R v Curzon
[2000] VSCA 128
•28 July 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 108 of 1999
| THE QUEEN |
| v |
| TRACEY JANE CURZON |
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JUDGES: | PHILLIPS, C.J., CALLAWAY and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 and 18 May 2000 | |
DATE OF JUDGMENT: | 28 July 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 128 | |
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Criminal law – Murder – Provocation – Whether direction to jury adequate – Whether aide memoire provided to jury misleading – Real risk of miscarriage of justice – Conviction quashed and new trial ordered.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. D. Salek Q.C. and Mr. C. Michell | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. A. Schwartz | Victoria Legal Aid |
PHILLIPS, C.J.:
I have had the advantage of reading the judgment of Chernov, J.A. in draft form and I would gratefully accept his Honour’s accounts of the facts of this matter and of the events at the applicant’s trial. For the reasons given by his Honour I do not propose to address grounds 1 and 4.
It was not disputed at her trial that the applicant caused the death of the deceased. Nor, as I understand it, was it contended that the jury should not find that at material times she possessed a murderous state of mind. Through her counsel she advanced a plea of provocation, arguing that the prosecution had not proved beyond reasonable doubt that the killing was unprovoked. That was the issue about which the trial revolved. The directions of the learned judge on the topic of provocation were delivered both orally and in writing. At points during the charge, his Honour was assisted as to this topic by a question from the jury and some exceptions taken by counsel. Thereafter, an aide memoire, drawn by counsel and settled in discussion with the learned judge, was given to the jury by consent. Both counsel were very experienced. Further oral directions followed. At the end of the charge no relevant exceptions were taken. Subsequent to the applicant’s conviction for murder she lodged notice of application for leave to appeal against it. None of the grounds pleaded referred to the provocation directions. Nearly a year later, by leave of the learned Registrar, other grounds were substituted and three of these raised matters touching such directions. Upon this application it was contended that the directions were so deficient as to result in a miscarriage of justice to the applicant warranting the quashing of her conviction by this Court.
In the light of the above circumstances, this alleged result would seem an unlikely one. But the submissions of the applicant were pressed with vigour and after considering them and the response of the Crown, I have come to conclude that grounds 2 and 3 are made out. As to these, I would subscribe to the reasons advanced by Chernov, J.A.
It is proper that I state that in this exercise I have been greatly assisted by observations made at trial by the learned judge. If I may respectfully say so, his Honour displayed a transparent candour in discussions with counsel and his observations, made in that spirit, provide a most helpful insight into the proceedings. I will mention in particular his statement of concern (made after a deal of oral directions touching provocation) that the jury may well still not fully understand how they might take into account the personal characteristics of the applicant. As his Honour also remarked during the proceedings, some of the concepts involved in the doctrine of provocation were not easy to “assimilate” or “understand”. Indeed, they have not escaped criticism from distinguished commentators[1]. It should be added that his Honour’s zeal to see to it that the applicant was afforded a fair trial was both constant and manifest. It is most unfortunate that, despite his efforts, (and indeed those of counsel) the trial has miscarried.
CALLAWAY, J. A.:
[1]Yeo “Power of Self Control in Provocation and Automatism”, Sydney Law Review Vol. 14 (1992) 3 et seq.
I, too, have had the advantage of reading in draft the reasons for judgment prepared by Chernov, J.A. I agree in them and in the orders that his Honour proposes.
I desire to associate myself, with great respect, with the observations made by the learned Chief Justice at [4].
CHERNOV, J.A.:
The applicant, who was born on 24 March 1961 and who is, therefore, now aged 39, pleaded not guilty in the Supreme Court to a presentment alleging that she murdered Thomas Paul Geary on 24 September 1997. After a trial lasting eight days, the jury, on 29 April 1999, returned a verdict of guilty. After hearing a plea in mitigation of sentence, the learned trial judge sentenced the applicant on 11 May 1999 to 12 years’ imprisonment and fixed a non-parole period of nine years.
The applicant seeks leave to appeal against conviction on grounds that were amended pursuant to leave granted by the Registrar on 12 May 2000 in which it is contended that his Honour erred in the following ways.
