Pollock v The Queen

[2010] HCATrans 161

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B14 of 2010

B e t w e e n -
ANDREW MURRAY POLLOCK
Appellant
and
THE QUEEN
Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 23 JUNE 2010, AT 10.18 AM

MR S.J. KEIM, SC: May it please the Court, I appear with my learned junior, MS A.E. CAPPELLANO, on behalf of the appellant. (instructed by Legal Aid Queensland)

MR M.J. COPLEY, SC: If the Court pleases, I appear on behalf of the respondent with my learned friend, MS J.A. WOOLDRIDGE. (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ: Yes, Mr Keim.

MR KEIM: Thank you, your Honour. We are at some pains not simply to go back over our submissions. I should perhaps check that the Court got the additional material that was requested.

FRENCH CJ: Yes, we have, thank you.

MR KEIM: Without going back over all of the submissions we wanted to note that the passage of the reasons in the first Pollock appeal, which gave rise to the passages in the summing‑up complained of, is at paragraph 19 of our outline. We will take the Court to the passages in the summing‑up that are complained of in due course. We would mention that we have complained of the summing‑up in three respects which, in our written outline, we have headed as “Masking the interrelationship” - that commences at paragraph 30, “Suddenness” commencing at paragraph 38 and “Regaining control” which commences at paragraph 45.

Those three sets of arguments relate respectively to the whole approach of the sevenfold test of which we complain, and which was laid down in the first Pollock appeal, which can be seen at paragraph 19 of our outline. The second refers to the fifth step, which asks the question of the jury, was the loss of self‑control sudden and the seventh step, which in the context of the sixth step addresses issues of regaining control, and which we say adds an extra element which the jury would have had no real option but to consider as adding an objective element to the test of regaining control.

FRENCH CJ: I am losing your voice a little bit when you are speaking down into the lectern, Mr Keim.

MR KEIM: Sorry. Did your Honour want me to repeat any aspect of that?

FRENCH CJ: No, no, that is fine, thank you.

MR KEIM: There is probably some artificiality in breaking them up into those three sections and since – we tend to go through the cases in what we intend to say this morning – we will perhaps skip a little from one aspect, or one argument, to the other. What we wanted to do in commencement was to ask your Honours to look at Parker, a decision of this Court on provocation that goes back in time somewhat. The case is found in our learned friend’s bundle of authorities behind tab 13.

Now, our learned friends referred to Parker in their outline, and we responded in our reply submissions, particularly at paragraph 9 where we set out from Sir Victor Windeyer’s reasons in Parker a passage from the History of Criminal Law by Sir James Fitzjames Stephen, and one can see articles 245 and 246 set out there. The reason why we thought that that was of assistance is that it provides an analysis of the common law approved by Sir Victor Windeyer at about the time that the Queensland Code was enacted, that is, Sir James Stephen’s document was published in 1877 and the Code was enacted in 1899.

The particular extract from Sir James Stephen’s work indicates, in our submission, one of the reasons why Sir Garfield Barwick later in Johnson stressed the interrelated nature of the principles which go up to the make the defence of provocation. This is because Sir James Stephen’s work shows, particularly if you look at those two articles, there are matters of degree and judgment involved in the defence of provocation that cannot be properly grappled with, particularly by a jury, by separating those concepts and asking a series of yes/no questions, so we say Parker is of assistance for that reason, but we wanted to take your Honours to a number of other passages in Sir Victor Windeyer’s judgment because they provide further assistance, we say, with regard to understanding the defence of provocation.

HAYNE J: With a view to showing what proposition that you say is engaged in this appeal?

MR KEIM: Yes.

HAYNE J: What is the proposition that is engaged in this appeal that we should look for or understand as revealed by what Justice Windeyer says?

MR KEIM: We say two propositions, your Honour, particularly the interrelated nature, but also the way in which the timing issues are regarded as matters of fact and degree. One of the interesting things about Parker is you could perhaps describe it as a reverse version of Chhay and Ahluwalia in the sense that it involves a lengthy period of time, at least two hours on the particular day during which the provocation occurred, but rather than being a case about the powerlessness of a woman in a marriage who is subject to mistreatment by her husband, it actually is one of the more traditional aspects of provocation which is seen in the history of the development of the defence and that in this case it is the reaction of a male in a marriage to his wife’s actions with regard to whose company she preferred at that time.

HAYNE J: Now, I understand you say this goes to the issue of provocation in this case, but at the factual level what was the aspect of the issue of provocation that required consideration of matters of the kind that we about to learn from Parker, if you are ever allowed to get to Parker before I stop asking questions?

MR KEIM: The concern in particular is the emphasis on suddenness in the way in which the defence was put to the jury and the fact that suddenness was put to the jury in the absence of any reference to premeditation. One of the things that Parker and the other older authorities show is that the whole importance of the phrase “sudden and temporary” where it is used in the cases is for the purpose of distinguishing a provoked killing from a premeditated killing.

So we say that in the light of Masciantonio there is no need to refer to suddenness as part of the defence of provocation, but to refer to suddenness in the absence of saying, well, that is for the purpose of distinguishing from a premeditated killing, then the reference to suddenness is not only pointless but positively damaging to the appellant’s chance of a fair trial because it separates the whole raison d’être of suddenness from the way in which it was put to the jury.

CRENNAN J: Is it your contention that a temporary loss of control does not necessarily involve a sudden loss of control?

MR KEIM: Yes, it is, and we say temporary was not referred to in the summing‑up and it was not referred to by the Court of Appeal in the first Pollock appeal. We say that if one took the concept of temporariness and made that into an element of the defence in the way that suddenness was it would have the same misleading effect because temporariness and suddenness to the extent that they are referred to in the authorities are concepts which in the particular case have issues of variation and relativeness, and that is one of the things that Parker makes very clear.

FRENCH CJ: As I understand it, having a look at paragraph 9 of your submissions in reply to which you took us, apart from promoting, as you just explained to Justice Hayne, if you like, the holistic approach to provocation rather than a tick box direction, you have a specific complaint about item 5 in the seven‑point direction ‑ ‑ ‑

MR KEIM: We do.

FRENCH CJ: ‑ ‑ ‑ that is that suddenness is used to qualify loss of control, and to suggest therefore to the jury that the loss of control must be sudden, and your proposition, as I understand it, is that the words “sudden provocation” in section 304 do not import that requirement, and is that what you rely on Parker for?

MR KEIM: That is what we rely on Masciantonio for, as direct authority.

FRENCH CJ: Yes.

MR KEIM: Can I just add to your Honour’s summary of our proposition there that it is particularly the fact that suddenness was put to the jury as a requirement of the defence of provocation without any explanation. The damage would be much less, we say, if the sorts of considerations that come from Chhay, that come from Parker, were explained, that you can use the term “sudden” and it may not be an inappropriate description in some circumstances but you have to understand that it is used in a very particular way with the relativeness of the concept contained within it and ‑ ‑ ‑

BELL J: I am sorry if I interrupted you, but it was just to inquire, in this case the jury did ask a question concerning suddenness and the trial judge gave a direction, which as I understand did not attract any complaint on either side of the record. What do you say to the adequacy of her Honour’s direction in response to the question?

MR KEIM: We say that it aggravated matters, and in saying that we are contrary to his Honour Justice Keane in the Court of Appeal because his Honour said, well, that has solved all the issues with regard to suddenness, but we say it aggravated matters in two ways, your Honour. Firstly, it added the concept of immediacy. Justice Keane said, well, the dictionary definition as it was read out referred to unpremeditated therefore all problems were solved, but the overwhelming impact of reading that dictionary definition was that it gave a very strong indication because there is a number of synonyms of immediacy used in that further direction, so it not only became suddenness with perhaps some concept of relativity in it, but it also gave rise to immediacy as being the requirement, and we say that aggravated it.

BELL J: I will just note that the question and the direction are at appeal book 309 and 310.

MR KEIM: Can I use that, your Honour, to also take you to page 309? Can I say with regard to the fact that there was no complaint, that there are some matters, and I take responsibility because I was lead counsel below, there are obviously some matters in which this case could have been better conducted below, but we say obviously that that should not prejudice our client in that regard. At lines 30 to 40 on page 952, there is a further aggravation contained there which we have not referred to in our outlines. It says:

Now, loss of self‑control – it can’t be an absolute state where there’s no control at all, but rather it’s a matter of degree –

That is fine because the question was about loss of self‑control as well as about sudden, and then her Honour went on to say:

a decision to kill made in a state of intense emotion induced by the conduct of the deceased.

So it is not an absolute state where there is no control at all. We do not complain about the literal wording of that, but taken with the two questions together and the provision with regard to suddenness that does also tend to suggest that it is not only the loss of self‑control that should be immediate, but also the decision to kill.

Since the facts of this case were, and the facts are not well known, but the case that we said the Crown could not exclude was that the appellant was attacked by the deceased in his bedroom and then there was some movement of the fight out to the garden bed where the killing occurred, that if the jury took from that combined set of redirections that the decision to kill had to be made in a state of intense emotion and immediately, then there was no chance that they could find that the defence had not been excluded. So there is an unhappy coming together of those two submissions, so we indicate that that is a further aggravation.

BELL J: If one were to accept, for present purposes, that it may be undesirable to isolate, as it were, as a separate element this question of suddenness in the way that the sevenfold test does, if one were to accept that for present purposes, I have some difficulty seeing on the facts of this case where the difficulty is said to lie. The factual case that the jury was dealing with was one where it was said the provocation derived from the father coming in to the appellant’s bedroom in a rage and commencing to fight with him. Is that so?

MR KEIM: That is correct, yes.

BELL J: And that the fight continued.

MR KEIM: Yes.

BELL J: One can see in a case such as Masciantonio where you have two distinct episodes in the events leading to the death of the deceased an issue on this suddenness point, but where factually do you say there was room for this form of direction to occasion a miscarriage?

MR KEIM: Well, certainly our argument to the jury was and would have been in line with the way in which your Honour has characterised the scenario, and we have indicated this in our reply outline, but the submission of the Crown below -, and it might be useful to take your Honours to those passages - was on the basis that that scenario had been negatived by the Crown, that there were other scenarios which allowed potential interruption to this single progression, and the Crown submitted very strongly that it was not something that happened suddenly. In fact, the Crown eschewed any reliance on premeditation. It was on the basis of that eschewal that the reference to premeditation was taken out as an example.

We would say that premeditation is not an example of why suddenness is an issue. Premeditation is the whole reason for being of, so the submissions below by the Crown were that it did not happen in that way. There were lots of opportunities for a delay to occur. The Crown relied on what was said by the appellant to his partner at the prison, which we suggested just did not fit the physical evidence as part of that. I am just trying to find my notes with regard to those passages.

Can I take your Honours to page 794 – this is in the further additional material that addresses the Crown – of the Court of Appeal outline, so they are the numbers at the bottom of the page between lines 40 and 50, and the need to go and get the rock was part of what the Crown relied on. The learned Crown Prosecutor was not addressing suddenness there, but that is part of what he relied on to say that were delays.

FRENCH CJ: Well, there was also the element of deliberateness in having to pull the rock out of the wall.

MR KEIM: Yes, and as we said in our address below, it seemed that the learned Crown Prosecutor had actually got the wrong wall and the one that he was referring to where the rocks were quite fixed was not in fact where the evidence suggested that it came from. But then the fifth element is addressed at the top of page 796 - if your Honours would start reading from the top - but I will come back to the passage between lines 10 and 20. What I wanted to draw attention to in those lines is the reference to a “slow boil”.

Now, I think we said this in our reply, there is some irony in that because that is exactly the sorts of things that were referred to by Sir Victor Windeyer and by Lord Morris in the Privy Council in Parker that a “slow boil” does not mean to say that there has not been a sudden loss of self‑control. But then the learned Crown Prosecutor, you will see between lines 20 and 30, relies on the scenario - the appellant said in his record of interview said that he had no recollection and then he gave this fragmentary recollection to his partner four days later and we said that that could not be right, it must have just been him trying to remember things that he did not remember.

But the learned Crown Prosecutor says that you do not have to conclude that the fight started in the bedroom and then went quickly out the front door to the garden. You have this interlude in the bathroom where the deceased has locked himself in the bathroom and effectively the appellant is banging on the door. Then the deceased has climbed out the bathroom window and then the appellant has gone outside, and then he also relied, you will see between lines 20 and 30, the technical evidence was that the handprint was consistent with somebody steadying themselves as they went out through the front door, but the learned Crown Prosecutor said that that is much more likely to be dealt with as somebody who has got time, who is standing there and wiping blood off their hands.

FRENCH CJ: Was the Crown case as put to the jury in relation to provocation put to the jury on the basis that the only scenario was that which involved the appellant going in to the bathroom?

MR KEIM: Yes. The answer to that question is yes.

FRENCH CJ: They did not attack provocation as a sort of fallback scenario of the kind that you were putting about from the bedroom to the front garden.

MR KEIM: No. It is not absolutely clear from the Crown address that that is what it was.

FRENCH CJ: It just looks fairly unequivocal at 796, I think.

MR KEIM: Yes, and what the learned Crown Prosecutor said – I do not think it is on that page, it is in the passage that I will take you to after the break ‑ ‑ ‑

FRENCH CJ: Sorry, it is the father who went into the bathroom, not the appellant, yes.

MR KEIM: The father went to the bathroom, yes. One of the things the learned Crown Prosecutor relied upon was the absence of evidence of footprints in the dew indicating that there was a struggle. There was actually no evidence as to whether there were such footprints or not, but the learned Crown Prosecutor suggested that because there was no evidence, then that was another reason why the direct route could be discounted by the jury.

FRENCH CJ: But the Crown’s argument about sudden loss of control by the appellant was being put in the context of a scenario in which there was this interlude where the father goes into the bathroom and then out the window.

MR KEIM: Yes, yes. The learned Crown Prosecutor recommenced his submissions to the jury at page 803. The first 40 lines involved a correction of a misstatement of the evidence that we had complained about. Then at about line 45, the paragraph that starts:

As I was saying yesterday, the things that, as it were, point to this matter that this man did not lose self‑control and that he did have time and so on were that hand swipe and the position of the body and where that stone came from.

Then the learned Crown Prosecutor, to the bottom of that page and the balance of the next page, discusses those issues. It is not quite as clear that he is addressing suddenness, but he is developing the same arguments. All the way up to page 807, line 50, your Honours will find assistance in terms of the way in which the Crown case is put below.

BELL J: Well, amongst other things, the Crown case was put on the basis that the deceased had been hit from behind in the garden.

MR KEIM: Yes.

