslaughter.  So it is a reduction about that.  The amendments which came in were a legislative response to justified concerns about domestic killings. 

Section 304(1) then looks at the change in circumstances with respect to that.  Now, I take your Honour Justice Bell’s point that 304(1) is still in the format in which it was when first enacted.  The circumstances then of the insertion of the other subsections must be viewed against the fact that the operation of 304(1) has not changed, but it speaks of the circumstances, which comes back to the acts, or the underlying evidence of the acts which may have given rise to the provocation and the loss of self‑control, and speaks of those, particularly with respect to subsection (3) and, of course, with respect to subsection (2), requiring them to be extreme or exceptional once you find what those circumstances are.  So your Honour Justice Bell spoke of it being a gateway of going through 304(1) before getting to 304(3).

BELL J:   That was in the context of the way the jury was directed and, in particular, the written directions which stepped the jury through.  Now, of course, as Justice McMurdo points out, one does not know how in fact the jury reasoned, but I was raising that in terms of an apparent inconsistency in the use of the expression “sudden provocation” between paragraphs 5 and 7 of the written directions.

MR FULLER:   I take your Honour’s point with respect to that, and the point that we wish to make with respect to that was that, looking at the way the legislation has now been structured, because there has not been a change to 304(1) it is how does 304(3) interact with that and, in fact, it does not become another element of 304(1).

BELL J:   Is it that 304(1) has no application when 304(3) applies so that, in the ordinary course, one might expect before a jury might be directed on the partial defence of provocation in Queensland it would be necessary if there was an issue for the accused to establish that 304(3) was not enlivened?

MR FULLER:   Your Honour, my response to that is that 304 is enlivened because the consideration would then be whether the provocation was exceptional or extreme.

BELL J:   If that were the submission, true.  But what I am raising with you, Mr Fuller, is whether the way this statutory scheme works is, save for a most extreme and exceptional case, the legislature has made a judgment that conduct which might otherwise be provocative but which arises in the context of the end of a relationship or action done or believed to be done to change the nature of the relationship is incapable of satisfying the objective aspect of the test.  It is a legislative judgment.  So the defence simply does not run.

MR FULLER:   The issue is, again, what is the factual basis underpinning that and then whether there is sufficient evidence to go before a jury for them to make that determination.  So in a circumstance where it is in a domestic relationship such as this, that you have evidence of what are said to be provocative acts, it would still be a matter for the jury to determine if they were extreme or exceptional, taking into account the whole of the relationship, in effect.

My learned friend has already touched upon the fact that previous acts of violence are actually specifically within the legislation to be taken into account in making that assessment.  So if we come back to the nub of “provocation” being identifying those acts and then a judgment under both the subjective and the objective tests, which were in existence at the time the amendments were made ‑ ‑ ‑

BELL J:   Mr Fuller, it is a question of law whether the partial defence is raised.

MR FULLER:   Indeed.

BELL J:   And true it is that subsection (3) allows that there may be cases of a most extreme and exceptional character.  But in cases that do not answer that description, subsection (3) cuts in at the point of consideration of whether the defence is left, surely?

MR FULLER:   Indeed, and I accept that proposition, your Honour.  So that out of the amendment, a domestic killing where there is no extreme or exceptional circumstance arisen in the evidence to be considered, the partial defence is excluded.

BELL J:   That is perhaps a rather broad way of putting – subsection (3) is concerned with a domestic killing where the loss of self‑control excited by the provocation arises in the context of conduct by the deceased to end the relationship, to change its nature or to indicate in any way that it should, will or may change or the requisite belief.

MR FULLER:   Yes, indeed.  Provided the other requirements of the section are met - or the provision are met, I was adopting your Honour’s statement as to as a matter of law that it would not be left for the jury’s consideration in those circumstances.

GAGELER J:   Mr Fuller, this might be a complete oversimplification, but it seems to me that both you and Mr Copley are saying that subsections (2) and (3) are directed to conduct of the deceased causative of the passion of the accused.  The difference between you is that he says you look only to the conduct argued by the defence to be causative.  You say you look to the conduct in fact causative.

MR FULLER:   Yes, your Honour.

