R v Conway
[2004] VSCA 181
•7 October 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 297 of 2002
| THE QUEEN |
| v. |
| MIDAS CONWAY |
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JUDGES: | CALLAWAY, BUCHANAN and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22 September 2004 | |
DATE OF JUDGMENT: | 7 October 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 181 | |
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Criminal law – Murder – Provocation – Objective test - View of evidence most favourable to accused – Whether reasonable jury might have failed to be satisfied that killing was unprovoked – Case distinguished from instances of possessiveness and jealousy and from cases of insult – New trial directed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr O.P. Holdenson, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr L.C. Carter | Victoria Legal Aid |
CALLAWAY, J.A.:
The applicant, who is now aged 45, was presented in the Supreme Court on one count of murder. He was found guilty after a trial occupying six days. The learned trial judge heard a plea for leniency on his behalf and, on 14th November 2002, sentenced the applicant to 19 years' imprisonment with a non-parole period of 14 years. The applicant seeks leave to appeal against conviction on the sole ground that his Honour erred in not allowing the defence of provocation to be put to the jury. Two other grounds in the notice of application for leave to appeal filed on 15th November 2002 were, quite rightly, not pursued. There is no application for leave to appeal against sentence.
The judge gave his ruling that provocation should not be left to the jury on 22nd August 2002 and published reasons for that ruling six days later.[1] His Honour was concerned, as we are, only with the objective component of provocation. He directed himself in accordance with the following passage from the joint judgment of Brennan, Deane, Dawson and Gaudron, JJ. in Masciantonio v. R.[2]:
“[T]he question is whether the provocation, measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to form an intention to kill or do grievous bodily harm and to act upon that intention, as the accused did, so as to give effect to it.”[3]
That question was to be answered on the view of the evidence most favourable to the applicant, bearing in mind the burden and standard of proof.[4]
[1]R. v. Conway [2002] VSC 383.
[2](1995) 183 C.L.R. 58 at 69.
[3]The words “as the accused did” should not be misunderstood. Putting recklessness to one side, it is the formation of an intention to kill or do really serious physical injury and the carrying out of that intention which are the important considerations, rather than the precise way in which the accused reacted: see R. v. Thorpe (No. 2) [1999] 2 V.R. 719 at 724 [16] point 2.
[4]Stingel v. R. (1990) 171 C.L.R. 312 at 334; Masciantonio v. R. at 67-68.
The reasons for the ruling incorporated “a summary of the evidence in terms most favourable to the accused”. I gratefully adopt that summary, which counsel supplemented but not to criticise:
“4.The accused and the deceased met in 1999. They established a relationship [and] became engaged to be married. They planned to be married in May 2000. They were living in premises in Mentone. In January 2000, the accused was remanded in custody in relation to certain charges which have not yet come to trial. When the accused went to prison, the deceased promised to wait for his release. By about mid 2000, the accused found that the deceased had become more distant. The number of her visits to him in prison reduced. She told him that there was another man in her life. He received confirmation of that from other sources. In time, the deceased told the accused more about the other man. She agreed she had been sleeping with the new man and staying over at his house. The accused was unimpressed. He became depressed. He wanted to maintain the relationship. He wanted to be released from custody, and applied for bail. Shortly before the accused was released on bail on 9 October 2000, the deceased told him that she would not have him at the Mentone premises. She returned his engagement ring and other belongings. When the accused got out of prison, he went to live at his mother’s home in Clayton. On 11 October 2000 the accused visited the Mentone premises. The deceased was not home. He spoke with the two women who were sharing the premises with the deceased. Through them, he arranged to meet the deceased the next day. On 12 October, the accused met and talked with the deceased at a jeans shop near the Mentone premises. The deceased had an interest in, and worked at times at, the jeans shop. At that meeting, on the version of events later given by the accused to the police, the deceased spoke in a way that gave the accused hope of a future relationship with her. After that meeting, the level of the accused’s depression was still very apparent. In the next week he was seen by a doctor three times relative to his depression.