BELL J: - - - in circumstances in which the Crown was suggesting that the physical evidence was inconsistent with a loss of self‑control, were they not? This is at 806, between 10 and 25, or so.

MR KEIM: Yes. As I understood, that part of the Crown submission, what the learned Crown Prosecutor was saying was you can conclude, beyond reasonable doubt that this man was on the ground, not moving, when he received the fatal blows. Therefore, there was this further period of time during which the appellant had to go away, had to prise a large rock from a very secure rock wall and come back and strike and that was more than sufficient time to regain self‑control at least.

But the temporal elements do telescope one into another, and certainly, the learned Crown Prosecutor did not try to separate them very clearly, but that was certainly part of the Crown’s case that the jury would find that there was the interlude in the bathroom and there was this third interlude while the deceased was lying face down. Does that answer your Honour Justice Bell’s question?

BELL J: I am not sure, Mr Keim. I must say from a brief reading of the Crown Prosecutor’s address, it was not clear to me that this was a case where the Crown had tied itself to the bathroom mast as the means of negativing provocation, that is, it was not clear to me that the Crown was tying itself to the account given to the girlfriend, Ms Brownlie, of the deceased going into the bathroom. It seemed to me the Crown was addressing on a number of propositions.

MR KEIM: That is exactly right, if I may say so, which made the conduct of the trial below very difficult. It is obviously not part of what we were granted special leave for, but the Crown case was hard to tie down. But, certainly, the reference to the bathroom scenario was certainly addressed to sudden loss of self‑control.

BELL J: When you say the Crown case was hard to tie down, it was not in issue that the appellant’s act caused the death of the deceased. There was some evidence that after the other people had left the house, there was a fight between the deceased and the appellant.

MR KEIM: It was not conceded by the Crown, though, or it was not conceded that it happened in the bedroom and that it was an attack by the – I mean, the learned Crown Prosecutor addressed on all seven steps of the sevenfold step test, but, yes, the evidence pointed very clearly to at least the likelihood of the appellant having been attacked by the deceased in the appellant’s bedroom.

BELL J: There was the account given by the appellant to the police that he must have snapped, or words to that effect?

MR KEIM: Yes.

BELL J: It was that material that gave rise to the need to negative provocation?

MR KEIM: Yes, and also the emotional state of the accused afterwards, the fact that he appears to have stayed outside for 10 minutes, he appears to have vomited some fluid and he appears to have come in and rung up triple 0 immediately. So we thought it was a strong case on provocation, but certainly that was not conceded at any point or in any way by the Crown below.

CRENNAN J: I noticed in your address to the jury you relied, in respect of many of the steps of the seven‑step direction, on the emotion immediately afterwards as a very important factor. I notice at 810 between lines 30 and 40 the Crown seems to accept that it was a crime of passion, that it just was not a passion that was caused by provocation.

MR KEIM: Yes. Again, that probably goes back to the difficulties of tying down the Crown case below.

HAYNE J: Just as to this notion of “tying down the Crown case”, can I just explore that a little further with you. The evidence at trial raised at least the possibility of a fight in the bedroom?

MR KEIM: Yes.

HAYNE J: The evidence at trial revealed undoubtedly where the deceased was killed?

MR KEIM: Yes.

HAYNE J: There was other evidence which bore upon but did not reveal with any clarity what occurred between those two points?

MR KEIM: Yes.

HAYNE J: How can the Crown tie itself to a particular explanation if, as was quite properly the case here, the defence does not?

MR KEIM: No, we accept that both the defence and the Crown had the same difficulty that ‑ ‑ ‑

HAYNE J: The point I seek to have you examine is whether the apparently pejorative expression “the Crown did not tie itself to a particular case” really should have any pejorative overtones or simply reflect the fact that this was the state of the evidence and the state of argument in the trial, be it so?

MR KEIM: We would say this, for example, if the Crown relied on the trip to the bedroom, then – sorry, the locking of the bathroom door and he escapes through the window – that seeing the Crown had to negative provocation beyond reasonable doubt, then we would have expected all of the submissions to have been directed to that scenario, but at times the Crown seemed to rely on that scenario and at times it seemed to shift from it. It did not really say, for example, going back to the passage that your Honour Justice Bell identified, it was a crime of passion, it just was not a passion caused by provocation. It is difficult to understand exactly what the Crown is asking the jury to conclude with regard to that.

It seems, from what went before that, that the learned Crown Prosecutor was saying that a particular thing happened and then the appellant was overtaken by a desire for revenge for everything that had happened in his life. But we do not quite understand how that does not amount to provocation. That is part of what we complain of in saying that, but we do not complain of it here as a ground of appeal. We simply describe those things to the Court so that the Court can understand, going back to this issue of suddenness, why, as our learned friends submit here, it was not simple for the jury to say, well, it does not matter if it was loss of self‑control, needed to be sudden. It does not matter that if loss of self‑control had to be immediate, the facts clearly showed that it did satisfy those contentions.

Because the propositions were unclear below and because that question of immediacy was challenged by reference to the various scenarios, then we say this Court cannot simply accede to our learned friends’ propositions here and say, well, it does not matter whether the fifth proposition of the sevenfold test is right or wrong, it would not have been a problem for this jury. That is why we raise those matters. Shall I go back to Parker or was there some further questions arising out of that? Justice Bell?

BELL J: I think, Mr Keim, on more than one occasion, the way you put the matter to the jury, you referred to the sevenfold test, it having been common ground that the jury would be directed in conformity with it, but you pointed out to them that the real issues in the case were rather fewer than the seven questions because of the measure of overlap. Is that a fair way of putting it?

MR KEIM: We did, but we took each and every step very seriously because we were in the position where, should we lose on any one of the seven steps, then we lost the defence of provocation. But, yes, we would have thought, on an objective analysis of the case – if we were arguing both sides of the case, we would have thought that the main issue on which the Crown might have contested in the defence of provocation would have been the reasonable person issue.

BELL J: And, of course, the Crown did contest on that basis.

MR KEIM: They did, yes, but they contested on the others as well, including suddenness, without reference to premeditation. I will go to Parker. The passages that we wanted to take the Court to were these. At page 658, at the bottom of the page the paragraph that starts:

The third requirement is “that the act causing death was done suddenly, in the heat of passion caused by such provocation –

we would ask your Honours to read that paragraph and perhaps to the bottom of the next page, although it is really on the first four lines of page 659 and the last 10 lines of page 659 which are particularly important. The paragraph at the bottom of page 658 refers to the sentence:

“that the act causing death was done suddenly, in the heat of passion caused by such provocation, without intent to take life”.

The analysis that follows really predicts what Sir Garfield Barwick said in Johnson’s Case. Sir Victor says:

The phrase ought not, I think, to be read as if, broken into parts, it stated several matters to be considered separately and independently of one another. It is true that the words “without intent to kill”, if they be read as a separate specific element, and unqualified by their context –

and then for the most of page 659 Sir Victor is discussing the words “without intent to kill” and they are, of course, taken from section 23 of the New South Wales Act and what the analysis shows is that what really “without intent to kill” means in the common law and by the statute is without a premeditated intent to kill. This is expressed at the bottom of page 659. The conclusions are expressed where there is first a quote from Dr Edwards:

“The essential distinction constantly stressed . . . is between a preconceived, planned intention to kill and a sudden, spontaneous intention to kill”. This, I consider, is correct, and I adopt a suggestion made by Barry J in a learned article on this subject in Res Judicatae, vol 4, p 133. The words “without intent to take life” in s 23 mean, I think, using his Honour’s words, “a premeditated intent to kill, which must really mean an intent to kill not primarily aroused by the provocation”.

But we say those last couple of lines from Sir John Barry, adopted by Sir Victor, really reflect this Court’s judgment in Masciantonio where we say the causal relationship between the provocation in the formation of the intent to kill is really what is stressed, and in Masciantonio there is no reference to the phrase “sudden and temporary” or the concept “sudden or temporary”. So we say Masciantonio really reflects this emphasis on the causal impact rather than the necessity for suddenness.

I did refer you to the prediction of what Sir Garfield Barwick said, but his Honour’s analysis of the facts in that case, which commences at page 662 and goes over really to the bottom of page 663, the top of 664, could I just ask your Honours to read those passages quickly. There was a couple of paragraphs we wanted to take you to where Sir Victor really stresses this relative aspect of the concept of suddenness.

FRENCH CJ: Well, perhaps you can take us directly to the factual points?

MR KEIM: Yes, your Honour. The paragraph at the bottom of page 662, Sir Victor says:

The statute next requires that the act causing death be done “suddenly, in the heat of passion without intent to take life”. This is not quite the same thing as saying that it must be done in the heat of a sudden passion. It is not, I think, required either by the statute or at common law that the first beginning of emotion must not be earlier than just before the fatal act; nor do I think it is necessary that the provocative conduct should be a single isolated act. It may be an episode in a series of incidents, an episode which, because of what had gone before, proved to be beyond endurance and led to an onset of ungovernable passion. In this case the act causing death was the stabbing and cutting of the throat of the victim. Was there any evidence that this act was done suddenly in the heat of passion in the relevant sense? I think there was . . . There are cases in the books in which an accused, after some provocation, went off to get a knife or other weapon and then returned with it and killed. That was not treated as necessarily preventing reliance upon the provocation. All the circumstances must be considered. General statements about passion having time to cool do not, I think, enter much into a case such as this. It does not turn on a precise counting of the time, two hours or so, over which the episode of the afternoon extended. During the whole of that time the passion and emotion of the accused were mounting, not declining; and during part of that time his resentment and distress were being aggravated by new insults and further taunts that the jury might think would make any man in that situation the more ready to lose his self‑control. They might think that, to use again the words of East that I have already quoted, the conduct of the dead man “would in human frailty heat the blood to a proportionate degree of resentment, and keep it boiling to the moment of the fact”.

That is probably the end of the – but what we say, again, is that very much predicts the comments in Ahluwalia and Chhay and it really stresses that the difficulty for a jury where they are simply asked the bear question, “was this sudden or immediate without any explanation, and we say that it ‑ ‑ ‑

HAYNE J: If there is difficulty in that task, the difficulty may be that the issue in the case for consideration by the jury has not been sufficiently identified by the judge. There is no point, as has now been said repeatedly, giving the jury a disquisition on the criminal law. Step one, identify the issues in the case. Step two, tell the jury so much of the law as they need to know to answer those issues. What is the issue in this case that relevantly had to be identified for the jury, and what was the law that the jury needed to know to decide it?

MR KEIM: The issue was were the acts identified as amounting to provocation sufficient – or firstly perhaps, did the acts which were identified as amounting to provocation cause the loss of self‑control on the part of the appellant that led to the killing, and were those acts sufficient to cause an ordinary person to lose his self‑control, so as to form an intention to cause bodily harm or death. They were really the issues in the case ‑ ‑ ‑

HAYNE J: Can it be expressed in these terms? Had the Crown disproved that there was an intent to kill primarily aroused by the provocation of the bedroom fight - step one? Do you accept that, or have I misstated the issue at that level?

MR KEIM: We do not disagree with that, except to add an explanation that – and this goes back to the murkiness of the evidence that your Honour raised with me before – the defence case was put on the fact that this was a continuing fight and the fact that it travelled from the bedroom to the garden did not preclude that further provocation occurred during the continuation of the fight.

HAYNE J: So one further identifies the issues beyond that I have presently stated as being, was there a fight confined to the bedroom? Did the fight continue?

MR KEIM: Yes.

HAYNE J: There would be sub-issues, would there not? There would be issues including, was there a loss of self‑control, the “ordinary person” issue.

MR KEIM: Yes.

HAYNE J: Now, as you had earlier stated it, that is where you said the debate would stop, but given the way in which the case was argued at trial – and do not misunderstand me, I am not implying some criticism of the way in which the case was argued at trial – but given the way in which the case was argued at trial, was there an issue about suddenness? Was there an issue about any of the other elements that seemed to have been shelled out by this seven‑part test, or do you say there was no issue about those and the jury are being taken down paths that are distracting?

MR KEIM: In the way the case was presented by the Crown there were issues with regard to suddenness and there were issues with regard to time to regain self‑control ‑ ‑ ‑

HAYNE J: If that is so, and – at least at the moment, it seems to me that there is powerful reason to think that there was an issue about those matters because of the way the case had been argued – the jury needed to be told so much of the law as they needed to know to decide that issue, what is the error in what they are told? It becomes a question, perhaps not the question, but becomes a central question, does it not, for the appeal court?

MR KEIM: I am not sure that I understand exactly your Honour’s question, but can I start by answering in this way? By starting with the sevenfold test and expressing it in that way, the jury is getting a disquisition in the law that is of no assistance. That is part of the problem. What we would say, as we understand what Sir Garfield Barwick said in Johnson’s Case, is that it is better to set out a description of the defence of provocation and then to say that the Crown needs to negative that defence, rather than to say “If the Crown negatives this, if the Crown negatives this, if the Crown negatives this”. That is part of what we say what went wrong here.

The instruction with regard to suddenness did take the jury down a false path because we say that was not necessary at all and we say the direction with regard to opportunity to regain control, because it was expressed in two parts – the second of which is not the law – it misdirected the jury in two ways. It asked them a question that was unnecessary and tended to direct them to apply an objective test. I am not sure that I have answered any of your Honour’s question there.

HAYNE J: Can I put this on the table early in the debate, Mr Keim, so that you can deal with it not immediately, but at some point convenient to the development of your argument. The criticism of the seven‑point approach to it is, if it is well-founded, a criticism which I suspect is rooted in large part in considerations of the kind found in Alford v Magee 84 CLR, that you do not confuse the jury by telling them law that they do not need to know. Step one, identify the issues, the real issues in the case. Step two, tell the jury so much of the law as they need to know to answer the questions that are presented by those real issues.

The sevenfold approach, if it is infirm, nonetheless at this trial, provoked creation of issues about each of the elements and the jury at this trial had to be told how to resolve the issues that were thus provoked. The question for your side of the record seems to be then, whatever criticisms one makes of the seven‑part approach at the level of Alford v Magee analysis, given the way this trial was conducted the question becomes more, what was wrong in what they were told about the sevenfold elements?

FRENCH CJ: That really puts to one side, does it not, the first point of the three points that you raised. That is the interrelationship. That is part of the various elements of the provocation defence. That is part of a global criticism of the sevenfold test, because it is really those two subsequent complaints that focus on issues on which the jury was specifically directed, that is the suddenness of loss of control, and secondly the time for passion to cool or time to regain the control.

MR KEIM: Yes ‑ ‑ ‑

FRENCH CJ: It is those two specific errors, I thought, that you were identifying as errors relevant to the issues in the case.