(a)Refusing to exercise his discretion to exclude records of interview between the applicant and the police, to which reference will be made later. (Ground 1)
(b)Failing sufficiently or correctly to direct the jury in relation to provocation
-as it applied to the applicant
-as to the objective limb of the provocation test
-as to the personal characteristics or attributes of the applicant to be taken into account by the jury for the purpose of assessing the gravity of the deceased’s alleged provocative conduct.
(Grounds 2, 3 and 4)
(c)Refusing to permit the applicant to rely upon the defence of self-defence in respect of the killing of the deceased.
(Ground 5)
At the hearing of the appeal, the last ground was abandoned by Mr. Schwartz who appeared for the applicant.
The applicant also seeks leave, in the alternative, to appeal against the sentence on grounds that were amended pursuant to leave granted by the Registrar on 12 May 2000, namely –
(a)the sentence is manifestly excessive;
(b)his Honour gave insufficient weight to the evidence of the personal circumstances and characteristics of the applicant, in particular her mental status and her social and cultural environment.
Background
The relevant facts can be briefly stated. The deceased, who was a relatively short man of 5’8”, was a heavy Victoria Bitter beer drinker. He drank regularly with his friends after work in a lane which is located behind the applicant’s home in Keon Park. Although on most evenings he returned drunk to the boarding house in which he lodged, he was a happy drunk in the sense that he did not become belligerent when intoxicated. For approximately 12 months before his death, the deceased occasionally stayed overnight at the applicant’s home. At first this occurred on an infrequent basis but with time his visits to the applicant became more regular; during the last four months or so of his life, he often stayed overnight with the applicant twice a week. The applicant also drank alcohol regularly, with a preference for Guinness stout. According to what the applicant told the police, the general arrangement between her and the deceased was that he would bring her bottles of Guinness and let her drink some of his beer and, in exchange, she would have sex with him. It was known amongst their respective friends and family that the deceased and the applicant had some sort of a relationship. For example, the deceased’s drinking mates teased him whenever they saw the applicant, saying to him: “Here comes your missus”, and the applicant told her mother that “Tom” was staying with her overnight.
The evidence at the applicant’s trial established that on 24 September 1997 the deceased drank more beer than usual with his friends in the lane with the inevitable result that he was quite drunk by evening. It seems clear enough that on that evening he ended up at the applicant’s premises where, later that night, he met his death at her hands. The circumstances in which the deceased was killed were explained by the applicant in her police records of interview, which formed the only evidence on which the applicant could (and did) rely in connection with the excuse of provocation. I set out below the circumstances surrounding the death of the deceased as explained by the applicant to the police.
The deceased and the applicant were drinking beer at the applicant’s home on the evening and into the night of 24 September 1997. Notwithstanding that he was very drunk, the deceased kept pressing the applicant to have sex with him, including oral sex. The applicant said to the police that she had known what “would happen”, namely, that although she might have become sexually aroused, the deceased would not be able to have sex because he would be unable to have an erection due to his state of inebriation. This had apparently occurred on other occasions. In any event, she refused to participate in any sexual acts with the deceased. He continued nevertheless to press his wishes in that regard to the point where the two argued about the matter in the kitchen. The deceased refused to leave despite the applicant’s request that he do so. According to the applicant she “cracked” and blacked out. When she came to, the deceased was lying on the couch “with these huge stab wounds all around his back”. She believed that he was still alive so that, in her own words, in order “to finish him off”, she first attempted to slit his throat with a razor which she had found in the lane, and then stabbed him a number of times with a butcher’s knife. On at least one occasion she drove the knife into his throat using a meat mallet until she heard a “crunch”. The medical evidence, however, was that the life threatening injuries suffered by the deceased were not to his throat but were four wounds in his back and two wounds in his chest (all of which were inflicted by the accused) that penetrated the deceased’s chest cavity. One of these stab injuries led to the collapse of his left lung. In all, she inflicted around 36 injuries on the body of the deceased who, according to her, took one and a half hours to die. The post-mortem examination of the deceased’s body was conducted on 25 September 1997. It was found, inter alia, that the applicant’s blood alcohol level was 0.27 and it was considered that this was the blood alcohol level at the time of his death.