5.On 18 October, another appointment was made for the accused to meet with the deceased. On the version of events later given by the accused to the police: the accused went to speak with the deceased, wanting to know if there was some hope of re-establishing the relationship; his plan was that, if there was no hope, he would stab himself; he took a knife from the kitchen drawer at home; he put the knife down the front of his pants; he talked at the shop with the deceased; he asked her why she had not kept the promises she had made to him; he asked her if there was any hope of re-establishing the relationship; she said there was no hope, and that she had made up her mind; he said to her that he wanted to kill himself; he took out the knife, and tried to stab himself, but did not succeed; she laughed in his face; she said to him: ‘If you want to kill yourself, what do I care?’; he then stabbed her many times.”[5]
[5]The applicant tried to stab himself with the knife he had brought with him, was disarmed by one of the deceased’s co-employees and instantly grabbed another knife from a nearby table, with which he killed the deceased.
Having reviewed the leading cases and the principles to be distilled from them, the judge said that he was well satisfied that, even on the view of the evidence most favourable to the applicant, “the [objective] test was not met”.
Mr Carter supplemented his Honour’s summary and emphasized certain points. He referred in particular to the following evidence:
(a)when the applicant found out that his relationship with the deceased was in trouble, whilst he was in gaol on remand, he became seriously depressed and was placed on suicide watch;
(b)although the deceased told the applicant that she was seeing another man, she did not tell him, until the day of the killing, that their relationship was definitely over and that there was no hope of continuing it;
(c)on his release on bail on 9th October 2000 and up to the time of the offence, the applicant was depressed and suicidal and had told his sister that he was going to stab himself;
(d)a general practitioner who saw the applicant on 12th, 14th and 17th October 2000 prescribed an anti-depressant and other medication and referred him to a community mental health service;
(e)on 11th October 2000, when he visited the house in Mentone in which he had previously lived with the deceased, the applicant was observed to be shaking all over and agitated;
(f)when the applicant met the deceased at the jeans shop on 12th October 2000, they embraced and cuddled for a minute or so, there were no raised voices and, he said, the conversation gave him hope of a continued relationship;
(g)when the applicant attended the shop again on 18th October 2000, he was observed to be sweaty and clammy and, on his account, his intention was to kill himself[6] if there was no future in the relationship; and
(h)there was no evidence of any previous actual or contemplated harm of the deceased by the applicant, who had told his sister that he would never do anything to hurt her.
[6]The applicant’s answers in the record of interview speak of harming, stabbing and killing himself. See questions 342-347 and 381-387. On the view of the evidence most favourable to the applicant, he intended to kill himself because life would no longer be worth living.
Central to counsel’s submissions was the contention that it would have been open to the jury not to regard this case as one of male possessiveness and jealousy. It was submitted that the judge assumed that they would do so and that that assumption was implicit in his adoption of an observation by Lord Hoffmann in R. v. Smith (Morgan).[7] Referring to Stingel v. R., his Lordship said:
“The High Court of Australia held that the judge was right to withdraw the issue of provocation from the jury on the ground that such conduct could not raise even a reasonable doubt as to whether the objective element in the defence had been satisfied. I respectfully agree. Male possessiveness and jealousy should not today be an acceptable reason for loss of self-control leading to homicide, whether inflicted upon the woman herself or her new lover.”
His Honour quoted the words that I have italicised. Counsel referred to the practical advice of Eames, J.A. in his dissenting judgment in R. v. Kumar[8], which Charles, J.A. quoted with approval in R. v. Yasso[9] and which I, too, would respectfully endorse.[10]
[7][2001] 1 A.C. 146 at 169.
[8](2002) 5 V.R. 193 at 217 [103] and 220 [115].
[9][2004] VSCA 127 at [17].
[10]See also Masciantonio v. R. at 68 and the cases cited in fn.20 on that page.