MR KEIM: We do, and what we say with regard to suddenness – we say two things with regard to that. We say it has been rendered unnecessary by the approach of this Court in Masciantonio, and secondly we say it was put to the jury without any explanation as to the way in which it should be applied, if it were to be part of the consideration of provocation. With regard to the seventh step, we just simply say that was wrong. That was a ‑ ‑ ‑

FRENCH CJ: Because it falsely implied an objective test, that is what you are ‑ ‑ ‑

MR KEIM: Yes, it added an extra element which is not part and it falsely identified an objective test. We say they are the specific ways in which the sevenfold test departed from the law of provocation. Of course, we say with regard to suddenness alone, which it was put in an unexplained way, raised this issue of immediateness which the passage that we have just taken from Parker indicates was completely misleading to the jury.

CRENNAN J: Are you saying – I just want to make sure I have this right. Is this what you are saying, that the focus on suddenness on the facts of this case precluded the jury from properly considering the question of the loss of control?

MR KEIM: It asked a question about the loss of self‑control that did not need to be asked, so it certainly misled them in their focus, just like Sir Victor indicated in Parker that the emphasis on proportionality – no, sorry, that is Sir Garfield in Johnson - the emphasis on proportionality misled the jury to ask itself questions that did not need to be answered. But to the extent that suddenness has ever been treated as part of the law of provocation, we say since Masciantonio, one does not have to worry about that. But it got the jury asking themselves did this happen immediately? Did the loss of self‑control happen immediately?

What they should have been told, if suddenness was to be part of the considerations was provocation is sometimes described as involving a sudden loss of control, but that does not have to be immediate. It can build up over time. The fact that it has taken five minutes, or 20 minutes, does not preclude it being a sudden loss of self‑control. The fact that there were intervening events does not preclude it from being a sudden loss of control. The important thing for you to consider is did the provocation mean that this loss of self‑control and the subsequent intention to kill or cause grievous bodily harm was not premeditated ‑ ‑ ‑

CRENNAN J: That seems to be suggesting that suddenness needs to be explicated in relation to the facts of the case, rather than there being no more than a reference to the dictionary meaning of “suddenness”.

MR KEIM: Absolutely. We say two things. We say post‑Masciantonio, you do not have any forensic need for suddenness as a concept, or temporariness as a concept. The second thing we say is if you do not agree with that, then it is really important that suddenness be explained in the context of the history of the concept, which is relative, it does not have to be immediate, related to premeditation, developed in the history of the law to distinguish between malice aforethought on the one hand and manslaughter on the other.

CRENNAN J: Hence the reliance on Justice Windeyer, because he explicates the phrase “suddenly in the heat of passion” in the context of the facts of the case.

MR KEIM: Yes, and Ahluwalia and Chhay really – that is why I said they are sort of inverted sister cases of Parker, because they explain the same thing.

BELL J: Coming back to the facts of this case, as I understood it, the appellant relied on the deceased’s conduct in coming into his bedroom in a rage and picking a fight with him as the provocation.

MR KEIM: Yes.

BELL J: The relevance of the events earlier in the evening and the appellant’s ruminations on the harshness of his childhood and the abuse to which he had been subject was as to the sting of the provocation on the subjective aspect of the test.

MR KEIM: Yes, that is ‑ ‑ ‑

BELL J: That being so, the difficulty that I am having is – in the real world of this case and the issues, on the question of loss of self‑control and suddenness, where is the suggested room for the separate direction as to suddenness causing difficulty where the case is someone is coming to your bedroom, they are in a rage, they pick a fight with you and you lose control?

MR KEIM: Because the way in which the Crown relied upon those early matters was to say this was “a slow boil”, they used that phrase.

BELL J: Yes.

MR KEIM: I think the passage that your Honour took me to “out in the garden”, he was not provoked, he was now taking his revenge that he always wanted to do. So the Crown case was a de facto case of premeditation without ever mentioning premeditation and the effect of taking premeditation as an example out of suddenness, really, that exacerbated the problem of not explaining the concept.

BELL J: I must say, at least some of those submissions seem to me to go to the Crown contending that the jury would be satisfied beyond reasonable doubt this had not been killing done in a state of loss of self‑control.

MR KEIM: Yes. I am not disagreeing with your Honour with regard to that. The Crown case is really saying this was a premeditated killing, this was a revenge killing. He was getting back for all of the bad things that happened in his childhood. You know he was thinking about those things earlier in the night. It was undisputed evidence with regard to a threat to kill earlier in the night. Take all of these things together, this was a premeditated killing, except that last sentence was never said.

Going back to your Honour Justice Hayne’s questions, if the Crown case had been elaborated on the basis that this was not a matter of loss of self‑control but was a premeditated killing, the defence would have been able to address that more constructively and her Honour would have been able to provide explication of the way in which premeditation was to be considered and there would not have been this arbitrary question as to was it immediate? What does immediate mean? Does it mean five seconds or 10 seconds or five minutes or half an hour? That is the problem that the jury had. The Crown was saying, well, it was not immediate, it was two and a half hours. It was not immediate, there was this interlude in the bathroom. It was not immediate, he had time to go and get a rock. So the Crown was contesting immediate or suddenness at four or five different levels.

KIEFEL J: The reference in step five in the seven steps for the Crown to disprove that the loss of self‑control was not sudden and the importance that you place upon that requirement having been interposed in this case and whether or not it was sufficiently addressed, do you complain or say that it imports notions or statements found in cases dealing with the common law into the Code or do you accept that if it does import from the common law in that respect, that it is not in error?

MR KEIM: The answer is no, your Honour.

KIEFEL J: Which part?

MR KEIM: We accept the authority of cases like Kaporonovski and eventually Stingel. We notice that Stingel is a case on the Tasmanian Code. Masciantonia is a case on ‑ ‑ ‑

KIEFEL J: I see at paragraph [44] of the Court of Appeal’s judgment it was said that the Acting Chief Justice, Justice McTiernan and Justice Menzies have said that:

s 304 of the Criminal Code cannot be understood without reference to the common law of provocation –

That might not be to say, of course, that cases which have this requirement that the response be itself sudden has to be understood as imported into section 304. I have further in mind that Justice Gibbs did not seem to think that section 304 should be read that way in Kaporonovski. When I say “read that way”, should not be read by reference to decisions dealing with the common law. It is Kaporonovski v The Queen 133 CLR 209 at page 238 and the last sentence on that page and over to the top of 239.

MR KEIM: It is behind tab 8 of our learned friend’s material.

KIEFEL J: His Honour seemed to think that focus should be on the words of the section and that one should not go trawling through common law decisions to give it extra meaning. I mean, as I think it is pointed out in Mr Copley’s submissions, one has to understand section 304 against the background of common law cases when it was written, but that might be a different thing to the way in which they have come to be expressed in relation to the statements of the common law now.

MR KEIM: We understood that there was no real contest at trial or here that the common law is the proper guide to ‑ ‑ ‑

KIEFEL J: You say it is not a submission you wish to pursue?

MR KEIM: No, certainly we do not say that the Code should be read any differently to the way in which the law of provocation as been explicated in Masciantonio.

KIEFEL J: That suggests that ground 5, as expressed, might be correct because the common law cases talk of sudden loss of control but section 304 does not.

MR KEIM: Can we take your Honours just to Masciantonio for a moment. Can we warn your Honours in passing, if you want to go to Johnson do not go to it in our outline because only every second page has been photocopied. Masciantonio is behind tab 5 in our bundle. At the top of page 66 the plurality reasons discuss Stingel. Stingel, I think I started to say before, is a case on the Tasmanian Code in which section 160 is phrased differently to the Queensland Code.

Masciantonio is a Victorian case where the common law deals with provocation, but in that paragraph starting, “This Court recently re‑examined the law of provocation in Stingel”, down to the end of that paragraph, what we understand their Honours to be saying is that the statutory provisions were not intended to exclude the common law and must be understood in terms of the common law but the common law has also developed in the light of the statutory provisions and was really saying, as we understood it, that the explication of the law in Masciantonio could be applied to Code States.

So we say that the Court does not obtain any great assistance from looking at particular words in section 304 and giving them a meaning different to the common law and we say that that has been exactly the history of the development of section 23 in New South Wales where, apart from the acknowledged change to the common law that mere insults were sufficient, section 23 has been interpreted over the years to mean exactly what – wherever the words seem to differ form the common law, what this Court has said is, well, what they really meant was, and returned to the common law.

Can we say with regard to Masciantonio, apart from that, if one then goes to the paragraph starting, “Homicide, which would otherwise be murder”, to the end of the uncompleted paragraph at the top of page 67, that seems to us to be an attempt to define provocation for both the Code States and the common law States. Then, if one goes to page 69 and the paragraph starting, “In Stingel this Court quoted with approval” to again the uncompleted paragraph at the top of the next page, that is really an elaboration of questions such as – the test is to look at the reaction of an ordinary person, but in terms of identifying the nature of the provocation or the gravity of the provocation you look at the personal characteristics of the accused. There is that horrible English case, I think called Bedder where the impotence of a 19‑year‑old was not taken into account in determining the provocation of the taunts that were made to him.

KIEFEL J: I have no difficulty about the requirement of the ordinary person as being accepted as applying.

MR KEIM: I only mention it, your Honour, to indicate that the common law has developed since 2000 and that Masciantonio is an authoritative State of it and that it applies to the Code States. The common law at an earlier stage of the 20th century did not regard the nature of provocation necessarily being assessed by reference to personal characteristics of the accused.

FRENCH CJ: You addressed the jury within the framework, I think, of the sevenfold approach.

MR KEIM: We did, your Honour.

FRENCH CJ: I am looking at 843 and 844 on the basis that loss of control was sudden and that was your case.

MR KEIM: Yes.

FRENCH CJ: Was there an alternative case that could have been put in this ad hominem reference, but that could have been put in these circumstances, in other words, that the defence was constrained from putting because of the sevenfold test?

MR KEIM: The way in which we should have addressed ‑ ‑ ‑

FRENCH CJ: I am not concerned about what should have been done as what would have been open if not for item five in the sevenfold test because it seems that you are operating within that framework.

MR KEIM: Yes. We say it would not have been an issue and all that we needed to say could have been said in the context of the causal relationship between provocation and loss of control. We say that, but we say alternatively we could have said, well, you must understand suddenness as not being immediate. Suddenness is a relative cause and given examples like the examples in Parker. That was the alternative way of addressing the issue of suddenness. Going back to your Honour Justice Bell’s point, if suddenness had been explained to the jury in those terms, then we cannot see how the Crown could have really even purported to have excluded that beyond reasonable doubt, in the way it was explained in Ahluwalia and Chhay and Parker.

BELL J: But your case here, unlike Parker, was that the deceased came into your bedroom in a rage. That provocative conduct caused the loss of self‑control and the killing occurred whilst the appellant was still in that state.

MR KEIM: Yes.

BELL J: The evidence of events earlier in the evening was relevant, going to the question of the gravity of the provocation, but this was a case which, as the appellant ran it, was all about a sudden act of provocation, namely, the entering into the bedroom of the enraged deceased. Is it more that you say the difficulty that you face was the objective test with respect to the time for passion to cool on the analysis of what followed?

MR KEIM: No, we say they both apply because ‑ ‑ ‑

BELL J: Because the jury might have concluded that after the fight in the bedroom there had been some break in events.

MR KEIM: Yes, but the jury could also have concluded that a loss of self‑control did not go to an intention to cause grievous bodily harm or death until he reached the garden, therefore it was not an immediate loss of self‑control. The issues that your Honour has been raising would not have been available to the Crown if we happened to have a knife on the mantelpiece in our bedroom and killing had occurred there, but because there was a difference in space and therefore, necessarily, in time between the onset of the attack and the killing, the Crown had a window in which to make submissions about immediate, and we had a problem with regard to convincing the jury with regard to immediacy.

Then you turn it on its head and you say, well, if the loss of self‑control did occur in the bedroom, and he formed an intention to kill there but did not get to carry it out until that shift in space and time, then an ordinary person might well have regained self‑control, which is our complaint about the seventh step. So it could be used against us on either view of the facts.

HAYNE J: But are we getting away from the complaint in the appeal which is complaint about direction? Are we coming back to the point in respect of which leave was not granted about the way in which the trial was conducted?

MR KEIM: I was only addressing those facts, your Honour, for the purpose of showing that, but ‑ ‑ ‑

HAYNE J: What passage of the direction is in error? We begin, do we not, relevantly at page 262 of the appeal book, the other alternative numbering at the foot of the page, page 891. At 262 at line 10 or thereabouts, perhaps line 20:

could an ordinary person who is subjected –

et cetera.

MR KEIM: Yes, your Honour, it starts there ‑ ‑ ‑

HAYNE J: We start there. Where then does the direction go off the rails?

MR KEIM: Then her Honour says at line 40:

I would give you the seven points that both the prosecutor and defence counsel referred to and I will do that now –

and that was provided, and that is in our additional material, your Honour, behind tab 8, and apart from the issue of interrelationship we say that paragraphs 5 and 7 of that were in error, and then, your Honour, at the top of page 263 we see the same thing being explicated at about line 13:

fifthly, the loss of self‑control was not sudden . . . seventhly, when Andrew Pollock killed Murray Pollock there had been time for his loss of self‑control to abate -

and down to line 40. Now, that is the only assistance that was provided to the jury. Her Honour came back to provocation at page 305, but only in a global sense at line 40, where there was simply the question with regard to - the intervening paragraphs and intervening pages was a discussion of the evidence, but not with any attempt to relate it to those elements, and we say it went wrong because of the inclusion of the fifth and seventh tests, without any explanation, particularly with regard to the fifth test.

FRENCH CJ: There was also a global direction as to provocation at 257, I think, was there not, at the bottom?

MR KEIM: Yes, it was discussed earlier.

FRENCH CJ: Really following the words of the section, I think.

MR KEIM: Yes, about line 30 and then going over to line 20. Also, your Honours, at 309 to 310 is the further explication and I have explained there at 310 the complaint about the quote from the dictionary. It says that:

actions and feelings, unpremeditated, done without forethought, acting without forethought or deliberation ‑

There is no complaint up to that point in time, but then there is a complaint about the following ‑

performed or taking place without delay; speedy, prompt, immediate”. But “sudden” is an ordinary, English word . . . It means sudden. If there was another word that was better, another word would have been used, but that gives you some idea of the ordinary, English meaning of the word sudden in this context.

They are the passages that we complain of, your Honour. I think there was one last paragraph in Parker’s Case I wanted to take the Court to. It is at page 651, perhaps starting about 10 lines from the bottom with the words:

Questions of provocation and of self‑defence were originally often entangled.

BELL J: Sorry, what page are you on?