Before continuing with the chronology of events, I should mention that the applicant is a person of short height who was aged 36 at the time of the killing. She was born in England in the course of a traumatic birth which left her mentally impaired. She came to Australia with her family in 1974 at the age of thirteen. The applicant is an asthma sufferer and is hard of hearing, as a result of which she has been unable to develop verbal communication skills and finds it difficult to express her thoughts verbally. Consequently, the applicant’s speech and demeanour on occasions create the false impression that she is mentally retarded. The applicant eventually left school at the age of 15 and was placed on a disability pension. She had a variety of jobs over the years and, at the time in question, her only paid work was delivering morning newspapers. Although her parents were divorced, her mother, who later remarried, kept in touch with her. It seems to be common ground that the applicant’s level of intellect is substantially below that of the average person, her IQ level being within the bottom 10 per cent of her age group. In terms of her development, the applicant is immature and, according to her mother, has the mentality of a 14 year old. In addition to her regular, if not heavy, consumption of alcohol, the applicant took, on a regular basis, a significant number of prescribed drugs and other medication. An indication of the extent of her use of such drugs can be gathered from the fact that, on the day of the offence, she had 40 to 50 medications on her premises which were supplied to her by various doctors and chemists. The drugs included Normison, a sleeping tablet, which the applicant claims she was prescribed to take at the rate of one or two per day whereas, in fact, she was regularly taking many times that number on most days. According to what she told the police, on 24 September 1997 she commenced taking Normison tablets at about 3 or 4 p.m. and continued to take them from time to time thereafter on that day so that by the time the police saw her at approximately 5 a.m. on the following day she had taken, according to her, 25 Normison tablets.
Returning to the chronology of events, after the applicant killed the deceased, she covered his body with a doona, watched television and then went to bed. She got up shortly after 4 a.m. with the view to going to work, but on seeing the deceased’s body dialled the 000 emergency number. The call was taken by an Intergraph Public Safety telephone operator to whom the applicant gave her name and address and told her that she had killed a “local drunk” whose name was “Tom” at her premises with a butcher’s knife. She told the operator that all the deceased wanted from her was sex, that she "just got sick of it” and that he would not go away. She said that he did not threaten her and went on to agree with the operator’s suggestion that she got sick of him so she killed him. Her conversation with the Intergraph operator was recorded and the transcript of that recording, as well as the tape of it, were admitted into evidence without objection.
When police officers attended the applicant’s home in response to the Intergraph call and knocked on the front door, the applicant was still speaking with the Intergraph operator. At their request, she let them in albeit through the back door. They found the deceased’s body in the loungeroom. Shortly thereafter, the applicant was informed by the police officers that she was under arrest for murder of the deceased, was advised of her rights and was conveyed to the Reservoir police station. An audio-taped interview of her was conducted between approximately 5.30 and 6.06 a.m. on 25 September 1997. For various reasons, which are not immediately relevant, the interview had to be interrupted on two occasions. Each time the interview recommenced, formalities such as the applicant’s name, advice as to her rights and so on were repeated so that, in effect, there were three self-contained short interviews commencing at 5.35 a.m., 5.45 a.m. and 5.55 a.m. respectively. The first interview was interrupted by the applicant exercising her rights to call her mother, in the course of which she was overheard by a police officer telling her mother that she had killed the deceased because she got “the shits with him”.
Shortly after 8.30 a.m., the applicant was driven from the Reservoir police station to the Homicide Squad’s offices at St. Kilda Road. Prior to this, detectives from that office (without telling the applicant) recorded a conversation they had with her. The conversation between the applicant and the police officers during the journey from Reservoir to the St. Kilda Road offices was also recorded, again without the applicant knowing that what she said in the car was being taped.
At the trial, the Crown tendered the respective records of interviews at the Reservoir police station and in the car between Reservoir and St. Kilda Road. The applicant’s counsel objected to the records being admitted. It was contended on behalf of the applicant (in ground 1) that his Honour erred in his ruling that the records of interview were admissible.
