Pollock v The Queen

[2010] HCATrans 54

[2010] HCATrans 054

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane     No B36 of 2009

B e t w e e n -

ANDREW MURRAY POLLOCK

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 12 MARCH 2010, AT 2.25 PM

Copyright in the High Court of Australia

MR S.J. KEIM, SC:   I appear in this matter for the applicant with my learned junior, MS A.E. CAPPELLANO.  (instructed by Legal Aid Queensland)

MR M.J. COPLEY, SC:   If the Court pleases, I appear for the respondent.  (instructed by Director of Public Prosecutions (Qld))

CRENNAN J:   Yes, thank you.

MR KEIM:   Your Honour, the only issue in dispute in the trial was whether the Crown had negatived the defence of provocation.  The applicant pleaded guilty to manslaughter and not guilty to murder.

CRENNAN J:   At the trial did the defence counsel accept that the seven‑fold test was the framework through which the issue of provocation should go to the jury?

MR KEIM:   It did, your Honour, because all parties, including the trial judge, were bound by the decision in the Court of Appeal in a previous appeal in this matter.

CRENNAN J:   Yes.

MR KEIM:   In fact, it was really only at the time when a question came back from the jury that both the Crown Prosecutor and the defence realised that the formulation, at least with regard to the fifth step, departed from the phraseology in section 304, so the answer to your question is in the affirmative.

CRENNAN J:   Thank you.

MR KEIM:   As I said, the applicant complains here about the way in which the summing‑up occurred.  The seven-fold test, as I said, had been laid down by the Court of Appeal in an earlier appeal by this applicant, and for the reason that it was not essential to the ground’s argument in the first appeal that attention was perhaps not given to it prior to – somewhat after the summing‑up had finished. 

However, that test laid down by the Court of Appeal followed in the trial, now endorsed on more than one occasion by the Court of Appeal – and we have included the case of Miller in our bundle where the President who formulated the test recommended it to future trial judges – we say it precluded the applicant from receiving a fair trial.  We say that the effect of following the approach was to misdirect the jury’s consideration of the defence of provocation and as a result to jeopardise the applicant’s opportunity to be acquitted of murder by application of the defence of provocation.

KIEFEL J:   In the decision of Miller, I have not had a chance to read it as yet, was this issue taken before the Court of Appeal?  Did they deal with it?

MR KEIM:   No, your Honour, Miller had been tried prior to the first decision in Pollock, Pollock [2008] and then it came on appeal on the issue of provocation, and the court said there that there was nothing wrong with the summing‑up with regard to the issue of provocation, but the President in paragraph [3] says that the trial judge would, of course, have had benefit from applying the seven‑fold test from Pollock if in fact it had been decided at that point in time.

KIEFEL J:   I think it is included in your submissions that the seven‑step step, or the seven-fold test, has found its way into the Bench books.

MR KEIM:   It has.

KIEFEL J:   In all courts, in the Supreme and District Court?  It will only apply to ‑ ‑ ‑

MR KEIM:   The Bench book applies to both the Supreme and District Court.

KIEFEL J:   Thank you.

MR KEIM:   What we wanted to mention was that if you look at item number 8 in our authorities, there is a footnote there that says:

This formulation is taken from the statement of law made by McMurdo P (with whom Fryberg J agreed) in R v Pollock [2008] QCA 205 at [7], which was approved in R v Pollock [2009] QCA 268.

So it is now being treated as if it has perhaps a triple endorsement of the Court of Appeal.

Your Honour, we say that in three different respects, the seven-fold test wrongly states the law as it has been laid down by this Court, particularly in the cases of Masciantonio and Johnson, and as we have just indicated, if it is not corrected, then it is likely to be repeated whenever provocation is raised in a criminal trial in Queensland.  It is contained in the summing‑up.  It is set out at pages 25 to 26 of the application book, starting at line 40 on page 25, and we have also included, as item 9 in our bundle of material, exhibit G, which was, again, with the consent of the defence, supplied to the jury for their consideration.