MR KEIM: On page 650 in tab 13 of our learned friend’s bundle of cases. Does your Honour have that?

BELL J: Yes.

MR KEIM: Then the last five lines:

Malice aforethought thus became the essential element in the non‑clergyable crime of murder. Originally the word “aforethought” probably had more or less its natural meaning involving some degree of premeditation, describing at least a deliberate and calculated act. “Malice prepense”, said Coke, “is where one compasseth to kill, wound or beat another and doth it sedato animo” -

Particularly at the end of page 651 where Sir Victor says:

However that may be, it is clear enough that the rule that a sufficient provocation could reduce the guilt of homicide from murder to manslaughter was founded at bottom on an appreciation that there are differing degrees of moral responsibility in homicide, that for what a man does on a sudden and serious provocation he is less to blame morally than for what he does deliberately and in cold blood. Thus it was that Blackstone said that the difference between manslaughter and murder “principally consists in this, that manslaughter arises from the sudden heat of the passions, murder from the wickedness of the heart” -

It is really that loss of the moral basis of provocation that we say comes from the inclusion of suddenness or immediacy in the fifth element without any further explanation for the jury. Your Honours will be happy to know that I have finished with Parker.

We have taken your Honours to Masciantonio; we will not go back to those passages except to indicate that where we said at page 66 over to 67 that it was a full summary of the law of provocation, there is no reference in there to “suddenness” or “temporary”, but the other thing that we wanted to do by reference to Masciantonio is to deal with the sixth and seventh elements. This argument has been, and can be, stated fairly shortly. Masciantonio is behind tab 5 in our bundle and we wanted to take the Court both to 66 and 69. The paragraph that starts:

Homicide, which would otherwise be murder, is reduced to manslaughter if the accused causes death whilst acting under provocation.

The last sentence of that paragraph is:

The provocation must actually cause the accused to lose self‑control and the accused must act whilst deprived of self‑control before he has had the opportunity to regain his composure.

It is the second half of that sentence that our learned friend relies upon to say the sixth and seventh elements are a proper statement of the law of provocation. They also rely on the way in which those words are phrased in section 304 and the Court of Appeal was impressed by the wording in section 304 of the Code. We say that “while deprived of self‑control before he has had an opportunity to regain his composure” is in fact a single concept, and it is subjective, and we say that that can be understood by going to page 69. The paragraph is the one that I took the Court to before:

In Stingel this Court quoted with approval –

and the Court is dealing with an argument with regard to continuance, and I think your Honour Justice Bell, or it may have been Justice Hayne, pointed out to me before that in Masciantonio there was an attack on one side of the car and then that was continued on the other side of the car where the victim was on the ground. So that was the concept that the Court was discussing, and then about six lines from the bottom of the page the Court explains the test with regard to regaining control, and their Honours say:

The associated question whether, in the sequence of events, an accused, having lost his self‑control, had regained it so that the continued infliction of injury was in fact no longer provoked, is not a question to be answered by reference to the ordinary person.

Justice McHugh departed from the plurality on that point –

It is to be answered by reference to the conduct of the accused himself and to common experience of human affairs. It is the nature and extent – the kind and degree – of the reaction which could be caused in an ordinary person by the provocation which is significant, rather than the duration of the reaction or the precise physical form which that reaction might take.

Then their Honours are discussing a slightly different point in the last four lines of that paragraph over the page. But we refer particularly to “It is to be answered by reference to the conduct of the accused himself” and we say that that makes it clear that the question is did the appellant here in fact regain self‑control? Then it goes on to say “and to common experience of human affairs”. That is not imposing an ordinary person test. What we say is that the evidence as to whether the accused person has in fact regained control will, in some cases, not be absolutely clear and the jury will have to draw inferences with regard to that, and they use their common experience of human affairs to draw that inference.

So we say it is clear from the passage at 66, combined with the passage at 69, that the regaining of control is not intended to be an objective test; that the concept described in section 304 and described in the sentence at 66 is a single concept, “whilst deprived of self‑control before he has had the opportunity to regain his composure” and it is to be answered by reference to the subjective facts of the particular accused at the particular moment.

We say the jury, going back to your Honour Justice Hayne’s question, by being prevented with the sixth question which presented that test properly, and then having answered that test, having to go on and answer the seventh step, was there time for the accused to regain self‑control, merely could be led in no other way than to apply an objective test and we say, therefore, the seventh step in the context of the sixth step is doubly wrong and led the jury into error.

Your Honours, I wanted to take the Court to Johnson. As I said we have to go to our learned friends’ bundle because our bundle has not photocopied it correctly. Our learned friends’ bundle, it is behind tab 22 which is the last tab in the bundle. We did not set the passages out in our outline because we thought the Court of Appeal had set out enough of Johnson but because some of the passages that the Court of Appeal set out are not relevant to this point, it might be useful to take the Court to those passages.

We would ask the Court to go to page 637 in the reasons of Sir Garfield Barwick – sorry, it is at page 636 towards the bottom of the page, the paragraph that commences with the words:

Too much, it seems to me, has been taken from Lord Devlin’s dicta -

and the passage goes over to the following page, down to the paragraph which ends with the line “could be maintained”.

FRENCH CJ: Now, what are you taking from this?

MR KEIM: Particularly, your Honour, that the passage that begins in the very last sentence starting on page 636:

Lord Devlin’s summation of the “elements” in provocation was not for the purpose of detailed analysis of them but as part of the indication that, to be operative, the provocation must have produced an appropriate loss of self‑control during which the fatal act was done. His Lordship did not set out separate elements to be considered disjointly in some temporal order. On the contrary, he emphasized the interaction of the several matters, which might be called considerations, to be in mind in deciding whether the provocation was, or could in law be permitted to be, operative in reducing the crime to manslaughter.

Then, in the following paragraph, Sir Garfield refers to Da Costa v The Queen and then goes back to Lord Devlin’s judgment. He says:

In my respectful opinion this view –

and this is the mistake in Da Costa –

resulted from treating Lord Devlin’s judgment in Lee Chun‑Chuen v The Queen as laying down three independent or separate integers of operative provocation. I have already indicated my opinion that his Lordship did not do so . . . But, of course, if the question of loss of self‑control is approached as treating the proportion of the fatal act as a matter for consideration in applying the objective test, the decision of the Court in the case could be maintained.

That is where we take the complaint with regard to the disjunctive way in which the sevenfold test asked the jury to address specific questions. It comes from that passage and as we said, it reflects an earlier passage in Parker that we took the Court to earlier. Then, your Honours, at page 644 in the paragraph towards the bottom of the page:

In the present case, the trial judge instructed the jury that the accused -

over to the end of the continuing paragraph at the top of 645. His Honour says in the middle of that paragraph at the bottom of 644:

The jury may well have found difficulty in accepting the attack made on the deceased as proportionate, divorced from the question whether an ordinary man in the circumstances of the accused would have so far lost his self‑control as to have formed an intent to kill or do grievous bodily harm and to have done acts of that kind and degree. The acts were so savage that a direction to treat their proportion as a separate and distinct issue, the proof of which rested on the accused, was likely to dominate the jury’s mind and distract attention from an overall consideration of the real question, namely, whether the ordinary man would have so far lost self‑control as during that time to have formed the requisite intent -

We say that is an example that we say is equivalent to the way in which suddenness has been isolated here. His Honour was dealing to a different concept which has now in the light of the later cases been completely wiped out of consideration because the ordinary person test suffices without any reference to proportionality. That is exactly the type of, his Honour says, dominate the jury’s mind and “distract attention”. We say that is what has happened here with the fifth element, if we can call it that.

Can we just mention by way of example, Sir Garfield sets out the way in which a summing‑up to the jury should proceed at the top of page 644 and whether concepts are presented as being interrelated and we say that methodology can be applied to the law of provocation, if we can call it that, found at pages 66 to 67 of Masciantonio, with the elaborations inserted from pages 69 to 70.

KIEFEL J: Was there a standard direction used before this seven‑stage test became utilised in the bench books of the courts in Queensland?

MR KEIM: I cannot quite answer that, your Honour. My experience with the bench book was unfortunate in the trial. I have started by looking at the cases and then, since her Honour referred to the bench book a number of occasions, I probably took the focus off the cases a little bit. I ended up saying to the jury that not only age but sex was relevant in considering the ordinary man and I had to take that back and that error had actually come from the bench book that was available.

We do not think that it was in such precise terms. We say that the error of the Court of Appeal has really been to try and make it too easy, really to part from the principles that your Honour Justice Hayne referred to earlier, that by trying to formularise the direction, one departs from identifying the issues and giving the jury the law that they need.

In fairness to the trial judge here, her Honour did seek from the Crown a number of times the basis on which the Crown said - I think we have included that in our additional material - the basis on which the Crown said that provocation was to be negatived and those answers were not particularly helpful to her Honour but that is going off on a tangent. I think I have answered your Honour’s question to the best of our ability. We do not have a copy of the bench book as it stood at that time.

We really only wanted to say one further thing. We have said quite a lot about how the case was presented below. In paragraph 5.17 of our learned friend’s outline, they refer to provocation as being available to the jury. We have pointed out that reliance on premeditation was eschewed below and any reference to premeditation was taken from the jury - from the direction that was provided to the jury.

At paragraph 5.18, and we have largely dealt with this, our learned friends raise the questions that your Honour Justice Bell was raising by saying that on the facts below suddenness could never be a problem. Our learned friends, we say, mistake Ms Brownlie’s evidence saying that the group had effectively left or the effect of her evidence was that the group had left as late as 5.45.

We would take your Honours to the appeal book at page 214 lines 10 to 30. Your Honours would have noted from our reply that we made some comments with regard to an earlier reference to “nautical twilight” in our learned friend’s outline. We do not want to add what we said in the reply there. At page 214 about line 10, Ms Brownlie was asked:

Do you have any idea whenabouts this was; what time it was that you left?—I – look, I think in my statement it was about 5.30.

She was not further challenged on that or cross‑examined with regard to that. Then she says:

I remember being at home and I remember looking at the video and it was 6 o’clock and I remember thinking I should ring to see if Andrew is all right -

Now, our learned friend has, we say, misunderstood that reference to 6 o’clock. Ms Brownlie was not saying that she arrived home at 6 o’clock. She was saying the only thing I can say about the time is that, at some stage when I was home, I noticed that the time was 6 o’clock. Our learned friends are relying on that interpretation of that evidence in combination with the time that it took to get home and that can be seen two pages over at page 216 lines 1 to 20. This was in cross-examination:

From the time we left Murray’s to the time we got home was probably 15 minutes -

the answer to the question at about line 10. So as we understand our learned friend’s submission it is they got home at six and it took 15 minutes to get home, therefore they left at 5.45 but that was not the effect of the answer. Certainly, the defence below addressed trying to minimise the time to defeat this question of not being sudden.

In the extra material that can be found at pages 855 to 877 - we referred to “nautical twilight” and we referred to Mr and Mrs Hart’s appreciation of the sky and we referred to other people’s appreciation of the sky and we were suggesting that it was a short period of time, indeed, but the evidence as to when they left, both from Graham Pollock and from Ms Brownlie, was that they left at 5.30. Nautical twilight was at 5.37 but there is no evidence of anybody saying, “Well, nobody has been asked when you left was the sky as it is described in the nautical twilight astronomical certificate which was before the court?” and the defence tried to make the time as small as possible.

I think, to be fair to the Crown, the learned Crown Prosecutor below did not address on time in that sense. He restricted his address with regard to time as the same or there was time to go to the bathroom and there was time to get out the window and there was time to grab a rock, et cetera. He did not really address the issue of nautical twilight.

We simply say with regard to paragraphs 5.17 and 5.18, the statement that provocation is available, that was eschewed below. This Court must think that there was no question about suddenness or immediacy, exactly the opposite was argued below. We would have liked a concession with regard to that second point below.

HAYNE J: Just on the question of suddenness and immediacy, in the submissions against you reference is made to the judgment in Osland in the Court of Appeal in Victoria and, in particular, reference is made to the analysis at pages 648 to 649 of [1998] 2 VR 636.

MR KEIM: We say three things with regard to Osland, your Honour. We say that those comments need to be put into context in that – I am not sure what assistance the Court got with regard to the facts in Osland from the decision that has just been handed down, but on the reported case it was a very clear case of a premeditated killing. The mother and son were acting together, they had managed to obtain some sleeping substance, they had dug a grave beforehand and so we say there was certainly no error in the result by the Court of Appeal, but we would say three things with regard to the reasoning.

We say, firstly, in the light of Masciantonio, Chhay and Ahluwalia, the Court of Appeal was in error in thinking that the concepts of “sudden” and “temporary” were required to place outer limits on the defence of provocation, and that is the purpose for which it was used in those reasons. The requirement that there be a loss of self‑control and that the loss of self‑control be causally related to the provocative acts makes “sudden”, as a concept, unnecessary, and the requirement that the defendant has not regained his or her self‑control, that performs the function of “temporary”. So the concepts are not necessary. But we do not say that it produced an injustice there, because ‑ ‑ ‑

HAYNE J: I am not asking you about the outcome in Osland. I am asking you whether you challenge the reasoning at page 648 from about line 44 through to 649 at about line 28, and I understand you to say that you do?

MR KEIM: We do, your Honour. Can we say two further things with regard to that. We say, secondly, if use is to be made of either concept, they must be explained where there is any ambiguity. It must be explained that “sudden” does not require immediate loss of self‑control, and that “sudden” is a relative concept allowing for human variability. “Temporary” must be explained as being another way of referring to the fact that the defence only applied while the defendant’s loss of self‑control itself continued and, thirdly, we say in any event to say that the defence involves a sudden and temporary loss of control is much less misleading for a jury than to ask the specific question was it sudden or was it temporary.

Obviously the second one was not asked here. If the Crown has proved otherwise, the defence does not apply. So to use it in that general descriptive way is much less misleading than what happened in this case here. They are the three things that we say about the reasoning in Osland, your Honours. To the extent that it purports to interpret Masciantonio, we

say that it is wrong in that respect for the reasons that we have said, because the concepts are not necessary – sorry, your Honour, Justice Bell.

BELL J: Not at all. I was just going to say, to the extent that you have on more than one occasion referred to the decision in Chhay (1994) 72 A Crim R 1, it does need to be noted that that decision related to the provisions of section 23 of the Crimes Act (NSW) following the amendments which operated specifically to provide that there need not be that temporal connection between the conduct of the deceased and the loss of self‑control.

MR KEIM: Yes, we accept that.

BELL J: I think, Mr Keim, your point is, go back to Parker and one can see that the common law has recognised that the sudden and temporary loss of self‑control may take place over a period of time.