GAGELER J:   Is that the entirety of the difference between you?

MR FULLER:   I think that is a fair way to describe the difference between us.  It comes down to the argument around the words “is based on” as to whether in fact that allows the broader relationship and circumstances to be taken into account as against the last – what is identified as the causative act in this case.

BELL J:   In the context of a defence in the true sense, proof of which lies on the accused, the accused says, “This particular conduct caused me to lose my self‑control and to kill while in that state”.  If there are other factors that the jury consider likely to have borne on the state in which the accused killed, then the accused’s defence fails.

MR FULLER:   Yes.

BELL J:   So surely there is some significance to the act that the accused identifies as his or her defence.  He bears the obligation to establish it on the balance of probabilities, he identifies what he says his defence is, and if the prosecution can point to other circumstances, then his defence fails.

MR FULLER:   The issue then becomes, your Honour, whether there are other defences which arise on the evidence before the jury for their consideration.

BELL J:   Other defences?

MR FULLER:   Yes, which could be another version of provocation, for example, not relied upon specifically by the accused.  So this case ‑ ‑ ‑

BELL J:   This is getting Byzantine, Mr Fuller.  You are positing that the prosecution might raise a consideration of provocation not raised or relied upon by the accused?

MR FULLER:   Well, it depends on the acceptance of the evidence raised by the accused in this case, for example, during the course of the record of interview, or his interview with the police, so that there were other factors which he stated contributed to his state of mind and other actions that contributed to his state of mind before the end result.

BELL J:   I see.

MR FULLER:   So the issue is whether the direction was required to be given if those other factors were in fact matters for the jury’s consideration, which is the broader view that has been posited by the Crown in this appeal.

KEANE J:   Mr Fuller, is not the point about subsection (3) that it is there to resolve the issue that some judges had adverted to as to whether in this day and age an ordinary person would be provoked by the other party to a domestic relationship ending it, and is not the point about subsection (3) that, whatever view might be taken of what an ordinary person might or might not be provoked to do so far as the objective limb, subsection (1) is concerned, subsection (3) is saying that if the reaction is based on – if it is a reaction to a changing of a domestic relationship, it is just not acceptable, that even if one might say, “Well, an ordinary person would be affected in that way”, subsection (3) tells you that that is just irrelevant.

MR FULLER:   Yes, I accept your Honour’s proposition with respect to that, and that follows on from the observations of the Law Reform Commission and the explanatory note with respect to it, and then it was the issue of how it was constructed and placed within the provision itself to achieve that end.

BELL J:   In the Law Reform Commission analysis are there any illustrations of cases where it is suggested that the sudden provocation might be conduct preceding the event that in fact excited the loss of self‑control, because on one view that is how this jury was directed.

MR FULLER:   The report as I have read it does not have any specifics with respect to that.  The issue is whether the focus is on the relationship or on the provocative act with respect to subsection (3) and whether there is a limitation by the use of the term “sudden provocation” based on anything, whether that is a limitation or in fact an adoption of a broader approach, being that the provocation needs to be viewed as against the background of all the other events which have occurred.

The way that this case was litigated, there were a series of events which form part of a narrative, which came across from her return from New Zealand, to his interaction with his aunt and cousin in the week before the event, to actions which actually occurred on the day that led into the events that your Honour Justice Bell spoke of earlier of where there was an argument over the contact on the phone with another male that led to an assault and then led to the confrontation which occurred in the kitchen, and whether the provocative acts, as Justice Edelman identified earlier, where there were a number of causative acts that led to that.

Perhaps, if I can direct your Honours’ attention to the appellant’s material and the actual account which was given and recorded, which your Honours will find in the core appeal book, on page 14 of the appellant’s material.  It is a transcript of the recorded interview.  When I say, “recorded interview”, it was not actually an interview; it was a recording which was made at the time whilst he was in police custody and then receiving treatment.

This perhaps helps to frame the circumstances that were being confronted at the time.  If I can direct your Honours’ attention to line 10 on page 14, you will see that he is speaking to his mother at this time and this is his first contact with her after the incident has occurred and police have arrived.