Not long after the applicant arrived at the Homicide Squad’s offices on 25 September 1997, a short video-taped interview with her was recorded. Not long thereafter the applicant was examined by the Forensic Registrar, Dr. Adie, who found no evidence of recent physical trauma or injury to the applicant. The applicant told the doctor that the previous night she had drunk three 750ml bottles of beer and one bottle of Guinness and, between 4.30 p.m. and 2 a.m., she had taken 20 Normison tablets. She said that at 2 a.m. she took a further six Normison tablets and an anti-histamine tablet. She also told the doctor that she had had only two hours sleep that night. In the circumstances, Dr. Adie advised police that the applicant was not fit to be interviewed until she had at least six hours rest. The applicant then saw a solicitor from the Legal Aid Commission. During a video-taped interview made on the following day, 26 September 1997, when she was accompanied by an independent person from the Public Advocate’s office, she gave “no comment” answers to the substantive questions that were put to her by the police. It is convenient to note at this stage that this Court saw the video-taped interviews and heard the audio-tapes of the other interviews with the applicant. My impression was that, whereas the applicant was relatively alert and did not show signs of illness or discomfort during the video-taped interview of 25 September, during the video-taped interview which was conducted on the following day, when she had been in custody for approximately 24 hours and had been deprived of her medicinal drugs and alcohol, the applicant appeared more tentative and complained of feeling unwell and, in particular, of pains in her stomach.
Alleged failure properly to direct on provocation - grounds 2 and 3
I turn to consider first the second and third grounds of appeal under cover of which it is submitted that his Honour failed sufficiently to direct the jury in respect of the doctrine of provocation as it applied to the applicant and in particular as to the “objective limb of the test of provocation”. I put to one side for the moment the related ground 4 which asserts that his Honour failed sufficiently to direct the jury as to the personal characteristics of the applicant and relate them to the assessment of the gravity of the provocation that was experienced by her.
For the purposes of considering this submission, it is convenient to begin by setting out the relevant passage from the majority judgment in Masciantonio v. R.[2] which, so far as is relevant, summarises the law on provocation.
“Homicide, which would otherwise be murder, is reduced to manslaughter if the accused causes death whilst acting under provocation. The provocation must be such that it is capable of causing an ordinary person to lose self-control and to act in the way in which the accused did. 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.
...
The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard of self-control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self-control. They are not the characteristics of the accused, although when it is appropriate to do so because of the accused’s immaturity, the ordinary person may be taken to be of the accused’s age.
However, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused. Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person’s age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self-control and act in a manner which would encompass the accused’s actions”.
See also Stingel v. R.[3] and R. v. Thorpe (No.2)[4].
[2](1995) 183 C.L.R. 58 at 66-7
[3](1990) 171 C.L.R. 312 at 325-329
[4][1999] 2 V.R. 719 at 724-5
This passage makes it clear that the jury should be told when provocation is in issue that, inter alia, the assessment of the gravity of the allegedly provocative conduct for the purpose of the objective test (which is reflected in the second sentence of the passage), must be made by them having regard to the personal characteristics of the accused. No complaint has been made on behalf of the applicant about his Honour’s charge on provocation insofar as it dealt with the elements of the subjective test. Thus the critical question, in this branch of the appeal, is whether the jury were sufficiently told by his Honour that they should take into account the personal characteristics of the applicant when assessing the gravity of the provocation for the purpose of the objective test. For reasons given by me later, I am of the view that, in the circumstances of this case, this aspect of the law of provocation was not sufficiently explained by the learned judge.