The first aspect in which we say the law is wrongly stated is what the test does with regard to the interrelationship of the concepts which go to make up provocation.  This interrelationship was discussed at some length and endorsed and emphasised by this Court in Johnson, and in the Court of Appeal in this matter, Justice Keane set out large passages from Johnson.  His Honour then stated that:

In the light of these statements of high authority, it must be accepted that the elements of provocation are interrelated.

That is at paragraph [50] of the reasons.  However, that acknowledgement on the part of Justice Keane did not, in our submission, lead to the Court acting on the interrelationship aspect in an effective way.  What his Honour said was that the interrelationship between the elements of provocation supports rather than detracts from the utility of the seven-fold test.  That is also in paragraph [50].

We say that that reasoning is erroneous, and regardless whether one describes the seven-fold test as setting out the elements of the defence, which we argued before the Court of Appeal, or as a means of – and this is what his Honour Justice Keane said – relating “the terms of s 304 to the onus of proof having regard to the evidence in the case”.

Regardless of how you describe it, the jury received no guidance or explanation of the way in which the different aspects of the defence are related to each other.  Instead the practical effect of the summing‑up was that the jury received a list of disparate concepts, which in the absence of any direction to the contrary, they must have considered in isolation moving from one to the other.  We say that this is exactly what Sir Garfield Barwick warned against in Johnson.  His Honour said, and this is at page 98 of the application book because it is set out in Justice Keane’s reasons:

His Lordship –

That is referring to the English case –

did not set out separate elements to be considered disjointly in some temporal order.

As we say, that is what the seven‑step test effectively achieves.  Justice Keane’s categorisation as not elements does not change the situation, we say. 

So that is the first aspect in which we say the seven-fold test detracted from our client’s ability to be acquitted of murder.  The second two relate to the substantive contents of the seven-fold test.  We say that the seven points include two additional concepts which are not part of the defence as spelt out, particularly in Masciantonio.  We say that they have no proper legal basis and we say that Justice Keane’s reference to overlap in paragraph [52] was an acknowledgement that the seven‑fold test fails to describe the concepts comprising the defence accurately.

The first of these two substantive problems relates to the fifth aspect of the test.  A jury was asked whether the Crown had negatived the defence by establishing that the loss of self‑control was not sudden.  Now, our learned friends – both below and here – refer to cases where sudden and temporary loss of control has been used as a descriptor to refer to provocation.  But, in fact, those cases – in fact ‑ ‑ ‑

KIEFEL J:   Are these the cases listed by Justice Keane in his reasons as showing that to speak of sudden loss of control is not erroneous in a point of law?

MR KEIM:   Yes, there is particularly Ahluwalia, which is an English decision of a wife who had suffered a long period of poor treatment by her husband; Chhay, which is a decision of Chief Justice Gleeson, when he was then Chief Justice of the Court of Appeal in New South Wales and also his Honour Justice Keane referred to Justice McHugh’s reasons in Masciantonio, which were in dissent, which on this point were not the point where his Honour departed from the majority in Masciantonio.  Can I just come to those cases in a moment, your Honour, and explain what they indicate? 

But can I just say firstly that the element – loss of self‑control was sudden – serves no essential forensic purpose in the makeup of the defence that is not already dealt with, with the requirements that there would be a loss of control in fact; that that loss of control would be causally related to the provocative actions of the deceased and also that the loss of control would be something that could have occurred in the case of an ordinary person.  They are the requirements that make a proper link between provocation and the actions which lead to the death, but there is no requirement that there be a specific step that it be sudden. 

Now, with regard to the decision in Chhay, your Honour, Justice Keane set out a large passage from Chhay and we have included Chhay in our bundle as case No 5. It is noticeable that his Honour Justice Keane finished his quote in the middle of a paragraph where ‑ ‑ ‑

CRENNAN J:   Where are you, Mr Keim?