I accept Mr Carter’s central contention that, on the view of the evidence most favourable to the applicant, this was not, or was not just, a case of possessiveness and jealousy. The applicant went to see the deceased, wanting to know whether there was hope of re-establishing their relationship. His intention was that, if there was no hope, he would kill himself. Deplorable as such emotional blackmail is, it may be evidence of very real grief associated with rejection. An ordinary person would not lose self-control by reason only of grief but, on his version of events, the deceased mocked his grief. Further, and very importantly, and still on the view of the evidence most favourable to the applicant, she mocked the grief of a man who was then holding a knife, in her presence, with the intention of killing a human being, namely himself. A more dangerous taunt could hardly be imagined.[11] In my opinion, a reasonable jury might have failed to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense.[12] It was certainly not “distant from the realities of human response”. [13]
[11]Understood in the manner I have described, together with the psychiatric complication referred to below, this is very different from the case of a man who kills his mistress because she wants to leave him and different, too, from a case like Stingel v. R., where the accused went back to his car, fetched a knife and returned to stab his rival, nor is it just a case of insulting words like R. v. Kumar.
[12]Masciantonio v. R. at 67-68.
[13]R. v. Tuncay [1998] 2 V.R. 19 at 30 per Hedigan, A.J.A.
Mr Holdenson pointed out that the evidence, including the record of interview, was susceptible of a different interpretation, very much in line with the way in which the judge had seen the case. That may be so, and at a re-trial the applicant may again be convicted of murder, but the assessment should be left to the jury. Moreover, the jury do not have to accept the applicant’s version. It is sufficient if the evidence raises a reasonable doubt in their minds.[14]
[14]Compare R. v. Anderson (1997) 94 A.Crim.R. 335.
In formulating my conclusion, I have so far said nothing about the applicant’s depressive illness. Psychiatric illness, in the context of provocation, gives rise to very considerable difficulties. It may be relevant to the gravity of the provocation, but it has no bearing on the powers of self-control of the hypothetical ordinary person. The distinction was illustrated by Mason, C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh, JJ. as follows in Stingel v. R.[15]:
[15]At 326.
“Even more important, the content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused. Were it otherwise, it would be quite impossible to identify the gravity of the particular provocation. In that regard, none of the attributes or characteristics of a particular accused will be necessarily irrelevant to an assessment of the content and extent of the provocation involved in the relevant conduct. For example, any one or more of the accused's age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant to an objective assessment of the gravity of a particular wrongful act or insult. Indeed, even mental instability or weakness of an accused could, in some circumstances, itself be a relevant consideration to be taken into account in the determination of the content and implications of particular conduct. For example, it may be of critical importance to an assessment of the gravity of the last of a series of repeated insults suggesting that the person to whom they are addressed is ‘mad’ to know that that person has, and understands that he has, a history of mental illness.”
Their Honours returned to the topic six pages later[16]:
“A projection of the ‘ordinary person’ of the objective test into the position of the accused at the time of the killing will, however, involve a particular difficulty in a case where the existence of some attribute or characteristic of the accused is relevant both to the identification of the content or the gravity of the wrongful act or insult and to the level of power of self-control of any person possessed of it. As Cosgrove J. pointed out in Jeffrey v. The Queen, self-control tends to reflect many characteristics and ‘the degree of self-control possessed by a person may vary according to the specific qualities of his character’. If, for example, a person is obsessively jealous or extraordinarily excitable and pugnacious, his powers of self-control are hardly likely to be within the range which might properly be regarded as ‘ordinary’ (cf. Reg. v. Fricker). In a case where it is necessary to take some such characteristic or attribute into account for the purpose of identifying the content or gravity of the wrongful act or insult (e.g. a case of a grave insult centred upon that characteristic or attribute), the objective test will, nonetheless, require that the provocative effect of the wrongful act or insult, with its content and gravity so identified, be assessed by reference to the powers of self-control of a hypothetical ‘ordinary person’ who is unaffected by that extraordinary attribute or characteristic. In other words, the fact that the particular accused lacks the power of self-control of an ordinary person by reason of some attribute or characteristic which must be taken into account in identifying the content or gravity of the particular wrongful act or insult will not affect the reference point of the objective test, namely, the power of self-control of a hypothetical ‘ordinary person’.” (Footnotes omitted.)
[16]At 332.
The applicant’s mental state and propensity to suicide added to the gravity of the deceased’s alleged conduct, both the laughter and the words, for it may be worse to say to a person who is suicidal that you do not care whether he kills himself. The applicant’s mental condition therefore reinforces my assessment of the evidence in [7] above, but I put it no higher than that. It is a supplementary reason and, if his mental condition lessened his powers of self-control, that is irrelevant.