That personal characteristics of the applicant should have been taken into account by the jury for the purposes of both tests was obviously of critical importance to her case, bearing in mind that the only real issue in the proceeding was provocation and the applicant was possessed of mental and other personal circumstances which were significantly different from those of an ordinary person. It is in this context that his Honour’s charge should be analysed. It is to be borne in mind that the law of provocation involves difficult intellectual concepts which are not easy for a judge to convey to the jury by way of a charge and, no doubt, are difficult for a layman to grasp. In the context of the objective test, in particular, it is necessary to separate the gravity of the allegedly provocative conduct (assessed by reference to the personal circumstances of the accused) from the powers of self-control of the ordinary person. Such a distinction may not be easy for a jury to understand and, therefore, particular care is required to ensure that the charge adequately conveys these concepts to them. The “intellectualising” of the relevant tests for provocation (as Hedigan, A.J.A. described it in R. v. Tuncay[5]) has not escaped criticism: in Masciantonio[6] McHugh, J. described the objective test as containing a “curious dichotomy”; see also Green v. R.[7]. Consequently, it is critical that the jury be given as much assistance as possible by the trial judge in understanding the law of provocation and relating those concepts to the facts of the case.
[5][1998] 2 V.R. 19 at 30
[6]at 72-4
[7](1997) 191 C.L.R. 334 at 405-6 per Kirby, J.
I now turn to examine his Honour’s charge insofar as it relates to provocation. Shortly after the learned judge began his charge, being not long after the luncheon adjournment on 28 April 1999, he turned to provocation and dealt with the objective test. His Honour said:
“The provocation must be such that it is capable of causing an ordinary person to lose self-control and to act in the way in which the particular accused acted. That aspect of the provocation is what [the prosecutor] described as the objective aspect. Objective in the sense that one looks not at the particular accused but at the ordinary person.”
A little later, his Honour said:
“So the objective element is that the provocation must be such that it is capable of causing an ordinary person to lose self-control and to act in the way in which the particular accused acted.”
His Honour then explained the elements of the subjective test. Almost immediately thereafter, the jury retired for a short break in the course of which they sent the following question to his Honour:
“Do we consider Ms Curzon’s personal characteristics/traits?”
The question obviously reveals that the jury were unclear whether, and if so how, they were to have regard to the applicant’s personal characteristics for the purpose of determining whether the Crown had rebutted the excuse of provocation. It should be mentioned that to that point in the charge, the jury had not been told that, when considering the gravity of the provocation for the purpose of the objective test, it should do so having regard to the relevant characteristics of the applicant.
Before proceeding further with the analysis of the charge it is convenient to deal with a discrete matter. As will be seen later, his Honour told the jury in a subsequent part of his charge that, when considering the ordinary person, they might have regard to the applicant’s sex and (psychological) maturity. The Crown acquiesced in both those parts of the charge on the footing that, in the circumstances of the case, they were favourable to the applicant. I would not wish to prevent that course being taken at a re-trial if those concessions are again thought to be realistic or humane. I make only two observations. First, in Stingel the High Court expressly rejected sex as a factor in characterising an ordinary hypothetical person[8]. To say that it was favourable to the applicant to acquiesce in a charge that spoke of sex as well as age may be to make an assumption that women have lower powers of self-control than men in the circumstances in which the applicant allegedly found herself. I take the matter no further except to say that both the advantage to the applicant and the validity of the assumption invite further scrutiny. Secondly, by leaving it open to the Crown again to acquiesce in a charge in terms of psychological maturity rather than chronological age, I am not to be taken as deciding that that is the law. It may be a humane and practical concession in the circumstances of this case but the principle of equality before the law, as explained by the High Court in the cases on provocation, casts doubt on whether it is technically correct.
[8]at 329
Continuing with the chronology of the provocation charge, after the jury returned following the short break, the learned judge told them that he hoped that what he was about to tell them would “clear up the matter” (obviously referring to the question which the jury had posed). His Honour again explained to them the objective and subjective tests and emphasised that if they were not satisfied beyond reasonable doubt that the accused was not in fact provoked, they then had to consider the objective test. His Honour then dealt with the elements of that test. In the course of doing so he said:
“Now, different circumstances might provoke different people in different ways. And you are entitled to have that fact in mind when looking at the provocation in question and when assessing the way an ordinary person would react to it. Assume that you are a six foot five red-headed Scotsman and you are in a motel and someone comes along and calls you a silly black dwarf. Now, that accusation you might think would bounce off the ordinary six foot six red-headed Scotsman because it’s so obviously untrue and it might not cause any real offence. On the other hand, if you were black and a dwarf, an insult of that kind might very well cause you real anger, and you are entitled to take those kind of circumstances into account when assessing what the ordinary person would do, how the ordinary person would react to the particular provocation.”