MR KEIM:   If I can take your Honour to Chhay in the bundle of authorities and ask your Honour to go to page 9 of that.  His Honour Justice Keane’s quote from Chhay stops at about point 8 on that page where the last sentence is:

Even at common law, however, this requirement has been interpreted with a degree of flexibility.

Then Justice Gleeson goes on to discuss the flexibility.  I would ask your Honours to read the passage to the bottom of the page and the first paragraph on the next page; in fact really down to the last full paragraph on page 10.

CRENNAN J:   Yes.  That deals with the fact that under the common law, which applies under the Code here, there might well be an interval of time between the act of provocation and the killing.  That is part of your complaint, is it not, in relation to the direction about suddenness, that the further direction which is set out at application book 94 in paragraph [38], makes reference on two occasions to “sudden” meaning “immediate”.

MR KEIM:   Yes; that is exactly right, your Honour.  The Court of Appeal actually relied on the further direction to say the fact that premeditation, which was mentioned by Justice McMurdo originally, was taken out of the fifth point, was not a problem because there is a reference to premeditation, but there is also a reference to “immediate” in that further direction.  So we say there is nothing to give the type of qualification that Justice Gleeson gives in Chhay and in addition to that, it is asked to be considered in isolation from the other concepts, which is our first point.  Secondly, it is not only sudden.  The jury may well have considered that it meant “immediate” because it was left to them to choose from the various dictionary meanings given.

Your Honours, just to complete the survey of Justice Gleeson’s reasons in Chhay, can I ask your Honours to go to page 13, the second new paragraph on the page, starting with the words:

The conduct of the deceased which induced the loss of self‑control ‑

His Honour says very similar things on the next page, the last paragraph before the heading “Application of the law”.  His most definitive statement appears about four lines down in the next paragraph under that heading:

That view may reflect ideas of the need for immediacy, and suddenness of response, which, in the light of the decision in Ahluwalia did not reflect the common law and which, in any event, cannot be reconciled with s 23 of the Crimes Act.

Can I just mention, because I am running out of time I think, that Justice McHugh in the passage that his Honour cited in the reasons in this case, Pollock, cited Chhay to the effect that the loss of control did not have to follow immediately upon or as a result of a specific incident of provocative conduct.  His Honour Justice Keane set that out but we say disregarded it in his reasons.

Your Honour, the last point relates to steps six and seven and Masciantonio was very clear in saying - and this is where the plurality differed from Justice McHugh - that the regaining of control is a factual question, that is did the accused person, as a matter of fact, regain control?  What the sixth step does is to raise that issue and the seventh test goes on to ask, was there enough time to regain control?  We say that in the dynamic of a jury listening and conscientiously trying to act on the trial judge’s directions that must be given by the jury a separate meaning to the sixth step, and the only meaning that it can be is an objective one, that is, objectively was there enough time for the accused person to regain control. 

So the jury there is really applying the law as Justice McHugh stated it in Masciantonio at which the majority did not, namely saying would the ordinary person have had sufficient time to regain control.  That is what is wrong with the seventh step.  We say that that really concertinaed the jury’s consideration of provocation into something that had to start immediately and also had to finish within a reasonable time, which is really very different to the notion of the defence, as spelled out in detail in Masciantonio and as raised in Chhay and Ahluwalia, in which, in fact, completely this different impression would be given to the jury if Chhay and Ahluwalia were, in fact, followed in the spirit and in the true meaning of those cases.  So there is some irony here that Chhay and Ahluwalia were relied upon to say that the summing‑up here was correct, in terms of suddenness.

The last thing we wanted to say with regard to the sixth and seventh point, your Honours, is that the Court of Appeal relied on section 304 and the words used in section 304 are:

in the heat of passion caused by sudden provocation, and before there is time for the person’s passion to cool –

For that to justify the sixth and seventh steps they have to be regarded as two separate concepts and that flies in the face of what was decided in

Masciantonio.  We draw attention in our reply to our learned friend’s submission based on what was said at page 66 in Masciantonio and we drew attention to the fact that our learned friend had – not deliberately, we hasten to add – included the conjunction “and” between the two concepts, which made it look as if the Court in Masciantonio at page 66 was suggesting that there were two elements.