MR KEIM: The comments of the former Chief Justice of this Court, then as Chief Justice of New South Wales with regard to Ahluwalia, the approval that he provided with regard to that. Unless there was something further, your Honours.

FRENCH CJ: Yes, thank you, Mr Keim. Mr Copley.

MR COPLEY: Your Honours, we propose to deal with these grounds of appeal in a slightly different order to the way in which my learned friend dealt with them. We will start with the complaint about step five, then go to the complaint about step seven and then deal with the first complaint that the summing‑up impermissibly broke down provocation into a number of steps. The commencement point is and has to be section 304 of the Code, and I am going to come to that in just a moment, but I would invite your Honours just to note the statutory scheme that applies in Queensland for murder. If your Honours go to tab 1 in our material, one sees some way into that, a couple of pages into that, that section 291 of the Code provides that:

It is unlawful to kill any person unless such killing is authorised or justified or excused by law.

Then over the page, section 293 provides that:

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

Then section 300, over the page again, declares that:

Any person who unlawfully –

that is to say, without justification, authorisation or excuse –

kills another is guilty of a crime, which is called murder or manslaughter –

Then section 302 defines “murder”, and in this case the Crown case was that the appellant was guilty of murder because in terms of 302(1)(a) of the Code, he intended to cause the death of his father or he intended to do him some grievous bodily harm and he caused his death. Section 303 of the Code provides that:

A person who unlawfully kills another under such circumstances as not to constitute murder is guilty of “manslaughter”.

Then we come to section 304, at the top of the next page, and your Honours would no doubt have read that more than once today. Read literally, section 304 of the Code would excuse a person from criminal responsibility for murder and render him guilty of manslaughter if the act which caused death was done in the heat of passion, that the heat of passion was caused or induced by sudden provocation and that the act which caused death was done before there was time for the person’s passion to cool. Read that way, the subjective reaction of the accused person in his response to the provocative conduct of the deceased would be the sole determinant of whether the accused was guilty of murder of manslaughter if one read section 304 literally.

BELL J: Indeed, read literally, it would not be necessary that the sudden provocation involved the conduct of the deceased.

MR COPLEY: No, that is true, your Honour. That is also the case. If section 304 was to be read literally, then it would be very different from the common law. There is nothing wrong with the Code making an exculpatory provision quite different from the common law, but I will come to how one interprets a section in a moment, but it is important to note that the test of provocation at common law is not that which is apparently contained in 304. It is not sufficient ‑ ‑ ‑

HAYNE J: That wholly subjective reading of 304 which is, I understand, the start point for what later comes for your argument, is an analysis that treats the words “before there is time” as not invoking any objective inquiry.

MR COPLEY: Yes.

HAYNE J: That is, it is reading it as caused by a sudden provocation before the person’s passion cools.

MR COPLEY: Yes.

HAYNE J: Whereas an alternative reading may perhaps have been that before there is time for the person’s passion to cool is the point at which the objectivity of the inquiry is introduced.

MR COPLEY: Yes.

HAYNE J: But you start from a platform which you say is a wholly subjective reading of 304.

MR COPLEY: Yes. I would say to your Honours that the test at common law is not simply whether the occurrence is sufficient to deprive the accused of his self‑control, but the occurrence, the provocative conduct, has to be also such that it could, not that it would, but that it could suffice to deprive an ordinary person of self‑control and to do, as the appellant did, that is to form an intention to kill or do grievous bodily harm. That is obvious in Masciantonio v The Queen at page 66, and we have looked at that already.

However, “provocation” in section 304 has been held to take its meaning from the common law and so much appears in Kaporonovski v The Queen 133 CLR 209 in the judgment of Acting Chief Justice McTiernan and Justice Menzies at page 219 and, by inference perhaps only, in the judgment of Justice Walsh at pages 224 to 225. That interpretation of Kaporonovski, that it has a majority holding for the notion that “provocation” in 304 is to be understood by reference to the common law or to be supplemented by reference to common law notions, has been followed in Queensland now for many years. I have provided your Honours with an authority there at Pangilinan [2001] 1 Qd R 56 at 64 to 65.

Now, conformably with those authorities, the appellant does not seek to argue otherwise and so, because of that, he wishes this case to be decided on this basis, that section 304, even though it does not literally refer to an objective test, is to be understood from an objective perspective as well, that there is an objective aspect to 304. So he eschews any literal reliance upon the section. Section 304 does not ‑ ‑ ‑

KIEFEL J: Mr Copley, the cases to which you refer about the section being understood in light of the common law, do they provide a basis specifically for the importation of the requirement that the deceased’s provocative conduct caused a sudden loss of control?

MR COPLEY: No, your Honour. Section 304 does not define the expression “provocation” or “sudden provocation” and, my submission is, it is not relevantly defined by any section of the Code. I have to word it that way, that it is not relevantly defined, because the Code does define “provocation” in section 268 of the Code.

KIEFEL J: But here you are talking about sudden provocation by the deceased, as the Code does?

MR COPLEY: I am talking about the expression “provocation”. I say to your Honours the Code does not define “provocation” relevantly, but it does contain a definition of “provocation” and your Honours should be aware of it. I am not arguing that it is relevant, but it is section 268(1) which is behind tab 2 of our material.

BELL J: But I think it is not in issue that “provocation” so defined is not the provocation which the Code contemplates may reduce murder to manslaughter?

MR COPLEY: That is so, yes. That is the way the appellant has conducted the case throughout and the respondent has not at any point tried to suggest otherwise. At the time that the Code was enacted in 1899, the word “provocation” had an accepted technical meaning, Justice Gibbs said in Kaporonovski at page 236, and so the respondent – that is at tab ‑ ‑ ‑

KIEFEL J: What did his Honour say, Mr Copley?

MR COPLEY: It is at tab 8. He referred to the well‑known authorities in the second paragraph at 236 about how one interprets a Code, about:

The proper course in the first instance is to turn to the language of the Code itself and to construe it according to its natural meaning. However, if the Code uses an expression (such as “provocation”) which has acquired an accepted technical meaning, that accepted meaning may be attributed to the word if the Code itself has not defined it.

I also have referred your Honours to another case of Boughey v The Queen (1986) 161 CLR 10 in the judgment of Justice Brennan at page 30, which is to be found in behind tab 10 of my material, simply for this proposition, that even though his Honour was in a minority there on the point in the case, he makes some observations about how one might interpret a code or should interpret a code. In the second paragraph of his judgment, halfway down, “The paramount rule” is loyalty to the language of the Code, of course, and he cites one of the same authorities Justice Gibbs cited. Then he went on to say that even though:

It is erroneous to approach the Code with the presumption that it was intended to do no more than restate the existing law (Brennan v The King) but when the Code employs words and phrases that are conventionally used to express a general common law principle, it is permissible to interpret the statutory language in the light of decisions expounding the common law –

and this is the significant additional point –

including decisions subsequent to the Code’s enactment.

Your Honours, the appellant’s first complaint about the fifth proposition, which is now what I am going to deal with, at appeal book 263 point 10, is that the requirement of suddenness was erroneously employed to qualify the appellant’s loss of self‑control whereas the appellant contends, in paragraph 38 of his written submissions, that it should have been confined to qualifying the provocative conduct of the deceased. He says that because it is understood by the respondent the word “sudden” precedes the word “provocation”.

KIEFEL J: I am sorry, if the Code should be understood by reference to the common law, where do you say that the common law has imported this requirement that the reaction of the accused be sudden?

MR COPLEY: Well, that can be seen in a number of places and perhaps the easiest place to see it is in the judgment of Justice Keane where he reproduced some of the authorities from the common law. If your Honours would turn to appeal book 354 at about line 40, his Honour Justice Keane referred to Justice Devlin’s direction in Duffy [1949] 1 All ER 932 which was then approved in Ahluwalia (1993) and it is in bold type there. That direction of Justice Devlin’s was referred to in Parker v The Queen at page 652 in the judgment of Justice Windeyer this way in the last paragraph:

To this may be added, as a more modern example, what Devlin J, as he then was, said in his direction to the jury so warmly approved by Lord Goddard –

on appeal and he reproduces the same direction again.

KIEFEL J: At the time that the Code was drafted by Sir Samuel Griffith, Justice Keane refers to, at appeal book page 355 at about line 40, a quotation from Hayward’s Case (1833) 172 ER 1188 which refers to “provocation so recent and so strong”, which might provide the explanation for the use of the word “sudden” in relation to the provocative act by the deceased chosen by Sir Samuel Griffith. But in the Bills, as they were drafted, to which, I think, you have referred at your written submissions paragraph 5.10 ‑ ‑ ‑

MR COPLEY: Yes, your Honour.

KIEFEL J: Sorry, it is the one before, 5.9, the Bill to which reference was made, the English bill, also referred to:

the offender acts upon it on the sudden and before there has been time for his passion to cool.

But that did not find its way into the final Code provision. The requirement of suddenness there was omitted.

MR COPLEY: It was omitted from section 304. It did find its way into the Code, but not into 304. It found its way into the Code in 268 and 269, but that is not relevant to our discussion any more.

KIEFEL J: Yes.

FRENCH CJ: What do you say about Justice Windeyer at page 662:

It is not, I think, required either by the statute or at common law that the first beginning of emotion must not be earlier than just before the fatal act ‑ ‑ ‑

MR COPLEY: Can I ask your Honour for the page number again please?

FRENCH CJ: Yes, page 662, I am sorry. He is talking about the relevant statute, section 23.

MR COPLEY: That was going to be my reply that he was there talking about a repealed provision of another State’s criminal law.

FRENCH CJ: But he is talking also about the common law, is he not? Or perhaps he is talking about the relationship to emotion and the fatal act rather than emotion and the provocation?

MR COPLEY: Yes. The respondent would not make any submission seeking to contradict what his Honour said there. The respondent has never asserted in this case at any time that the loss of self‑control had to be instantaneous, merely that it had to be sudden in the sense of that it was not premeditated, that it was not cogitated upon and planned or thought out to some extent.

FRENCH CJ: Well, you do not premeditate a loss of self‑control. You mean it was not sudden in the sense that the action was not premeditated?

MR COPLEY: Yes, your Honour, the act causing death was not premeditated.

FRENCH CJ: Yes.

HAYNE J: The use, as Chief Justice Gleeson explains in great degree of detail in Chhay, the use of the notion of sudden and temporary loss of self‑control is directed to identifying the circumstance and the state of mind in which, despite formation of an intention to kill, provocation is engaged and reduces what is an intentional killing to manslaughter.

MR COPLEY: Yes. The suddenness is the dividing line, as it were, between a murder that will be judged and held to be a murder and a murder that will be in law a murder because there was an intention to kill or do grievous bodily harm but which will be excused or reduced to manslaughter.

KIEFEL J: Do you think, Mr Copley, that in section 304 there is some hint of a temporal element in the reference to the heat of the passion caused by the sudden provocation, or is that just to the degree of the reaction? Could it be both? Is that the element of suddenness, perhaps, within the purview of that phrase?

MR COPLEY: Well, the argument that could be put against my submission about “sudden” in this section is simply this. When the section speaks of sudden provocation, it is referring to a sudden act of the deceased and when the section speaks of something done in the heat of passion, it is speaking of a sudden reaction by the offender. That would be the argument that would be put against what I am saying, yes. So that is an available interpretation.

But, your Honours, my submission is that if one was to regard the adjective “sudden” as qualifying the conduct, the provocative conduct, then my contention is that that would be really a literal interpretation of 304 and it would render the word “sudden” meaningless in this sense, that from an accused person’s perspective, everything that the deceased person says or does and how he says and does it will be sudden, in the sense that the accused person cannot be expected to know or to anticipate what is going to be said next or how it is going to be said next or in front of whom it is going to be said or the tone of voice in which it is going to be said or, I hasten to add, done.

HAYNE J: But the informing thought might be understood as being captured by the last paragraph from Chhay extracted by Justice Keane in the judgment the subject of the appeal immediately before paragraph [58] of the judgment begins. It is at page 358 of the appeal book between lines 31 and 42, that notions of suddenness, notions of ‑ ‑ ‑

FRENCH CJ: I think it is 356.

HAYNE J: Page 356 is it? Sorry. Is a means of drawing a contrast in an area, as explained on the earlier page, still in the extract from Chhay, the law has found it necessary to resort to metaphor, which often confuses rather than expounds, and a contrast is there to draw a line, perhaps an imperfect line, but to draw a line between a killing that is to be the subject of mercy and a premeditated killing that is to be treated as murder.

MR COPLEY: Yes, your Honour. My contention is that the word “sudden” in section 304 can only sensibly be regarded as referable to the accused person’s reaction to the provocative conduct of the deceased person. Justice Keane put it effectively that way at appeal book 352, line 40 at paragraph [50] of his judgment where he said that the expression –

“sudden provocation” is necessarily concerned with, and related to, the temporary loss of self‑control excited by the provocation.

That is, excited by the deceased’s conduct. I only go into all of that because it did not find expression so much in the oral submission this morning, but in the written submission it was clearly put that step five wrongly took “sudden” from the deceased’s behaviour and transposed it across the appellant’s response.

BELL J: In the way the matter was argued this morning, it seems to me that there is no issue between the appellant and the position that you put, Mr Copley, that the common law informs provocation as it is to be understood in section 304, that in that context, notions of the sudden and temporary loss of self‑control bear a meaning consistent with the idea that that is a killing, that is not premeditated, that is done in consequence of the loss of self‑control. If that be right, when one separates out number five as a separate matter that the Crown is to negative, but equally that if does so provocation is excluded, that may, without further explanation, have a tendency to be misleading, may it not?

MR COPLEY: No, your Honour, with respect it would not.

BELL J: Why is that? How is a jury to understand 5 without explanation of the significance of qualifying the loss of self‑control by words such as “sudden” and “temporary”?

MR COPLEY: Perhaps I should have put it this way. The direction, if it had been given as originally crafted in Pollock (No 1), would not have because the jury would have understood that “sudden” meant not premeditated. Now, that example was taken out at the request of the prosecutor and acquiesced in by defence counsel, and then the jury came back unsurprisingly or surprisingly and said what did your Honour mean by “sudden”, and then her Honour gave them a much more detailed definition. But it could have stopped with “sudden” means not premeditated and the jury would have said, “We know what her Honour means. What she is saying to us is that if we take the view that this killing was – if his decision to kill was pursuant to a plan then provocation cannot avail him and we would have to look at the other limbs of the test to see whether or not – well, no that would be the end of it; provocation would fail.

BELL J: But number 5 was not put in that way; it was the loss of self‑control was not sudden.