The example given by his Honour involving the Scotsman and the dwarf was the only occasion during his charge when his Honour explained to the jury that, in assessing the gravity of the provocation for the purpose of the objective test, they were “entitled” to take into account the personal characteristics of the applicant.
Shortly after that, the jury retired for the day. In response to his Honour’s asking counsel whether they had any exceptions, the prosecutor expressed his concern that in answering the jury’s question in the way he did, his Honour may have left them with the impression that “they may use the characteristics personal to the accused when considering the objective test”. I assume that, when speaking of the “objective test”, the prosecutor was referring to the make-up of the ordinary person. If, however, he was speaking of the assessment of the gravity of the allegedly provocative conduct of the deceased, he had no basis for complaint, because such an assessment must be made having regard to the characteristics personal to the applicant. Be that as it may, the prosecutor went on to suggest that an aide memoire might be provided to the jury for their assistance. His Honour agreed with that proposal, no doubt at least partly because, as he said to counsel on the following morning, in his view, the jury were confused about when they could have regard to the personal attributes of the applicant. His Honour said that he was not confident that the jury had yet understood “how properly to use” the characteristics of the accused and that he did not think that the jury was in a position to know “whether to use those characteristics only on the subjective issue or on both”. His Honour was in a better position to make that assessment than this Court.
On the following morning, counsel handed to his Honour their proposed aide memoire which was a document of a few paragraphs. The critical sentence in that document (“the critical sentence”) was set out in the third last paragraph and was in the following terms:
“When considering the gravity of the provocation and whether the accused lost control you are entitled to take into account her personal attributes”.
For completeness, I also set out the next one sentence paragraph of the document:
“The ordinary person is one of the same sex and of the same maturity[9] as the accused”.
From the discussion in relation to the document, it would appear that his Honour had prepared a like document but in longer form and had made it available to counsel. Discussion ensued between his Honour and counsel principally concerning his Honour’s document with counsel favouring their formulation which they described as setting out the “minimalist position”.
[9]See [20].
When the aide memoire was first produced to his Honour by counsel, the critical sentence related only to the subjective test. It read: “When considering whether the accused lost control .. [etc.]”. But towards the end of the discussion, the sentence was amended to add the words “the gravity of the insult and” after the words “When considering” (and later, “insult” was changed to “provocation”). It may be assumed that the change was made in recognition of the requirement that the personal characteristics of the applicant are to be taken into account in assessing the gravity of the provocation as a preliminary to both tests. In the end, his Honour said that if both counsel were content with the document, he would be “happy for it to go to the jury”. It seems clear enough that his Honour intended that the critical sentence convey to the jury that the personal characteristics of the accused could be taken into account in assessing the gravity of the provocation for the purposes of the subjective and objective tests. The question is whether, in all the circumstances, it did so.
Once the document was handed to the jury, his Honour, in effect, explained to them that, given the complications surrounding the law of provocation, the aide memoire was being given to them so that they did not have to, as his Honour put it, “rely upon either your memory or your notes”. His Honour then read the aide memoire to the jury and told them, inter alia, to consider it “in the context of the matters that I put to you yesterday”. The learned judge went on to say that there were two points to which he wanted to draw the jury’s attention. The first was to correct his use of “would”. The second point was made by his Honour in the following terms:
“The second point arises from the third last paragraph, the one which begins, ‘When considering the gravity of the provocation’. It is at that point, when considering the gravity of the provocation and whether the accused lost control, that you are entitled to take into account her personal attributes. But when you are looking at the ordinary person, the only personal attribute which is relevant is that of sex and maturity.” [Emphasis added]
After that, his Honour summarised the evidence.
Thus the question arises whether the aide memoire and his Honour’s exposition of it to the jury sufficiently conveyed to them that they were to take into account the applicant’s personal characteristics in assessing the gravity of the provocation as a preliminary to the objective test.