It is very clear from the discussion at page 69 that that was not what the Court was saying in Masciantonio, but when you realise that there is no conjunction at page 66 there is no suggestion raised there that it is two separate temporal elements at the end all bringing provocation, the time for provocation window to a close.  That is all I have, thank you, your Honours.

CRENNAN J:   Thank you.  Yes, Mr Copley.

MR COPLEY:   Your Honours, in this case there was no erroneous direction given in the trial.  The directions in the case that her Honour Justice Atkinson decided to give to the jury were agreed to by my learned friend who was defence counsel in the trial below.  It was open to him to have contended that the direction should not have been given because when the President Justice McMurdo promulgated them in Pollock No 1, they were, in effect, obiter dicta.  There was an error in the way the first Pollock trial was conducted in that some of the directions given by the first trial judge may have had the effect of suggesting to the jury that they had to be satisfied that the appellant had said certain things before they could consider the defence of provocation.  That was the error that was found in Pollock No 1.  So what the President then went on to say in Pollock No 1 was only obiter dicta.  It was open to my learned friend ‑ ‑ ‑

KIEFEL J:   Mr Copley, you say that, but the prosecution obviously contended that the seven steps had to apply.  It was obviously the view of the prosecution that the trial judge ought to apply them and that if they did not have binding quality they had sufficient authority from the President of the Court of Appeal to require them to be applied.

MR COPLEY:   That is so, your Honour.  The prosecution did contend that they should be applied, and my learned friend agreed that they should be applied.  That is a fair summation of the position.  Dealing with the merits of the criticism, the criticism about these directions overlooks the fact that they were really just examples given to the jury about the various ways in which the prosecution might negative provocation.  The jury had been correctly directed earlier in the summing‑up about what provocation was, correctly directed about the conduct that the accused relied upon as the provocative conduct, such appears at application book 23, lines 30 to 40.  The jury was ‑ ‑ ‑

KIEFEL J:   But juries are likely to understand what you call examples as directions as to law from the trial judge, because that is usually what the judge tells them at the outset they have to do.

MR COPLEY:   Yes, but my point is that in this case they had been correctly directed in terms of the law provocation and then at application book 25, the matter was simply condensed this way, that:

It is for the prosecution to satisfy you beyond reasonable doubt that the defendant did not act under provocation before a verdict of guilty of murder is open.  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 the following matters -

Then various ways in which provocation could be negatived was given.  Now, the criticism about the fifth formulation, that the loss ‑ ‑ ‑

KIEFEL J:   Mr Copley, could you remind me – did the jury also have the seven steps as a written list before them?

MR COPLEY:   Yes, it was given to them.  It was marked exhibit G, and it is referred to at page 25, line 45, so they did have it.

KIEFEL J:   Yes, thank you.

MR COPLEY:   Your Honours, in relation to the direction regarding, or the comment regarding the loss of self-control was not sudden, it has to be borne in mind what the facts were in this case, and what the issue was.  Earlier, at page 23 of the application book, her Honour at line 30 had directed the jury about what the acts were that the applicant relied upon as the provocative acts:

The acts relied upon by the defendant as relevant in affecting his mind and causing him to lose self-control include the fight that started in the bedroom and which it is alleged extended into the garden together with the history of the relationship between father and son.

CRENNAN J:    Yes, I suppose you would say that something along the lines of step 5 was necessary to make sure the jury did not get confused about that evidence you have just referred to, of longstanding animus between the applicant and his father.