MR COPLEY: But that is as a consequence of a request from counsel to her Honour to do that, and maybe the jury’s question demonstrates the ill wisdom of that course being acquiesced in by her Honour.

HAYNE J: Where do we conveniently ‑ ‑ ‑

CRENNAN J: At 846, I think, of the supplementary materials you can pick up how this occurred.

MR COPLEY: That is correct.

CRENNAN J: Deleting a reference to premeditation was something to which the defence counsel did not raise any objection.

MR COPLEY: Yes, the prosecutor wanted it to be removed and he said, your Honours, at line 35 “I have never talked about premeditation”. Upon my reading of the addresses that is quite true, literally, he never addressed the jury about premeditation, but he did use adjectives or words that conjured up that notion in the clearest of terms, and might I just take you to one? Page 807, point 25 to point 30 in the supplementary book:

He knows he’s touched Megan.

That is an inference the prosecutor draws the from appellant’s threat that if he “if he touches either of you girls, I’ll kill him” –

Going to kill him. Here he is in this position. All the hatred, all the things that he blames his father for, coming to the fore and in a moment of revenge, of punishment, of retribution, of sheer hatred, he does this -

That is an example of the prosecutor speaking, effectively, of premeditation, but using any word but. Similar examples can be found at page 795, lines 20 to 40, and in page 790, lines 5 to 10.

BELL J: Coming back to the discussion at 846 of the supplementary materials, the Crown Prosecutor, rightly or wrongly, says:

I have never talked about premeditation. Premeditation isn’t what the Crown has to prove here.

It is for that reason that he makes the request that the reference to premeditation be deleted from item 5 in the checklist, but the question then arises, what does that leave, in terms of the jury’s understanding, absent some fuller explanation of the significance of the concept?

MR COPLEY: What it left them with was what they were told, that the ‑ ‑ ‑

BELL J: On the redirection?

MR COPLEY: First of all, what it left them with was what they were told at page 263, which was simply that “the loss of self‑control was not sudden”, and then in the redirection at 309 to 310 they were given more assistance with the topic. Now, no doubt this proposed redirection was canvassed with counsel, and despite the fact that counsel did not want the word “premeditated” referred to, it comes in in this redirection at the top of 310. “Sudden” means:

of actions and feelings, unpremeditated, done without forethought, acting without forethought or deliberation -

Perhaps out of those examples just there, “acting without forethought or deliberation” might have been the most appropriate one to explain the word “sudden” in this context.

BELL J: But of course it did not stop there.

CRENNAN J: No.

BELL J: The judge went on to tell them that “sudden” is an ordinary English word meaning what they, the jury, understood it to mean. In the context of the issues in this case how did that assist in making clear the significance of the notion of “suddenness” within the law of provocation?

MR COPLEY: In my submission, it effectively just reiterated the dictionary definition because the jury would have understood that this definition, which came from the Oxford English Dictionary, was not coming from a legal source; it was coming from a book that they could have had in their homes to look up the meaning of a word, and that is perhaps why her Honour added that it is just an ordinary English word and it means what you understand it to mean, having informed them of what those who wrote the dictionary thought it meant.

HAYNE J: Can we have the transcript of trial that is between pages day 10, page 4, day 10, page 10? At the moment the appeal book page 308 has the jury going out at 9.04 am, page 309 the jury have come back in for the answering of a question. It would be as well to know what had gone on between.

MR COPLEY: No, we do not have that, and I cannot remember what was said there ‑ ‑ ‑

HAYNE J: I know you do not have it; I want it.

MR COPLEY: Okay, I will get it provided to your Honours.

BELL J: Do we have the whole of the summing‑up ‑ ‑ ‑

MR COPLEY: Yes, you have the whole of the summing‑up.

KIEFEL J: But, Mr Copley, just to return to her Honour’s direction at that point about the meaning of “sudden”, the jury is left in a position where they are told that it has an immediacy, a sense of urgency, but they are not assisted as to how to apply it or consider it in the circumstances of this case. The defence is not put forward, it is not put in the context, well here the defence has said that the fact that the reaction appears over time might not be enough. I mean there has to be something to qualify “immediacy” if the defence is right, and the fact that it may extend over a period of time does not denude the defence.

MR COPLEY: Your Honour is quite correct in saying that the concept was not related back to the defence submissions. I can say no more than concede that.

KIEFEL J: It does not have to be the defence submissions, but to put the issue that was raised before the jury in a context of what the word means, they are sort of left hanging with a meaning and wondering how to apply it as they obviously must have done if they asked what does the word mean? They are trying to work out how to apply the law to the facts of the case.

MR COPLEY: Well, it was not done, and at the end of the summing‑up there was no request by either party for any further or better directions on the point.

KIEFEL J: Yes, I noticed that.

MR COPLEY: The only other thing to add is that your Honour posited to me that here the jury was left with the concept of “immediacy”. It is true they were left with the concept, but they were left with other concepts about “sudden” as well, the last one of which was “immediacy”, but the earlier ones of which connoted something different and, your Honour, my submission is that a jury thinking about the matter could well see a difference between something that was premeditated or not premeditated and something that was immediate.

They, in effect, are two quite different things really, if one thinks about them. But all I can say is no, it was not further explained to them, but there was no request by either party for it to be explained. Your Honours, in Van Den Hoek v The Queen, which is to be found behind tab 12 of our material, at page 168 in the judgment of Justice Mason, his Honour said, in the largest paragraph on the page there:

Whether one looks to s. 245 –

which we could rewrite as 268 –

or to the common law for elucidation, the defence of provocation for which s. 281 –

which we could substitute as 304 –

provides should be understood as embracing a sudden and temporary loss of self‑control due to –

various emotions. That is perhaps an answer to a proposition your Honour Justice Kiefel put to me much earlier about whether any of the cases had elucidated the concept in 304 by reference to a sudden and temporary loss of control. Your Honours, perhaps I can now move through the history of the section ‑ ‑ ‑

FRENCH CJ: Well it might be convenient at this point to adjourn, Mr Copley. The Court will adjourn until 2.15.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

FRENCH CJ: Yes, Mr Copley.

MR COPLEY: Thank you, your Honours. During the luncheon adjournment we have obtained for your Honours copies of the missing transcript that your Honour Justice Hayne wished to have.

HAYNE J: Thank you.

MR COPLEY: Page 10‑5 is irrelevant to anything. The discussion starts at 10‑6 where her Honour identifies at line 10 the questions the jury wanted asked; they were answered. The rest of 10‑6 concerns the proposed direction about loss of control, which is not of concern, and at 10‑7, line 38, her Honour says, “Now, as far as “sudden” is concerned”. Her Honour then, between lines 40 and 50, reads out part of the definition that she ultimately gave to the jury. Mr Keim said he was happy with that. Then on 10‑8, line 10, her Honour perhaps vacillated when she said:

Perhaps I should just say something – that “sudden” is something that happens quickly.

Mr Keim said that they would prefer the fuller definition from the dictionary. Then the prosecutor made his submissions and some doubt crept in as to whether the jury was asking for the meaning of “sudden” as it was used in 304 or “sudden” as it appeared at proposition five of the seven steps, and that was discussed. Her Honour said at line 20 on page 10‑9 that she would clarify it but she thought that they were referring to “sudden” in point five, which, of course, they ultimately were. Then at line 35 her Honour read, or stated, “Speedy, prompt and immediate.” That also came from the dictionary. Mr Keim said at line 44 that the:

full definition is appropriate if you’re talking about sudden loss of control.

Then her Honour clarified that at page 309 of the appeal book with the jury at line 50, that they were talking about a sudden loss of control. Your Honours, before lunch I had been addressing the fifth proposition with a view to combating the contention that when the word “sudden” appeared in section 304, it was intended to attach to the deceased’s provocative behaviour rather than to the response of the accused person.

To complete my submissions in that regard, I just wish to take your Honours on a brief review or a brief excursion through where section 304 of the Code came from. It is clear beyond any doubt, if your Honours have regard to the draft Code at tab 2 of my material, that Sir Samuel Griffith based what became section 304 on the Bill of 1880, which was the draft Criminal Code of the United Kingdom, and he refers there to sections 68 and 172 – I am sorry, 58, that is. It looks like 68 but I checked it on the original, it is 58 and 172.

Now, each of those sections appear in tab 3 of my material and what was clause 58, or section 58, of the Bill of 1880 perhaps found its way more into sections 268 and 269 of the Code as enacted, but it was clause 172 of the Bill of 1880, especially in the first paragraph of that clause, that became section 304. The wording is slightly different but the expression there is “caused by sudden provocation” and our submission to the Court is that when that expression was employed in section 304 of the Code, consistently with what was held in Kaporonovski, it was a compendious statement of the common law of provocation.

I perhaps do not need to take your Honours now because it is set out really in my written submissions, but in my written submissions I have referred your Honours to the Royal Commissioner’s Report of 1879 where they said that as far as they were concerned the only change they were introducing into the common law was to allow for words to provoke, at pages 24 to 25. That is seen at tab 4. Then I have given your Honours various examples in my written submissions at paragraphs 5‑11 through to 5‑14 of the use of this expression “sudden provocation”.

Now, there is a difficulty with the contention that I urge which was adverted to this morning, namely, that the heat of passion might encompass the sudden loss of self‑control. I acknowledge that. There is also another difficulty, and that is that in Canada in their Criminal Code there, they have a section which is almost exactly like clause 172 of the Bill of 1880 and in a Canadian case called The Queen v Tripodi, which is at No 16 of my material, your Honours will see the section at page 444 of the judgment, and your Honours will see that that provision of the Canadian Code spoke of “sudden provocation” in the first paragraph and then in the second paragraph it spoke of the:

wrongful act or insult, of such a nature as to be sufficient to deprive an ordinary person of the power of self‑control, may be provocation if the offender acts upon it on the sudden, and before there has been time for his passion to cool.

So that clause has been interpreted in Canada in the fashion that you see on page 443 in the judgment of Justice Rand where he said in the second paragraph of his judgment:

What s 261 of the Code provides for is “sudden provocation”, and it must be acted upon by the accused “on the sudden and before there has been time for his passion to cool”. “Suddenness” must characterize both the insult and the act of retaliation.

Now, that approach still adheres in Canada, and the next case in my bundle of material demonstrates no more than that really. It has been an approach followed in the State of Tasmania where – I might just digress to point out provocation has been done away with, it has been abolished, so the law in that State on this subject is now I suppose frozen in time – but in the case that appears at tab 18 of my material, Attorney‑General’s Reference No 1 of 1992 1 Tas R 349, the judges of the Tasmanian Court of Criminal Appeal answered certain reference questions in the manner consistent with the way it had been answered in Canada. The page references for those answers are 360 to 361 in the judgment of Justice Crawford – this is where it appears most clearly perhaps – and also in the judgment of Justice Zeeman at 369 – I am sorry, it is 369 to 370 in the judgment of Justice Crawford and 382 to 383 in the judgment of Justice Zeeman.

The respondent would distinguish the Canadian and Tasmanian line of authority because the sections in each of those jurisdictions are different from 304 of the Code. The Tasmanian section appeared at page 349 of the Tasmanian judgment in a footnote. Your Honours will see that insofar as it spoke of “sudden provocation” in subsection (1) and the requirement for “the offender acts upon it on the sudden” in subsection (2), one can perhaps understand why the Canadian and Tasmanian judges have interpreted the section that way, but 304 does not contain two “suddens”, it only contains the one.

That is all I wish to say about that subject. The position is this insofar as step five is concerned, the respondent contends that it is always been central to the doctrine of provocation, that the deceased’s provocative conduct caused a sudden loss of self‑control and that, as I have stated this morning, suddenness, far from not serving an essential forensic purpose as my learned friend asserted in his written submissions, negatives the possibility of a premeditated killing. Justice McHugh, the dissentient in Masciantonio, said that at pages 79 to 80, but, insofar as he dissented, his dissent was about other matters. That particular proposition that I rely on is not controversial and, indeed, in R v Osland [1998] 2 VR 636 – this case appears at tab 19 – at page 649, point 25, his Honour the Chief Justice and Justice Hayne and Justice Charles said that:

If the requirement for sudden and temporary loss of self‑control were to be removed, it seems to follow that the mercy extended in cases of provocation would then be extended to some cases of pre‑meditated killing.

Our submission is this, that the evidence concerning the appellant’s acts and words and demeanour prior to the provocative conduct that the appellant relied upon as provoking him was capable of giving rise to a very real suspicion that his intention to kill or do grievous bodily harm was the product of a brooding anger or a brooding resentment about past wrongs. Thus, the direction that is contained in the fifth proposition was necessary in the circumstances of this case, given that evidence to guard against the possibility that the jury might erroneously excuse an otherwise inexcusable murder and reduce it to manslaughter.

In his written submissions this emerges more clearly perhaps, but in his written submissions my learned friend made the point that the fifth proposition was adequately enough covered by some of the other propositions in the seven‑step test. The respondent contends that if the worst that can be said about a proposition – and I hasten to add I know he is saying it is worse than this – but if the worst that can be said about a proposition is that it is unnecessarily repetitive, then it is not necessarily erroneous, but, in our submission, the fifth proposition concerned a consideration not covered, for example, by the fourth proposition.

The fourth proposition was that the loss of self‑control was not caused by the provocative conduct. That proposition, the fourth, was directed to the possibility that the loss of self‑control, whilst possibly sudden in the sense of not being premeditated, was induced by something other than the deceased’s provocative conduct. The fifth proposition did not cover the same ground as the third or the sixth propositions and in my learned friend’s written submissions, he contends that it did.

The third concerned the possibility that the appellant killed, but not whilst his self‑control was lost. That is to be contrasted with the fifth proposition which contemplated that he did kill whilst not in control of himself. The sixth proposition contemplated that at some stage there had been a loss of self‑control, but that by the time of the killing, the self‑control had reasserted itself. Well, the fifth proposition concerned to killing that had apparently occurred when self‑control was lost.

The appellant’s final complaint about the fifth proposition concerned the failure to include the words, for example, “the killing was premeditated”. Now, this has been touched on at length. The admission of those words, the respondent reminds the Court, was mutually agreed to. When the jury asked for assistance they got it in terms that were mutually agreed upon. The appellant’s complaint is that insofar as the mutually agreed upon redirection included the notion of immediate, speedy or prompt, then an injustice was occasioned, possibly to the appellant because the jury might have denied him provocation if they determined that his response was not prompt enough.

Well, in the circumstances of this case, that is not a danger that could possibly have arisen. The respondent contends that on the evidence, the assault had reached the yard by 5.50 am because Mr and Mrs Hart were woken by the dog barking, they opened the door and they heard, to put it neutrally “sounds of violence” and they heard somebody calling out for the police and that was after they opened the door at 5.50. So, the assault was out there at 5.50.

