Pollock v The Queen [2010] HCA 35 20 October 2010 B14/2010
ORDER
1. Appeal allowed.
2.Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 11 September 2009 and, in lieu thereof, order that:
(a)the appeal to that Court be allowed;
(b)the appellant's conviction be quashed; and
(c)a new trial be held.
On appeal from the Supreme Court of Queensland
Representation
S J Keim SC with A E Cappellano for the appellant (instructed by Legal Aid Queensland)
M J Copley SC with J A Wooldridge for the respondent (instructed by Director of Public Prosecutions (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Pollock v The Queen
Criminal law – Defences – Provocation – Elements of provocation – Meaning of "sudden" – Whether accused's loss of self-control must immediately follow provocation – Scope of objective test – Whether there exists a discrete requirement that accused must commit fatal act before there has been time for loss of self-control to abate.
Criminal procedure – Directions – Use of model directions – Duty to frame directions by reference to issues.
Words and phrases – "loss of self-control", "sudden provocation", "time for passion to cool".
Criminal Code (Q), s 304.
FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ.
Introduction
The appellant was convicted of the murder of his father following a trial before the Supreme Court of Queensland (Atkinson J and a jury). The sole question at the trial was whether the Crown had excluded the reasonable possibility that at the time the appellant did the act causing death he was acting under provocation.
Provocation, as a partial defence to murder, is provided in s 304 of the Criminal Code (Q) ("the Code"), which states:
"When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for the person's passion to cool, the person is guilty of manslaughter only."
This was a retrial. The appellant had been convicted of the murder of his father following an earlier trial and his conviction had later been set aside by the Court of Appeal[1]. The judgment of the Court of Appeal set out seven propositions, any one of which, it was said, if proved beyond reasonable doubt, would exclude that the appellant had been acting under provocation. Those seven propositions were stated as follows[2]:
"1.the potentially provocative conduct of the deceased did not occur; or
2.an ordinary person in the circumstances could not have lost control and acted like the appellant acted with intent to…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Pollock v The Queen [2010] HCA 35
Case
[2010] HCA 35
Decision Date
CaseChat Overview and Summary
The appellant, Pollock, appealed to the High Court of Australia against an order of the Court of Appeal concerning his conviction for murder. The central dispute revolved around the legal directions given to the jury regarding the partial defence of provocation. Pollock contended that the sevenfold test for provocation, as applied by the trial judge, was legally flawed, particularly its fifth and seventh propositions, and that it unfairly encouraged the jury to consider these elements in isolation rather than as part of a composite concept.
The High Court was required to determine whether the sevenfold test, as applied in the directions to the jury, constituted a misdirection in law. Specifically, the court had to consider if the individual propositions within the test were presented in a manner that could lead the jury to wrongly conclude that provocation was not established, thereby prejudicing the appellant's defence.
The Court reasoned that the sevenfold test, when presented in a way that invited the jury to consider each proposition discretely, risked misapplying the law of provocation. The defence of provocation is a composite concept, and the jury should have been directed to consider the elements in an integrated fashion. The trial judge's directions, by focusing on the distinctness of the fifth and seventh propositions, may have led the jury to overlook the cumulative effect of the deceased's conduct and the appellant's subjective state of mind. Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.