MR COPLEY:   That, in my submission, is correctly the point that I wanted to make, that in the circumstances of this case, where there was evidence that the appellant had been in a very upset mood earlier in the night before the fight in the bedroom where, for example, he had been complaining to his brother Graham about sexual abuse when he was a boy, where he had said to someone how much, earlier that night, he hated his father, he even asserted to someone earlier in the night that he wanted to throw a rock from a bridge onto his father’s car, and he said – and this can be seen at paragraph 17 of Justice Keane’s judgment, that he also wanted to kill him if he touched either of the women – now, albeit, that was a conditional threat to kill, if he touched either of two adult women - it was important for the jury in the circumstances of this case to understand that the loss of self‑control had to be sudden in the sense that it had to be something that arose out of the very conduct of the deceased man that morning.  It could not be something ‑ ‑ ‑

KIEFEL J:   Quite so then, but in terms of the section, would not the appropriate direction have been that what was necessary was sudden provocation, sudden provocation as distinct from the resultant loss of self‑control being sudden in response to the provocation?

MR COPLEY:   That direction, in my submission, was perfectly correct, your Honour, and may I take you to R v Ahluwalia [1992] 4 All ER 889 at page 895, paragraph g where his Lordship said:

The phrase ‘sudden and temporary loss of self‑control’ encapsulates an essential ingredient of the defence of provocation –

It was an essential ingredient of common law provocation in Queensland that the accused’s reaction was a sudden loss of self‑control.  No one can ‑ ‑ ‑

KIEFEL J:   But in Queensland the Code provisions have to be complied with.

MR COPLEY:   They do, your Honour, but the parties have litigated this case right throughout on the basis, consistent with what was said by Justices Menzies and McTiernan in Kaporonovski’s Case, that the common law informs the terms in this area of the Code and that is ‑ ‑ ‑

KIEFEL J:   But it cannot alter the language of the Code.

MR COPLEY:   It cannot, and it does not ‑ ‑ ‑

KIEFEL J:   It may give, as I have said, in forms, it may give an historical background and be the basis upon which the Code, in some respects, should be understood, but I would not have thought that it could alter the actual words used.

CRENNAN J:   Are you perhaps saying no more than that the common law definition of “provocation” applies under the Code, having regard to the terms of section 304?

MR COPLEY:   Yes, your Honour, and when one looks at 304 where it says “sudden provocation”, if that was read literally, if we take an example completely divorced from this case, if the provocation, that is the conduct of the deceased person had to be only sudden before the excuse was raised, then the ambit of the excuse of provocation would be very much reduced in terms of availability to an offender, because he could only avail himself of that if the section was read literally like that without understanding the common law behind it.  One would say, well, the provocative acts of the deceased ‑ ‑ ‑

CRENNAN J:   You mean treating “sudden” purely as an adjective in relation to provocation?  Is that what you mean?

MR COPLEY:   Yes, because the way it is worded the section speaks of an act which causes death in the heat of passion caused by sudden provocation.  Well, the provocation is the deceased’s conduct.  If the deceased’s conduct occurred over a space of seven hours, or over a space of a number of days and there was a straw that broke the camel’s back, then it would not be sudden provocation.  The words in section 304, and whilst the common law does not change what they mean, the words in section 304 have to be read in the context of the common law understanding of provocation, and the common law understanding of provocation is that there be a sudden loss of self‑control.

KIEFEL J:   Is that encapsulated in the words of the section “and before there is time for the person’s passion to cool”?

MR COPLEY:   Yes, it could well be so encapsulated there.

CRENNAN J:   I am not stopping you from coming back, but if I could just move to what I understand is the substantive criticism in relation to step five, and I think you pick it up by going to the further direction which is in paragraph [38] on application book 94, the complaint being that in providing the jury with the definition of “sudden”, there are two references there to “immediate”, and the complaint is that the error which arose, at least, was that the jury may have excluded the defence of provocation on the basis that the applicant’s loss of self‑control was not immediate.  What about that substantive complaint in relation to the step five aspect of the direction?

MR COPLEY:   Two points:  first, my learned friend agreed to that redirection, but the second and more appropriate answer to your Honour’s question is this, that in the circumstances of this case any reaction of the applicant to his father’s conduct was almost immediate.  The applicant was relying upon his father’s attack upon him in the bedroom.  They then got into a fight which, according to the defence case, was a continuous fight from the bedroom out through the house into the garden bed and where the applicant picked up the rock from the retaining wall and clubbed him. 