The other parties, Ms Bray, Ms Brownlie and Graham Pollock had left the house. Now, Graham Pollock said they left at 5 to 5.30. Well, having regard to the astronomical certificate which tells us that nautical twilight, which is just a fancy expression for the outlines of objects are dimly visible, occurred at 5.37 am. It is far likelier that Mr Pollock’s estimate of leaving at 5.00 was wrong and that if any estimate - if his was correct it was 5.30 but the more reliable view is that they left at about a quarter to six because of the evidence of Ms Brownlie that she arrived home at 6.00 and she looked at the clock and it said 6.00 and she estimated that it took about 15 minutes with a stop at the petrol station from leaving Murray Pollock’s place to her place in a nearby suburb.

So the view can be taken that whatever occurred between these two men occurred very speedily, very rapidly and that the accused’s response to it was speedy, it was prompt, it was immediate, but that is not the same thing as whether or not his response was, in fact, a response to the conduct of the deceased as opposed to putting into action a preconceived idea or a premeditated notion. So in the circumstances of this case, the respondent contends no injustice was done by including notions of speediness, promptness or immediacy in the definition of “sudden”. That is all I wish to say about the fifth proposition.

In relation to the seventh proposition, the appellant complains that it poses an unnecessary question because the appellant says the only question is whether, as a matter of subjective fact, he had regained self‑control and because that proposition is contained in proposition six by stating proposition seven, it would drive the jury to give an objective meaning to the seventh proposition. I remind your Honours of the proposition. The sixth one was:

the appellant did not kill the deceased whilst his self‑control was lost;

7.when the appellant killed there had been time for his loss of self‑control to abate -

Bearing in mind that section 304 requires the death to be caused in the heat of passion and before there is time for his passion to cool, the argument is that the first‑mentioned phrase of “killing in the heat of passion” is expressed in the sixth proposition and the second‑mentioned phrase “before there is time for his passion to cool” is reflected in the seventh proposition. Thus, Justice Keane was correct to conclude at paragraph [60] of his judgment at appeal book 357, line 40 that steps six and seven in the formulation reiterate the concluding words of section 304 of the Code.

BELL J: Does that proposition involve the submission that section 304 of the Code, in this respect, departs from the common law as explained in Masciantonio?

MR COPLEY: It may well do, yes. It may well be that the position is that section 304 states the law in statutory code form but not completely so, there has to be a reference back to the common law to understand all of what is in 304. For example, the very word “provocation” is not defined but the common law tells us that is an act or a series of acts and/or words done by the dead man to the survivor, et cetera. If it is necessary for the sixth and seventh steps to reflect the common law and I do not concede that it is but if it is necessary to do so, then the contention is that both steps can be found at page 66 in the judgment in Masciantonio in the third paragraph down:

Homicide which would –

and the sixth proposition could be encapsulated in the expression in the last sentence:

the accused must act whilst deprived of self‑control -

The seventh proposition could be encapsulated by:

before he has had the opportunity to regain his composure.

Now, there is no “and” between those two propositions but this judgment is not a statute. It is a judgment. These propositions may come close to stating very much the same thing but as I have already submitted to be repetitive is not to be wrong, necessarily.

HAYNE J: Mr Copley, what do you say to the proposition that dissection into seven parts, as we see reflected in the questions, constitutes an overly refined dissection of what is a composite set of ideas directed to distinguishing between premeditated and provoked intention to kill or do grievous bodily harm?

MR COPLEY: At a certain level there may be merit in that observation. For example, it could be argued that one does not need to talk to the jury about acting whilst deprived of his self-control and before he had time to regain his control because is that not adequately enough covered by the notion that it will be provocation if the ordinary person could have done as he did. That would be the argument that one could imagine would be used to support the proposition your Honour gave. But the difficulty is section 304 speaks of something being done “in the heat of passion” and before there is time to – I am sorry, I have forgotten the phrase.

BELL J:

before there is time for the person’s passion to cool ‑ ‑ ‑

MR COPLEY: Yes, they are the words of the section. So, it can never be wrong, in my submission, for a judge to direct the jury in terms of the words of the section.

HAYNE J: Well, the alternative point of view is that that can lead to error if it distracts the attention of the jury from deciding what are the real issues in the case as it has been conducted.

MR COPLEY: Well, that is where I was going to come to my next submission which is this, that taking your Honour’s proposition that is not this seven‑step test too cumbersome, well, in some cases, it would be. For example, if an incident occurred outside a hotel where there is a video camera recording what is going on, the words and the actions and there is really reliable evidence that the protagonists have never met each other before, why would it be necessary to start with the first proposition, that the provocative conduct did not occur because it would be captured on videotape, in this hypothetical example, the jury would see what the deceased said and did to the man who survived. There could be no serious argument that the provocative conduct occurred.

If the men had never met each other before and there were insults exchanged suddenly, in that environment, then it could never be seriously contended by anyone that the killing, which then followed, was premeditated. So, in that scenario, immediately step one and step five would fall away. Justice Keane perhaps had those sorts of things in mind when he said in the judgment below that this seven‑step test was appropriate to the circumstances of this case. It might not be appropriate to the circumstances of every case.

BELL J: A moment ago you said, referring to the complaint made concerning the seventh step, that it can never be an error for a judge to direct a jury in accordance with the language of the statute but, of course, the seventh step in exhibit G did not do that.

MR COPLEY: No, it did not.

BELL J: It provided that the Crown would exclude provocation if the ‑ ‑ ‑

MR COPLEY: If there had been time for the losses.

BELL J: ‑ ‑ ‑ jury was satisfied that when Andrew Pollack killed Murray Pollack there had been time for his loss of self‑control to abate.

MR COPLEY: Yes.

BELL J: Now, do I understand you to embrace the proposition that under the Code provocation is excluded notwithstanding that a killing is done by an accused who is subject to a loss of self‑control at the moment of the killing brought about by the provocative conduct of the deceased, but that objectively speaking there has been sufficient period of time for a jury to conclude that the accused should have recovered his self‑control?

MR COPLEY: Yes, I do, because of the words “and before there is time for the person’s passion to cool” in 304 but that is an in principle submission, perhaps, but in the circumstances of this case my primary argument is that there was no danger of the jury giving the seventh step an objective meaning because the only time in which notions of objectivity crept into the directions at all were appropriately those confined – well, appropriately, according to Masciantonio, those confined to the second step. It is drawing too long a bow to say that because step six and seven seem to cover the same ground, the jury would strive to give the seventh one a meaning different from the sixth and they would reach out for an objective test to be applied to that.

BELL J: I think the Crown did address on the seventh step as a discrete matter, did it not? I am just trying to turn it up.

MR COPLEY: I looked for some place in the Crown address where I could write a note to myself the seventh step and I could not find an appropriate place to put it, but I recall that the prosecutor asserted that he did address them about the sixth and seventh steps but I really struggle to find where he did. It seemed to me that step six was covered at page 806, clearly at lines 20 to 30 and then after that it went off to talk about step two, the objective test.

That was really as best as I could do with the address but Justice Keane said, and it is perhaps not much help if I cannot take you to where in the address it is, but Justice Keane’s perception was that all seven steps were in issue in that at paragraph [71] at page 364 of the appeal book, his Honour said that:

The appellant complained that the Crown Prosecutor invited the jury to draw inferences of fact inconsistent with the evidence or the weight of the evidence in respect of each of the seven propositions under consideration.

So his Honour’s understanding of the address was that the Crown Prosecutor fought, or took issue, with every proposition of the seven. He did not concede any of them.

FRENCH CJ: At 806, I think at about line 20, I think we were taken to this before:

The Crown says by that time he can not have been acting under provocation, and the time taken to do that, he couldn’t have been acting under a loss of self-control. It’s just too big a gap -

et cetera. I suppose that is six really, is it not? It might bring in seven as well.

MR COPLEY: Yes, well, I was striving to do what it had been asserted that the prosecutor had done below and that was notionally mark off where all the grounds were and I had trouble really identifying step seven.

HAYNE J: Does trial counsel for the accused deal with step seven separately?

MR COPLEY: I will just have to check. Yes, he does at page 848, line 25. He describes it there as a “second last question”. That is why I hesitated because the last question was step two insofar as he addressed the jury, too.

BELL J: I am sorry, where on 848?

MR COPLEY: Page 848, line 25:

I come to the second last question ‑ ‑ ‑

BELL J: Yes.

MR COPLEY: That then leaves me to deal with the first complaint advanced this morning and the first complaint advanced in the written submissions that it was not permissible and not helpful and wrong to break the excuse of provocation up into seven propositions and say to the jury the Crown can succeed in negativing it if it negatives any one of the seven.

BELL J: I am sorry, Mr Copley, just to interrupt you for one moment, but just to complete the discussion. At 811 from about line 58, going over to 812, one gets the Crown Prosecutor I think addressing the seventh point:

had there been time for his loss of self‑control to abate.

He says he has made his submissions on that.

MR COPLEY: Yes. That is the bit I had trouble with. I found that, but I could not find where earlier in the submissions he had actually said that.

BELL J: But what he goes on to say is:

If you are satisfied that, yes, there had been time, well, then again, that’s the end of provocation.

Now, that is a proposition you embrace as being a correct statement of the law in Queensland?

MR COPLEY: I do, yes. My learned friend in his written submissions says that section 304 posed only one question, did the accused act whilst provoked? Well, on one level it did, but it would have been most unhelpful, in any case but especially in the circumstances of this case, to have directed the jury like that. The jury had to appreciate that their answer to that ultimate question depended upon the view they took about quite a number of other things. In this particular case, the first issue for them to consider was whether the provocative incident occurred at all.

One might go a long way and wait a long time for another case of provocation where there would be any serious debate about that, but in the circumstances of this case where Ms Spottiswood woke up merely to see them arguing and, as she put it, pounding each other, that did not tell us how it began. The appellant could not remember what happened. The jury was being asked to infer things from where blood was in a bedroom and where it was not in other bedrooms and come to the conclusion there was an attack in the bedroom. So it was a live issue for the jury whether that provocative conduct occurred or not.

BELL J: There was, in addition, the evidence of the father’s threats to kill the appellant.

MR COPLEY: That is true.

BELL J: Uttered on the evidence, as I understand it, within a relatively short time period before Ms Spottiswood heard the fight.

MR COPLEY: That is true, your Honour. So that could be evidence bearing upon ‑ ‑ ‑

BELL J: So when one looks at the obligation on the Crown to exclude provocation, one can see in this circumstance the threats to kill and then the account of a fight in the bedroom, being the appellant’s bedroom, lent some colour to the proposition.

MR COPLEY: That is right. It would be different if the fighting had occurred in the father’s bedroom notwithstanding the threats.

BELL J: Yes.

MR COPLEY: Yes. So that is also evidence relevant to whether the provocative acts occurred. But the Crown chose to try to negative provocation by reference to that step, hence, her Honour had to direct the jury that they had to ask themselves, has the Crown proven beyond reasonable doubt no provocative act occurred. It might have been ambitious in the circumstances for the prosecutor to perhaps seek to negative provocation by reference to that notion, but nevertheless, that was the way the case was fought. It is important, it is essential that there be identified a provocative act.

In my outline I rely upon R v Croft [1981] 1 NSWLR 126 at 140. I do not need to take your Honours to that. I would like, though, to take you to Johnson at tab 22 and I would like to take your Honours to page 644 in the judgment of Chief Justice Barwick, and bearing in mind the fourth proposition, “the loss of self‑control was not caused by the provocative conduct”, his Honour the Chief Justice said in the second paragraph on 644, albeit in the context of an environment where the offender bore the burden of establishing provocation as a defence, his Honour said:
They should further be told that if, having considered the question of provocation, they find that the fatal act did not result from the provocation but from an intent to kill formed independently of the provocation . . . they should not return a verdict of manslaughter ‑

So that demonstrates the utility of the fourth step and, indeed, the fifth step arguably finds expression earlier in that paragraph where his Honour the Chief Justice said:

They should be told that if they find that the deceased was killed by an act premeditated by the accused . . . they should not consider returning a verdict of manslaughter ‑

So that is a matter to note. In the last paragraph on 643 his Honour said, after the quote from Lord Morris in Parker, “In my opinion, a trial judge summing up in New South Wales” effectively should state the following things and in those next two paragraphs his Honour the Chief Justice is effectively listing out the matters that a jury needs directions on for provocation in that State, but not by reference to steps one and step two, et cetera. So that is a pretty powerful example of a situation where an eminent jurist thought that it was necessary to break this defence down into elements.

I have included in my material model directions from England and Canada simply for this purpose, to show to your Honours that in England the Judicial Studies Board – and this can be seen at tab 6 – has promulgated suggested directions which seem to involve at least three steps. They are encapsulated in the paragraph numbered 3, the paragraph numbered 5 and the paragraph numbered 6.

BELL J: A point of distinction is that these model directions serve to explain the content of what you are characterising as steps.

MR COPLEY: Yes, your Honour.

BELL J: That does seem to be missing from the checklist that was exhibit V.

MR COPLEY: Yes, it is missing, but all I can say is that there was no application for further or better directions. If you go to tab 7, these model directions come from the Canadian Judicial Council. At the bottom of page 2 over on to the top of page 3 in bold type, your Honours will see four matters that it is recommended Canadian juries be directed about; four steps. It is really just to give your Honours an example.

HAYNE J: But is there a distinction not just of expression but of kind between identifying the content of the doctrine of provocation in the fashion here identified, for example in Canada or by the Judicial Studies Board in UK, and saying, as this aide‑memoire for the jury said, the prosecution will have succeeded in satisfying you that provocation is excluded as a defence if it has satisfied you beyond reasonable doubt of any one of one to seven?

MR COPLEY: Well, there is nothing wrong with saying it will be excluded if any one of the seven is proven not to be so beyond reasonable doubt, but I take it your Honour is positing that it does not relate or flesh out the steps by reference to the arguments of counsel or to the evidence in the case. Is that so, your Honour?

HAYNE J: In part that is the problem. It assumes – perhaps rightly in this case; I do not know – that each of these seven steps was in issue and that there was an issue of fact for the jury to determine which is captured by each of the seven steps and, in turn, not only is there an issue of fact thus captured, but the capturing of that issue of fact can be translated into the law of provocation.

MR COPLEY: Well, the assumption that these seven matters were in issue is beyond doubt, in my submission, bearing in mind paragraph [71] of Justice Keane’s judgment. The parties below – and really this is a submission aimed squarely at the appellant. The appellant’s counsel below was happy with the formulation that was delivered. Maybe having heard the arguments of Crown counsel about how each of these steps might be combated, maybe he did not want the jury to hear her Honour saying, well, on the one hand the Crown says this and on the other hand the accused’s counsel says that.