In considering this matter, it is necessary to bear in mind the circumstances in which the aide memoire was created and ultimately left with the jury. First, the jury had expressed some confusion or at least uncertainty as to whether they could have regard to the applicant’s personal characteristics and, if they could, for what purpose. It will be recalled that they sought guidance on this issue after the first part of his Honour’s charge. Notwithstanding his Honour’s explanation to the jury thereafter of the concepts of the law of provocation and the issues which they would have to address, his Honour and the prosecutor (albeit for different reasons) were concerned at the conclusion of the day’s hearing that the jury had still not fully understood how they might take into account the personal characteristics of the applicant when deliberating on the issue of provocation. Next, it seems that in order to meet that difficulty, his Honour considered it appropriate to give the jury the aide memoire which, he said, contained a “very short exposition of the law relating to provocation”. Although the jury were told that they should put it in the context of what they were told by his Honour on the previous day, it seems clear that the aide memoire became central to his Honour’s charge on provocation: the jury were effectively invited by his Honour to use it in place of, or at least alongside, their notes and memories of his earlier charge. Moreover, the remainder of his Honour’s charge on provocation was made principally by reference to that document.
As I have mentioned previously, it is apparent that his Honour intended that the critical sentence in the aide memoire, and his explanation of it, should convey to the jury that they were “entitled” to take into account the applicant’s personal characteristics as a preliminary to both the subjective and objective tests. His Honour may well have been justified in that view if the document had been given to persons familiar with the principles of provocation as laid down in, for example, Masciantonio. But the jury had no such knowledge and, in particular, they were not told in terms that the applicant’s personal characteristics should be taken into account in assessing the gravity of the provocation as a preliminary to the objective test. In the circumstances, the jury were likely to have given the words of the critical sentence their plain and ordinary meaning, namely, that they were entitled to take into account the applicant’s personal characteristics when they considered (together) the gravity of the provocation and whether the applicant in fact lost self-control. They would know from what his Honour had previously told them and from the earlier part of the aide memoire that such a consideration would be undertaken by them in the context of the subjective test. They would most likely regard that sentence as telling them that the personal characteristics of the applicant would be taken into account only in that context. Such an interpretation was, in effect, reinforced by his Honour when, after referring to the sentence in question, he said that it was “at that point”, namely, when considering the gravity of the provocation and whether the accused lost self-control, that the jury were entitled to take into account the applicant’s personal characteristics. They would or were likely to have understood that as a reference to the subjective test. His Honour then effectively contrasted that with the consideration of the objective test. “But” said his Honour, “when you are looking at the ordinary person, the only personal attribute which is relevant ... is that of sex and maturity”. Such an observation was likely to have confirmed to the jury that the applicant’s personal characteristics could be taken into account in the context of the subjective test.
Thus, given all the circumstances to which I have referred, in my view, the jury was likely to have been misled by the aide memoire into believing that the personal characteristics of the applicant could be taken into account only when assessing the gravity of the provocation as a preliminary to the subjective test and that no such assessment was to be made in respect of the objective test.
In reaching this conclusion I am mindful of the fact that his Honour told the jury that the aide memoire should be read by them in the context of what he had told them on the previous day about the law of provocation (when he gave the jury the example of the Scotsman and the black dwarf). But the problem is that, as I have mentioned previously, the document was central to his Honour’s charge and the jury were invited to use it in place of, or at the least alongside, their notes and memories. In any event, there was a real doubt, according to his Honour, whether the jury understood what they were told on the previous day as to the circumstances in which they could have regard to the applicant’s personal characteristics for the purpose of assessing the gravity of the provocation. Furthermore, almost immediately after telling the jury to put the document in the context of his earlier charge, the learned judge explained the meaning of the critical sentence in a way which probably conveyed to the jury that it related only to the subjective test. This was likely to have supplanted much of his earlier charge or confused the jury to the point where they would not have been clear whether they could take into account the personal circumstances of the applicant for the purposes of the objective test. Thus, his Honour’s reference to his earlier charge was unlikely to have resulted in the jury interpreting the critical sentence as dealing, inter alia, with the objective test.