So the criticism of this direction might be valid in some cases, but it is not valid and does not carry any weight in the circumstances of the way this case - of the evidence in this case.  Not only was it consented to by my learned friend, it was an entirely harmless direction in the circumstances because any reaction by the appellant was immediate.  On the defence case he was attacked by his angry father in the bedroom and they then fought, and each blow ‑ ‑ ‑

KIEFEL J:   Even if you may be proved correct in relation to the application in this case, the seven‑step approach with, for present purposes, the emphasis on the fifth step, may continue to be applied in other cases, if there is an error in that approach.

MR COPLEY:   The caveat that I was putting upon the correctness of this direction was not on the direction about the fifth step, but upon the explanation of the word “sudden”, which may or may not be given in other cases.  A jury may or may not ask for assistance on the use of the word “sudden” in other cases.  His Honour Justice Keane said that these are ‑ ‑ ‑

KIEFEL J:   I am sorry, Mr Copley, you are referring to the further direction, not to the original direction based upon the seven steps without the part in parenthesis.

MR COPLEY:   Yes, your Honour, and may I add that the part in parenthesis about it not being premeditated was suggested to be removed by the Crown Prosecutor, and the defence counsel again consented to the removal of that caveat, and then when the jury wanted a direction about the point, that is when it became necessary to determine what to say about “sudden”.

But if the jury had simply been told, as the President had suggested, the loss of self‑control was not sudden, parenthesis, for example, the killing was premeditated, then it is quite likely that the jury would not have asked her Honour for a definition of the word “sudden”.  They would have understood it to have meant something that was unpremeditated, not thought about, not brooded upon and so the need to give the further direction, which is now criticised, was really as a consequence of the way the parties determined that her Honour should direct the jury in relation to these seven steps.  It is not a problem that arose out of Justice McMurdo’s formulation originally.  It is peculiar to the circumstances of this case.

The other point to note, your Honours, also should your Honours be considering giving the matter special leave is this, that provocation as a defence has been done away with in Tasmania, Western Australia and Victoria and in the jurisdictions of New South Wales, the Australian Capital Territory and the Northern Territory the requirement for there to be a sudden reaction or an immediate reaction by the offender to the provocative conduct has been statutorily done away with.  So the only two jurisdictions, it seems, where provocation in its common law form remains are Queensland and South Australia.

I also point out that in the passage that my learned friend took your Honours to from the judgment of Chief Justice Gleeson in Chhay’s Case, my friend took you to a passage at page 13, but, in my submission, his Honour was then talking about the effect of an amendment to section 23 of the Crimes Act (NSW), which amendment appears at page 12 of the judgment, your Honours, under paragraph (3), it says:

(b)the act or omission causing death was not an act done or omitted suddenly –

That is the very provision that I had in mind that has been enacted in some of the jurisdictions to modify the common law.  But more importantly, from my point of view, at page 10 of Chief Justice Gleeson’s judgment at the end of the quote that my learned friend invited your Honours to read, this appears:

The above passage recognises, as a matter of common law, that it is essential that at the time of the killing there was a sudden and temporary loss of self‑control –

The common law on this, in my submission, could not be clearer, but the fact is the common law on this is now confined to the State of Queensland and the State of South Australia. 

In relation to my learned friend’s criticism about the seventh step in the formulation, the complained of direction is that the prosecution could negative provocation if, when the appellant killed, there had been time for his loss of self‑control to abate.  Well, my submission there is that that is entirely consistent with the closing words of section 304:

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

It does not conjure up, for the jury’s benefit, an objective test or anything of that nature.  Indeed, in the circumstances of this case the way this case occurred the provocative act was this attack in the bedroom, which continued, a continuing fight all the way out to the rock garden, or to the rock wall, where the clubbing occurred.