BELL J: Is it necessary to look at it in this context, that given the model direction, as it were, supplied in the previous decision of the Court of Appeal, the parties might have approached the matter on the basis that the proposed directions, including the checklist, were to be given.

MR COPLEY: Had to be given?

BELL J: Yes.

MR COPLEY: That is possible, and no doubt my learned friend might say, well, this fell from the Court of Appeal, therefore if ever a trial judge was bound by it, it would be the trial judge doing the retrial. But the prosecutor asked her Honour to jettison part of the fifth proposition. Defence counsel urged her to do so and her Honour did so. That no doubt would have emboldened defence counsel to perhaps ask for modifications

to other steps if he had been so inclined at the time, even if he had started the case thinking that the seven steps are immutable.

BELL J: Can I come back to this. In answer to the question Justice Hayne asked you, you said, well, yes, each of the seven steps were in play, given the issues in this trial, and there was no error, as it were, in stating them, albeit it was a short statement of them. That is as I understand the effect of your answer. That does carry with it the correctness of your proposition that section 304 of the Code imports an objective requirement with respect to the length of time for a provoked accused’s passion to abate, a proposition which seems to me to be contestable, highly contestable I might say. Can I raise with you this. If that proposition is right because it follows the text of the provision, why is it that one imports the objective element that you urge, and up till now seems to have been uncontroversial, one does, into section 304?

MR COPLEY: One imports the objective element to ensure that to use the phrase that Lord Diplock used, exceptionally excitable or pugnacious individuals do not escape responsibility for murder.

BELL J: Mr Crown, I think I understand that. The point that I am raising with you is one cannot – it is very difficult to read section 304 as a complete statement of the partial defence, is it not?

MR COPLEY: I do not want to make a submission contrary to that proposition.

BELL J: But does that not make it necessary to consider reading the words “and before there is time for the person’s passion to cool” with the preceding words “does the act which causes death in the heat of passion caused by sudden provocation”, so that one does not separate off the balance and create an objective element?

MR COPLEY: Well, my primary submission, your Honour, was motivated by a wish to not engage with this point perhaps by saying that in the circumstances of this summing‑up there was no danger of an objective test being imported in. But I did not go on to make the submission that in Queensland the test should not be objective, it should be subjective, but at the end of the day that may not be a matter the Court needs to determine, if it accepts my primary submission. Thank you, your Honours.

FRENCH CJ: Thank you, Mr Copley. Yes, Mr Keim.

MR KEIM: Thank you, your Honour. I wanted to start with two points of clarification. With regard to the appeal book, where it incorporates the decision of the Court of Appeal, I think your Honour Justice Hayne alluded to this, but the passages which start at page 353, paragraph [57], and then which go all the way over to page 356, line 40, that is all a quotation from Chief Justice Gleeson’s reasons in Chhay and so, therefore, the references to Duffy and Justice Devlin, as he then was, need to be seen through the reasons of the former Chief Justice in this Court in Chhay.

The second thing I wanted to do with regard to Chhay was to simply confirm what your Honour Justice Bell said before lunch with regard to the state of the law in New South Wales at that time. Chhay is in our authorities behind tab 3. If one goes to page 10, at about point 6 on the page, the paragraph which starts “The above passage recognises, as a matter of common law”, that discussion seems to be a summary of what has gone before and seems to be a statement of the common law at that time.

Then the discussion of section 23 begins. The old wording is set out at the bottom of page 10, the new wording with particularly the addition to subparagraph (2)(b) which refers to “immediately” is set out at page 12. Then at page 13, halfway down the page, his Honour starts to discuss the effect of those amendments. In a sense what his Honour is saying, as we understand it, is it has not changed the common law all that much, where he says, for example, in the paragraph:

That having been said, it is still necessary to address the question of the nature of the distinction between killing as the result of a loss of self‑control, and killing which, even though it involves ill‑treatment of an accused by a deceased, is nevertheless regarded as murder.

So that, I think, is confirming what your Honour Justice Bell said before lunch.

My learned friend has criticised the conduct of the trial by the appellant below. The point that he half made on our behalf, and which we do mention here, is that the court and the parties were, of course, bound by the Court of Appeal’s earlier decision. Perhaps it should have been looked at more critically before the trial commenced. It was not, but at the end of the day, it is the rights of the appellant, not whether the trial was conducted well below, which is really the issue here.

We wanted to say this. We understand our learned friend with regard to step five of the sevenfold test to be acknowledging that both the removal of premeditation from the way in which it was put to the jury and the references to “speedy” and “immediate” both constituted misdirections. In order to say that that created no injustice, and we have said this in our outline and, I think, we said it this morning, our learned friend runs the case here completely opposite on two points the way it was run below.

One is he runs here on premeditation and the evidence of premeditation and he runs here on the basis that there is simply no basis on the facts in which it could be regarded as immediate or speedy even though the Crown submitted below strongly to that effect that it was not speedy or immediate. We repeat our submissions this morning that our learned friends’ statement of Ms Brownlie’s evidence misstates that evidence and we took the Court to the passages this morning.

HAYNE J: Just before you pass from this issue five point, having regard to what transpired before the jury came back and their question was answered, in particular having regard to what appears at day 10, page 9, between lines 41 or 42 and 52, what are we to do with, or what significance, if any, are we to attach to the exchange that you then had with her Honour the trial judge about how to deal with this question about suddenness?

MR KEIM: We say that that was a proper response by the defence below in the light of the fact that the parties and her Honour were of the view that the parties were bound by what was said by the President in the Court of Appeal in the first Pollock appeal.

HAYNE J: Absent that, do you say that the answer given was flawed and if so, how? Could you state the flaw that you say is exhibited by the jury’s question about issue five? Can you state that in summary form?

MR KEIM: We can, your Honour. Can I go to the page of the appeal book where it appears, pages 309 to 310. We made some comments this morning with regard to page 309, which I will not repeat now, but her Honour commences to discuss “sudden” at the bottom ‑ ‑ ‑

HAYNE J: Yes, I have read all that. What I want to know is your statement in summary form of what the error is.

MR KEIM: The error commenced when her Honour commenced to refer to meanings of “sudden” which departed from being the opposite of “premeditated”. That is what we say the error is. The emphasis on “speedy”, “immediate”, “prompt” and then to go on in that context to say it means what you consider it to mean because it is an “ordinary, English word”.

FRENCH CJ: It is not a complaint that it qualifies loss of self‑control?

MR KEIM: No.

FRENCH CJ: Just that it was defined the wrong way.

HAYNE J: By omitting contrast with premeditation. From my point of view, Mr Keim, this is quite important so if you want to take a moment to formulate it with a degree of care do, but I need to know what you say the error is. I recognise that you say it came about because of Court of Appeal one. Leave that out of account, what is the error that is committed by telling the jury what was then told to them?

MR KEIM: Can I go back to the Chief Justice’s question because I do not think I understood that question, your Honour the Chief Justice. I did not realise whether you were referring to something in the actual ‑ ‑ ‑

FRENCH CJ: I thought your complaint in answer to Justice Hayne’s question was as to the particular elements of the definition that were offered by the judge to the jury in answer to the jury’s question, but the premise of Justice Hayne’s question was put aside step five, what is the error?

MR KEIM: The error is that in describing a loss of control as “sudden”, to interpret “sudden” as being speedy, prompt, immediate, as opposed to saying that all that is meant by a sudden loss of control is to distinguish the loss of control due to provocation from a premeditated act, if “sudden” is presented to the jury with the explanation that it does not have to be immediate, it can take place over several hours, the purpose of using the descriptor is to distinguish a provoked act from a premeditated act, in those circumstances the jury would not be mislead in the way that the complainant was.

But the error in terms of the jury was that their attention was thereby focused on asking themselves was this act sudden? Was it immediate? Did it happen without delay, which is entirely the wrong purpose of any reference in any of the cases to “sudden” and “temporary” loss of self‑control? We say it is possible in the circumstances of this case that the defence of provocation was excluded simply by the jury’s response to that question as “sudden” was explained to them. I think we have answered your Honour’s question to the best of our ability.

HAYNE J: Thank you.

MR KEIM: The point that I was making that the Crown case, both on premeditation and immediacy, has been presented here in exactly the opposite way to which it was presented below, in that respect we did want to just refer the Court to page 320 of the appeal book where her Honour the learned trial judge in her sentencing remarks interpreted it in this way. Perhaps at the bottom of page 319 it might be useful to start.

It had always been a troubled relationship.

This is speaking of the deceased father -

He was furious and he was drunk. He came in to your room to deal with you and there there was obviously a terrible struggle. You clearly got the better of him and there is no doubt in my mind that he fled from you, but you followed him.
At that point you could have stopped. You could have stopped this bloody violence. You need not have continued but you decided clearly to continue.

So her Honour goes on to make it even more clear -

Had he unexpectedly died in the bedroom, it’s quite possible that the verdict of the jury would have been manslaughter, but it was the continuation, your continuation, of the fight, following him in the garden bed, which meant that there was time for your extreme passion to cool -

We do not necessarily agree with all of her Honour’s interpretation there, but her Honour was clearly of the view that the time which had elapsed, contrary to our learned friends’ submissions here, was what was crucial to the way in which the jury disposed of the defence of provocation.

Can we say this with regard to the sixth and seventh elements. We say there is nothing in section 304 which requires that the two separate elements of post loss of control delay be given a meaning. We say it is not uncommon for the law to repeat words which have virtually the same meaning in order to reinforce a point, but we also say in terms of the literalness that is involved with that and our learned friend’s submission that it can never be wrong to instruct in terms of the section, we say, particularly without further explanation, it can be wrong, that section 23 which was written at almost the same time as – section 23 of the New South Wales legislation used the phrase “without intent to take life” when in fact the cases since then have made it very clear that provocation does not arise unless there is an intent to cause grievous bodily harm.

That is a case of legislation from the same period where the courts have looked at the legislation and said it must be understood in the context of the common law and in the concepts of the common law, it does not mean what it says literally. In the same way, even though we say section 304 does not have to be read in that way, even if reading it in that way was the better reading of it, the courts would treat that as a single concept. We say a further thing with regard to that. We say that if our learned friend’s proposition is correct, and he seems to have conceded this part of it, it means that it is an objective test.

The second thing that we say is that it means that the law in Queensland is different to the common law as elucidated in Masciantoni, because our learned friend repeatedly, both in writing and here, takes you to page 66 of Masciantonio, but, as we indicated this morning, the fact that is said at page 66 of Masciantonio is a single concept is made clear at page 69 where the concept of continuance is discussed.

With regard to the Crown’s submissions on the seventh step, and one does have to be careful that one does not take the reference to the second‑last point in either of the addresses as being the sixth rather than seventh point because both addresses were structured to leave our number two, but we say that the whole of page 106 was dealing with the seventh step.

BELL J: I am sorry, what page is that?

MR KEIM: Page 106. This is in the additional material. Page 806.

BELL J: Page 806.

MR KEIM: I am sorry, I sometimes get my syllables wrong. Page 806 at the bottom of the additional material. You can see, for example, and I think your Honour the Chief Justice mentioned this when my learned friend was on his feet, at about line 15:

what about another scenario, that he has knocked Murray down and Murray has fallen face down, and he still has lost the self‑control and he goes and gets this rock and still in this – middle of being in this rage, this white hot anger, he inflicts the blows. The Crown says by that time he can not have been acting under provocation, and the time taken to do that, he couldn’t have been acting under a loss of self‑control.

That is clearly with regard to that step. We say that over on the next page at line 20 – and we understand our learned friend relied on this for a submission that the killing was premeditated – the Crown says:

Okay. Now, that may seem an attractive argument. But the Crown says this, that it’s more likely that after he has killed his father, it is then that he realises what he’s done. It’s then that the enormity of it all hits, that after hearing that –

So that is dealing with the post‑emotion. The address goes on –

It’s then that the enormity of it all hits, that after hearing that, that the police are going to be called, “Rightio mate. I will do that.”, says Gerry Hart, that that’s it, this is the – this is the point of no return. Is he going to finally do what he said he was going to do that night? He knows he’s touched Megan. Going to kill him. Here he is in this position. All the hatred, all the things that he blames his father for, coming to the fore and in a moment of revenge, of punishment, of retribution, of sheer hatred, he does this act, and then that’s when, that’s when it hits him. That’s when it hits him.

The last sentences are with regard to the post‑emotion, but in the middle what the Crown is saying is that in going to get the rock the loss of control has abated and rather than act on the loss of self‑control, he acts as matter of revenge and carries it out, therefore the time has ‑ ‑ ‑

FRENCH CJ: In one sense, that is all inferential offering, is it not, on one view, looking back at what appears at page 806? The Crown is saying he could not have been acting, it is not as an ordinary person could not have been acting but that this person, as a matter of interest, could not have been acting under a loss of self‑control. In other words, it may be not clear that it is applying an objective criterion.

MR KEIM: No, it is not clear from the Crown address whether he is addressing an objective or a subjective test, but he is really saying that in the time it took to go and get the rock, his rage must have subsided, and it can be applied equally to the sixth or seventh test.

FRENCH CJ: Yes. “You can infer that, ladies and gentlemen of the jury.” Yes.

MR KEIM: Yes. With regard to the model directions, we say they are very different. We say that the UK direction, which is behind tab 6, shows the importance of the interrelated nature of the different aspects of the defence as stressed in Johnson. We say the UK model direction would create a completely different dynamic for the jury if provocation were put to the jury than if provocation was put to the jury in terms of the sevenfold test. That is probably in terms of what – my learned friend’s submissions today – that is probably all we wanted to say with regard to that.

With regard to the Canadian direction, the differences are salutary there, too. It is true that the Canadian direction uses a less interrelated approach to that which is recommended in Johnson, but what is very clear is that with regard to each of the events, the direction is very careful to provide assistance with regard to each element so that the jury is not placing undue emphasis on a particular word. The fourth element, as explained at page 6 of that direction, as not unlike the fifth element in this case about

immediacy of the response. It uses the word “spontaneous” but it as much about acting in the heat of passion as opposed to a – we say there are similarities but it has been explained so that the jury, in those circumstances, would not be led astray and distracted in the way we say they have been here. That is what we had in reply, thank you, your Honour.

FRENCH CJ: Thank you, Mr Keim. The Court will reserve its decision. The Court adjourns until 9.30 tomorrow morning.

AT 3.23 PM THE MATTER WAS ADJOURNED

[2010] HCATrans 161

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