The applicant was entitled to have the jury assess as a preliminary to the objective test the gravity of the provocation by reference to her personal characteristics including her mental state, her lack of verbal skills, her state of health and her past sexual and other relationships with the deceased. In my view, for the reasons I have given, that was not adequately explained to the jury and the trial miscarried. It follows that, in my opinion, there is a real risk that a miscarriage of justice occurred in the present case. It also follows that, in my view, grounds 2 and 3 of the application for leave to appeal against conviction have been made out with the result that, in my opinion, the leave sought should be granted, the conviction quashed and a new trial ordered. It is therefore unnecessary to deal with the application for leave to appeal against sentence.
I mention for completeness that the critical sentence in the aide memoire contains another significant error in that it speaks of the jury being “entitled” to take into account the applicant’s personal attributes when considering the gravity of the provocation. It is clear, however, that when assessing the deceased’s allegedly provocative conduct, whether for the purpose of the subjective or the objective test, the jury must have regard to the relevant personal characteristics - Masciantonio[10]; Thorpe (No.2)[11]. But, in view of my conclusion as to the charge, nothing turns on this error.
[10]at 67
[11]at 725
Mr. Salek who appeared with Mr. Michell for the respondent, submitted that the aide memoire was given to the jury with the consent of both counsel and no relevant exception was taken by the applicant’s counsel in relation to his Honour’s charge, so that it is now too late to argue that the jury have been relevantly misled by the document. But the short answer to Mr. Salek’s submission is that, although the failure by counsel to object is a significant (and often a very significant) factor in deciding whether leave to appeal should be granted, it is not determinative of the issue. The court always has the flexibility, where the interests of justice demand, to order a new trial notwithstanding the conduct of the case by the applicant’s counsel[12]. Provocation was the principal issue at the trial and the applicant’s personal characteristics were crucial to that issue. The jury may have thought that conduct that would not have been gravely provocative to an ordinary person may have been gravely provocative to someone with her limitations. (I interpolate that it is for that reason that the proviso to s.568(1) of the Crimes Act 1958 is inapplicable.) In all the circumstances, the agreement by the applicant’s counsel to put the document before the jury does not disentitle the applicant from challenging the adequacy of the charge.
[12]R. v. Clarke & Johnstone [1986] V.R. 643 at 661-662; R. v. Hickmet (1988) 33 A.Crim.R. 84 at 89 per Phillips, J. (as the learned Chief Justice then was); R. v. Gallagher [1998] 2 V.R. 671, 681; R. v. Wright [1999] VSCA 145 at [16-20].
Since writing this judgment I have had the advantage of reading in draft the reasons for judgment prepared by the learned Chief Justice. I wish to associate myself with the observations made by his Honour at [4].
Grounds 1 and 4
In light of my conclusion in relation to grounds 2 and 3, it is unnecessary to consider ground 4. It is also strictly unnecessary to consider ground 1 which is concerned with challenging the admissibility of the applicant’s records of interview by the police. I do note, however, that in the event of a re-trial, it is very likely that, as was the case with the trial with which we were concerned, the principal issue that will be raised for the jury’s consideration will be that of provocation. If that is so and the applicant again does not give evidence, the only material on which the excuse of provocation could be raised on her behalf is that which is contained in the records of interview in which she describes the deceased’s conduct towards her. If the applicant’s taped telephone conversation with the Intergraph operator is admitted into evidence, but the records of interview are excluded, two consequences are likely to follow. One is that the applicant may not be able to raise provocation as an excuse and secondly, it is likely that she will be convicted of murder on the strength of the evidence that was led in this case, particularly the conversation with the Intergraph operator, even if the records of interview are excluded. Thus, if provocation is going to be raised by the applicant on any re-trial, it is difficult to see how that could take place if there is a successful objection made on her behalf to the admissibility of the records of interview. Having regard to all those matters, it may be that no objection will be taken at the re-trial to the admissibility of the records of interview.
Conclusion
To reiterate, in my opinion, leave to appeal against conviction should be granted, the appeal should be allowed, the conviction quashed and a new trial ordered.
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