If the jury was inclined to think that the applicant had been provoked and that he had acted - the jury would also have been inclined to think that he had reacted suddenly, the jury would also be inclined to think, your Honours, in my submission, that he did not have time for his passion to cool because he was in a continuous fight.  The verdict of the jury in this case was entirely explicable on this basis that the jury was satisfied beyond reasonable doubt that an ordinary person, in the circumstances, could not have lost his control and acted like the applicant did and killed his father.  Thank you, your Honours.

CRENNAN J:   Anything in reply?

MR KEIM:   Yes please, your Honour.  Can I just ask your Honours to go to page 80 of the application book, which is in the sentencing remarks of her Honour the learned trial judge, at line 20?  Do your Honours have that paragraph, starting “Had he unexpectedly died in the bedroom”?

CRENNAN J:   Yes, we have that.

MR KEIM:  

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, and so you were deprived of the defence of provocation which would have reduced murder to manslaughter.

It is also the case that the learned Crown Prosecutor at trial addressed at length – and that is not in the record – on the element of suddenness.  What we say is the dynamic problem of the seven‑point test, particularly the fifth and the seventh taken with the sixth steps, is that the jury could have thought that this was too attenuated a period of time, that is, because it went for 30 seconds, perhaps, as opposed to going for five or 10 seconds or went for three minutes as opposed to going for 30 seconds, it was not sudden.  That is the chance of acquittal that we say has been stripped from the applicant in this case.

Can we also say with regard to Ahluwalia that the key passage, perhaps, that we would ask you to go to, is at page 896 and the case is set

out in our bundle.  I can refer the passage to you – it is the page that follows, I think, the page that our learned friend referred you to.  Lord Taylor stated that the summing‑up in that case was correct because the judge:

did not suggest to the jury that they should or might reject the defence of provocation because the last provocative act or word of the deceased was not followed immediately by the appellant’s fatal acts.

If I can just say a couple of things with regard to the way in which the trial was conducted.  Firstly, the relationship between the father and the son, between the deceased and the applicant here, was relied upon for the gravity of provocation, and that is clearly in accordance with both Stingel and Masciantonio. 

With regard to the fact that there were earlier threats, can I say two things with regard to that?  Firstly, the Crown opened the case and in fact adduced evidence that threats to kill were bandied about by the males in the house and implied that the jury should not place too much weight on them.  He addressed differently in his closing address, however, with regard to that.  But the point is that that requirement that it be the provocative act that gave rise to the loss of control is contained in the causal relationship.  There is specifically a requirement that the loss of control be caused by the provoking acts.  There is no need for suddenness to be added to that.

My learned friend seems to be relying on Chhay for the descriptor and then distinguishing Chhay on the basis that it has more to do with the New South Wales legislation than the common law.  What we say with regard to that is it is fine to call provocation a sudden and temporary loss of control but it would be completely wrong to include as part of the things that allow the Crown to exclude the defence to say it must be temporary.  It raises a whole lot of concepts that do not assist the jury especially when they are relied upon in isolation.

Lastly, in terms of relating the seventh step to the words of section 304 one must of course read it in association with the sixth step.  The sixth step does what the words of section 304 require.  To add the seventh step means that you are dealing with the law and administering the law in a way that is different to the way it was spelt out in Masciantonio.  They are our submissions, thank you, your Honours.

CRENNAN J:   Thank you.  There will be a grant of special leave in this matter.  Mr Keim, we notice that the draft notice of appeal has very detailed and multiple grounds.  We want to suggest to you that some consideration might be given to formulating the grounds in a much simpler form.

MR KEIM:   We would be happy to do that, your Honour.  We thank you for the advice.

CRENNAN J:   Is it agreed that this would be a one‑day matter?

MR KEIM:   For my part, Yes, your Honour.  My learned friend agrees as well.

CRENNAN J:   Thank you.  The Court will adjourn until 2.15 pm on 29 March 2010.

AT 3.08 PM THE MATTER WAS CONCLUDED