I differ with respect from the learned and very experienced trial judge, who had the advantage of seeing and hearing the witnesses give evidence, including witnesses on whose testimony Mr Carter relied. His Honour enjoyed an advantage that is denied to us, but in the end I am obliged to give effect to my own view that a reasonable jury might have thought that, making allowance for the burden and standard of proof, the objective test was met. I would, accordingly, quash the conviction and direct a new trial to be had.
BUCHANAN, J.A.:
For the reasons stated by Callaway, J.A. I am of the opinion that the application for leave to appeal against conviction should be allowed, the conviction quashed and the applicant re-tried.
EAMES, J.A.:
I have had the advantage of reading the reasons of Callaway, J.A., in draft. For the reasons given by his Honour, I agree that this appeal should be allowed and a new trial be ordered. I wish to add only some limited observations.
In R v Kumar[17] I dealt at length with the principles governing the approach that a trial judge should adopt when contemplating whether to remove the issue of provocation from a jury. In the application of those principles I was in dissent in that
case, but not, I believe, in my observation that particular care had to be taken by a trial judge to ensure that the question was decided upon the view of the evidence most favourable to the accused, lest the trial judge unintentionally usurp the role of the jury as the ultimate tribunal of fact[18]. Unless the application of the legal test is based on the view of the evidence truly that most favourable to the accused then a murder verdict is very susceptible to successful challenge.
[17](2002) 5 V.R. 193.
[18]At [102]-[103], [115], [120], [123]-[124].
In this case, in arguing that the defence ought not be left to the jury the prosecutor advanced an interpretation of the facts to the learned trial judge and concluded by quoting the well-known passage in the judgment of Brooking, J.A. in R v Parsons[19] in which his Honour said that to hold that provocation arose in that case “would be to encourage savagery at the expense of civilised behaviour”. It is important that that statement not be misunderstood or misapplied in other contexts. In deciding the question whether provocation should be left to the jury the trial judge is applying a legal test, not passing on the morality of the conduct, as perceived by the judge on one or other view of the evidence.
[19](2000) 1 V.R. 161, at 166-167.
Counsel who appeared for the applicant at trial responded to the prosecutor’s submission by offering the judge a different interpretation of the facts, and relied on many factors which had not been mentioned by the prosecutor. Counsel was endeavouring to advance the view of the facts most favourable to the applicant. Indeed, even that version might be thought to have omitted or understated some factors which could have bolstered the version of facts most favourable to the applicant. In concluding his submissions at trial on this issue, defence counsel cautioned his Honour that whilst the statement of Brooking, J.A. in Parsons was appropriate to the facts of that case, it was not applicable to this case, on the most favourable view of the facts for the accused. I would add that the statement was not applicable, at all, if it was understood to introduce a moral overlay to the legal principles whereby both the subjective and objective tests fell to be considered by the trial judge. Denunciation of the conduct of an accused, in moral terms, might have relevance to sentencing, but it has no relevance to the determination of the question whether a trial judge should leave the issue of provocation to the jury.
As his written reasons for his ruling make clear, his Honour was very familiar with the relevant legal principles. In referring to the relevant authorities his Honour made specific mention of the paragraph in Parsons in which Brooking, J.A. made the observation earlier discussed. His Honour accepted that he had to view the facts from the perspective most favourable to the accused but, in my opinion and for the reasons given by Callaway, J.A., the version of facts on which his Honour relied did not meet that criterion.
A judge who takes the issue away from a jury assumes a grave responsibility[20]. A ruling by an appellate court that there must be a re-trial causes great stress to all involved in the criminal trial process, and is particularly unfortunate when it occurs because a jury was denied the opportunity to consider a defence that ought to have been before them. Juries, over a very long time, have demonstrated their capacity to carefully consider and evaluate the evidence in criminal trials, including cases where the defence of provocation is before them.
[20]Masciantonio v. R. (1995) 183 C.L.R. 58, at 79, per McHugh, J.
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