Orders
Orders of the court
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Background
Background to the litigation
The appellant appeals by special leave against the order of the Court of Appeal on the ground that the directions incorporating the sevenfold test were wrong in law. He contends that the fifth and seventh propositions are not discrete requirements of the partial defence. More generally, he contends that the sevenfold test unfairly invited the jury to consider each proposition in isolation and not as interrelated parts of a composite concept. As these reasons will show, the sevenfold test was apt to invite the jury to wrongly conclude the issue of provocation against the appellant and for this reason the appeal must be allowed, the appellant's conviction set aside and a new trial ordered. The facts of the killing The deceased was killed shortly before 6.00am on Saturday 31 July 2004 at his home in Morayfield. His body was found lying face down in the garden. A large rock was nearby, which appeared to have been removed from a retaining wall about two and a half metres away. The vegetation surrounding the body was trampled and was suggestive of a struggle having taken place in that vicinity. The deceased died from head injuries. Severe force was required to have caused them. They could have been occasioned by between two and eight blows. It was likely that the deceased was standing upright at the time the first blow was delivered. There were signs that a struggle had taken place inside the house. In the appellant's bedroom there was a quantity of blood staining, and beads from a necklace that he had been wearing were scattered on the floor. The string of the necklace was found in the passageway near the front door. There were also blood stains in the bathroom and on a wall near the front door. At about 5.50am the deceased's neighbour, Gerry Hart, called the 000 emergency number. He had been awakened by the sound of a dog barking. After he opened his front door he heard groaning and a voice saying, "Gerry, ring the police". Shortly after 6.00am the appellant telephoned the 000 emergency service, saying that he had killed his dad. Ms Spottiswood, the appellant's companion on the night preceding these events, also made telephone contact with the 000 emergency service. When the police arrived at the home they found the appellant sitting in the shower crying. The police spoke with Ms Spottiswood, who gave an account that she had woken to hear "like arguing and fighting in the bedroom". She said that they were "pounding" on each other and that they dragged "each other" outside. At the time of the trial, Ms Spottiswood was suffering from a serious mental illness and she did not give evidence. However, the recording of her interview with the police was in evidence. Ms Spottiswood was the only person at the Morayfield home at the time of the killing, apart from the appellant and the deceased. In an interview with the police the appellant said that he did not remember what had occurred and that he suffered from blackouts when he drank too much. He said that the deceased had been a "fucking cunt to me my whole life. Oh, no, fucking snapped me last night – I don't know, he just fucking – I don't know what he did, but – I don't know what I did."
Evidence
Evidence Before The Court
The appellant did not give or call evidence at the trial. The evidence raising provocation The following is a summary of the evidence, much of it not in dispute, upon which, in addition to the facts set out above, the partial defence of provocation fell to be determined. The appellant had been living with his girlfriend, Lindsay Brownlie, for around two and a half years at the time of these events. Two weeks before the killing he had lost his job. He was depressed by this setback and he and Ms Brownlie quarrelled. He packed some clothes and went to his father's Morayfield home on Wednesday 28 July 2004. He was distressed by the break-up and in a tearful telephone conversation with Ms Brownlie on Thursday 29 July he complained that she had not treated him fairly. She went to the Morayfield home and stayed the night with him. On Friday 30 July the appellant telephoned Ms Brownlie and suggested that they go out together. She said that she had quite a bit to do and declined the invitation. Later that evening Ms Brownlie and a friend, Megan Bray, accepted an invitation from the appellant's brother, Graham, to come over to the Morayfield home for a drink. The deceased was at home and he joined the group. He consumed a substantial amount of alcohol during the evening. The appellant came home in the early hours of the morning with Ms Spottiswood, a young woman whom he had met earlier in the evening. He was surprised to find Ms Brownlie in the house and the situation was awkward. After a time the group broke up. The appellant and Ms Spottiswood retired to the appellant's bedroom. Ms Bray and the deceased went for a walk and Ms Brownlie and Graham Pollock went outside and talked in the garden. Some time later the appellant came out of the bedroom and confronted Ms Brownlie in the garden demanding that she leave the premises. She went back inside the house leaving the appellant and Graham talking together in the garden. They discussed their childhood and the deceased's abusive behaviour towards them. They spoke of occasions when the deceased had flogged them. The appellant told Graham of an incident when he was a small boy when the deceased had sexually abused him. He complained of his physical resemblance to the deceased and that he had "the Pollock gene". He spoke of killing his daughter because she, too, looked like the deceased. He said that he should wait on a bridge and "throw a rock through [the deceased's] fucking window". In the early hours of the morning there was a hostile discussion between the appellant and the deceased in which the deceased told the appellant to "fuck off" and that the appellant was "the only one with the problem". The appellant replied to this jibe by referring to his lost job and to having come home to find his ex-girlfriend in the house. During the course of the morning Ms Bray went into the deceased's bedroom and lay down. She was on friendly terms with the appellant and had acted as his confidante. The appellant followed her into the bedroom and he warned that "if the bastard touches either you or Lindsay, I will kill him".
Decision
Reasons for decision
FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ
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Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