His statements are with respect to her cheating and him being angry and swearing at the children.  Then your Honours will find that he returns to that topic on page 17 of the core appeal book of the appellant’s material, when he is asked by the police officer the first time what has happened.  Again, the reference is to the cheating, that he cannot stop and to the telephone.  He again makes mention of her swearing at him and the children.  The knife is first mentioned at the top of page 18.  Your Honours will see at about line 30 on that page he speaks of trying to protect – there is an “indistinct” recorded – then he got cut on the hand:

And I grab the knife and I do to her.

I adopt my learned friend’s observation about his nationality and his linguistic abilities.  He makes reference again to the knife on page 27, when he is spoken to the QAS officer with respect to how he suffered the injury, and he indicated that his wife had the knife, that he tried to take it away when she pulled it away, and that is how he suffered the injuries. 

Whilst I do not wish to belabour the point, I can indicate to your Honours, if your Honours would look at page 36, the very last line, he is asked by the police officer again, how did it start?  Your Honours will see on page 37, he speaks of the long‑term cheating by her with respect to him, and that he could not stop her.  He is then asked specifically by the police officer, at line 45:

What kicked it all off tonight?

Again, the reference is to the use of the telephone. Then on page 39 he continues the narrative of being at his “aunty’s house”.  He speaks of the argument, and then striking her, and he hurt his hand during that, then he speaks of trying to take the knife off her and suffering the injury to his hand. 

Of particular interest, page 44, he is talking about what happened when they came into the kitchen, and that was when he felt something in his hand that made him more and more angry, but he acknowledged that he was angry before that occurred.  Then there is the passage that was referred to by my learned friend, which was extracted in the record of interview, on page 45, where he said what was on his mind at the time was that he wanted to kill her.  Then at the bottom of page 45, the police officer then adopts that statement and puts it back to him:

You got a cut on your hand?

I feel my hands –

was his response:

Pain’s really –

Then the officer says:

And then your mind, you were like, well I’m, I’m gonna kill her, is that right?

He then adopts that.

BELL J:   The critical part, I think, from the appellant’s point of view was on page 49, in the middle of the page, referring to how he had become “more angry” with the cutting of his hand and his statement:

I can’t stop.  I can’t stop that time.

MR FULLER:   Yes.

BELL J:   That is, as I understand it, the peg on which the defence was run.

MR FULLER:   Defence was run - and it has to be viewed against the other evidence with respect to it, and then the acceptance by the jury of whether those acts actually occurred, as described by him.  Then applying both the subjective and objective features with respect to it and then the determination as to whether 304(3) was engaged, by whatever factual finding they made with respect to it.

In the Crown submission that included – is based on anything, being a broader approach that encapsulates all of those matters that I have just taken your Honour through, which are supported in part by the evidence of both the auntie and the cousin, which are extracted in the book.

BELL J:   How does that submission relating to the words “based on” marry up with subsection (2), which is concerned with provocation:

based on words alone ‑ ‑ ‑

MR FULLER:   Your Honour, in my submission, analogous to that would be a series of words which are spoken over a period of time, which leads to the provocation, which is acknowledged.

BELL J:   But the defence simply does not run, save in a most extreme or exceptional case, where the conduct that excites the loss of self‑control consists of words – whether they are words expressed over a period of time or whether it is words expressed shortly before the killing.

MR FULLER:   Correct, your Honour, I accept that.  The issue is in the interpretation of the final words that the previous conduct or relationship or interaction is required to be viewed, if the conduct is by words alone.  So the adoption of sudden provocation, again we are focused on what was the provocation, what evidentially gave rise to that provocation?  As recognised by a number of decisions of this Court, the circumstances which predated the final straw argument need to be taken into account for both the subjective application and then the latter objective application with respect to it.

BELL J:   But that applies to subsection (1).

MR FULLER:   It does.  But again the Law Reform Commission was looking at the issue of whether the statute followed the common law, and whether the statute in fact or the decisions of the court in Queensland had followed the other courts with respect to “words alone”.

BELL J:   I think the Commission accepted the analysis of the Court of Appeal in Buttigieg that the predominant view in Queensland was that 304 is understood in the context of the common law partial defence and it accepted that speaking generally words alone do not suffice to support the partial defence.  The matter I am raising with you is the recommendation – the Law Reform Commission’s recommendation adopting the analysis in Buttigieg respecting words alone uses the expression “based on” in conventional terms to refer to whether or not the loss of self‑control is excited by the words. 

MR FULLER:   The other observation that they made was that despite that being the common law there were still cases in Queensland where it was being left on “words alone”.  So, the use of “sudden provocation” in that section and “based on” the only argument I can raise is that it is the broader view of the cumulative effect and, therefore, words which were spoken for put into context the words which were later spoken as the basis for it and that it then follows in 304(3) that issue of relationship is acts which have occurred before.

GAGELER J:   Which are themselves causative or in part causative of the passion?

MR FULLER:   Yes, yes.  So, to return to how I started my submissions, the issue is untangling a relationship and the interactions of persons within a relationship which was the issue that the Law Reform Commission were looking towards and rather than removing that entirely, the proposition that provocation would not apply in a domestic relationship, they have structured a provision to embrace that and, as Justice Keane identified with respect to the objective test of changing, effectively, how the objective test is applied in those circumstances, if those other factors within the provision are met.  That was the finding that Justice Applegarth made in the purposive approach to the section.

BELL J:   The matter was left on the basis that the jury might find that the deceased’s conduct in raising the knife was an act done to signify her intention to change the relationship.  Does the prosecution support that analysis, that it was open to the jury to find subsection (3) engaged on that basis?

MR FULLER:   The issue is whether that act is viewed in isolation from what came before it in responding to that.

BELL J:   I am directing attention to the way the jury was directed, and the jury was directed that, on one view, they might find the defence did not apply because they might conclude the raising of the knife was an act done to signify the deceased’s intention to change the relationship.

MR FULLER:   Against what had occurred in the lead‑up to that production of the knife occurring, in my submission, yes, because there is now a violent act which has occurred between them and she has armed herself in the circumstances of that.

BELL J:   That is not the way they were directed.

MR FULLER:   No, I understand that, your Honour.  But they were directed with respect to the way the defence was put – that is, that if it was not considered a change in the relationship and it was viewed as a provocative act, then the Crown arguments fell away in the direction that was given.

BELL J:   Can I ask you this, Mr Fuller.  In the Court of Appeal the prosecution submitted that even if there was an error in the directions relating to subsection (3), the appeal might be dismissed under the proviso.  Justice McMurdo, in his Honour’s dissenting reasons, addressed that issue and I infer from his Honour’s analysis that the way it was suggested the proviso might be engaged was that the jury working through the written directions must have been satisfied – I withdraw that. 

I think his Honour’s point was that one cannot determine how the jury reasoned to the conclusion, ergo, one could not be satisfied that the jury did not go to a consideration of subsection (3) and, in particular, a consideration that the knife was raised as a gesture to signify the end of the relationship.  That was his Honour’s analysis.

MR FULLER:   That is my understanding of the analogy, yes.

BELL J:   Was it ever put on the admitted circumstances that the accused struck his wife to the face with a punch that caused the mouth to bleed and that she, thereafter, retreated and took hold of a knife, whatever she did with it, that on the objective test, it was not open to find provocation under 304(1) was established?

MR FULLER:   Well, that was the primary submission at trial.

BELL J:   But that was not the way the matter was put in the Court of Appeal.

MR FULLER:   There was argument in the Court of Appeal with respect to that, but the focus was on the misdirection, what was said to be a misdirection, and the impact of the misdirection with respect to that.  Therefore the only argument was that if it was a misdirection, that the case was such that it did not cause a miscarriage with respect to it.

BELL J:   Yes, and that is the way the matter is put in this Court.

MR FULLER:   Yes.  Unless there is anything further that your Honours wish me to address?

BELL J:   Thank you, Mr Fuller.

MR FULLER:   Thank you.  I will just do my housework.

MR COPLEY:   I have nothing in reply, thank you.

BELL J:   Thank you, Mr Copley.  The Court will reserve its decision in this matter. 

Adjourn the Court to 9.30 am tomorrow in Sydney.

AT 11.49 AM THE MATTER WAS ADJOURNED